Findings Of Fact Petitioner, Morton Francis, operates Francis Villa, an ACLF at 1398 Northeast 156th Street, North Miami Beach, Florida. He and his wife are the sole staff at the facility. His present license to operate that facility has an expiration date of July 30, 1981. Prior to that date Mr. Francis applied for relicensure by Respondent, Department of Health and Rehabilitative Services. On September 17, 1981 he was informed by the Department that his application for relicensure had been denied for the following reasons: (a) the location of Francis Villa is net zoned by the City of North Miami Beach for the operation of an ACLF; (b) three of the files for residents at Francis Villa lacked sufficient medical information to determine if they had received a physical examination within 30 days of their admission to the facility; (c) the facility did not have a written procedure to be followed for emergency care during evacuation in the event of a disaster; (d) the facility had no documentation indicating that the staff is free of communicable diseases; (e) the facility did not have an up-to-date diet manual approved by the Department; (f) while menus were planned and posted in a frame on the wall at the facility they were not dated and no record indicates that the menus have been kept on file for the past six months; (g) there was no thermometer in the kitchen refrigerator; (h) in the bathroom on the west side of the facility there were no non-slip safety devices or hand rails in the bathtub used by the residents; (i) in three files reviewed by the Department during its licensure survey there was no written agreement between the resident and the facility specifying the conditions when the resident would be moved to a more appropriate residential setting; and (j) the files failed to contain the demographic data required by the Department. The foregoing deficiencies given for the denial of relicensure did in fact exist on July 7, 1981 in Petitioner's facility. They were discussed with him at that time during a relicensure survey. Reinspections were conducted on August 12, 1981, September 3, 1981, and finally on November 24, 1981. The above deficiencies in Petitioner's facility were not corrected by November 24, 1981. By the time of the final hearing Petitioner had installed a thermometer in his kitchen refrigerator and had installed non-slip safety devices and hand rails in the bathtub on the west side of the facility. Petitioner is unwilling to correct the remaining deficiencies until such time as he can be assured that his facility will be relicensed. At the final hearing Mr. Francis attempted to shift responsibility for some of his facility's defects onto the Department because he allegedly lacked information about how to handle patient records, etc. The evidence reflects that the Department has held training sessions for operators of ACLF's and has prepared forms available to Mr. Francis which may be utilized by operators in maintaining the required patient records. See Section 400.452, Florida Statutes (1981).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order denying Mr. Francis' application for the relicensure of his Adult Congregate Living Facility located at 1398 Northeast 156th Street, North Miami Beach, Florida. DONE and RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982. COPIES FURNISHED: Martha F. Barrera, Esquire Long Term Care Office Department of Health and Rehabilitative Services 1320 South Dixie Highway Coral Gables, Florida 33146 Mr. Morton Francis c/o Francis Villa 1398 Northeast 156th Street North Miami Beach, Florida 33162
Findings Of Fact Respondent, L. D. Terry, operates a thirty-bed adult congregate living facility under the name of Golden Paradise at 1200 Old Dixie Highway, Delray Beach, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. On June 9, 1986 James Valinoti, an HRS inspector, conducted a routine annual license renewal inspection of respondent's facility in the presence of the facility's administrator, Katherine Stevens. The inspection focused on all aspects of the facility's operations, including safety, physical plant, recordkeeping and sanitation. It was Valinoti's purpose to determine if the facility was in compliance with various requirements of Chapter 10A-5, Florida Administrative Code (1987) During the course of his inspection, Valinoti observed the following deficiencies: The facility did not document and place in its records the services delivered by a third party contractor (nurse) as required by Rule 10A-5.024(1)(a)4., FAC. The facility employed three or more staff but did not maintain a record of personnel policies, including state- ments of work assignments for each position as required by Rule 10A-5.024 (1)(a)5., FAC. The facility did not maintain a time sheet for all employees as required by Rule 10A-5.024(1)(a)7., FAC. The respondent failed to assure that there was at least one staff member within the facility at all times who had a certification in an approved first aid course and that the staff was free of communicable diseases as required by Rule 10A-5.019(5)(f), FAC. The facility failed to furnish each staff member with a copy of written policies governing conditions of employment including the work assign- ments of his position as required by Rule 10A-5.019(5)(h), FAC. The resident contract did not contain a refund policy if transfer of ownership, closing of facility or resident discharge should occur as required by Rule 15.024(1)(b)1., g., FAC. The facility failed to note in the residents' records the disposition of drugs after a resident had left the facility as required by Rule 10A- 5.0182(3)(a)7., FAC. The facility had no policies or pro- cedures for assisting residents in the making of appointments or providing transportation to and from appropriate medical, dental, nursing or mental health services as required by Rule 10A-5.0182(8) and (9), FAC. The facility did not participate in continuing in-service education on an annual basis at a minimum as required by Rule 10A-5.020(1)(c), FAC. The dietary allowances were not met offering a variety of foods adapted to the food habits, preferences and physical abilities of the residents, and prepared by the use of standardized recipes as required by Rule 10A-5.020 (1)(g), FAC. There was evidence of rodent dropping in the food storage room in violation of Rule 10A-5.020(1)(n)1. and 5., FAC. The facility did not assure that food service employees were free of communicable disease as required by Rule 10A-5.020(1)(n)15., FAC. Linoleum in the facility was