The Issue The issues to be decided in this proceeding concern whether the Respondent’s license to operate a nursing home should be disciplined by the imposition of the a Conditional License due to purported violations of nursing home regulatory rules.
Findings Of Fact The Respondent is an agency in the State of Florida charged with inspecting nursing homes and enforcing nursing home licensure requirements and performance standards in accordance with Chapter 400, Florida Statutes, and Rule 59A-4.128, Florida Administrative Code. The Petitioner rates nursing home licensees as either superior, standard, or conditional pursuant to this rule provision. The Petitioner is a licensed nursing home located and operating in Brooksville, Florida. It is known as Eastbrooke Health Care Center. (Eastbrooke; Petitioner). The Respondent surveyed the Petitioner for performance evaluation purposes on May 31, 1996, and conducted a follow-up survey visit on October 31, 1996. The Respondent claimed at hearing that the Petitioner was deficient in four (4) categories, referred to in the records as “tags”: F248, F250, F279, and F326. Each tag corresponds to a particular regulation. The findings in these tags or categories are incorporated into a survey report known as a “2567,” which is provided to the nursing home after the survey is completed. This form serves as a charging document for issuance of a Conditional License. Tag F248, concerning the May 1996 survey, requires that a nursing home “must provide for an ongoing program of activities designed to meet, in accordance with the comprehensive assessment, the interests and the physical, mental, and phychosocial well-being of each resident.” Under this category that Agency asserted the Eastbrooke was deficient because residents complained that they wanted more activities outside the building, like shopping. The Agency acknowledged that nothing in the rule required activities outside the building. Eastbrooke has a comprehensive and varied activities program, as evidenced by its activities calendar and its efforts to provide a variety of programs for its residents. It conducts resident meetings once a month, and attempts to meet the requests of residents expressed at those meetings. No request had been made for outside activities until May 1996, as evidenced by the Minutes of those meetings. An outside event was scheduled in June of 1996 for residents. While the Agency asserted as a deficiency that there had been no assessment of Resident 7’s activity preferences, the evidence actually shows, including excerpts from the resident’s file, that a complete assessment of such preferences, including a specific recreational assessment, and a care plan which provided for individualized activities, was done. AHCA also found, as a deficiency, that Resident 7 was to be involved in “group activities,” because the “therapeutics” of such activity, related to vision impairment, was not clear. It was explained by the Petitioner’s administrator, however, that such involvement was to prevent social isolation caused by the vision impairment. The Agency, in any event, failed to explain how involving a resident in group activities could violate the requirement to provide an activities program. The Agency asserted that the activities program for Resident 9 was deficient because she liked arts and crafts but not the activities that were offered to her. The Agency acknowledged that there was an activities plan for Resident 9, however. Additionally, the evidence shows that the resident had exceptionally long finger nails which she refused to cut and which prevented her from participating in most arts and crafts. Further, she was being treated for depression which was a cause for her refusal to participate in activities. The Agency’s assertion of the deficiency was based solely on the comments of the resident and not on any substantive evaluation. AHCA maintained that Resident 21’s recreational preferences were not known. However, this is inaccurate, as the recreational assessment was in the resident’s file and shows that the resident had been assessed for activities, was offered activities, and made his own independent choices. This assessment was either overlooked or not considered by the Agency. Concerning the October survey visit, the Agency did not review Residents 7, 9, or 21, who had been reviewed in the May survey to determine whether the alleged deficiencies it claimed to have found had been corrected. Instead it reviewed a different set of residents and the numbers do not correlate. Resident 9, surveyed in October, in effect is not the same person as Resident 9, who was surveyed in May. The Agency alleged in October that Resident 9 was provided one-on-one activities but did not receive them for two (2) weeks because he was asleep at the time the visits were scheduled. It therefore contended that Eastbrooke was deficient. The Agency does not dispute, however, that the effort was made to visit the resident, nor that there was an activities program in place for the resident. The record establishes that the resident was also participating in group activities during this time. The Agency’s assertion that the last activity for Resident 13 had been in January was shown, by October entries from that resident’s file, to be in error. The resident, who was completely unaware of her surroundings, was regularly provided various forms of sensory stimulation. Concerning the May visit and Tag F250, the Agency asserts that the failure to provide Resident 6 with lower dentures was a deficient practice. The Agency maintains that the resident claimed that she was embarrassed by not having her dentures. The evidence shows, however, that she was admitted to the nursing home from her own home without dentures and that she regularly went out to eat with her family after being placed in the nursing home without dentures and that she was on a regular diet with no problems in eating or maintaining her weight. It appears that dentures were not medically required and that their absence caused the resident no distress. The Agency’s findings were based solely on the resident’s isolated comment without further investigation. She had not expressed any interest in dentures before the survey was made. The Agency also cited the Petitioner concerning Resident 9, in spite of the surveyors acknowledgment that Resident 9 received all necessary social services and was being appropriately treated for the problem of motivation. The Agency’s admission contradicts any finding of a deficiency with regard to this resident. The Agency asserted that Resident 7 had dental pain and infection and should have had a dental consultation. The testimony and records reflect that the resident, while “at risk” for dental problems, did not suffer from pain and infection and that the facility was attempting to obtain a dental consultation, but had difficulty finding a dentist who would come to the facility in Brooksville. Reasonable efforts had been made to provide this service. They should continue. The Agency also found that the absence of social service notes for the discharge concerning Resident 20, constituted a deficiency. The records reflect that resident was in for a short term of rehabilitation for her broken hip and that constant contact was maintained with her family with regard to her planned return home to Michigan. Her family was made aware of her follow-up needs. The discharge needs in fact were fully addressed by the Petitioner. The Agency also contends that there was a lack of discharge planning for Resident 19 in violation of the pertinent regulation. The Petitioner, however, had only one (1) day’s notice of her discharge, as she was moved by her husband to another facility closer to their home when a bed became available there. Her husband had taken care of all the planning for the move although Eastbrooke did provide her with a discharge summary to assist the new facility in understanding her care needs. Upon re-surveying the Petitioner in October 1996, the Agency did not attempt to review Residents 6, 7, 9, 20, or 19, from the May survey to determine whether the alleged deficiencies as to