The Issue Whether Respondent violated Sections 400.022(1)(l), 400.022(1)(o), and 400.147(4) and (7), Florida Statutes, and Rules 59A-4.1288, 59A-4.106(2), and 59A-4.108(4), Florida Administrative Code, for which a fine is authorized under Sections 400.22(3), 400.102, 400.121, 400.19(3), and 400.23(8)(a), and if so, what penalties should be imposed. (DOAH Case No. 01-4129); Whether a moratorium on admissions was appropriately ordered by Petitioner against Respondent on August 10, 2001, (DOAH Case No. 01-4128).
Findings Of Fact AHCA is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Respondent Oakview operates a licensed nursing home at 300 N.W. 1st Avenue, Williston, Florida. The standard form used by AHCA to document survey findings is known as a "2567" form, titled "Statement of Deficiencies and Plan of Correction." A nursing home facility deficiency is noted on the 2567 form and referred to as a "Tag." The survey of Respondent's facility on May 9, 2001, arose out of a complaint. Respondent Oakview was cited for Tags F224, F309, and F490. Each of these three Tags was classified as a Class III deficiency. No Class II or Class I deficiencies were charged. No fines were assessed by the Agency, and the facility did not dispute the allegations. Also, no facts related to the May 9, 2001, survey are alleged as the basis for the Administrative Complaint herein. The survey of June 15, 2001, also was initiated as a result of a complaint. Respondent was cited for four Tags: F223, F226, F279, and F324. Tags F223 and F226 were classified by the Agency as Class II violations. Tags F279 and F324, were classified as Class III violations. No fines were assessed by the Agency. The facility's Plan of Correction indicated that the deficiencies would be corrected by July 30, 2001. Oakview disputed the allegations contained in the June 15, 2001, survey report, through the Informal Dispute Resolution Process (IDR). The IDR is a federal dispute resolution process whereby a facility has an opportunity to present information informally which may cause the state agency to delete, sustain, or modify the deficiency cited in a survey. As a result of the IDR, Tag F223 was changed to F224. The IDR panel sustained the remainder of the Tags and the classification for each. On July 30-31, 2001, the Agency initiated a follow-up survey. This "re-visit" was to determine if deficiencies noted in the prior complaint surveys of May 9, 2001, and June 15, 2001, had been corrected. The surveyor reviewed quality indicators (statistics) and the two prior surveys in order to investigate whether Respondent Oakview had timely come into compliance with state and federal regulations. As a result, Respondent was cited on July 30-31, 2001, with five Tags: F223, F225, F251, F324, and F490. Tags F223, F324, and F490 were classified as Class I violations. Tags F224, and F251, were classified as Class III violations. Subsequently, by administrative action, the Agency changed Tag F223 to F224. The classification of the Tag remained as a Class I violation. Legislation effective May 15, 2001, defines Class I deficiencies/violations as situations in which immediate corrective action is necessary because they have caused, or are likely to cause, serious injury, harm, impairment, or death to a resident receiving care in that facility. Class II deficiencies compromise the resident's ability to maintain or reach his or her highest practicable physical, mental, or psychosocial well-being. Class III deficiencies are those deficiencies that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practical physical, mental, or psychosocial well- being. "Class" or "classification" relates to the nature of the deficiency. Also, effective May 15, 2001, each classification must also be designated, for purposes of assigning a fine, as having an "isolated," "patterned," or widespread" scope. "Scope" addresses the pervasiveness of the deficiency designated as Class I, II, or III. See Section 400.23(8), Florida Statutes. In this case, the parties do not so much dispute that deficiencies were found, but the controversy is as to the nature (class) and scope which should have been assigned. June 15, 2001 Survey: Generally The June 15, 2001 Survey is significant because the Tags cited therein give rise to AHCA's assertion that, pursuant to Section 400.023(8)(a), Florida Statutes, the Agency may double the fine assessed relevant to the July 30-31, 2001 Survey. Agency Surveyor Cheryl Williams was the sole surveyor on the June 9, 2001, survey. The survey document dated June 15, 2001, named Tags F224 (formerly F223), and F226, which were classified as Class II deficiencies. (See Findings of Fact 5-7). June 15, 2001 Survey: Tag F224 Based on interviews of staff, a review of resident clinical records, and the "unusual incidents" tracking system, the surveyor cited Tag F224, as a Class II deficiency, for failure to develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property, because the facility failed to protect each resident from physical and sexual abuse as required by law. The evidence is clear that written policies and procedures were in place at Oakview on June 15, 2001. However, two incidents must be examined to determine if the written policies and procedures were adequately implemented. On June 9, 2001, Resident 2 (a 72-year-old male diagnosed with dementia and cognitive and memory impairments) and Resident 1 (a 71-year-old female with a form of dementia and a history of socially inappropriate, i.e., sexually aggressive behaviors) were spotted by a Certified Nursing Assistant (CNA) in Resident 1's bed at approximately midnight, during regular rounds. The incident was written up in nurses' notes and tracked through the incident tracking system as "intercourse" and/or "sexual assault." It was reported by Oakview to the Abuse Hotline, as the facility is required to do, but with an eleven- hour delay. Oakview also reported the incident to the Sheriff's Department, which investigated and declined to prosecute. It became a "three-day wonder" in the local newspaper. The evidence concerning this incident