The Issue The issue in this case is whether Petitioner and his family are entitled to be provided developmental services through Respondent.
Findings Of Fact Petitioner Wayne McDuffy (“Wayne”), presently age 9, is mentally retarded as a result of Down’s Syndrome. It is undisputed that he is eligible to receive developmental services through Respondent Department of Children and Families (“DCF”). Wayne has been known to DCF since at least 1996 or 1997 and has received services at some time(s) in the past. From February 2000 through the present, however, Wayne has not received services. Nevertheless, at times during this latter period, as will be discussed below, Wayne has been a “client” of DCF. In February 2000, Wayne’s mother, Deborah Moore (“Moore”), made application to DCF, on behalf of her son, for developmental services. She desired, and continues to request, personal care assistance and residential placement to help manage Wayne, who is occasionally violent and aggressive towards others, including Moore’s younger child. Funding for the services that DCF provides to the developmentally disabled is available though the Individual Family Supports Program (“IFS”), which the state pays for out of general revenue, and the Home and Community-Based Services Waiver Program (the “Waiver”), for which the Florida Medicaid Program (“Medicaid”) pays with federal and state monies. When Moore applied for services in February 2000, she did not know about, or appreciate the differences between, these two funding sources. Some time after February 2000, probably in the summer of that year, a DCF caseworker verbally notified Moore that Wayne had been accepted into the Waiver and would soon be receiving services as a client of DCF. Moore kept in telephone contact with DCF and, in September 2000, verbally notified the local office that she was moving to a new address, which she provided, together with a phone number. Services, however, never commenced. Meanwhile, on October 3, 2000, DCF assigned Wayne’s case to an interim support coordinator at Advantage in Support, Inc. (“Advantage”), a third-party provider under contract with DCF. An employee of Advantage placed telephone calls to, and personally visited, Moore’s old residence, i.e. the one from which she and her family had moved in September 2000. That phone number had been disconnected, however, and no one came to the door at the house where Moore and her family no longer lived.1 On November 2, 2000, Advantage returned Wayne’s file to DCF. Back at DCF, Wayne’s file came into the hands of Thelma Bass (“Bass”), then a Medicaid Waiver Specialist. Bass left a telephone message for Moore at her place of employment but did not receive a return call.2 Thereafter, Bass drafted a letter to Moore3 dated November 28, 2000, which read: You had requested that Wayne McDuffy be placed on the Medicaid Waiver program. This we did and an interim support coordinator was assigned to him. The agency tried without success to set up appointments to see Nelson. You never responded to her calls. We would love to assist you in providing the needed services for your son, however, this is impossible as you refuse to cooperate with the independent support coordinator.[4] It is important that you contact us if you desire to receive and/or continue receiving services from the Developmental Disabilities Program. If I do not hear from you by December 7, 2000, we will close this case. We love to hear from you, please call me at 305-808-6236. Bass normally sends letters such as this one by certified mail. In this particular instance, however, she did not use certified mail.5 Nor did Bass personally put this letter into the mailbox. Rather, she directed that it be sent out by others in the ordinary course of her office’s business. For reasons unknown,6 Moore did not receive the November 28, 2000, letter.7 Being thus unaware of the deadline that Bass had imposed, Moore could not and did not meet it; in other words, she failed timely to respond to the letter she had not seen. On December 15, 2000, Bass closed Wayne’s file, without first taking any affirmative steps to confirm the actual delivery of the letter of November 28, 2000, which would have been Moore’s only notice of the critical deadline. No notice of any kind was contemporaneously provided to Moore or Wayne regarding the closure of Wayne’s file. Although Moore was clueless as to what had occurred, the closing of Wayne’s case would have disastrous effects on his (and her) substantial interests. Because, when Wayne stopped being a client, his “slot” in the Waiver was given to someone else——and, as will be seen, would be very difficult to get back. In early 2001 (probably January), Moore contacted DCF to inquire about the services that she had been promised but had yet to receive. She was informed that her son’s case had been closed, and that she would need to re-apply. DCF did not tell Moore, then or ever, that she could request a hearing to challenge the agency’s decision to close Wayne’s file based on her failure to respond to Bass’s November 28, 2000, letter (which Moore had not received and hence remained ignorant of). Moore did as she was told. On April 12, 2001, she again applied for services on Wayne’s behalf, signing an application for participation in the Waiver. She still did not know about the different sources of funds (Medicaid and IFS) for developmental services or appreciate how the issue of funding sources might impact upon her request for services. On April 20, 2001, a district-level Crisis Identification Tool Review Committee (the “Committee”) met to consider Wayne’s new application for services. This meeting was necessary because, by this time, slots in the Waiver were so limited that DCF was able to accept only those applicants who were in “crisis” as determined by an internal, unpromulgated “Crisis Identification Tool.”8 Applicants deemed not to be in crisis were now being placed on a waiting list, to be served in date order, based on the date of becoming a client of DCF. The Committee decided, on April 20, 2001, that Wayne was not in crisis. Thus, he was placed on the waiting list, with an eligibility date——which determines his place in line——of (or around) April 12, 2001. No one at DCF took the trouble, in April 2001, to formally notify Wayne or Moore, in writing, that the Committee