them had been corrected. Resident 9 in the October visit had vision problems and the Agency alleged that the plan to have a vision consultation in December was not soon enough. The resident had had an evaluation in April and already wore glasses. She was being monitored for signs of vision problems. There was no urgent need to have her eyes examined before December, and the surveyor’s opinion that an examination should have been scheduled immediately, was unsupported by the established facts. Tag F279 requires a nursing home to “develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident’s medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment.” The Agency has asserted that, with regard to the May survey, that although Resident 1 should have had a care plan for dental problems, there was none. The records show, however, that there was a dental care plan, and it had been in existence since August 2, 1995, with periodic reviews and updates. The Agency also contended that Resident 4 had a problem related to activities that should have been addressed in her care plan. In fact, the comprehensive assessment, a standardized process, did not reveal a problem related to activities. An activities assessment and update had been done, nonetheless. The citation for Resident 7 was the same as that under F248. The surveyor did not understand why she should be involved in group activities. The purpose of this activity is well explained by the Petitioner. See Petitioner’s Exhibit 3, May Tab 8 A, B; Transcript pages 102-103. The Agency’s concern with regard to Resident 9 was apparently that there was not a specific goal related to mobility on the care plan. The problem of mobility was addressed on the care plan, however, as an “approach” rather than a “goal,” though there were documented problems getting the resident to agree to get out of bed. In any event the problem was addressed in the care plan as required by the regulation. In October the Agency did not review Residents 1, 4, 7, or 9, who had been surveyed in the May visit, to determine whether the alleged deficiencies were corrected. The problem found by the Agency with regard to Resident 7 in October was that although the resident was obese, the care plan did not show a goal of losing weight, but instead had a goal to be free of complications of obesity. The surveyor who offered this opinion, however, was not a nurse, doctor, or dietician. Care plans are formulated and reviewed at Eastbrooke by an inter-disciplinary team of health care professionals. The opinion of a surveyor without such expertise, who had not examined the resident in question, is of little probative value. Moreover, Eastbrooke presented sufficient reasons as to why a goal of losing weight would have been inappropriate for this resident. The Agency criticized the care plan for Resident 6 because the fluid level intake goal was not given in a specific measure. Other documents in the resident’s file, however, show the amount of fluid to be provided and the prescribed amount of fluid was put on the resident’s food tray by the dietary staff. The goal was therefore measurable in conjunction with other records in the file. There was no reason to restate the numbers in the care plan. AHCA also claimed that the goal for Resident 9 was not measurable, because it provided for the resident to “not display signs/symptoms of functional decline.” Functional abilities are measured by an instrument called a “Minimum Data Set,” or “MDS,” which is reviewed for each resident at least quarterly. This goal was therefore measurable. The Agency also criticized the care plan for Resident 13 as non-measurable in that it referred to “optimal quality of life.” The surveyor who made this notation did not have a copy of the care plan and did not know its date. The Petitioner presented the testimony of a registered nurse, who reviewed that resident’s entire file and was unable to locate a care plan containing a goal as described by the Agency. The Agency failed to prove this purported deficiency in the care plan. Concerning Tag F316, the Agency presented testimony concerning the May survey visit. The Agency presented no testimony regarding this “tag” related to the October survey. Without a repeat or continuation of the deficiency, it cannot form a basis for imposition of a conditional license, as explained in the Conclusions of Law below.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the Agency for Health Care Administration establishing a standard rating for the Petitioner and rescinding the conditional rating. DONE AND ENTERED this 8th* day of December, 1997, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 8th* day of December, 1997. *Note: Corrective Order of January 12, 1998, references 9th day of December, 1997, as true filing date. COPIES FURNISHED: Thomas W. Caufman Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Donna H. Stinson Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Douglas M. Cook, Director Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issues in these cases are whether the natural persons named as Respondents are guilty of neglect of an aged person and, if so, whether Eileen's Guest Home is entitled to renewal of its license as an adult congregate living facility.
Findings Of Fact C. G. is the owner and operator of Eileen's Guest Home, which has been licensed as an adult congregate living facility for six to seven years. C. G. has a bachelors degree with significant coursework in public health. During the relevant time period, J. K. R. was a part-time employee of Eileen's Guest Home and was not a caregiver. She worked only about seven hours a week, performing housekeeping tasks such as mopping floors, hanging laundry, and putting away groceries. At the time, J. K. R. was 20 years old. Eileen's Guest Home is located on Haben Drive in a residential neighborhood in Orlando. A lake, which is surrounded by a steep embankment, is located in the neighborhood. Virginia Avenue, which is heavily travelled, crosses Haben Drive about 500 yards from the facility. A short distance from this intersection is the intersection of Virginia Avenue and U.S. Route 17-92, which is very busy. A lumber yard in the vicinity of this intersection is directly behind a row of bushes that are located about seven houses down from the facility. At all relevant times, Eileen's Guest Home housed eight residents. Four of these residents are mentally confused to a substantial degree and require monitoring. Two of these residents, both of whom have Alzheimer's disease, wandered from the facility without permission or supervisioin in February and April, 1989. C. M., who had been admitted to the facility in December, 1984, wandered from Eileen's Guest Home during the daytime on February 4, 1989. C. M. became disoriented and requested assistance from a neighbor who lives seven houses from the facility. Directly across from this house, which is only four houses down from the steep embankment leading to the lake, is the row of bushes screening the neighborhood from the lumberyard. With the neighbor's help, C. M. returned to the facility without incident a short time after her departure. At the time, C. M. was 87 years old. This is the only time that C.M. wandered from the facility. N. B., who was 77 years old at the time and suffers from Alzheimer's disease, was admitted to Eileen's Guest Home on April 19, 1989. The owner of the Alzheimer's daycare center that N. B. attended told C. G. that N. B. needed a place to live for about one week while her husband was being hospitalized. The daycare center owner told C. G. that N. B. had Alzheimer's disease, but did not mention any tendency to wander. C. G. agreed to take N.B. Sometime during the afternoon of April 20, N. B. left the house without permission or supervision. C. G. failed to notice N. B.'s absence until after 5:30 p.m. when C. G. went to find N. B. to prepare her for bed. At the time of N. B.'s departure, C. G., J. K. R., C.G.'s 18-year-old daughter, and M. C., a 31-year-old employee, were working at the facility. N. B. wandered through the neighborhood for at least one hour before she found assistance. At about 6:30 p.m., N. B. walked up to the home of the same neighbor who had assisted C. M. several weeks earlier. She approached the neighbor's home from the direction of the lake, which is not in the direction of Eileen's Guest Home. She requested help to find her way home. As the neighbor walked N. B. to another neighbor's house, C. G. and J. K. R. drove up in C. G.'s car. With the help of a young man who had been water skiing at the lake and lived in the back of the facility premises, C. G. brought N. B. back to the facility. Neither of the neighbors reported seeing any marks on N. B. However, she had suffered bruises under her left eye, upper right chest, and left hand and thumb, plus lacerations under the left eye and near the left elbow, on the evening of April 19 when facility employees tried to get her to go to bed. Following the incident on April 20, C. G. contacted the owner of the Alzheimer's daycare center and requested that she find another facility for N. B. Told that no other facilities were available, C. G. took no other action except to explain to N. B. that her husband was in the hospital and she should not leave the house. C. G.'s failure to take corrective action after N. B.