does not support AHCA's allegation that the incident amounted to a "sexual assault," or even intercourse. When discovered, the couple were in Resident 1's bed. Resident 1 was not resisting the male resident physically or verbally. Resident 2's pants were down to his knees, and he was attempting to pull them up. Resident 1 was raising her clothing, exposing herself from the waist down. Resident 1's hips were elevated, with her feet and shoulders on the bed. The male resident, Resident 2, remarked, "I'm so sorry," as he exited the room. When Resident 2 was removed, Resident 1 described him as "such a nice man." A medical examination of the female resident the next day did not reveal any physical trauma associated with sexual assault, and a psychiatric examination two days later did not reveal any distress as a result of the incident. Immediately after the sexual incident, Respondent Oakview placed the male resident on a 15-minute cyclical observation schedule for several days during the investigation, and moved the residents to rooms more distant from each other. Originally, they had been across the hall from each other. There is no evidence of any additional contact between these residents, although both were ambulatory. Oakview also investigated the matter by interviewing staff and family members of the residents. Since her admission to the facility on May 15, 2001, there had been several times when Resident 1 had made sexual advances toward male residents. She was described as "hyper-sexual and disinhibited [sic]," frequently attempting to climb into bed with male residents, touching males inappropriately, and making sexually inappropriate remarks towards males. During the investigation, Resident 1's husband explained that she had been sexually active up until her admission, and he expressed regret if the June 9, 2001, incident were her fault. Resident 2, after admission to Oakview on May 23, 2001, had also acted "inappropriately" by masturbating in the presence of female CNAs who were giving him a shower. This conduct was recorded in facility records and occurred during the initial care planning period following his admission. As a result of this conduct, his care plan identified his "sexual [behavior] inappropriate towards staff" (emphasis supplied) and he was assigned two CNAs for bathing purposes. Social services progress notes dated June 10, 2001, revealed that Resident 2 had been sexually inappropriate to the nursing home staff at the dialysis center the day previous to the sexual incident with Resident 1, at midnight on June 9, 2001. Prior to the June 9, 2001, sexual incident with Resident 1, there were no indicators that Resident 2 had ever exhibited any sexually or socially inappropriate behavior toward other residents. In hindsight, it may have been unwise to place Resident 1 near any male patient's room, but the June 9, 2001, sexual involvement of these residents seems to have occurred very shortly after both arrived and when both were assumed to be asleep in separate rooms. It was not to be expected based on the facility's experience with them in the interim, and the entire episode seems to have been mutually consensual. Also, facility staff appropriately and effectively intervened as soon as anyone was aware of the June 9, 2001, sexual situation. When the surveyor recorded this event as a tag, she was not aware the male also suffered from dementia, as did the female, and that element weighed in her decision to cite the facility. The second incident cited by AHCA under Tag F224 in its June 15, 2001, survey document is a confrontation which had occurred between Resident 3 and Resident 4 on June 14, 2001. Resident 4 had been identified by Oakview as an aggressive and angry resident who had a tendency towards confrontation with all other residents. His aggressive characteristics had been care planned and interventions had been developed for his aggressive behavior. Staff were aware of the planned interventions and that his conduct would require constant intervention and redirection by staff. Accordingly, staff carefully monitored Resident 4's whereabouts and proximity to other residents. The confrontation on June 14, 2001, occurred when the wheelchairs of Residents 3 and 4, who lived on opposite wings of the facility, came in contact as they came around a hallway corner from different directions. Usually, staff could predict when Resident 4 would be returning from the dining room and station themselves to dissuade confrontations with people he met on the way. On this occasion, Nurse Sokevitz came around the corner just a few seconds late. Resident 4 had already struck- out at Resident 3, initiating a territorial dispute. Staff immediately intervened, and the residents were separated and taken to different areas of the facility. Neither resident suffered any serious injury. There were no other confrontations between these two residents. June 15, 2001 Survey: Tag F226 Tag F226, as a Class II deficiency, was assigned by the surveyor because the "intercourse" incident was not reported by Oakview to the Abuse Hotline for approximately 11 hours, whereas the facility's plans in place called for immediate reporting. The evidence suggests that the Abuse Hotline, as part of its protocol, refuses to accept a complaint by a third party (the facility) of alleged resident-on-resident abuse, and that everything that could be done to "protect" each resident was being done between discovery of the residents in bed together and successful reporting of the incident. June 15, 2001 Survey: Tag F324 This survey also charges Tag F324, as a Class III deficiency, because the facility allegedly did not ensure that each resident received adequate supervision and assistance devices to prevent accidents, and again is based on Resident 1 (female) having been "sexually assaulted" by Resident 2 (male) on June 9, 2001, and Resident 3 having been physically assaulted by Resident 4, on June 14, 2001, and also upon an allegation of insufficient staff. July 30-31, 2001 Survey: Generally Agency surveyor Jan Rebstock was the sole surveyor for the July 30-31, 