had found Wayne not to be in crisis, much less to advise them of the consequences of that decision or of Wayne’s right to request an administrative hearing. Nor did DCF inform either of them of its determination, or of Wayne’s right to challenge such decision, in May, June, July, August, September, October, or November of 2001. It was not until December 17, 2001——eight months after the fact——that DCF finally sent Wayne a letter (by certified mail), in care of his mother, telling him about the agency’s decision and notifying him of the right to request a hearing. The December 17, 2001, notice of agency action, which was signed by Evelyn Alvarez (“Alvarez”), Program Operation Administrator, provided in pertinent part:9 We regret to inform you that your request cannot be granted within the limits of the Department’s appropriated general revenue funds unless an individual is in crisis as determined by application of the Department’s Crisis Identification Tool. Using the Crisis Identification Tool to assess your situation, the Department finds that you are not in crisis. Florida law, therefore, prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.13(2)(c) and (d), F.S., and refer to the State Spending Plan as approved by the Florida Legislature. (Emphasis added). In response to the foregoing letter, Moore timely requested a hearing on Wayne’s behalf. At the first session of the final hearing, which took place on May 30, 2002, DCF disclosed the November 28, 2000, letter and represented that Wayne’s file had been closed based on Moore’s failure to respond to that letter. In addition, at the May 30, 2002, hearing, DCF admitted certain facts that revealed the consequences of DCF’s decision to close Wayne’s file: (1) Wayne lost his slot in the Waiver effective December 15, 2000; (2) At the time Wayne was approved for the Waiver, he did not need to be in crisis to receive a slot, but as of April 2001, he did need to be in crisis to avoid being placed on a waiting list; (3) Had Wayne’s file not been closed, he would have remained in the Waiver irrespective of whether he was in crisis, provided he continued to meet the Medicaid eligibility criteria; and (4) Wayne meets the Medicaid eligibility criteria for the Waiver. In sum, therefore, if Moore had received and responded to Bass’s November 28, 2000, letter, then, in all likelihood, Wayne would be receiving developmental services today under the Waiver. The undersigned continued the final hearing to allow Moore an opportunity to amend Wayne’s petition to challenge the obviously significant decision to close Wayne’s case in December 2000 (which was separate and distinct from the agency’s decision, made in April 2001 but not communicated to the substantially affected party until December 2001, that Wayne is not in crisis according to DCF’s criteria). On June 7, 2002, Moore filed an amended petition on behalf of her son, thereby placing DCF’s December 2000 decision in issue. On June 27, 2002, without first seeking or obtaining leave, DCF filed a “corrective letter” from Alvarez to Wayne dated June 27, 2002. This letter (which was sent by certified mail) provided in pertinent part:10 You recently[11] received a letter, dated December 17, 2001, responding to your request for general revenue funded services from the Developmental Disabilities program.[12] Upon our review of the letter sent to you, we discovered that the letter contained language addressing the Department’s Crisis Identification Tool. This language does not apply to request for General Revenue funded services. The first paragraph of your letter should read as follows: We regret to inform you, as a conclusion of law,[13] that your request cannot be granted within the limits of the Department’s appropriated general revenue funds, and Florida law prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.066(4), F.S., and refer to the State Spending Plan as approved by the Florida Legislature. (Italics in original). At the second session of the final hearing on September 3, 2002, DCF’s attorney relied upon the “corrective letter” to argue that the question whether Wayne is in crisis for purposes of the Waiver is not ripe for adjudication because “the process is still going on,” and to contend that Wayne will some day have an opportunity to litigate all Waiver-related issues in a Medicaid “fair hearing” before a DCF hearing officer (assuming, that is, DCF ever gets around to giving Wayne a clear point of entry into such a proceeding, which it still had not done as of September 3, 2002). DCF’s legal contentions will be discussed in the Conclusions of Law below. However, the undersigned rejects here, as factually incorrect, the assertion that DCF somehow has not yet determined whether Wayne is in crisis. Rather, as previously found, the Committee met and decided the “crisis” issue against Wayne on April 20, 2001, and DCF belatedly gave him a clear point of entry to challenge that decision via Alvarez’s letter of December 12, 2001. Wayne then properly exercised his right to challenge DCF’s “crisis” decision. These are matters of historical fact that DCF cannot make disappear through the magic of a revisionist “corrective letter.” Ultimate Factual Determinations DCF’s momentous decision to close Wayne’s file in December 2000 was arbitrary and capricious, in that the action was taken based on Moore’s failure to respond in time to a letter that she had never received——which latter fact DCF would have known had it exercised reasonable efforts to confirm whether Moore had actual notice of the deadline that Bass had unilaterally imposed. A reasonable governmental official would not make a decision of similar detriment to another person’s substantial interests, based solely on the latter’s silence, without first attempting to verify that the adversely affected person was aware of his or her obligation to speak.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCF enter a final order that, one, rescinds the preliminary agency action taken in December 2000 which resulted in the closure of Wayne’s case and, two, grants all relief necessary to place Wayne in as favorable a position as he would have been in today were it not for DCF’s wrongful closure of his case on or about December 15, 2000. DONE AND ENTERED this 7th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2003.