`s first escape is exacerbated by the fact that the doors to the facility were not secure. The back door, which either had no alarm or had an alarm that was never operative, was normally left unlocked, apparently for the convenience of several persons living in the back. The front door had an alarm, but the alarm was broken for about three weeks in April, beginning a few days prior to the arrival of N. B. On Sunday, April 23, 1989, N. B. wandered from the facility a second time without supervision or permission. At the time, C. G. and her daughter were the only employees present. Never realizing that N. B. had escaped, C. G. received a telephone call from a neighbor informing her that he had N. B. at his home, which was not located on the same street as the facility. N. B. was returned to the facility without incident. The following Sunday, April 30, N. B. wandered from Eileen's Guest Home for a third time without supervision or permission. Again, only C. G. and her daughter were present to care for the residents. A neighbor summoned a police officer, who returned N. B. to the facility. N. B. stayed at the facility for about six more weeks. During that time, she did not wander off the premises without supervision.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order confirming the report of neglect of an aged person by C. G., expunging the confirmed report of neglect of an aged person by J. K. R. and expunging her name as a perpetrator from the registry, and revoking the license of Eileen's Guest Home. ENTERED this 16th day of April, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 16th day of April, 1990. APPENDIX Treatment Accorded Proposed Findings of Eileen's Guest Home, C.G., and J. K. R. 1. First two sentences adopted. Remainder rejected as irrelevant. 2-6. Adopted or adopted in substance. 7. Rejected as unnecessary. 8-10. Adopted. First sentence adopted. Second sentence rejected as against the greater weight of the evidence. Third sentence adopted except as to "despite" clause. Fourth sentence adopted. Fifth sentence rejected as speculation. Adopted. Adopted in substance. First sentence rejected as subordinate. Second sentence rejected as unsupported by the greater weight of the evidence, although there was no evidence of other incidents of wandering. First two sentences adopted. Remainder rejected as irrelevant. Rejected as against the greater weight of the evidence. 17-19. Rejected as irrelevant. Rejected as recitation of testimony and irrelevant. Rejected as recitation of testimony and against the greater weight of the evidence. Rejected as hearsay and against the greater weight of the evidence. 23-24. Adopted. 25. Rejected as unsupported by the greater weight of the evidence. 26-27. Rejected as against the greater weight of the evidence. 28. Adopted. COPIES FURNISHED: Jonathan S. Grout Dempsey & Goldsmith, P.A. P.O. Box 10651 Tallahassee, FL 32302 Linda L. Parkinson, Attorney Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 701 Orlando, FL 32801 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact During times material hereto, Respondent, Ray C. Dorman, is the owner and administrator of Scarlet Manor. Scarlet Manor is an adult congregate living facility at 13009 Lake Carl Drive in Hudson, Florida. The facility has a census of 40 beds and of that census, two residents are elderly patients and the remaining 38 residents are "hard core" mental patients who require intensive and specialized nursing care. Ray Dorman (Respondent) is named as the confirmed perpetrator of neglect (FPSS No. 90-091417) based on a finding that Respondent neglected a resident at the ACLF. A certified letter from Petitioner dated September 22, 1990, which was received by Respondent on September 27, 1990, advised Respondent that he could challenge the confirmed finding of neglect if he considered that the classification was inaccurate or that it should otherwise be amended or expunged. Although Petitioner maintains that Respondent failed to challenge the confirmed finding of neglect, Respondent and his wife, Winifred Dorman, credibly testified that on October 10, 1990, she accompanied Respondent to an HRS office in Clearwater to deliver a written request to challenge the finding of neglect. While the office which would have addressed Respondent's challenge (Mr. Morton's office) is situated in St. Petersburg, on that point, it appears that Respondent's wife was either unclear as to exactly where the Respondent's challenge to the confirmed classification was delivered and nothing more. Respondent's facility has been the subject of regular survey reports wherein it was determined that Respondent's facility was deficient in maintaining minimum licensure requirements based on inspection surveys dating back to September, 1989. Mrs. Diane Cruz, a human services surveyor specialist employed by Petitioner, was part of a three (3) member team of surveyors at Respondent's facility during late September, 1989. During the September, 1989 survey, it was determined that Respondent's facility was deficient in several areas including fiscal policies, facility records, client records, medication records, staffing, food service standards, maintenance and housekeeping standards, resident care, admission criteria and fire safety standards. In all of the cited areas, Respondent corrected the deficiencies and no cited deficiency was outstanding at the time of the hearing herein. Significantly, of the numerous deficiencies that Respondent was cited, only three of the deficiencies were repeat deficiencies during the annual 1990 annual survey. Respondent's facility is a fairly new and modern facility and Respondent prides himself in providing his residents the high degree of nursing services which the residents of his ACLF require. In this regard, in each instance wherein Respondent was cited for deficiencies, the matter was corrected by the time that the follow-up survey was conducted with only two exceptions. Regarding those exceptions, Respondent credibly testified that he had undertaken a good faith effort to correct the deficiency by the time of the follow-up survey. In any event, all of the cited deficiencies were corrected and Respondent has abided by the terms of any restrictions including the payment of any administrative fines which were imposed by Petitioner. Such conduct evidences that Respondent is conscientious in the operation of his adult congregate living facility and, to his credit, more than one of and Petitioner's witnesses testified that Respondent operates a good ACLF.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent a conditional license to operate Scarlet Manor as an adult congregate living facility. 1/ Afford Respondent an opportunity to challenge the confirmed classification naming him as the perpetrator in FPSS Report No. 90-091417 as soon as practical. DONE and ENTERED this 30th day of October, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 30th day of October, 1991.