peeling causing a tripping hazard and sinks and toilets were rusted in violation of Rule 10A-5.022(1)(a),(c), and (g), FAC. With the exception of item (a), which was unclassified, all deficiencies were Class III violations. After the inspection was completed, Valinoti discussed the deficiencies with the administrator and suggested ways to correct them. A letter was then prepared by the HRS area supervisor on July 23, 1986 and mailed the same date to Terry with a copy of the Classification of Deficiencies. That document provides a description of each deficiency, the class of deficiency and the date by which the deficiency must be corrected. Except for a requirement that the deficiency pertaining to rodent droppings be corrected immediately, Terry was given thirty days, or to August 23, 1986, in which to correct the cited deficiencies. Terry acknowledged he received a copy of the letter and attachments. On September 24, 1986 Valinoti reinspected respondent's facility. He found that none of the items had been fully correct. By letter dated September 29, 1986 HRS advised Terry of its findings and warned him that a "recommendation for sanction" would be made. It advised him further that another inspection would be made after October 29, 1986. On October 30, 1986 Valinoti made a second follow-up visit to respondent's facility. Valinoti found that all items had been corrected except item (j). The results of his inspection were reduced to a written report on November 13, 1986, a copy of which was sent to Terry. A year later, an administrative complaint against respondent was issued by HRS. Terry acknowledged, through admissions or testimony at hearing, that most of the allegations were correct but offered mitigating testimony as to why certain corrections were not made on a timely basis. When he purchased his facility in 1982, it was in a state of disrepair through neglect by the previous owner. Since then, he has attempted to upgrade the facility through a series of repairs and renovations. He currently has nineteen residents, most of whom were referred from a nearby mental health center. A mental patient is more difficult to care for, and this type of patient is prone to tear up furniture and equipment. Terry pointed out that he has only three employees, and they fully understand their duties and responsibilities. For this reason, he did not have documentation outlining their job assignments. When the June 9 inspection was made, Terry contended that HRS was in the process of implementing new rules, which he did not identify, and which he claims he did not understand. As evidence of his good faith, Terry pointed to the fact that all deficiencies except one were corrected by October 30, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of twelve Class III violations and one unclassified violation and that he be assessed a $1,250 civil fine to be paid within thirty days after the date of the final order entered in this matter. DONE AND ORDERED this 5th day of October, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1989. COPIES FURNISHED: Leonard T. Helfand, Esquire North Tower, Room 526 401 Northwest Second Avenue Miami, Florida 33128 John W. Carroll, Esquire Post Office Box 31794 Palm Beach Gardens, Florida 33410 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether there is sufficient cause for Respondent, Agency for Health Care Administration (AHCA or the Agency), to deny the licensure renewal application filed by Petitioner, Senior Lifestyles, LLC, d/b/a Kipling Manor Retirement Center (Kipling or the Facility), to continue operating a 65-bed assisted living facility (ALF) located in Pensacola, Florida.
Findings Of Fact Kipling is a 65-bed assisted living facility located at 7901 Kipling Street, Pensacola, Florida. It has been in operation for approximately 20 years and is licensed by AHCA as an assisted living facility with a limited mental health license and a limited nursing services license. Kipling is an older facility and its residents are some of the hardest residents to place, i.e., many are homeless, have serious mental illnesses, and do not have money to pay for amenities and extra care. As described by a former assistant administrator at Kipling, “[The residents] are a very tough bunch. However, they are loving. They don’t always communicate as well as you and I do. At times they’re – they have internal stimuli. They hear things and see things that aren’t there. They don’t have the full grasp of why they have to be there, their illnesses and what are, . . . that they may be doing wrong, if they’re not clean, they’re not taking a bath, they don’t understand why they have to do that or they don’t have the internal stimuli telling them not to do that. But, overall, you know, the residents are very happy and loving, unless they are agitated, which comes with mental illness.” (Elizabeth Dunn, Respondent Exhibit 18, pp. 18-19) AHCA is the state agency responsible for licensing and monitoring assisted living facilities in this State. As part of its duties, AHCA makes a determination whether applications for initial licensure or license renewal should be approved. Such determinations are made, in part, based upon findings made by Agency surveyors who visit facilities to inspect and monitor compliance with regulatory guidelines. Surveyors make findings as to what they observe at the specific point in time during which their investigation is conducted. Their observations and interviews with staff and residents are reduced to writing in AHCA Forms 3020 or 5000, the Statement of Deficiencies report. On June 25, 2013, Kipling filed an application for renewal of its operating license. The application was filed timely with AHCA. AHCA found there to be three items missing from the application: 1) There was an outstanding balance of $47.35 due on a fee; 2) There was no current fire safety inspection report; and 3) There was no fictitious name registration. Kipling responded to the omissions letter and all three outstanding items were presumably provided to AHCA (although no evidence to that effect was presented at final hearing). AHCA did not assert that failure to provide those three items constituted a basis for its decision to deny the licensure renewal. On September 6, 2013, AHCA issued a Notice of Intent to Deny Renewal, advising Kipling that its renewal application was being denied. The stated basis for the denial was “the applicant’s failure to meet minimum licensure standards pursuant to 408.815(1)(d), Florida Statutes.” That statutory section states in pertinent