The Issue Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since 1992, a Florida- certified nursing assistant (CNA). She presently works part-time as a CNA for Quality Care Nursing Services, Inc., and is attending school (Sheridan Vocational School) to become a licensed practical nurse. In August of 1994, Petitioner was the owner/administrator of Arianism Home, an Adult Congregate Living Facility,3 located at her residence at 741 Northeast 177th Street in Miami, Florida (Petitioner's ACLF). She had a standard license issued by Respondent to operate her ACLF. The license had an effective date of March 20, 1994, and an expiration date of March 19, 1996. It allowed her to house a maximum of six residents at the facility at any one time. At the time (August of 1994), Petitioner shared her residence with her then 18-year-old daughter, Demetri Kinchen, and Ms. Kinchen's two young children. Ms. Kinchen helped Petitioner operate the ACLF. Also assisting Petitioner was a paid employee, Larome Hall, who, in August of 1994, was 21 years of age. Petitioner also owned the residential structure and property located adjacent to her ACLF (at 751 Northeast 177th Street). During the period that her license was in effect, Petitioner had at least six residents at her ACLF at all times. The residents suffered from mental disorders and received social security disability income and optional state supplementation (OSS) benefits. Although Petitioner had a standard license and not a limited mental health license, she received payments from the state (OSS payments) for these residents (notwithstanding that a limited mental health license was required in order to receive such payments for these residents). Because of their mental illness, the residents of Petitioner's ACLF needed to be supervised 24 hours a day, seven days a week. On August 8, 1994, a neighbor of Petitioner's reported to the Department of Health and Rehabilitative Services (HRS) that the residents of Petitioner's ACLF were receiving inadequate supervision. According to the reporter, residents of the ACLF had knocked on the reporter's door "many times" during the day and "as late as 10:00 or 11:00 p.m.," and, the day before, one resident, S. K., came to the reporter's door "bleeding from both legs, her elbow and her face" and told the reporter that she (S. K.) had been "hit by a car." At the time of the accident, Petitioner was away from the facility. She had gone shopping, leaving the task of supervising the residents to Ms. Kinchen and Mr. Hall, neither of whom, it appears, had received the requisite training to fulfill this responsibility.4 The reporter's report was assigned a Florida Protective Services System (FPSS) Report Number (94-073142) and investigated by Jeanette Henad, a protective services investigator for HRS. As part of her investigation, Ms. Henad visited Petitioner's ACLF and conducted several interviews. In the written "investigative decision summary" (IDS) Ms. Henad prepared following the conclusion of her investigation, she described, as follows, the "observations" she made during her visit: All residents were interviewed, 7 clients in 751 NE 177th Street and 4 clients in 741 [NE 177th Street] as follows: S. K.; C. W.; T. M.; and L. S. The four above stated clients were found in 741. Daughter of Cynthia Lee, Demetri[] [Kinchen] and Demetri's 2 month old baby w[ere] located in 751. There was no one available in 741. In 751 the home had a lock on the refrigerator and lunch was observed, but the lunch was not what was posted on the menu. Medication book was observed but the last medication entry was for 8/2/94 and it was now 8/9/94. Home met minimal standards of cleanliness and there was food available for human consumption. . . . . Ms. Henad's IDS reflected that Ms. Kinchen had made the following "statements" when interviewed: My mother is not here right now; 2) I am taking care of the clients; 3) Most of the clients from 741 come over here during the day. Most of the clients come and go as they please; 4) Larome Hall administers the medications but he is not here right now. He administers the meds twice a day; 5) All of the clients like it here. We get our clients from Locktown, and other agencies; 6) I know that the medications have been given. I do not know why the med book is not updated; 7) If clients refuse to take their medications, it is noted and client's physician is notified; 8) The clients take care of themselves. Based upon her investigation, Ms. Henad made the following "findings," which were set forth in her IDS: Case is proposed confirmed; 2) Maltreatment of neglect verified. Although no harm came to any individual involved, technically according to the alleg. matrix, neglect due to lack of supervision must be verified. Petitioner requested that this proposed confirmed report of adult neglect be expunged. Her expunction request was denied on May 2, 