The Issue Whether Respondent committed the offenses described in the Administrative Complaint issued by Petitioner? If so, what penalty should be imposed?
Findings Of Fact Elenor's Retirement Home (Home) is a licensed adult congregate living facility located in Miami, Florida. Eric Peavy is the owner of the Home. His wife is the Home's administrator. In November, 1989, OLC personnel visited the Home to conduct a survey to determine compliance with licensure requirements. Resident contracts on file were reviewed. Three of the contracts reviewed contained neither a refund policy of the type specified in Chapter 10A- 5, Florida Administrative Code, a bed hold policy, nor a statement as to whether the Home is affiliated with any religious organization. A previous survey conducted by OLC personnel had revealed that resident contracts on file at the Home lacked these provisions. The Peavys were so notified and directed to take corrective action. They failed to do so within the mandated time frame. This deficiency still existed as of the November, 1989, survey. During the November, 1989, survey, an examination was also conducted of the medication records maintained at the facility. The records were incomplete. They did not contain daily, up-to-date information regarding the administration of medication to three of the Home's residents. A previous survey conducted by OLC personnel had revealed that the Home did not have complete, up-to-date records concerning the daily administration of medication to all of its residents. The Peavys were so notified and directed to take corrective action. They failed to do so within the mandated time frame. This deficiency still existed as of the November, 1989, survey. During the November, 1989, survey, OLC personnel observed a resident who required greater care than the Home was able to provide. The resident was incapable of doing virtually anything for herself. Among other things, she needed to be administered medication. The Home, however, did not have the licensed staff to provide this service. The resident was totally incontinent. Because of her physical condition, the resident was unable to participate in any of the social activities at the Home. The same resident had been observed at the facility during an earlier survey conducted in June of that year. Although the matter of the inappropriateness of the resident's continued placement at the Home had been raised during the survey, the resident was still at the facility when OLC personnel returned to the Home in November. During the November, 1989, survey, the Home's fire drill records were inspected. There was no record of any fire drills being conducted at the facility in September or October of that year. This was not the first time that OLC personnel had found a lack of documentation concerning the conducting of monthly fire drills at the Home. Such a deficiency had been uncovered during an October, 1988, survey of the Home. The Peavys were made aware of this deficiency at that time. The Peavys were given written notice of the deficiencies found during the November, 1989, survey. OLC personnel revisited the Home in February, 1990, and discovered that all of the deficiencies found during the November, 1989, survey had been corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Petitioner enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint, imposing a civil penalty in the amount of $1,000 for these violations and giving the Home a reasonable amount of time within which to pay this penalty. RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of May, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1991.
Findings Of Fact On August 10, 1977, Petitioner filed an application for an Adult Congregate Living Facility License. Thereafter, on nine separate occasions Petitioner was visited by representatives of Respondent, the Dade County Fire Department, and the Dade County Health Department. The results of the inspections by these governmental agencies were numerous lists showing deficiencies in Petitioner's staff, physical plant, sanitary practices, and in diets being furnished to the residents of the facility. At the final hearing in this cause, Petitioner's President admitted that the deficiencies noted in the May 22, 1978 letter of Respondent's Supervisor of the Aging and Adult Services Program, which was marked as Petitioner's Exhibit Number 3, were correct as of the date of the letter. Petitioner contends, however, that the deficiencies noted in Petitioner's Exhibit Number 3 have since been corrected. However, the issue in this proceeding is whether there was substantial competent evidence in existence on May 22, 1978, to justify the denial by HRS of Petitioner's application for an Adult Congregate Living Facility License. Corrections made by Petitioner after that date are irrelevant to this proceeding, although Petitioner would not, of course, be estopped to show correction of these deficiencies in a later application. Inspections conducted by or on behalf of HRS on April 7, 1978, May 12, 1978, and May 16, 1978, showed that staff on duty at Petitioner's facility was inadequate to properly supervise residents in the facility. On the April 7, 1978, visit, there were only one or two staff members on duty to care for thirty-four residents of the facility. The inspection conducted on May 16, 1978, revealed only one staff member on duty. The Administrator of the facility on both occasions was not in attendance at the facility at the time of the inspections. Fire inspections on Petitioner's facility were conducted on January 6, 1978, and again on April 20, 1978. The January 6, 1978, inspection resulted in a lengthy list of deficiencies, which included citations for no building evacuation plan, improper fire extinguishers, lack of proper latching devices on doors, improper hanging of doors, improper installation and maintenance of electrical equipment, no emergency lighting, obstruction in facility corridors, lack of exit signs, lack of smoke detectors, insufficient landing size on stairways, improper storage of flammable chemicals, and improper safety precautions in the electrical equipment room. The April 20, 1978, inspection also resulted in a lengthy list of deficiencies, including lack of an evacuation plan, no record of evacuation drills having been held, lack of proper latching devices on stairway fire doors, and lack of exit signs. There is no evidence of record from which to conclude that these deficiencies were corrected prior to the date on which HRS denied Petitioner's application for a license to operate an Adult Congregate Living Facility. Sanitary inspections of Petitioner's facility were conducted on August 29, 1977, and April 18, 1978. The August 29, 1977 inspection resulted in a lengthy list of deficiencies which is contained in Petitioner's Exhibit Number Among these deficiencies were improper doors, windows and screens in the facility, lack of handrails, improper lighting, improper heating, insufficient number of toilets for the existing number of residents in the facility, and numerous electrical code violations. The inspection conducted on April 18, 1978, revealed many of the same deficiencies noted in the earlier inspection. In addition, a serious fly problem was observed in the kitchen area which was caused by improper sanitary procedures in the