part: “In addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: . . . A demonstrated pattern of deficient performance; . . .” The Notice then listed a number of surveys that had been conducted at the Facility and the general findings therein. On October 15, 2013, AHCA issued an Amended Notice of Intent to Deny Renewal Application. The Amended Notice included information from two surveys which had been conducted after the date of AHCA’s first notice of denial. The Amended Notice cited as “legal grounds for the denial of the renewal application” three distinct bases: 1) Violation of the Health Care Licensing Procedure Act; 2) A demonstrated Pattern of Deficient Performance; and 3) A failure to comply with the Background Screening Standards. At final hearing, the Agency presented evidence of alleged deficiencies at Kipling during ten inspection surveys conducted over the past three years. The surveys, which will be discussed individually below, are identified by the following dates (although some of the surveys lasted more than one day): February 17, 2011; February 1, 2012; June 11, 2012; October 26, 2012; December 19, 2012; March 14, 2013; April 24, 2013; August 8, 2013; September 18, 2013; and October 2, 2013.3/ AHCA is claiming a “pattern of deficient performance” by Kipling which, if proven, could establish a basis for not renewing the licensure application. The findings made in the ten surveys ostensibly form AHCA’s basis for the alleged pattern of deficient performance. AHCA’s findings in and Kipling’s response to each of the aforementioned surveys is set forth in more detail below. There are several different kinds of surveys performed by AHCA, but during each survey AHCA is generally looking for compliance with the same rules and regulations. A survey may be one of the following: A biennial survey, required for continued licensure as an ALF; a follow-up survey to determine if cited deficiencies have been corrected; a complaint survey based on allegations made by someone, usually anonymously and sometimes maliciously; or a re-visit, much like a follow-up survey. February 17, 2011 This biennial survey, conducted almost two-and-a-half years before the Notice of Intent to Deny Renewal (and before Kipling’s current license was issued), resulted in a finding of seven Class III4/ (that is, potentially or indirectly threatening) deficiencies. Those deficiencies include: The latest inspection report was not assessable to persons visiting the Facility. Two bottles of over-the-counter medications used to treat constipation did not have prescribing instructions on them. The same medication error as above, but cited under a different standard. The Facility was using Lancets (tools for taking blood samples) which had expired. There was no evidence that one employee had received required HIV/Aids training. There was no documentation showing that one employee had received first aid training. There was not a complete substitution log for meals. Each of the cited deficiencies was corrected immediately or was otherwise cleared prior to the follow-up survey. As to the specific citations: 1) The inspection report was available in the administrator’s office on the date of the survey, but would hereafter be kept in the lobby area for easier access by interested persons. Kipling is a closed facility, so that anyone seeking entry must wait for the door to be unlocked. Such visitors could then request to look at the inspection report and it would be made available to them. However, the inspection reports could have been kept in the outer lobby area, which is accessible to the general public. 2) The over-the-counter medications should have been labeled to show which resident was taking them, and at what times; that failure was a documentation issue rather than a medical issue. There was never any potential for harm to the resident. 3) The old Lancets were disposed of immediately; no explanation was given as to why outdated lancets were at the facility. 4) Documentation showing that each of the employees had the appropriate training was presented. 5) The prior food services director had taken the meal substitution logs, so they were indeed missing as of the date of the survey. The logs are being redrafted by current staff. Note: A meal substitution log is simply a sheet of paper showing that the planned meal for that day was not going to be served. Rather, a substitute meal would be provided. This happened when the Facility was unable to acquire the foods listed in the original meal log. For example, if fried chicken was on the menu but the Facility could not purchase chicken that day, it might substitute beef for the chicken. As this February 2011 survey was the first utilized by AHCA in this proceeding, it is presumed that some or all of the deficiencies cited therein form the basis for the alleged pattern of deficient performance. As set forth below, none of these cited deficiencies constitute the first instances of a pattern followed by Kipling. At the same time the biennial survey was going on, two simultaneous surveys were being conducted by AHCA related to Kipling’s Limited Mental Health license and its Limited Nursing Services license. Those surveys resulted in no findings of deficiencies. February 1, 2012 Seven deficiencies were found by AHCA during this complaint survey. Each of them was a Class III, and each had been corrected by the time of the revisit survey the following month. The cited deficiencies were: The Facility failed to provide supervision or assistance to four of 16 sampled residents (according to statements allegedly made by some residents and family members to the surveyor – although there was no valid corroboration for these hearsay-based findings). One example given was that a particular resident had not had a shower in over a month, according to the resident’s statements; The Facility failed to act on the grievances or complaints of seven of 18 sampled residents, but again there was no competent and substantial evidence to support this allegation; A medication technician rather than a nurse assisted a resident with taking medications; There were incorrect medication observation records (MORs) for two of six sampled residents; Medications needed by some identified residents were not in stock; The heat in one resident room was not working properly, and washers and/or dryers were not working at one point in time; and Medications were documented as having been given, but were not in fact given. Note: None of the deficiencies in the prior (February 1, 2012) survey were repeated in this survey. The Facility corrected each of the seven deficiencies within the time prescribed by AHCA. In direct response to the cited deficiencies, however, the Facility stated that: 1) Kipling has a bath schedule for its residents. Many of them simply choose not to bathe and the Facility cannot force them to do so. 2) There are no confirmed instances of resident complaints being ignored. 