2001 Survey. Ms. Rebstock's testimony focused on Tags F224 (formerly Tag 223), F324, and F490, which formed the respective bases of paragraph (3)(a), (b), and (c) of the Administrative Complaint. July 30-31, 2001 Survey: Tag F224 Based on resident interviews, clinical record review, resident observation, staff interviews, and review of the facility's "fall" tracking tool, AHCA alleged that Oakview did not take prompt and/or adequate measures to assure that residents were protected against verbal abuse in one case (Resident 8), resident-on-resident abuse in one case (Residents 1 and 2), and potential repeat physical (sexual) abuse in another case (Resident 6). In a resident interview during the July 30-31, 2001, survey, Resident 8 stated that "I have accidents" and that a nurse who worked on the weekends called her "pissy" and "stupid" and yelled at her when she was not in her room for medications. The resident also stated that such remarks hurt her feelings and that she had reported the occurrences to the Director of Social Services. The Director of Social Services told the surveyor that the resident had spoken to her on Tuesday, July 24, 2001, about verbal abuse on a different subject by the same weekend nurse. The allegation of verbal abuse had not been investigated as of Monday, July 30, 2001. The surveyor's concern was that the six-day delay in investigation created the potential for repeated verbal abuse. The delay from Tuesday to Monday is a considerable delay and had the effect of exposing Resident 8 and other residents to further abuse by the nurse on the intervening weekend. The facility's excuse for the delay was that its Director of Social Services had been out of the facility on sick leave for most of the intervening time. It is probable that it was necessary to interview the nurse before firing her, but the Director could have assigned the investigation to someone else before going home sick. The offending nurse was, in fact, fired August 1, 2001, after the survey pointed out the problem. The surveyor read the records as indicating that Resident 6 (apparently the sexually active female No. 1 of June 9, 2001), and not the male, had previously been moved to another part of the facility, as part of the corrective action plan in response to her alleged sexual abuse by male Resident 7 (the sexually active Resident No. 2 of June 9, 2001), and then the female was briefly removed to a hospital and returned to the Oakview facility. On July 30, 2001, during a tour of the facility, the surveyor observed Resident 6/1's room was only a few doors down from Resident 7/2's room. Resident 7/2 was now documented as having "sexually assaulted" the female on June 9, 2001. Although the undersigned accepts that, in fact, the facility considered the male the aggressor and moved him, there is confusion in the two surveys as to which gender allegedly sexually assaulted the other and which had to be removed to another bedroom. The testimony attempting to identify the room numbers of Residents 6/1 and 7/2, also is less than clear. However, a schematic of the facility does not reveal that these randy Septuagenarians were assigned to rooms near each other as of July 30-31, 2001. While they were assigned respectively to rooms 76 and 79 at the time of the original incident on June 9, 2001, the proximity of their rooms on July 30-31, 2001, does not appear to be a problem. By July 30-31, 2001, Ms. 6/1 was also medicated to reduce agitation. Based on clinical record review and facility fall tracking records, Petitioner AHCA also alleged under Tag F224, that Oakview did not provide adequate supervision and/or effective interventions to prevent injury from resident-on- resident physical abuse for Residents 1 and 2 on July 20, 2001, as more fully described below, under Tag F324. AHCA contends, under Tag F224, that the facility's failure to maintain interventions, such as keeping Residents 6/1 and 7/2 apart, created the potential for repeat physical and sexual abuse and that the failure of the facility to timely investigate both the allegations of verbal abuse and the incidents of physical and sexual abuse created a potential for repeat abuse and was a serious threat to the health and safety of the residents at the facility. July 30-31, 2001 Survey: Tag F324 Clinical records revealed that on July 17, 2001, Resident 2 and Resident 3 had been found by nurses to be fighting with each other in the secured unit. The care plan for Resident 2, dated May 30, 2001, documented a need to monitor Resident 2 for aggression against other residents and staff. Clinical records review of Resident 1 also revealed that on July 20, 2001, Resident 1 had two altercations, within approximately an hour of each other, with Resident 2 on the secured unit patio, and these altercations resulted in Resident 1's sustaining a laceration to the left side of his "skull" and bruising to the ribs, requiring his transfer to an emergency room. In the emergency room, he was evaluated and had sutures to his scalp, but he was not seriously enough injured to be admitted to the hospital. There is no evidence of other altercations between these two residents. Surveyors faulted staff for allowing Residents 1 and 2 to get back together within less than an hour. These two July 20, 2001, altercations also were part of the F224 Tag, above. Under Tag F324, Oakview is charged with failing to implement effective and timely intervention of Resident 2, known by the care plan and July 17, 2001 incident, for aggressive behavior, and failing to provide adequate supervision within the secured unit so as to prevent the subsequent altercations between Residents 1 and 2 on July 20, 2001, the second of which resulted in serious injury to Resident 1. Testimony of Ms. Sokevitz, L.P.N., who was on the scene of the July 17, 2001, altercation, shows that incident was no more than a confrontation with threats and fist-waving by Resident 2 at Resident 3, who also was easily aggravated. At that time, Resident 2 was removed to the patio and counseled. As an extra precaution, Resident 3 was moved out of the secured unit