kitchen and disrepair of windows, screens and doors. In addition, live roaches and roach eggs were observed in the kitchen, also due to improper sanitary procedures. Further, a live rat and significant quantities of rat droppings were also observed in the kitchen area. The April 18, 1978 inspection also revealed cracked ceilings, holes in walls, malfunctioning lights, holes in floors, and use of a common drinking cup at the water fountain in the facility. There is insufficient evidence in the record in this cause to appropriately demonstrate that the deficiencies noted in the August 29, 1977 and April 18, 1978 inspections were adequately corrected prior to the denial of Petitioner's request for a license on May 22, 1978. On May 12, 1978, the kitchen facilities belonging to Petitioner were inspected by an HRS staff nutritionist. On the day of the inspection, the Administrator was not in attendance at the facility, and the only staff member present was a young woman who had difficulty communicating in English, and who was in charge of both residents of the facility and total food service, including preparation, serving and cleaning. The lunch menu posted for the date of the inspection did not provide one third of established recommended dietary allowances. The menu was also calculated to be deficient in calories, protein, calcium, iron, Vitamin A, Vitamin C, Thiamine, Riboflavin and Niacin. The food on hand in the facility did not correspond to posted menus, and the meal observed together with the food inventory were not sufficient for the age group residing in the facility and could result in malnutrition. The kitchen area was dirty, and food preparation utensils required scrubbing and sanitizing. Dishes were being washed with tepid water which was not sufficient for sterilization, and other sterilization methods being used for kitchen utensils were not sufficient to sterilize them. A serious fly problem existed in the kitchen, at least in part due to poor installation of doors. It was impossible to determine the qualifications of the Food Service Supervisor, no policy manual regarding food preparation was found in the facility, and no job description, work assignment, orientation plan, training record, health exam, or employee evaluation could be located for food service personnel. There were no written menus approved by a qualified consulting dietician, no written procedures for ordering, receiving and storing foodstuffs, and no food preparation or recipe file.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Health and Rehabilitative Services, denying Petitioner's Application for a License to Operate an Adult Congregate Living Facility. RECOMMENDED THIS 5th day of January, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Stuart E. Wilson, Esquire Franklin International Plaza 255 Alhambra Circle, Suite 100 Coral Gables, Florida 33134 Leonard Helfand, Esquire DHRS District XI Legal Counsel State Office Building 401 Northwest 2nd Avenue Miami, Florida 33128
Findings Of Fact Respondent is an Adult Congregate Living Facility licensed by Petitioner. Maria Mier is a district programs specialist employed by Petitioner in its Adult Congregate Living Facility program. She was assigned the responsibility of working with Respondent to assure Respondent's compliance with Petitioner's regulations on May 5, 1981. Petitioner presented no testimony regarding the conditions at the Aloha prior to that date. Isabell Arango is a long-term care administrator for Petitioner. She has the responsibility for assessing the amount of administrative fine to be imposed as a result of any violation of Petitioner's regulations. In doing so, she reviews the recommendation of the specialist in charge of that facility and then applies her personal set of guidelines, which were not introduced in evidence. Mier and Arango signed both Administrative Complaints under consideration herein. Petitioner filed a Petition for the Appointment of a Temporary Receiver to operate the Aloha. Petitioner's Petition was heard in the circuit court of the 11th Judicial Circuit in and for Dade County, Florida, on May 15, 1981, and a receiver recommended by Petitioner was appointed to operate and manage the facility. By order entered June 11, 1981, a circuit court judge granted an Agreed Motion for Substitution of Court-Appointed Receiver and appointed a substitute receiver recommended by the Petitioner. By order entered October 5, 1981, a circuit court judge granted the Moha's Motion to Terminate the Receivership. On May 4, 1981, a resident of the Aloha was found naked by the police somewhere outside of the facility. He was taken to Jackson Memorial Hospital, and his daughter was contacted. Adult Congregate Living Facility residents are free to come and go as they wish and do not require permission from facility personnel in order to be allowed to leave the facility. The resident located by the police had left the facility on a regular basis in the past, and no evidence was offered to indicate the resident in question would be likely to be in danger at any time that he was away from the facility or that there had been any prior problems regarding his absence from the Aloha. On November 10, 1981, Mier went to the Aloha to investigate a complaint from a resident that an envelope addressed to her containing a check had been opened. Mier did not see any opened mail at the Aloha and did not observe the facility's procedure for handling residents' mail. On December 17, 1981, Mier prepared a citation for that complaint and had the citation delivered to the administrator of the Aloha, although the citation itself advised that Petitioner considered the alleged deficiency to have been corrected as of December 1, 1981. (These facts form the basis for an allegation found in the Administrative Complaint filed in Case No. 82-179.) On January 20, 1982, Petitioner received a complaint from a different resident that an envelope addressed to her had been opened. On February 2, 1982, the same resident filed with Petitioner a written authorization requesting that the Aloha personnel open her mail for her. (These facts form the basis for an allegation found in the Administrative Complaint filed in Case No. 82-737.) According to the facility's records, during June, 1981, a resident refused to take medication on numerous occasions. The records did not reflect that the resident's doctor was notified. A resident in an Adult Congregate Living Facility cannot be forced to take medication. The resident in question had a history of drug and alcohol addiction, and his physician had advised the staff at the Aloha to withhold any medication from him at any time they believed he had been drinking due to the dangerous combination of his medication and alcohol. On July 29 and August 3, 1981, 15 residents observed in the lobby had foul body odor and dirty clothing. Four male residents needed shaving. If a resident of an Adult Congregate Living Facility does not wish to shave or wants to wear dirty clothing, personnel at the facility cannot force that resident to shave or to remove dirty clothing. On July 19, 1981, one resident of the Aloha was determined by a physician to be in need of nursing home care, services which the Aloha is not licensed to provide. On July 29, 1981, that resident was still at the Aloha. Only a medical doctor can order a