1995. She did not, because of monetary considerations, request an administrative hearing on the matter. Accordingly, in the "Final Report of Investigation" produced by HRS (which incorporated Ms. Henad's IDS), FPSS Report Number 94- 073142 was classified as confirmed, with Petitioner named as the perpetrator. On August 17, 1994, HRS received a second report of inadequate supervision at Petitioner's ACLF. This report was from an employee of Respondent's Quality Assurance and Licensing unit, who advised that there were four mentally ill "clients" of Petitioner in the residential structure located on the property adjacent to the ACLF (at 751 Northeast 177th Street) and that these clients were "not being supervised." According to the reporter, Ms. Kinchen, along with her two children, were "next door" at 741 Northeast 177th Street. Petitioner, once again, had gone shopping and was not present at either the 741 Northeast 177th Street location or the 751 Northeast 177th Street location. The reporter's report was assigned a Florida Protective Services System (FPSS) Report Number (94-076483). Ms. Henad was delegated the task of investigating this report as well. As part of her investigation, she paid a return visit to the facility and, as she had done as part of her earlier investigation, conducted several interviews. In the IDS she prepared following the conclusion of her investigation of this second report, Ms. Henad described, as follows, the "observations" she made during her return visit to the facility: All four clients were observed in the home located next to the ACLF which is licensed. Cynthia Lee escorted [the protective investigator] to the location of 741 NE 177th Street. Home was clean, and clients appeared appropriately dressed. Clients assessed level of risk is intermediate due to the lack of supervision. . . . Ms. Henad's IDS reflected that Petitioner had made the following "statements" when interviewed: The clients usually come to 751; 2) Larome Hall is sometimes with them; 3) The clients are allowed to come and go as they please; 4) I usually am in 751 but I check on the clients on a regular basis; 5) The clients have been with me for a long time and I take good care of them; 6) 741 is not licensed but I have applied for a license;5 7) I am licensed for 76 but I have 10 clients; 8) I get my clients from Locktown and other mental facilities. Based upon her investigation, Ms. Henad made the following "findings," which were set forth in her IDS: Case is proposed confirmed; 2) Maltreatment of neglect verified; 3) Unsupervised caretaker present: Verified; although no harm came to any individual involved, according to the allegation matrix, due to lack of supervision, must be verified; . . . Petitioner requested that this proposed confirmed report of adult neglect be expunged. Her expunction request was denied on May 2, 1995. She did not, because of monetary considerations, request an administrative hearing on the matter. Accordingly, in the "Final Report of Investigation" produced by HRS (which incorporated Ms. Henad's IDS), FPSS Report Number 94- 076483 was classified as confirmed, with Petitioner named as the perpetrator. Petitioner's license to operate her ACLF expired on March 19, 1996. Her application to renew her license was denied because of the two confirmed reports of adult neglect (FPSS Report Number 94-073142 and FPSS Report Number 94-076483) in which she had been named the perpetrator.7 Petitioner has nonetheless continued to operate her ACLF. In August of 1998, Petitioner was arrested and charged, in Dade County Circuit Case Number F98029861, with operating a nursing facility without a license. On October 22, 1998, she pled no contest to the charge and was placed on probation for two years and ordered to pay $1,000.00 to the Adult Emergency Trust Fund. Adjudication of guilt was withheld. While Petitioner may be "of good moral character" and "not represent a danger to the health, safety, and welfare of the patients while working as a CNA" (as Respondent has determined, as reflected in its May 25, 1999, letter to Petitioner8), it has not been demonstrated that, subsequent to the incidents described in FPSS Report Number 94-073142 and FPSS Report Number 94-076483, Petitioner has taken any measures (such as undergoing additional training related to the operation and maintenance of an Assisted Living Facility) designed to make her a better educated and more responsible Assisted Living Facility administrator who can be counted on to discharge the supervisory responsibilities of that position in a manner that does not place residents at risk.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's request that she be granted an exemption that would allow her to be employed as an Assisted Living Facility administrator. DONE AND ENTERED this 12th day of May, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2000.