3) It may be that a medication technician--rather than a nurse--assisted one resident with his/her medications. While improper, the technician was conscientiously attempting to make sure the resident received his/her medication. 4) The medication issues surrounding one of the residents existed because the resident was under hospice care. Once hospice became involved, medications fell under their purview rather than being administered by Kipling’s staff. The evidence was unclear as to whether any or all of the cited errors were because of the resident’s status as a hospice patient. 5) It was difficult to ascertain from the evidence whether the medication errors alleged actually existed. There was scant non- hearsay evidence provided to make a legitimate determination of whether an error was made. 6) The facility is old, and it is probable that there could be heating or cooling issues in some rooms. Nonetheless, all identified issues were addressed immediately. 7) There were errors on the MORs forms for some residents. There were, as in the prior survey, citations concerning medication errors. The deficiencies were not exactly the same, though some fell under the umbrella of “medication deficiencies.” Based upon the kind of residents being served at Kipling and the pool of available employees willing to work there, it is not surprising that such errors occurred.5/ June 11, 2012 During this complaint survey only one deficiency was cited, a Class III. It had to do with cleanliness of the Facility in general, with four rooms specifically mentioned. The Agency found that Room 22 had a strong odor; Room 23 had a “fist- sized break” in the door and the ceiling vent was hanging down; the vent in Room 18 was missing; and Room 6 had missing baseboards. These deficiencies, euphemistically listed as “environmental” concerns, are to be expected in a facility such as Kipling. They are not excusable and must be addressed--but they are not all that surprising. By the time of the follow-up survey, the deficiency had been corrected. Meanwhile, the Facility provided information about each of the maintenance type deficiencies, to wit: The resident in Room 22 used a bedside commode which was the source of the smell. The damaged door and ceiling vent were in the queue to be repaired at the time of the survey. The vent in Room 18 was replaced immediately upon discovery. (Some residents removed vents, window screens, etc., from time to time and they would have to be replaced when discovered.) The missing baseboards in Room 6 were due to the fact that a new vanity had just been installed and the old baseboards were found not to fit any longer. New baseboards had been ordered. October 26, 2012 The Agency found two Class III deficiencies in the complaint survey conducted on this date: Room 35 had a strong odor; Room #17 had an odor and a used adult diaper was found on the shower stool; and Room 26 had a dirty floor. Room 20 did not have a vent cover over the exhaust fan; a common area bathroom had no vent fan or air conditioning vent cover. Note: The missing vent covers were a repeat from the prior survey, although for different rooms. Upon revisit, the deficiencies were not corrected. At the time of the second revisit, one deficiency had been corrected but not the other. At the last revisit, all items had been corrected. The Facility has a full-time maintenance person who tries to keep up with repairs, but sometimes things get broken faster than he can repair them. Further, some of the residents are destructive because of their mental illness, resulting in more physical plant problems than in other ALFs. This, coupled with the fact that this is an old facility, indicates that the existence of some physical plant issues is to be expected. These deficiencies confirm the difficulty faced by Kipling regarding its physical plant; they do not, however, constitute a pattern of deficient performance so much as they indicate slow responses to the problems. December 19, 2012 On this complaint survey (which included a follow-up review from the October 26 survey), three additional Class III deficiencies were cited. There were two medication errors cited and one other deficiency: Residents 13 and 15 were receiving medications which did not appear on the MOR; Resident 17 received Tylenol which was on the MOR, but for which there was no physician’s order. Also, as-needed (PRN) Tylenol tablets for Resident 15 were not in stock and neither was the PRN acetaminophen for Resident 17. The other deficiency had to do with failure to file an adverse incident report when a resident had eloped. All of the deficiencies were ultimately corrected. Note: The MORs deficiencies were similar to those cited in a prior survey. The Facility explained that it is often difficult, because of the nature of the residents it serves, to keep up with medications. Many of the residents are unable to fully communicate with their physicians, many are without any financial means of obtaining medications, many have had their medications reduced by governmental agencies upon whom they rely. Often a physician who is responsible for calling in the medications simply fails to act because their patients (the ALF residents) cannot or will not complain if nothing is done. Thus, the Facility does often receive citations for failures relating to medication issues. While such deficiencies may constitute repeated errors, they do not necessarily constitute a pattern of deficient performance due to the reasons behind the failures. As to the elopement issue, the resident left the facility and went to his mother’s house. The facility failed to report the “elopement” because the resident was generally allowed to come and go at will. However, he was supposed to sign out each time he left and returned, but did not do so this time. While the resident did not truly “elope” from the facility, his failure to sign out should have been noted and technically constituted a deficiency. AHCA also cited Kipling for some physical plant deficiencies during this survey: The window screen in Room 2 was missing; Room 6 had “very dirty floors” and a noxious chemical odor; Room 