to another wing overnight. Resident 1 forgot what happened, and Resident 2 was able to feel less belligerent after counseling. She explained that monitoring, intervening, and redirecting Resident 2 was a constant effort for staff. Clinical record review also revealed that Resident 8 was at risk for falls. Care plan documents dated May 1, 2001, indicated that the resident should not be allowed outside alone and was to wear a "wander guard," an electronic device worn on the arm to alert staff to the whereabouts of a resident and to prevent that resident from leaving the facility unattended. However, a wander guard is not fail-safe. It is possible for some persistent residents to disable the wander guard system by removing the arm band. Nurses' notes on May 4, 2001, documented that Resident 8 was found lying outside on the facility's west wing patio, apparently having slid from a chair. Notes dated May 24, 2001, document that Resident 8 was found on her back on the west wing patio, and was then transported to a local hospital for evaluation. Another fall on the patio was documented as her being found there on July 10, 2001. Notes on July 11, 2001, document that the resident lost balance and fell outside on the patio while trying to open the door. On July 12, 2001, the resident complained of severe pain when moving her shoulder. Subsequent x-rays revealed that she had a broken arm. There is no evidence besides the connotation of the words in the notes of "found" and "apparently" to support a belief that Resident 8 was alone on the patio when she fell on May 4, May 24, and July 10, but that is sufficient. The same notes also suggest Resident 8 was not alone on July 11, 2001, when she fell while opening the door. On July 31, 2001, the surveyor observed Resident 8 not wearing a wander guard as called for in her care plan. A review of the clinical records not available to the surveyor revealed that the wander guard had been discontinued by doctor's order on July 25, 2001, on the 11:00 p.m. to 7:00 a.m., shift. Oakview is charged with failing to implement Resident 8's care plan by providing adequate staff supervision of her while she was on the patio during the 3:00 p.m. to 11:00 p.m. shift, which resulted in repeated falls and subsequent injury. The concern that the surveyor expressed was that use of the wander guard and closer supervision by a one-on-one methodology when Resident 8 went to the patio "may have prevented" her falls and injuries. Resident 8 was an alert and oriented 40 years' old independent woman, with no significant cognitive impairments, who was identified by the facility as being at risk for falls. The facility planned various interventions for Resident 8, including one that she should "never go outside alone and alert nurse when going outside to smoke." She was also to use a wander guard system to alert staff when she was leaving the building, but the wander guard was later discontinued, because she was not an elopement risk and was entitled to come and go from the facility at liberty. In fact, Resident 8 regularly left the facility, signing herself out as "responsible person." The care plan was that Resident 8 should "never go outside alone." Testimony indicated that Resident 8 was supposed to notify staff when she was going outside. Apparently, she was unreliable in this regard. The facility submits that it could not force Resident 8 to notify staff or prevent her from coming and going as she pleased to the patio. Since four falls occurred while Resident 8 was ostensibly wearing a wander guard, one has to guess if the wander guard was not working or if staff were alerted by the wander guard and did not move fast enough to the patio to prevent these falls on May 4, May 24, July 10, and July 11, 2001. If staff were present on July 11, 2001, that still had not prevented the fall while opening the door. Since the wander guard seems to have had no effect on preventing the four falls, its discontinuance on July 25, 2001 was not unreasonable, for the reasons stated in Findings of Fact 45-46. The surveyor did not suggest that the facility was required to be an absolute insurer that Resident 8 not fall, but felt that someone being with her or the wander guard in place "might have" prevented the falls. Since all Resident 8's falls occurred on the patio, and she did not alert staff when she was going out there, the facility's remaining options come down to either a wander guard, which had proven ineffectual; constant one-on-one monitoring of Resident 8's location by a staff member; or stationing a staff member on the patio at all times. Due to the personnel and cost-efficiency problems inherent in 24-hour per day, one-on-one monitoring of residents, the Agency seems over-critical of the treatment of Resident 8 within Tag F324. Also cited under Tag F324 is the loss and recovery of certain patients. Clinical record review by the surveyor of cognitively impaired residents' records revealed that Residents 10, 11, and 12 left the facility during the 3:00 p.m. to 11:00 p.m. shift, without staff being aware that they were absent from the facility. Nurses' notes for Resident 12 document that the resident had attempted to leave the facility on May 8, 2001. The need for a wander guard because of the elopement risk was noted. The wander guard was in place on May 28, 2001, and on June 11, 2001, but on June 13, 2001, Resident 12 walked out the front door of the facility after supper, sometime around 5:45 p.m. The Williston police were notified. Resident 12 was found by the police a few blocks away from the facility and returned. Apparently, the resident was not wearing a wander guard when found. Resident 10 (female) is severely cognitively impaired. Her care plan indicated that she needed a wander guard to alert staff of any attempt at elopement. Her care plan also provided that facility staff were to assist her with ambulation and transfers (getting in and out of chairs, etc.), and to monitor her whereabouts frequently. On June 16, 2001, nurses' notes document that Resident 10 apparently went out the door by the dining room, which is