The Issue This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a), Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
Findings Of Fact Case History On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980. On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon. By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980. On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980. On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office. The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981. The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981. The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing. In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected. Material Facts The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen (16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office. On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office. In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound. The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance. At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year. While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade. At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement. While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision. Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended. Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn. During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1. Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave. James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon. Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive. Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing. Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting. Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant." Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section. On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence. In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor. All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct. In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator. When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties. The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty twenty-four (24) hours a day.) Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section. In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system. On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980. Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum. Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
The Issue Whether the Agency for Persons with Disabilities’ (Agency) intended decision to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Petitioner is a 33-year-old female residing in Lake City, Florida. Petitioner has three children, ages 19, 16, and and 12, from her first marriage. Her first husband is deceased. Petitioner was remarried in April 2015. Petitioner and her husband live with, and care for, her three children, as well as two young grandchildren and her seven-year-old niece. Between November 2015 and September 2016, Petitioner was employed at CARC, a residential group home licensed by the Agency.1/ Petitioner provided personal care to the residents, as well as transportation for the residents to doctor’s appointments, shopping, and occasionally to cash their personal checks. In her capacity with the group home, Petitioner had access to and responsibility for the group home van, as well as the corporate credit card for purchasing gasoline. Since being disqualified from employment serving Agency clients, Petitioner has been employed at “Still Waters,” a residential nursing home facility. She works 12-hour shifts, four days on, three days off. Petitioner testified that the hours make it too difficult to care for her children, grandchildren, and niece. Petitioner wishes to return to her employment in the group home as a direct service provider to clients of the Agency. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. Disqualifying Offense On May 23, 2005, Petitioner was arrested for forgery and grand theft, stemming from having cashed a forged check. The check was written for $391.83, payable to a third party and cashed by Petitioner at her bank. Petitioner pled guilty to both charges, which are third- degree felonies. In August 2005, the court withheld adjudication, ordered Petitioner to complete two years’ probation, and entered a final judgment for fines and costs in the amount of $373. Petitioner’s fines and costs were later converted to community service hours, which she completed. Petitioner was also required to pay restitution to the bank, which she satisfied. Petitioner completed probation timely on August 22, 2007. Petitioner was 21 years old at the time of the disqualifying offense. The details are sketchy. Neither Petitioner’s testimony nor her exemption questionnaire provide much of an explanation. The explanation in Petitioner’s exemption questionnaire indicates that a friend gave her a check from the friend’s employer, and Petitioner cashed it at Petitioner’s bank and kept the cash. She explained that she was young and dumb and did not know better. Petitioner’s testimony was brief, stating that she had been hanging around with the wrong crowd, and that a friend got a check from McDonald’s which Petitioner deposited in her own account. In the questionnaire, Petitioner indicated no one else was involved in the crime because “I did not tell on my friend.” She answered “n/a” to questions regarding the degree of harm to the victim or property (permanent or temporary), as well as whether there were any stressors in her life at the time of the disqualifying offense. When prompted in the questionnaire to provide any additional comments, Petitioner explained that she knew what she did was wrong; that she does not get in trouble any more; that she has three kids, and only has time to go to work, church, and home; and that she wants to take care of “my people,” which she enjoys. Subsequent Non-Disqualifying Offenses The Agency’s Exemption Review Summary lists two2/ non- disqualifying offenses subsequent to Petitioner’s disqualifying offense.3/ In March 2006, Petitioner was arrested for, and adjudicated guilty of, passing a worthless check to Publix in the amount of $76. On June 8, 2006, Petitioner was ordered to complete 12 months’ probation and pay restitution, court fines, and fees in the amount of $329. Petitioner’s probation was terminated on June 4, 2007, having satisfied all terms thereof. Petitioner wrote the check to Publix on October 3, 2005. Petitioner was 21 years old, caring for her seven-year- old, four-year-old, and infant children, and her husband was incarcerated. Petitioner testified, both in her questionnaire and at final hearing, that she wrote the check knowing she did not have the money to cover it because she needed food for her children and diapers for the baby. On February 20, 2012, Petitioner was charged with leaving the scene of a traffic accident. On March 15, 2012, Petitioner was adjudicated guilty and placed on six months’ probation, ordered to complete an eight-hour driver improvement course, and pay court costs and fines in the amount of $416. Petitioner was released from probation on August 14, 2012, having satisfied all probation conditions. Petitioner was 28 years old at the time of the incident. Petitioner was driving with a friend as a passenger, when she crashed her car in a ditch. Petitioner left her car in the ditch and contacted another friend to give them a ride home. The following day, the police came to her home and charged her with leaving the scene of an accident. Petitioner testified that she left the scene because she had no insurance, and that it was late and dark. No evidence was introduced to support a finding that any other vehicle was involved in the accident, or that the accident resulted in any property damage or injury. Educational and Employment History Petitioner graduated from high school in 2002. Petitioner completed the educational requirements to become a Certified Nursing Assistant (CNA) at Lake City Community College in 2004. However, Petitioner has not passed the written state board exam to become certified. Petitioner lists no employment history prior to 2011, although there is some evidence that she worked as a caregiver at a “cluster home” in Lake City in 2005. Petitioner worked as a caregiver in a group home known as “Open Heart” from January 2011 to October 2014. Petitioner was subsequently employed as a housekeeper with Holiday Inn in Lake City from February to November 2015. Petitioner left Holiday Inn to become a caregiver at CARC in November 2015. As noted previously, subsequent to Petitioner’s disqualification, she has been employed at a nursing home facility. Subsequent Personal History Petitioner divorced her first husband in 2014 and he is now deceased. Petitioner has full custody of all three of her children and has taken on the responsibility of her 19-year-old daughter’s two children, as well as her seven-year-old niece. In April 2015, Petitioner married her current husband Octavius, who is a 13-year employee of Red Lobster. Petitioner is active in her church where she sings in the choir, attends Tuesday night bible study and Wednesday night worship, and has her niece involved in a praise dance for children program on Saturdays. One of Petitioner’s sons is disabled. Petitioner reports that both sons play football and that she is, or has been, a team mom for the football team. Petitioner’s Exemption Request Petitioner’s exemption questionnaire is bereft of details. Most questions are answered in just a few words or are answered as “not applicable.”4/ Petitioner expresses remorse for her disqualifying and non-disqualifying offenses. However, it is not entirely clear that Petitioner understands the ramifications of her forgery offense, since she indicated there was no harm done by her passing of a forged check. Petitioner submitted five personal letters of reference with her exemption application. One is from one of her sons, another from a friend at church, and the remaining letters are from former co-workers at care-giving agencies. Each attests to her compassion for disabled persons and her sincerity in the care of those persons. Petitioner did not submit any letter of reference from a current or former employer or another individual in a position of authority. Petitioner did not offer any witness testimony or additional letters of reference at the final hearing. Ultimate Facts Petitioner’s recent employment history evidences her work ethic and emphasizes a passion for serving persons with disabilities. Petitioner’s personal references support a finding that she is committed to family and community, and has a heart for service. However, Petitioner’s disqualifying offense, and at least one of the subsequent non-disqualifying offenses, involves attempts to attain money to care for her family when times were tough. Petitioner’s failure to describe any stressors in her life at the time, and to clearly distinguish her circumstances at present, substantiates the Agency’s reticence to allow Petitioner to work with the most vulnerable clients. Petitioner has more dependents at present than she did when the disqualifying offenses occurred. The record contains few details of how her situation differs today from the past.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 11th day of July, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 11th day of July, 2017.