12 had dirty floors; Room 14 had dirty floors and the bathroom door frame had rust on it; In Room 18 the bathroom shower area had a “large amount of black substance” on the shower walls and the room had an “earthy smell” to it; Room 20 has filthy floors and the toilet has feces stains around the lid; Room 22 has a “receptor missing and the bed has a torn mattress”; Room 25 had dirty pillow cases, dirty floors, and a portable urinal sitting near the bed had urine in it. There was also urine on the bathroom floor; There were flies in Room 31 and 34; Room 34 “needs sweeping and mopping” and the air conditioner grill cover was missing; Room 36’s window screen was missing and the closet door was broken; Room 26 had a dirty floor and the room was cluttered; Room 35 had dirty floors. Note: Again some of the environmental issues had been cited previously, but as noted this was an old and poorly maintained facility. These allegations by AHCA surveyors did not reflect whether the conditions found at the time of the survey had existed for a long period of time, what constituted “dirty” in the minds of the surveyors, or whether any explanation was given by the facility for the cited issues. Rather, the survey report indicates that maintenance staff was made aware of the issues and would take care of each one as time allowed. Again, this older building, serving mentally unstable residents, is likely to experience some of these physical plant issues. The facility has a full-time maintenance person, plus two full-time housekeepers. Due to the nature of the individual residents (many with mental health issues), it is difficult to keep up with housekeeping demands. Each employee of the facility is charged with assisting in maintaining the facility to the extent possible. March 14, 2013 On this biennial survey coupled with a revisit for past surveys, one Class III deficiency--concerning food service and dietary--was cited. The Facility provided a lunch of chicken alfredo, mixed nuts and a roll. However, the posted menu for that day indicated there would be ham and beans, cabbage, rice, and cornbread. The Facility simply failed to log the substituted meal on a substitution log. On the re-visit portion of the survey, two Class II deficiencies were cited concerning resident care and medication issues: One resident care issue had to do with the cleanliness, or lack thereof, of resident rooms, missing vents, etc. Resident 1 was not receiving his Remeron; Resident 2 had an expired prescription for Lortab on a PRN basis, but the medication had not been reordered and was not available. Resident 13 was not given his mucinex on two different days and did not have lortisone cream applied between his toes twice daily as prescribed. Resident 14 did not have vitamin B-12 available as prescribed. Kipling employs two full-time housekeepers to keep the rooms as neat and tidy as possible. The housekeepers do a “full scrub” on a certain number of rooms each day and a superficial cleaning of the others. All employees are expected to help keep the rooms clean. The urine odor in one room on the date of the survey was likely due to the fact that the resident had left a used adult diaper in the trash can. It was removed as soon as it was found. A missing closet door in one room was due to the resident’s preference; a missing dresser drawer in one room was remedied as soon as it was discovered. (Many of the residents at Kipling suffer from schizophrenia and other mental illnesses, so they are prone to mistreating the physical plant.) The Facility explained that many of its employees are not conscientious and do not perform their duties as directed. The poor work habits of employees caused problems that the Facility tried to correct as quickly as possible. The best and most well-trained employees were hired by nicer facilities. As the place that accepted and cared for the lower stratum of society, the Facility was only able to attract the least trained and less motivated individuals. All medications were available and had been given as prescribed, according to the Facility’s DON. However, the assistant administrator admitted that Resident 1’s medication had been ordered but had not yet come in because the facility had difficulty dealing with Vanguard, the pharmacy. Thus, the medication could not have been provided to the resident on the day of the survey. The citation concerning medication errors appears to be a legitimate deficiency in this instance. Kipling was required to correct those errors by the time of the follow-up survey, which it did. April 24, 2013 This was a multi-purpose survey, including a follow-up or revisit survey. According to AHCA, the following deficiencies were found: Resident 1’s MOR was not up to date; Resident 2 did not have enough vitamin D available for his/her weekly dosage; There was a mistake made with Resident 3’s medications after s/he returned from a hospital visit; Resident 4 was given the wrong dosage of a medication; and Resident 6 was getting the wrong dosage of some medications and some of his/her medications had been discontinued. The facility disputed the claims by way of the following facts: The MOR for Resident 1 was filled in retroactively by the appropriate person.[6/] The problem had been an irregular discontinuation notice used by Lakeview, one of many providers with whom the facility does business. Although the MOR showed the vitamin D being given every day, that was an error. At the outset, only four days’ worth of vitamin D was ordered; the MOR should not have shown it being given every day. The MOR was corrected, but the AHCA surveyor refused to accept the corrected version or the explanation. AHCA was correct in finding some errors occurred with Resident 3’s medications upon return from his/her hospital visit. The proper medications for Resident 4 were attached to his/her admission form and signed by his/her physician. The MOR for Resident 6 was in error, but the medication (Plavix) had been given appropriately. This was a documentation error only. There were obviously some inconsistencies between the MOR, the appropriate dosages, and what medications some residents received. Those errors are an area of concern and should be addressed. The Facility showed, by competent and substantial evidence, that any and all such errors were corrected or explained. Nonetheless, the medication errors are repeated deficiencies. August 8, 2013 This was a complaint survey. Two Class II deficiencies were cited at this survey: Resident 4 did not receive required medications the first