transfer of a resident from an Adult Congregate Living Facility to a nursing home. Once the doctor orders it, the Adult Congregate Living Facility is in charge of making arrangements. If no nursing home beds are readily available, then a unit within the Petitioner's organization is in charge of placement into nursing homes. A wealthy patient can be placed easily; placement for a Medicaid patient may take time. On August 3, 1981, 24 out of 27 resident files reviewed lacked the required physician's statement regarding the resident's physical condition. Those records were brought into compliance, and Mier knows of no medical problems involving those 24 residents during the time of noncompliance. On August 3, 1981, the admission/discharge register for the residents of the Aloha was not properly maintained. The register was subsequently brought into compliance. On August 3, 1981, seven out of 27 resident files reviewed lacked a properly executed contract for services between the resident and the Aloha. Seven contracts had the resident's date of admission as the date the contract was signed, although the charges listed in the contract were effective after the admission date. This deficiency was subsequently remedied. On August 3, 1981, 23 out of 27 resident files reviewed lacked complete demographic data, i.e., the information pertinent to a death certificate. On August 3, 1981, four out of 24 personnel records reviewed lacked references in the employment application, and one record lacked the employment application. On August 3, 1981, nine out of 24 personnel files reviewed lacked the proper documentation that the employee was free of communicable diseases. Respondent admits that during surveys conducted on June 2, June 15, July 17, August 3 and November 2, 1961, the following facility maintenance and housekeeping standards were violated: Strong urine odors in resident rooms; Lack of toilet supplies in bathrooms; Inoperable drapes in resident rooms; Broken fixtures in resident bathrooms; Presence of vermin in the locked physician's examination room; A broken corner on a mirror in a resident's room; Two areas of cracked tile in the dining room; Furniture in need of repair. Mier, who conducted the inspections, has no knowledge as to what furniture was in need of repair. Petitioner conducted inspections of the facility's physical plant on June 2, June 15 and November 2, 1981. An additional inspection was commenced on July 29 and was concluded on August 3, 1981. On June 2, Rooms 25 and 59 had no air conditioners, but both rooms had large windows which opened for ventilation. On July 29, 1981, the air conditioning units in Rooms 31 and 40 were not working. On July 29, 1981, Rooms 27 and 73, which were being used for storage, lacked proper ventilation from either air conditioning or windows. On July 29, 1981, Rooms 1 and 10 had light bulbs missing from fixtures in the bathrooms. New light bulbs were installed while Mier was still present. (c) On July 29, 1981, Rooms 36, 40, 60, 68 and 70 lacked non-slip safety devices in the bathrooms. On November 2, 1981, only Room 36 of those inspected on July 29 still lacked non-slip safety devices. Additionally, non-slip safety devices were missing in the bathrooms of Rooms 46, 48 and 57. On July 29, 1981, the Aloha lacked handrails in 43 resident bathrooms. The Aloha purchased over 40 handrails, the total number that could be located in Miami at the time, and placed an order for an additional 45. The Aloha filed a copy of that order with Petitioner at the time. On each of her inspections, Mier found the second floor lobby to be uncomfortably hot. She therefore determined that the lobby was unusable and that the facility, therefore, did not comply with the required 35 square feet per resident in common-use areas. She did not take the temperature of the area which she determined to be uncomfortably hot on any of those occasions. She does not know the measurements of the second floor lobby, and no evidence was introduced regarding the size of the common areas in order to determine whether the 35- square-foot-per-resident requirement was met. Mier admits that based upon her recommendation, Aloha installed fans in that lobby. An air conditioning unit was later placed on the roof in order to cool the second floor rooms even more. Martha Perez is a nutrition consultant for the Petitioner. She conducted inspections of the food service standards at the Aloha on June 3 and November 3, 1981. On June 3, 1981, the Aloha had 129 residents. The chart of one of those residents indicated a need for a diabetic diet. Perez found no diabetic foods or special menus regarding a diabetic diet at the Aloha. On November 3, 1981, the Aloha still had 129 residents. Perez found no special provision for anyone needing a special diet but was also unable to identify anyone residing at the Aloha whose file indicated a need for a special diet. On June 3, 1981, the Aloha had only a one-and- a-half days' supply of non-perishable food, rather than the one-week's supply required. On November 3, 1981, the emergency food supply had been increased so that it was sufficient for two and a half days. On June 3, 1981, Perez found frozen raw meat being defrosted at room temperature. On November 3, 1981, Perez found a fully cooked meatloaf cooling off on the stove.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: A final order be entered dismissing the Administrative Complaint filed against Respondent in Case No. 82-179 and further dismissing the Administrative Complaint filed against Respondent in Case No. 82-737. DONE and RECOMMENDED this 1st day of December, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 1st day of December, 1982. COPIES FURNISHED: Martha F. Barrera, Esquire Department of HRS 1320 South Dixie Highway Coral Gables, Florida 33146 Barry L. Halpern, Esquire Koger Executive Center, Suite B-106 8405 NW 53rd Street Miami, Florida 33166 David H. Pingree, Secretary Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Elizabeth Ann Boarding Home is an adult congregate living facility licensed by Petitioner. On the evening of November 6, 1980 Leatrice Carpenter, a 56 year old female resident at this facility, fell in her room and struck the back of her head on the door leaving a cut in the scalp some two inches long running vertically near the center of the back of the head from the hairline up. She was found shortly thereafter by Rebecca McPherson (Becky), a 70 year old maid, who lived and worked at the facility. Becky saw Ms. Carpenter had a cut in the back of her head which was bleeding slowly. Becky put a wet towel around Ms. Carpenter's head, helped her into a chair which she pushed over the bed and then helped Ms. Carpenter into the bed. Becky did not notify Ms. Morris because Ms. Morris had been sick with heart trouble. Becky did dial Ms. Carpenter's daughter but received no answer. During the night Becky checked on Ms Carpenter off and on when Becky would get up. Ms. Carpenter is subject to epileptic seizures; however, her malady is under control with medication consisting of phenobarbitol and dilantin. Despite the medication she is still subject to focal seizures during which her eyes roll back but she retains control of her other bodily functions. Ms. Carpenter is also a member of the Senior Citizens Day Treatment Program run by St. Vincent's