near the front entrance, and was later located in a neighbor's yard. Her wander guard was noted to be missing. She was also missing from the facility's East Unit, according to nurses' notes, on July 23, 2001. She was eventually located in a male resident's bathroom, asleep on the toilet, apparently unharmed. Resident 11 is severely cognitively impaired. The care plan indicates that he needed to be monitored every shift, daily. Nurses' notes on June 18, 2001, document that Resident 11 eloped from the facility while wearing a wander guard. He was found by the Williston Police Department and returned to the facility unharmed. The resident's wander guard simply did not go off. There was no indication as to how long the resident was missing because the last nursing note was made at 2:30 a.m., on June 18, 2001. On July 25, 2001, nurses' notes documented that Resident 11 was twice found wandering outside the facility and that staff attempts to redirect his behavior were unsuccessful. The Respondent is charged with failing to provide adequate supervision to prevent cognitively impaired residents from leaving the facility unattended and unnoticed. This was perceived as a serious threat to the health and safety of the residents at the facility. Consistent monitoring of residents is the standard for preventing elopements. Wander guards are an adjunct to that monitoring. This facility also uses television cameras at every door to prevent elopements. While wander guards and television cameras are not infallible, the number of elopements reported here is excessive, based on the sample number of files reviewed. Either the facility is not maintaining the effectiveness of its wander guards, or it is not monitoring residents sufficiently to keep wander guards on them. The July 30-31 Survey: Tag F490 AHCA alleged that, based on clinical record review, staff interview, review of the facility abuse policies and procedures, and review of the fall tracking tool, the facility's administration was not ensuring, that incidences of alleged and actual abuse are thoroughly investigated and documented in accordance with facility policy; that staff immediately report alleged incidences of abuse in accordance with facility policy to enable prompt investigation and abuse prevention; that corrective action/interventions are taken and maintained to prevent further resident abuse; and that there is adequate staff supervision to keep residents safe from harm. Facility policy is that all suspected verbal and physical abuse are to be investigated immediately, including assessing the resident, interviewing staff and witnesses, and notifying resident families and regulatory agencies as appropriate. Additionally, all employees are to be trained in identifying, assessing and reporting potential victims of alleged or suspected abuse at the time of hire, and annually thereafter. On July 30, 2001, the facility's Staff Development Coordinator stated to the surveyor that the last annual abuse training had been given on June 15, 2000. However, in testimony, the surveyor admitted that she had also learned, during the survey, that on July 27, 2001, staff received in-service instruction on dealing with "disruptive behavior." Interviews of facility management at the July 30-31, 2001, Survey revealed that there was no available duty description for the Director of Social Services position. The Administrator thought the Director of Social Services was responsible for "abuse coordination," and the Director of Social Services thought the Director of Nursing was responsible. The facility policy document states "the Abuse Coordinator for this facility is the Director of Social Services, Director of Nursing, or Designee." The Administrative Complaint alleges that the F490 Tag on July 30-31, 2001, is a violation of 42 CFR Section 483.75, adopted by reference in Rule 59A-4.1288, Florida Administrative Code, which requires a nursing home to be "administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident." That allegation is based entirely upon the foregoing deficiencies identified elsewhere in the survey relating to investigation and reporting of alleged abuse (F225), corrective action to prevent further abuse (F224), and adequate staff supervision to protect residents (F324). The first three examples of alleged deficiency F409 recited in the survey document rely upon Tag F225, which is classified as a Class III deficiency. The fourth example for this alleged deficiency is recited in the survey document at Tag F224, and forms the basis for paragraph (3)(a) of the Administrative Complaint. The fifth example for this alleged deficiency is recited in the survey document at F324 and forms the basis for paragraph (3)(b) of the Administrative Complaint. Tag F225 was cited in this survey as a Class III deficiency upon the same findings recited in F224 and Findings of Fact 31-36, and cites the falls, the verbal abuse, and the resident-on-resident physical abuses noted supra. plus an additional "physical abuse" by one other resident who allegedly deliberately ran over another resident's toes with his wheelchair. Also of concern under Tag F225 was the absence of a fulltime qualified social worker required for a facility of more than 120 beds. Oakview was licensed for 180 beds. The population of Oakview on July 30-31, 2001, was only 127. Tag F490 was assigned because the surveyor felt all other tags cumulatively related to a failure of administration, generally. There is no credible, weighty, and significant evidence directly related to the "toes" incident, another resident allegedly verbally abused by the weekend nurse, insufficient staff, or the Section 400.147(4) and (7), Florida Statutes, charges related to internal risk management, incident reports, and the need to make notifications and investigations based on required incident reports of abuse, neglect, or harm, within one business day, except for the June 9, 2001, sexual incident, which was reported to law enforcement. It is noted that, with the exception of the verbal abuse reported July 30, 2001, by Resident 8, directly to the surveyor, all