four days of his stay at the Facility. Resident 2 needed eye drops that were not available. Resident 1 needed Baclofen but there was none on the medication cart. A bottle was found in the resident’s closet. The Facility was also cited due to an alleged scabies outbreak, but there is no credible evidence that a single case of scabies was confirmed among the residents. Nonetheless, all scabies-like rashes were treated with an appropriate cream. Several dozen residents had rashes of some kind (or shared a room with someone who did), so the facility treated them all. It is Kipling’s belief that a new clothes detergent could have been causing the rashes, but there was not any credible evidence to support that contention. Resident 4 did not get his/her medications immediately upon admission; the nurse responsible for that mistake was terminated from employment. Resident 1 received one of his medications in an improper dosage amount and another of his medications had run out. Also, one employee (a re-hire from prior employment at the Facility) did not have proof that she had taken the two-hour Assistance with Medication training, which is required. The surveyors also found a box of expired medications in the facility “hurricane room.” The medications should have been disposed of by sending them back to the pharmacy or via some other method. When the medications were discovered they were immediately disposed of, but the existence of the medications in the hurricane room constituted a deficient practice by Kipling. September 18, 2013 This survey, which was conducted after Kipling’s license renewal had been denied, resulted in two Class II deficiencies. This was a complaint survey. The survey remains “open” as the Facility still has an opportunity to correct and/or challenge the alleged deficiency.7/ AHCA cited one Class III deficiency having to do with how and when residents were evicted from the Facility. Although the resident’s admission contract indicates that 45 days’ notice will be provided, only 30 days’ notice was given to Resident 1. Resident 2 was also given an immediate termination notice, but still remained at the Facility at the time of the survey, some 33 days later. In each case, there were extenuating circumstances for the expedited eviction; in one case the resident was not paying his rent and in the other case the resident was bringing illegal substances into the ALF. The Facility notes that this survey remains open and there has not been a final determination as to the cited deficiencies. The survey occurred after the denial of the licensure renewal application. October 2, 2013 Two Class III deficiencies were cited at this follow-up survey. However, the survey remains open at this time. A resident allegedly told an AHCA surveyor that s/he did not receive a medication (Lexapro) and another did not receive his/her Robitussin. One resident allegedly ran out of a medication (Ativan) and another was not receiving his/her medications (Combigan and Vigamox). One resident was not getting trazodone although it had been prescribed. However, there was no non-hearsay evidence to support these findings. Besides, Kipling explained that these residents were difficult to care for and did not have good relationships with their physicians. The Facility often found it difficult to get residents’ prescriptions filled timely. Background Screening Issue AHCA also cites Kipling for failing to properly conduct background screening on one of its employees. The employee in question was hired in April 2011. During a survey by the Agency in July of that year, it was determined that the employee had a disqualifying offense in his background. Kipling had not initiated a background screening of the employee because, as a cook for the facility rather than someone working directly with residents, it did not feel the screening was necessary. Once his disqualifying offense was discovered, the employee was dismissed from employment with Kipling. The failure to obtain background screening for the employee was addressed in DOAH Case No. 11- 4643. In that case, ALJ Staros determined that the failure constituted a Class III deficiency; she imposed a fine of $2,000 (which was actually the total for two Class III deficiencies found during the survey, one of which was the background screening issue). The Recommended Order was adopted by the Agency in its Final Order. Sanctions for the background screening deficiency have already been imposed and paid. There is no basis for any further penalty against Kipling related to that event. The facts of DOAH Case No. 11-4643 will not be revisited in the present Recommended Order. Kipling offered into evidence a certificate for employee Yahika Brown showing that Brown had received a TB test from Sacred Heart Medical Group (SHMG). Brown testified that she never received such a certificate, but that she saw one with her name on it in the assistant administrator’s office. The assistant administrator, Adrienne Taylor, said that Brown brought the certificate to the Facility and gave it to her. The charge nurse from SHMG, Laqueta Teamer, testified that the Brown certificate was a forgery. Teamer presented another certificate which had been issued to S—-S--, another former employee of Kipling. The S—S-- certificate was signed the same day by the same individuals and contained the same markings as Brown’s alleged certificate. There was no evidence in the SHMG files that Brown had been present at their office on the date stated in the certificate, nor could the nurse find Brown’s name in any of SHMG’s files. The greater weight of the evidence is that Brown’s certificate is fraudulent. General Observations It is patently clear that Kipling is not a pristine, state-of-the-art assisted living facility. The physical plant is old and severely abused by its residents. The competency level of many staff is extremely low, resulting in less effort being made to clean up the general messiness of the Facility. Many of the residents are on multiple medications and have little or no support from their treating physicians in maintaining their prescriptions. The Facility staff often appears to operate in a shoot- from-the-hip fashion concerning its duties. There are multiple errors on the MOR documents; there does not seem to be a strong sense of concern or empathy between residents and staff; and many problems seem to be met with a shrug. The fact that the Facility apparently falsified a certificate to indicate that one of its employees received a TB test that had not occurred is most concerning. It brings into question much of the testimony by some Kipling witnesses, especially Adrienne Taylor. Nonetheless, the owner and operator of Kipling seems to be genuinely willing to provide assisted living services to the most marginalized strata of humanity in the Pensacola area. That is to be commended, despite other negative actions. Looking at the entirety of the evidence, the demeanor of the witnesses, and the corroboration (or not) of hearsay evidence, it is clear that the Facility has some on-going issues which must be addressed regularly. There is insufficient evidence, however, that a “pattern of deficient performance” exists concerning operation of the Facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Agency for Health Care Administration, rescinding its Notice of Intent to Deny Renewal Application.8/ DONE AND ENTERED this 10th day of June, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 10th day of June, 2014.