The Issue The issues for determination are whether Island Retirement Home, Inc., committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken; and whether Island Retirement Home, Inc.'s license, as an Assisted Living Facility, should be renewed.
Findings Of Fact It is undisputed that Island Retirement Home, Inc. (Island) is licensed, as an Assisted Living Facility (ALF), by the Agency for Health Care Administration (AHCA). Island is licensed for six beds and is located at 2906 West Island Drive, Miramar, Florida. On May 16, 1997, Island was surveyed by AHCA for relicensure. At that time Island had two residents at the facility. At the survey on May 16, 1997, AHCA's surveyor found numerous deficiencies of which Island was notified.2 Furthermore, Island was notified that it had to correct the deficiencies by June 15, 1997. A follow-up visit was conducted by the same surveyor on July 7, 1997.3 Two deficiencies were found regarding fiscal records and financial stability. At the relicensure survey, AHCA's surveyor was unable to review Island's fiscal records and assess Island's financial stability in that Island's fiscal records were not maintained at the facility. Island's fiscal records were not provided to the surveyor even after the survey. At the follow-up survey, the deficiencies remained in that fiscal records were again unavailable. The deficiencies were classified as Class III deficiencies. One deficiency was found regarding refunds to residents. At the relicensure survey, there were no records regarding refunds to residents. As a result, the surveyor was unable to verify refunds, if any, to residents. Entries regarding deposits and refunds were made by Island on the resident logs. However, no resident made a deposit so no refund was due any resident; therefore, no records, showing a refund to residents, existed. At the follow-up survey, the deficiency remained in that records were again unavailable. The deficiency was classified as a Class III deficiency. One deficiency was found as to maintaining liability insurance. At the relicensure survey, AHCA's surveyor was informed that Island did not maintain documentation of its liability coverage at the facility, resulting in the surveyor being unable to determine Island's liability status. However, when an ALF applicant applies for renewal, proof of liability insurance must accompany the application. No evidence was presented that such proof did not accompany Island's renewal application. At the follow-up survey, the deficiency remained in that liability insurance records were again unavailable. The deficiency was classified as a Class III deficiency. One deficiency was found regarding the posting of inspection reports. At the relicensure survey, none of the inspection reports from AHCA were posted at Island for public review. At the follow-up survey, the deficiency remained in that AHCA'S inspection reports were still not posted. The deficiency was classified as a Class III deficiency. One deficiency was found as to a written procedure for contacting a resident's family in emergency situations. At the relicensure survey, Island did not have available for review such a written procedure. Because of the small number of residents served by Island, Island looks to a resident's application package as to who to contact on behalf of the resident in an emergency situation. Regardless, Island did not have a written procedure for contacting a resident's family in emergency situations. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to records and documents. Being unable to review a written procedure, if any, AHCA's surveyor terminated the survey. The deficiency was classified as a Class III deficiency. One deficiency was found regarding personnel records showing that staff were appropriately trained to provide services to residents. At the relicensure survey, Island did not have at the facility any personnel records for review showing that its staff had the appropriate ALF training to provide services to the residents. At the follow-up survey, the deficiency remained uncorrected. Personnel records were available for Island's staff who were exempt from ALF training requirements; however, again, no records were available for one staff member showing that the ALF training requirements were fulfilled or that the person was exempt. The deficiency was classified as a Class III deficiency. One deficiency was found relating to documentation showing that staff, who may come into contact with potentially infectious diseases, had received training in infection control measures. At the relicensure survey, one of Island's staff members assisted a resident and, because of the resident's needs, the staff member could come in contact with a potentially infectious disease. Island had no documentation showing that the staff member had received the appropriate training in infection control measures. Also, according to the staff member, no training had been received. At the follow-up survey, the deficiency remained uncorrected. Personnel records were available and were reviewed; however, none of the personnel records showed that the staff had received training in infection control measures. The deficiency was classified as a Class III deficiency. One deficiency was found regarding the posting of the current health inspection report completed by the county public health unit. At the relicensure survey, Island did not post for public review the current health inspection report completed by the county public health unit. Because of Island's small size in physical structure and the number of residents served, the county public health unit inspected Island once a year. The only inspection report available was one completed by the county public health unit in 1996. At the follow-up survey, the deficiency remained in that Island did not have a current inspection report posted even though a current health inspection had been performed. The deficiency was classified as a Class III deficiency. One deficiency was found regarding a current health assessment for each resident's status and condition. At the relicensure survey, Island did not have a current accurate health assessment for one resident (Resident No. 1) as to that resident's status and condition. At the follow-up survey, the deficiency was not corrected. The health