knowledge the surveyors gathered was from records of the facility, so internal reports were being made in one form or another. How the Fines Were Calculated Tag F224, incorporates 42 CFR Section 483.13(c)(1)(i); Rule 59A-4.1288, Florida Administrative Code; and paragraph (3)(a) of the Administrative Complaint, regarding "staff treatment of residents" and states: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. Tag F324 incorporates 42 CFR Section 483.25(b)(2); and Rule 59A-4.1288, Florida Administrative Code; and paragraph (3)(c) of the Administrative Complaint, regarding "quality of care" and states: Each resident must receive, and the facility must provide, the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well being, in accordance with the comprehensive assessment and plan of care. Tag F490 incorporates 43 CFR Section 483.75; Rule 59A-4.1288, Florida Administrative Code; and paragraph (3)(c) of the Administrative Complaint, regarding "administration," and states: A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. The fine assessed for July 30-31, 2001, Tags F224, F324, and F490, was $15,000.00, apiece, on the theory these were "widespread" Class I deficiencies. The assessed fines were doubled by the Agency because the facility had been previously cited for two Class II deficiencies (Tag F224 and Tag F226), during the June 15, 2001, survey investigation. Also, due to the facility having been cited for three Class I deficiencies during the July 30-31, 2001, survey and two or more Class II deficiencies in the June 15, 2001 Survey, AHCA subjected the facility to a six-month survey cycle and assessed an additional fine of $6,000.00, totaling all fines out at $96,000.00. The Moratorium The Agency imposed an Order of Moratorium on Admissions (Order) on Respondent facility as of August 10, 2001, pursuant to Section 400.121(5)(a), Florida Statutes. This Order meant that the facility could admit no new residents while it was in effect. The Order was imposed due to the conditions in the facility found in the July 30-31, 2001, survey. It was felt these deficiencies posed a threat to the health, safety, or welfare of the residents. The moratorium was lifted on August 22, 2001, when a re-survey showed that, within 22 days, all deficiencies had been corrected.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED the Agency for Heath Care Administration enter a single final order which: Upholds the moratorium and six-month survey cycle in DOAH Case No. 01-4128; and Imposes the foregoing fines totaling $26,000 in DOAH Case No. 01-4129. DONE AND ENTERED this 5th day of June, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2002.
Findings Of Fact The abuse incident central to the underlying proceeding in this case was a sexual assault against a female child by an older male child, both of whom were residents at the Lee County Children's Home where L. T. was employed as a caregiver. The abuse occurred while the residents were on a trip to the beach with other residents of the facility. Three adults, one male and two female, accompanied a total of 19 residents to the beach. The residents did not remain together once at the beach. The males residents went with the male adult and the females remained with the females. A series of events resulted in L. T. being the only one of the three who was able to visually locate the residents. She became aware that not all the residents were accounted for and began to search for the missing children. She discovered that a sexual assault had taken place. Subsequent to the abuse incident, the DHRS received an abuse report related to the matter. The investigative report in this matter incorrectly indicates that an investigation was performed by Michael B. Gregory. Another investigator, Mike Hally, investigated the incident, and apparently forwarded the materials to his supervisor for review prior to closing the case. A substantial period of time passed without DHRS action on the matter, during which time Mr. Hally transferred to another DHRS job. Agency officials eventually decided to classify the case as "proposed confirmed." Because Mr. Hally was, for technical reasons, unable to close out the case file, the matter was brought to Mr. Gregory by Jane Pigott, a DHRS official, who directed Mr. Gregory to close the case as "proposed confirmed." L. T. was apparently notified of the matter and requested that the report be expunged. By letter dated November 21, 1991, the Department of Health and Rehabilitative Services informed Respondent L. T. (through counsel) that her request to expunge the report of abuse was denied. The letter stated, "[o]n August 20, 1990, the department received a report that your client failed to ensure proper supervision resulting in injury to a child. A child protective investigation took place and was classified as proposed confirmed. As a result of your request, the record was reviewed and determined to be classified correctly." Respondent L. T. requested an administrative hearing to challenge the classification of the report. The Department forwarded the case to the Division of Administrative Hearings, which scheduled and noticed the proceeding. At hearing, the evidence failed to establish that the injury to a child was a result of any failure by L. T. to ensure proper supervision of the child.