The Issue The issue is whether Petitioner properly denied Respondent's request to amend or expunge FPSS Report Number 97-025819.
Findings Of Fact Liberty Intermediate Care Facility ("LICF" or "Liberty ICF") is a residential facility which provides care, shelter, and sustenance to developmentally disabled adults. From time to time, certain residents at Liberty ICF require "one-on-one" supervision. In that circumstance, one staff member is assigned to look after only one resident. The staff member must maintain eye contact with the resident and must keep the resident within arm's reach at all times. During March 1997, Respondent provided direct care to developmentally disabled adult residents at Liberty ICF in her capacity as a Direct Care Instructor. On March 6, 1997, Respondent was assigned one-on-one supervision of M.H., a developmentally disabled adult resident of the LICF. M.H. was known to leave the facility and to commit acts of physical self-abuse, such as head banging, if he was not carefully monitored. M.H. suffers from mental limitations which substantially restrict his ability to perform the normal activities of daily living. At the time of this assignment, Respondent was aware of M.H.'s propensities. At around 3:00 p.m. on the afternoon of March 6, 1997, as Respondent was performing this supervision, M.H. was asleep on his bed, while Respondent was sitting on the chair next to the bed. When M.H. awoke, Respondent gave him some gummy bears. M.H. then accepted the gummy bears, went to the window, and stared outside. Respondent then sat down in the chair beside the bed and went to sleep. While Respondent was sleeping M.H. left the room and exited the building. Another staff member observed M.H.'s departure. Behavioral Program Specialist Cathy Buchanon entered M.H.'s room, woke Respondent, and asked her where M.H. was. Respondent stated that she did not know where he was. Respondent and Ms. Buchanan left the building and found M.H. in the parking lot.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order retaining as confirmed the report of adult neglect naming Respondent as perpetrator. DONE AND ENTERED this 21st day of November, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1997. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 T. R. (address of record) Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Department, was the state agency responsible for the regulation of Adult Congregate Living Facilities, (ACLF), in Florida, and Respondent operated an ACLF, Palmetto Guest Home, at 820 5th Street West, Bradenton, Florida. On March 28, 1980, Ms. Alice P. Adler, and Ms. Mary C. Cook, both surveyors for the Department's Office of Licensure and Certification, did a routine survey of the Respondent's facility for compliance with the requirements of Chapter 10A-5, F.A.C., and Chapter 400, Florida Statutes. As a result of their survey they discovered several discrepancies which required correction. The eight pertinent to this hearing were: The facility did not have written accounting procedure that clearly outlined the operation of the business, including resident trust funds and other property. (Sec.400.417(1) and 400.427, Florida Statutes). Several resident contracts did not reflect the current rate being paid for care. (Section 400.402(10) and 400.424, Florida Statutes). There were no assurances that staff were free of infection or communicable diseases, (Rule 10A-5.019(5), F.A.C.). All centrally stored medications were not kept in a locked cabinet, in that medications were observed placed on top of the north wing medicine cabinet. (10A- 5.0182(3)(a), F.A.C.) Residents who were prescribed therapeutic diets by their physician were not served these diets as ordered. (10A- 5.020(1), F.A.C.). Various violations of the Food Service Code were identified. (10D-13, F.A.C.) Each resident record did not contain a report of physical examination to assure that the resident was free of communicable or infectious disease. (Sec. 400.426, Florida Statutes, and Rule 10A- 5.0181(2)(a), F.A.C.) The facility did not provide the resident or guardian with an admission package upon admission. Sec. 400.426(4)(5), Florida Statutes and Rules 10A-5.0181(1)(a)(c) and 10A-5.024(2)(c), F.A.C.). As was normal practice, on the day of the survey, prior to departure, the team went over its findings with Ms. Miller, the Executive Director of the facility and Ms. Brown, the Administrator, pointed out each discrepancy, and advised as to what was needed to bring the discrepancy into compliance. Thereafter, a copy of the written survey report, with the classification of deficiencies, was sent to the facility and on May 8, 1989, Ms. Brown acknowledged receipt of the survey report form. A follow-up survey was conducted by both Ms. Adler and Ms. Cook on June 5, 1989. At that time, several previously identified discrepancies had been corrected, but those listed above in Paragraph 2 were still not corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order herein imposing an Administrative Fine of $250.00 for each of the eight violations established for a total fine of $2,000.00. RECOMMENDED this 1st day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1990. COPIES FURNISHED: Edward A. Haman, Esquire DHRS Office of Licensure and Certification 7827 North Dale Mabry Highway Tampa, Florida 33614 James D. Biggins Palmetto Guest House 820 5th Street West Palmetto, Florida 34221 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-00700 John Miller General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact Respondent's adult congregate living facility (ACLF) has been licensed since 1989. Respondent was organized by 10 families with chronically mentally ill persons who needed placement. The ACLF provides personalized care to each of its residents. On April 9 and 16 and May 2, 1990, Petitioner conducted a periodic survey of Respondent's ACLF. The resident population at the time was 10 persons. The survey notes the following deficiencies relevant to this proceeding: the personnel files of staffmembers contained no evidence that the staff were free of communicable diseases, which is a Class III violation of Rule 10A-5.019(5)(a)1, (b), (c), (e), (f), and (g) if not corrected by May 30, 1990; therapeutic menus had not been prepared and served as ordered by physicians and no menu patterns were on file, which is a Class III violation of Rule 10A- 5.020(1)(e) if not corrected by June 10, 1990; each resident had not been examined by a physician or licensed nurse practitioner within 60 days before admission, or within 30 days after admission, because one assessment was undated, one resident was admitted January 20, 1990, and still had no assessment, and one resident was admitted August 21, 1989, and had an assessment dated May 26, 1989, which is a Class III violation of Rule 10A-5.01818(1) if not corrected by June 15, 1990; certain residents lacked a health assessment showing the suitability of the ACLF placement because one assessment was undated, an assessment dated August 19, 1989, failed to show if the resident could walk, and eight of ten files failed to document if the residents required help from staff to evacuate the building in the event of emergency, which is a Class III violation of Rule 10A-5.0181(2)(a)1., 2., 3., 4., a., b., c., d., e., and f. if not corrected by June 2, 1990; and the resident's medical records failed to justify the admission and continued residence in the ACLF, which is a Class III violation of Rules 10A-5.0181(3)(a)1.a., b.c., d., e., ., and h.(I), (II), i(I)(II), j. and 10A-5.022(1)m. if not corrected by June 2, 1990. By receipt signed May 23, 1990, Peter Lee indicated that he had received a copy of the survey. On July 17, 1990, Petitioner conducted a resurvey of Respondent's ACLF to see if the deficiencies had been eliminated. The resurvey states that three staffmembers had provided no evidence that they were free of communicable diseases; the deficiencies regarding the therapeutic diets had not been eliminated because a recent order for one resident changed his diet but his menu had not been adjusted and another diet order "had been changed" and required clarification; the health assessment were still missing for the resident admitted August 27, 1989, and the assessment was still undated for the resident admitted January 20, 1990; and the medical records continued to fail to justify the admission and continued residency because a contract remained undated, the health assessment for a resident admitted on August 19, 1989, had not been corrected, and three of ten assessments still failed to indicate if the resident was able to evacuate himself. Another follow-up survey was completed by November 5, 1990. This survey reflects that the noted violations had been corrected. The three communicable diseases statements had been sent to Petitioner on August 2, 1990. The alleged violation involving therapeutic diets was eliminated on October 8, 1990, when Respondent supplied Petitioner information that all the diets were changed to regular diets. The alleged violations involving physical examinations and assessments, as well as medical justification for admission and continued residency, were eliminated on October 8, 1990, when Respondent submitted the necessary documents to Petitioner.
The Issue Whether respondent should be administratively fined $500.00 for allegedly operating an Adult Congregate Living Facility without obtaining a license in violation of Section 400.407(1) Florida Statutes (1981).
Findings Of Fact Respondent, Edith Bartholomew is licensed to operate a boarding house in her home located at 201 Gould Road, Dade City, Florida. (Testimony of Cruz, R-1.) On March 24, 1982, Dr. Frederick Timmerman, Chairman of the Long Term Care Ombudsman Committee, and Diane Cruz, Adult Congregate Living Facility Licensure Specialist, inspected respondent's boarding home. Six residents, unrelated to respondent, were receiving meals, care, and lodging at respondent's home. Five residents were present during the inspection. Dr. Timmerman talked with each patient for the purpose of determining their physical and mental condition and the kind and level of physical services provided them. Only one of the five residents was capable of caring for herself during an emergency, the other four were incapable of taking care of themselves during an emergency and required physical services beyond room and board. (Testimony of Timmerman, Cruz.) Respondent explained that she kept the residents' medication locked in a kitchen cabinet. At mealtime, she would retrieve their medications from the cabinet and distribute them to the residents making sure they took the correct amount. (Testimony of Timmerman.) Respondent also admitted that she assisted her residents in bathing. The residents confirmed to Dr. Timmerman that she helped them bathe. There is conflicting evidence on whether the residents are capable of caring for themselves during emergencies, whether respondent dispenses medications to them, and whether she helps them to bathe. The testimony of Dr. Timmerman is considered the most credible and worthy of belief. He is a professional physician with no discernable bias or interest in the outcome of this proceeding. Dr. Timmerman told respondent to apply for an Adult Congregate Living Facility License, a request that had previously been made by other Department personnel. Respondent declined, responding that it involved too much paperwork. (Testimony of Timmerman.) Respondent has consistently operated a home which furnishes excellent care and services to its residents. For a reasonable fee, she provides food, lodging, personal services, and loving care to the elderly people who reside there. Department officials are convinced that she provides a valuable and essential service; they have even recommended that older persons be placed in her facility. She has always been courteous and cooperative with Department personnel. (Testimony of Cruz, Timmerman.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be fined $500.00. DONE and RECOMMENDED this 10th day of November, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1982.