assessment was again inaccurate for the resident, who was now Resident No. 4, in that the assessment had not been updated. Also, for another resident (Resident No. 3), no health assessment had been performed even though the resident had been a resident at Island for at least 30 days. The deficiency was classified as a Class III deficiency. One deficiency was found as to the assessment of each resident's ability to self-preserve, or to get themselves out of the facility at the time of an emergency. At the relicensure survey, Island had not assessed its only two residents as to self-preservation. Island's basis for the non-assessment was that no forms were available for such an assessment. At the follow-up survey, the deficiency was not corrected. The deficiency was classified as a Class III deficiency. One deficiency was found regarding each resident satisfying criteria for admission and continued residency in the facility. At the relicensure survey, one resident (Resident No. 1) failed to meet the criteria for continued residency. Resident No. 1 required assistance with all activities of daily living (ADLs), except eating, and had been bedbound for several months. Further, Resident No. 1's health assessment indicated a no-salt added diet, but Island failed to provide the Resident with such a diet, thereby, failing to meet the Resident's dietary needs. Additionally, from the review of Resident No. 1's records, the surveyor determined that the Resident had lost 16 pounds in 10 days and had lost 60 pounds since admission in October 1995, indicating that Island was no longer able to provide for the needs of the Resident. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to records and documents. Being unable to review the records or documents, AHCA's surveyor terminated the survey. AHCA did not present evidence as to the classification of the deficiency. One deficiency was found as to inappropriately retaining the placement of a resident. At the relicensure survey, one resident (Resident No. 1) was found to be inappropriately placed. Resident No. 1 had been bedbound for several months. Within seven days of being bedbound, Respondent had failed to attempt to discharge and place Resident No. 1 in a more appropriate facility to meet Resident No. 1's needs. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to the entire facility. Being unable to inspect the facility, AHCA's surveyor terminated the survey. However, the surveyor did determine that Resident No. 1, who was now Resident No. 4, was still residing at the facility and was still bedbound. The deficiency was classified as a Class II deficiency. One deficiency was found regarding documentation showing that the administrator met certain qualifications as an administrator. At the relicensure survey, Island did not have for review the personnel records of its administrator. The records were not maintained at the facility. At the follow-up survey, the administrator's personnel file was available for review and showed that the administrator was qualified to be an administrator. However, the personnel file failed to contain documentation showing that the administrator had obtained the necessary updated training, i.e., CORE updates, to continue to meet the qualifications of an administrator. The deficiency was classified as a Class III deficiency. Three deficiencies were found regarding documentation showing that the administrator had provided training to the staff on CORE subjects in job duties; and that the staff, who provided direct care, had received the required minimum training. At the relicensure survey, there were no training records. According to Island's administrator, no training records on the staff existed. At the follow-up survey, Island's administrator informed the surveyor that, again, no training records were available. Even though some personnel records were available, there was no documentation showing the required training. The deficiencies were classified as Class III deficiencies. One deficiency was found as to having a written work schedule available. At the relicensure survey, Island did not have a written work schedule available. At the follow-up survey, the deficiency remained uncorrected. A written work schedule was available; however, the work schedule showed one person, the same person, on duty 24- hours a day, seven days a week. Even though Island's administrator informed the surveyor that she assisted the staff person shown on the work schedule every day with resident care, the administrator was not listed on the schedule and no other person was reflected on the work schedule as a back-up staff person.4 Moreover, the administrator's assistance would not be continual in that the administrator worked at least one day a week at a nursing home approximately 20 minutes from Island, and she owned and operated a home health agency. The deficiency was classified as a Class III deficiency. One deficiency was found regarding a written appointment or designation of someone to be in charge of the facility during the administrator's temporary absence when residents are at the facility. At the relicensure survey, only one staff person was present and there was no written documentation showing the appointment or designation of the staff person or any other person to be in charge of the facility during the administrator's temporary absence. The administrator informed the surveyor that no person had been designated in writing to be in charge of the facility during her temporary absence. At the follow-up survey, the deficiency was not corrected. There was no documentation showing a written appointment or designation. Moreover, no person had been appointed or designated by the administrator. The deficiency was classified as a Class III deficiency. One deficiency was found regarding staff receiving required HIV and AIDS training. At the relicensure survey, Island had no documentation showing that the staff had received required training in HIV and AIDS. The administrator is a registered nurse and was required by a hospital at which she was employed prior to the relicensure survey to obtain HIV and AIDS training. Even though the administrator had the required training, there was no documentation at the facility to show that she had the required training and her HIV and AIDS training was not