The Issue The issue is whether Respondent discriminated against Petitioner based on his race and/or disability by terminating his employment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent manufactures rubber hoses for the automotive industry. Petitioner is a black male who began working for Respondent on February 17, 1999. Petitioner's job as a molder required him to work with his hands and arms pinning rubber hoses onto metal pins and removing the hoses from the pins after they cooled down. The job was dangerous and physically stressful to Petitioner's hands and wrists. After working for Respondent for approximately three months, Petitioner suffered a job-related injury. Respondent sent Petitioner to a physician who diagnosed Petitioner as having sprained hand and wrist muscles. The physician prescribed anti-inflammatory medicine for Petitioner and recommended that he return to work on light duty. For the next several months, Petitioner worked as a molder in an area of Respondent's plant that caused less physical stress on the muscles and ligaments in Petitioner's hands and wrists. Petitioner had no problems working in that area. In time, Respondent began to experience a decrease in the number and type of orders that it received from its customers. The change in demand for Respondent's products resulted in a reorganization of the production line, a smaller number of available positions, and in some cases, layoffs of employees. Eventually, Respondent moved Petitioner's work station back to his original position which was physically more stressful. After a couple of months, Petitioner suffered another work-related injury. Respondent told Petitioner that he would have to continue working as assigned because there was no other work or lighter duty available. Petitioner continued to work in the more physically stressful area of Respondent's plant. On one occasion, Respondent took Petitioner to the hospital because he was experiencing pain. Petitioner did not go back to work until he saw a physician who specialized in treating Petitioner's type of injury. Petitioner eventually was diagnosed as having bi- lateral carpel tunnel syndrome. The doctor recommended that Petitioner work on light duty until he could have surgery. Respondent accommodated Petitioner's needs by allowing him to work on light duty pending the proposed surgery. Respondent has a substance abuse policy to maintain a work place that is free from the use of illegal drugs and the use of alcohol. The policy provides for assistance for employees who develop an addiction to drugs or alcohol and who voluntarily seek assistance before the company has knowledge of the problem. If an employee tests positive for illegal drugs or alcohol use while on the job, the employee is subject to immediate termination. Respondent's substance abuse policy provides for drug and alcohol screening under the following circumstances: after any injury that requires outside medical attention; after any incident that results in damage to other associates, company property, or a pattern of personal injuries; upon observance of abnormal or erratic behavior while at work or a significant deterioration in work performance; upon reasonable suspicion due to observable phenomena, direct observation of use, or a report of use by a reliable and credible source; and (e) pursuant to random drug screening. Petitioner never tested positive for illegal drugs or alcohol use while he was working for Respondent. He never even went to work under the influence of illegal drugs or alcohol. However, on August 22, 2000, Petitioner voluntarily advised Respondent that that he had a substance abuse problem and that he desired to participate in the assistance referral program. On August 23, 2000, Petitioner met with Respondent's human resource manager and occupational nurse. The nurse reviewed the company's substance abuse policy and assistance referral program with Petitioner. Additionally. the nurse advised Petitioner as follows: (a) he would have to enroll in a treatment program; (b) he would have to provide Respondent with weekly letters from the treatment program, furnishing information about Petitioner's progress in the program; and (c) he would be subject to random drug screens for two years. The human resource manager advised Petitioner that he would be discharged if he failed to comply with and successfully complete the treatment program. Petitioner indicated that he understood Respondent's requirements for participation in the assistance referral program. Petitioner elected to enroll in an outpatient substance abuse treatment program sponsored by Marion Citrus Mental Health. Petitioner missed his first appointment at the treatment center because he lacked transportation. Petitioner eventually began attending the treatment program three nights a week. He continued to work light duty at Respondent's plant during the day. Petitioner did not furnish Respondent with documentation showing that he had enrolled in the substance abuse treatment program. Instead, Petitioner advised Respondent's occupational nurse that he had signed a release at Marion Citrus Mental Health so that she could call his mental health counselor to verify his attendance in the program. Meanwhile, Respondent continued to reorganize and downsize its operations. When there were more employees restricted to light duty than light duty positions available, Respondent assisted the employees in filing workers' compensation claims and allowed them to stay at home on medical leave for up to 12 weeks. In time, Respondent could no longer accommodate Petitioner's physical injury with a light duty position. Petitioner filed a workers' compensation claim and began staying at home on medical leave on September 11, 2000. On September 11, 2000, Respondent's occupational nurse called Petitioner's mental health counselor at Marion Citrus Mental Health. The nurse learned that Petitioner had kept an appointment at the mental health facility on September 7, 2000. The nurse also learned that Petitioner had not signed a release of information form that would allow the counselor to share any other information about Petitioner's treatment program. On September 12, 2000, Respondent's occupational nurse sent Petitioner a letter. The purpose of the letter was to remind Petitioner that he was required to furnish Respondent with a written statement from the substance abuse treatment facility each week. According to the letter, the written statement was supposed to include Petitioner's treatment plan schedule. The letter advised Petitioner that to remain employed, he would have to keep Respondent fully informed about his progress in and completion of the treatment program. On September 14, 2000, Petitioner called Respondent's occupational nurse to advise her that he could not keep his appointment at Marion Citrus Mental Health that