Hospital. She and others similarly unable to fully take care of themselves are transported to St. Vincent's Monday through Friday where they are placed in programs to occupy their day and help them cope with their situation. Ms. Carpenter is also given her medication of phenobarbitol and dilantin at St. Vincent's. She is given only one dosage to take with her when she leaves St. Vincent's in the afternoon. When Ms. Carpenter did not get off the bus at St. Vincent's the morning of November 7, Linda Hartley, the LPN in charge of Ms. Carpenter while she is at St. Vincent's, became concerned and went to the facility to find out what was wrong. When she arrived she found Ms. Carpenter in bed with the towel still wrapped around her head. Ms. Carpenter was comfortable and alert. When she removed the towel Ms. Hartley observed dried blood on the towel and blood-matted hair on the back of Ms. Carpenter's head. She saw the cut in Ms. Carpenter's scalp was not bleeding but believed it required medical attention. She talked to Becky and to Ms. Carpenter who told her the latter had fallen the previous evening shortly after supper and thereby obtained the injury. Ms. Hartley got Ms. Carpenter's daughter's (Ms. Watson) telephone number and returned to St. Vincent's to call Ms. Watson's residence. When she didn't get an answer she called the school at which Ms. Watson taught and left a message for Ms. Watson to call her as soon as possible. Both of Ms. Watson's phone numbers were in the St. Vincent's records for Ms. Carpenter. Early after lunch Ms. Watson returned Ms. Hartley's call and was told about her mother's accident. Ms. Watson proceeded to the facility to her mother who she found still in bed. When she saw the cut on Ms. Carpenter's head she helped her dress and took her to the emergency room at St. Vincent's where the wound was cleaned, dressed and sutured. This emergency room treatment is recorded on Exhibit 4. Eight stitches were required to close the cut. In late January, 1981, after Ms. Carpenter had been moved to a different adult congregate living facility, St. Vincent's Day Care Center reported to Petitioner the events surrounding the injury Ms. Carpenter had received. Later the same day Ms. Hartley called Petitioner to confirm the information (Exhibit 1). Two days later, on January 28, 1981 Ms. Watson complained to Petitioner regarding the failure of the facility to provide proper medical treatment when her mother was injured (Exhibit 1). An investigation conducted by Petitioner confirmed the facts above noted and resulted in the February 17, 1981 letter notifying Respondent of the intent to impose an administrative fine. Then the investigator talked to Ms. Morris, the owner of the facility, she found it difficult to focus Ms. Morris' attention on the November incident involving Ms. Carpenter. Ms. Morris recalled a fall Ms. Carpenter had taken in April, 1980 while she was away from the facility and kept referring to this incident as she was being questioned about the November accident. No notation regarding the current accident had been entered in the facility's records.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact On November 14, 1985, Richard G. Glover, a program analyst in petitioner's office of licensure and certification section, inspected respondent's facility. Twelve persons were in residence at the time. In the course of his inspection, Mr. Glover discovered that respondent's admission-discharge register only reflected a population of nine. He also looked for the residents' "health assessments", reports of physical examinations required by the Departmental rules to be done within 30 days of a resident's admission. Despite a lengthy search with the assistance of a Miss Fela, health assessments for five persons then resident at respondent's facility could not be found. Mr. Glover noted some half-dozen other deficiences and specified times by which respondent was to correct all the deficiencies he identified. In a form left with Miss Fela at the facility, he specified that the register be corrected immediately and that the missing health assessments be supplied on or before January 1, 1986. On January 9, 1986, Mr. Glover returned for a second inspection of respondent's facility. On this visit, staff at the facility were unable to produce the register altogether, and two health assessments remained missing. Petitioner's Exhibit A. The uncorrected deficiency with regard to the health assessments paralleled findings the year before: On November 29, 1984, not all of the persons then resident at respondent's facility had health assessments on file. Petitioner's Exhibit B. Health assessments are necessary to determine whether a resident's placement is appropriate.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about 1:00 p.m. on September 2, 1978, a Saturday, Deputy Reder from the Hillsborough County Sheriff's Office went to the "Sweet Magnolia Boarding Home," a licensed adult congregate living facility (ACLF) operated by the petitioner, as a result of a call from either the petitioner's daughter or a relative of one of the residents. Upon his arrival, Deputy Reder found four elderly boarders or residents, petitioner's, fifteen or sixteen year old daughter and her female friend of about the same age. The petitioner's daughter and the residents were upset, but none of the residents needed emergency medical assistance. The relatives of the residents and the respondent were notified that the four residents were without adult supervision, and the residents were removed from the facility that day. On the Monday preceding Saturday, September 2, 1978, petitioner received a telephone call informing her that her husband had had an accident in Detroit, Michigan and had injured his back. Petitioner left Tampa on that day and flew to Detroit. It was her testimony that she left Mary Ann Cowley, who had worked for her for about one year, in charge of the "Sweet Magnolia Boarding Home" while she was gone. She further testified that she left approximately $700.00 with her fifteen or sixteen year old daughter to pay the rent and buy food for the residents during her absence. When she returned to the facility late Saturday night on September 2, 1978, no one was there and many of her belongings were gone. Petitioner did not contact the respondent regarding this incident. Her husband was not hospitalized for his back injury. On or about September 22, 1978, an administrative complaint against petitioner was filed by the respondent seeking to revoke her ACLF license. Having failed to respond to the complaint, respondent, on October 18, 1978, entered a "Judgment of Revocation of License" by default. Said judgment found that petitioner voluntarily discontinued operation of the facility without providing advance notice to respondent and without surrendering her license, that she left residents boarded at the home without adult supervision while she left the state and that a deputy reported that there was no food in the premises on September 2, 1978, and that the residents had not been fed for two days. Deputy Reder did not check the premises for food and one of the boarder's daughter did not hear her mother complain of being hungry on the day she removed her from the petitioner's facility. Petitioner testified that she never received the administrative complaint or notice that her ACLF license had been revoked. Petitioner applied for another ACLF license in March of 1980. Before this was processed, and in April of 1980, she was hospitalized for two or three days for elbow surgery and left her husband in charge of the unlicensed facility. Her husband had never assumed this responsibility in the past. On Monday, April 14, 1980, petitioner's husband prepared a bath for one of the residents who was approximately eighty-nine years old and frail, helped her into the bathtub and then left the bathroom to complete some chores in the kitchen. While he was gone, this elderly resident drowned in the bathtub. The incident was described in the police report as an "accidental death" and no charges were brought against petitioner or her husband. Respondent was not notified of the drowning incident until several weeks later. During this same general time period, from March through early July, 1980, negotiations were had between petitioner and respondent regarding her March application for ACLF licensure. Respondent's Aging and Adult Services Program Office had many concerns regarding the issuance of a license to petitioner, including the prior incidents of lack of supervision, inappropriate placements and the drowning incident. Respondent did not feel that a legal basis existed for denial of petitioner's application for licensure, so they offered her a compromise. Petitioner was told that if she removed her present residents, respondent would issue her a license and she could start over with more appropriate residents or boarders. On June 25, 1980, petitioner notified respondent that it was her decision to discontinue her operation as a boarding home and not accept the license to operate as an ACLF. By letter dated June 26, 1980, respondent notified petitioner that she had thirty days to remove the residents from her facility and that legal action would be brought against her if she reopened another unlicensed facility in Hillsborough or Manatee Counties. By letter dated July 3, 1980, respondent again informed petitioner that her decision not to accept the license was considered as final and that a license could not be issued to her at that time. On February 3, 1981, at approximately 3:00 p.m., employees of the respondent made an unannounced visit to petitioner's unlicensed facility. They found that petitioner was not on the premises and that the only people there were petitioner's father, approximately 70 years of age, and two elderly residents. One of the residents was in a hospital bed and was being fed by means of a tube down her throat. Respondent's employees remained on the premises for about 30 minutes and petitioner did not appear during this time. During the time of the unannounced visit by respondent's employees, petitioner had gone to the store. It was her testimony, which was corroborated by her father, that she had asked another person to stay at the facility while she went to the store. That other person was not there when petitioner returned from the store. Betty P. Steiger, R.N., who specializes in geriatric nursing, observed the tube-fed resident in petitioner's facility on February 4, 1981. She was described as an elderly black woman who was incontinent, unable to ambulate, incoherent and a candidate for round-the-clock skilled nursing care. An ACLF was not an appropriate placement for this person. Feeding tubes should be changed only by a registered nurse or a physician and a suction machine should be available in case of aspiration. Ms. Steiger did not observe a suction machine on the petitioner's premises. This tube-fed resident had been living in petitioner's facility for four or five months and had been tube-fed since her arrival. Petitioner is a licensed practical nurse. In February of 1981, she had no other employees. Petitioner again applied for an ACLF license on March 5, 1981. By letter dated May 14, 1981, she was notified by the respondent's Aging and Adult Services Program Office that her application was being denied for the following reasons: You have exhibited a disregard for, and a failure to assume appropriate responsibility for, the welfare of residents under your care. This is evidenced by the following: On October 18, 1978, your license to operate "Sweet Magnolia Boarding Home", an adult congregate living facility, was formally revoked due to your having left the boarders at the facility without any adult supervision during or about September, 1978 while you left the state. When discovered on September 2, 1978, the residents had not been fed for two days and there was no food on the premises. In April, 1980, an elderly resident at your unlicensed facility at 822 Whatley Place, Tampa, Florida, drowned in the bathtub while not receiving proper supervision. On or about February 3, 1981, a resident at your home at 822 Whatley Place, Tampa, Florida, was discovered by the Department's employees to be bedridden and to be in need of full time skilled nursing care. Said resident was being fed through a tube and such condition, without appropriate full time skilled nursing care, materially affected the health, safety, and welfare of said resident in that had such resident regurgitated, this resident, being elderly and very debilitated, would have been unable to clear herself and would have "drowned" in her own bodily fluids. Your retention of this resident, without ap- propriate full time skilled nursing care, constituted a disregard for her welfare. On or about February 3, 1981, employees of the Department made an unannounced visit to your unlicensed facility and discovered that you were not present and that you had not provided for adequate supervision of the residents. Besides the residents, the only person present was your elderly father who, due to his age and physical condition, could not provide safe and adequate supervision to the residents. The actions referred to in paragraphs 1(a) through (d) constitute intentional and/or negligent acts which seriously affected the health, safety, and/or welfare of residents of your facility and constitute grounds to deny your application for a license pursuant to section 400.414(2)(a), Florida Statutes (1980). Your physical plant is short one toilet and one sink. According to Rule 10A-5.11(3)(a)1, Florida Administra- tive Code, there must be a bathroom exclusively for the use of the residents. Since you fail to meet the minimum standards for Adult Congregate Living Facilities, your license is being denied on that basis also. The parties stipulated that petitioner's physical plant was short one bathroom. It was agreed that if all other bases for denial of the license were found to be without merit; petitioner would have 60 days to install a bathroom and, if completed, respondent would issue petitioner a license.
Recommendation Based upon the above findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application for an adult congregate living facility license be DENIED. Respectfully submitted and entered this 10th day of November, 1981, in Tallahassee, Florida. DIANE D. TREMOR, 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, 1981. COPIES FURNISHED: Robert A. Warner, Esquire Caltgirone & Warner, P.A. 238 East Davis Boulevard, Suite I Davis Island Tampa, Florida 33606 Janice Sortor, Esquire District VI Assistant Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