week. Petitioner advised the nurse that he was taking medication that made him dizzy and that he had transportation problems, which made it difficult for him to attend the treatment program. On September 15, Petitioner went to Respondent's plant to see the occupational nurse. Because he claimed that he had not received the letter dated September 12, 2000, the nurse read the letter to him and gave him a copy of it. Once again the nurse explained Respondent's assistance referral program to Petitioner, advising him that Respondent would not tolerate future missed appointments at Marion Citrus Mental Health. The nurse also gave Petitioner a rapid drug screen, the result of which was negative. On November 15, 2000, Respondent sent Petitioner another letter regarding his failure to furnish Respondent with evidence of his attendance at and completion of a treatment program. The letter advised Petitioner that he had to furnish the information on or before November 27, 2000, or risk having his employment terminated. Petitioner received Respondent's November 15, 2000, letter but did not furnish Respondent with the requested information. Petitioner did not call Respondent to explain his failure to do so. In a letter dated November 27, 2000, Respondent advised Petitioner that he was discharged. Petitioner furnished Respondent with a letter dated December 4, 2000, from Marion Citrus Mental Health. The letter states that Petitioner had been enrolled in substance abuse outpatient counseling beginning August 31, 2000, and that he was progressing well. There is no evidence that Respondent applied its substance abuse policy to non-minority employees differently than it did to Petitioner or other minority employees. Additionally, there is no evidence that Respondent treated non-minority employees who had workers' compensation claims differently than it treated Petitioner or other minority employees who were home on medical leave due to a workers' compensation injury. In fact, Petitioner admitted during the hearing that he had no proof that Respondent discriminated against him based on his race. During the relevant time period, Respondent had approximately 52 employees (half black and half white) that suffered a workers' compensation injury. Employees with workers' compensation injuries were allowed to remain on family medical leave for 12 weeks. Employees who returned to work within the 12-week period were guaranteed a job. Subsequent to the 12-week period, employees with workers' compensation injuries were not officially terminated unless they were unable to return to work after 12 months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ray Mayo 708 Southwest Second Street Ocala, Florida 34471 Kade Spencer Dayco Products, Inc. 3100 Southeast Maricamp Road Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent violated the Florida Civil Rights Act, as amended, as alleged in Petitioner's Employment Charge of Discrimination (Complaint) filed on March 17, 2016.
Findings Of Fact The record in this case is somewhat sketchy. Petitioner is a 51-year-old African-American female. In 2015, Petitioner was a client of Career Source Central Florida, a temporary employment agency which has a contract with Manpower, a staffing agency, to place clients in jobs on a temporary basis. Respondent is a corporation which provides a variety of services in the mental health field. The company employs persons of all national origins. One source of employees is persons referred by Manpower. Ms. Guzman is Respondent's Mental Health Targeted Case Manager Program Manager/Executive Consultant who interviewed Petitioner for a temporary position with her company. On October 19, 2015, Petitioner was hired by Respondent for 90 days as an intern in human resources. Under the terms of employment, Respondent could terminate Petitioner at any time, even the first day, if she was not performing in a satisfactory manner. If Petitioner was deemed to be a good candidate for employment, Respondent had the option to employ her on a permanent basis after her probationary period ended. Petitioner acknowledges that during her tenure with Respondent, her salary was paid by Manpower. However, Manpower was not named as a co- respondent in the Complaint. When she interviewed for the position, Petitioner was told by Ms. Guzman that the organization was bilingual, all employees were required to speak English, but she would hear a lot of Spanish being spoken. Petitioner informed Ms. Guzman this would not be a problem. She also informed Ms. Guzman that she did not speak Spanish. Ms. Guzman told her this would not be a problem. On December 8, 2015, Ms. Guzman informed Petitioner she was being terminated. According to Ms. Williams, she was told by Ms. Guzman that she was being terminated because she could not speak Spanish and her rate of pay did not match her level of experience. She was also told her job performance was less than satisfactory. Ms. Williams was upset because she had not been previously warned that her job performance was less than satisfactory or that speaking Spanish was a requirement. She also observed several other employees, including one medical doctor, who did not speak Spanish, but were allowed to use other employees as interpreters, when needed. According to Ms. Guzman, the reason for Petitioner's termination was poor job performance, and not her inability to speak Spanish. For example, Ms. Guzman noted that Petitioner had difficulty in spelling English words and she frequently needed assistance from other employees in completing her job- related tasks. Discharging Petitioner for this reason was consistent with her original terms of employment. There was no evidence, direct or circumstantial, that Petitioner was terminated because she was an African-American or because of her national origin, or that Respondent's decision to terminate Petitioner was motivated by unlawful discriminatory intent. Petitioner is currently employed by the Osceola County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 27th day of March, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2017.