within the knowledge of the surveyor. At the follow-up survey, the deficiency remained. Island had no documentation showing the required training in HIV and AIDS had been received by its staff. The deficiency was classified as a Class III deficiency. One deficiency was found as to insufficient staff to meet the needs of the residents. At the relicensure survey, through observation, interviews of the residents, and review of the evening schedule, the surveyor determined that Island had insufficient staff to address the needs of the residents who consisted of two residents. One resident was bedbound and, at a minimum, two staff members were required to assist the resident in and out of bed, particularly in an emergency; but only one staff person was scheduled to work. At the follow-up survey, the deficiency remained. The bedbound resident continued as a resident at the facility, but only one staff person was present. The deficiency was classified as a Class III deficiency. One deficiency was found regarding documentation showing the method of medication management on a resident's health assessment. At the relicensure survey, the method of administration of medication for one resident had not been documented by the health care provider. Island failed to ensure that the method of administration was available to the resident. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to records. Being unable to review the records, AHCA's surveyor terminated the survey. The deficiency was classified as a Class III deficiency. One deficiency was found regarding the signing of medication administration records (MARs) by the staff person, who supervises the residents self-administering their medication, and at the time the medication is self-administered. At the relicensure survey, even though a staff person, at times, supervised residents when they self-administered their medication, that same staff person did not sign the MARs.5 The administrator, who did not supervise the self-administration medication, signed the MARs. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to records. Being unable to review the records, AHCA's surveyor terminated the survey. The deficiency was classified as a Class III deficiency. One deficiency was found as to ensuring that medication is timely refilled. At the relicensure survey, a resident's (Resident No. 2) prescribed heart medication was empty. The staff was not aware as to whether the administrator had ordered a refill. However, the administrator had notified the resident's family member, who was responsible for providing the resident's medication, that the medication needed refilling, and the administrator was awaiting the medication at the time of the survey. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to inspect the facility and records. Being unable to inspect the facility and records, AHCA's surveyor terminated the survey. AHCA did not present evidence as to the classification of the deficiency. One deficiency was found as to appropriate services being provided to meet the needs of residents. At the relicensure survey, Island's staff person, who prepared most of the meals, was not aware that Island's only two residents were on a no-salt diet. One of the food items for each evening meal prepared by the staff person contained salt, and the staff person was unaware of the food item's salt content. Further, Island's staff member was unaware of the name and location of a resident's (Resident No. 2) day program and was, therefore, unaware of the resident's whereabouts. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to inspect the facility and records. Being unable to inspect the facility and records, AHCA's surveyor terminated the survey. AHCA did not present evidence as to the classification of the deficiency. One deficiency was found as to required activities being provided for the residents. At the relicensure survey, a determination as to whether required activities were being provided to the residents could not be made. An activities calendar was posted, however, the calendar did not reflect the time of day and duration of the activities. At the follow-up survey, the deficiency was uncorrected. Even though the activities calendar was posted and reflected the duration of the activities, the calendar did not reflect the time of day of the activities. AHCA did not present evidence as to the classification of the deficiency. One deficiency was found as to maintaining sufficient non-perishable foods in case of an emergency. At the relicensure survey, Island did not have a week's supply of non-perishable foods in case of an emergency for its two residents. The administrator had made plans to replenish the non-perishable foods the following week. At the follow-up survey, the surveyor was unable to determine if the deficiency was corrected. Island's director and administrator disagreed with the manner in which AHCA's surveyor was conducting the survey and came to distrust the surveyor to the extent that they denied the surveyor access to inspect the facility and records. Being unable to inspect the facility and records, AHCA's surveyor terminated the survey. The deficiency was classified as a Class III deficiency. One deficiency was found regarding Island's furniture and furnishings being clean, in good repair, and reasonably attractive. At the relicensure survey, Island's carpet, throughout the facility, was stained with unidentifiable brown and black stains. Island's administrator indicated that the floors would be tiled, instead of carpeted, which would alleviate the problem. Additionally, in one resident's (Resident No. 1) room, both doors to the closet were off and leaning against the back wall of the closet. At the follow-up survey, the deficiency was uncorrected. The deficiency was classified as a Class III deficiency. One deficiency was found regarding a current satisfactory fire safety inspection report being available for review. At the relicensure survey, Island did not have a current satisfactory fire safety inspection report for review. At the follow-up survey, the deficiency was uncorrected. The deficiency was classified as a Class III deficiency. Island has been licensed since 1993. During all the relicensure surveys, the only deficiencies cited have been the deficiencies in this present matter. Throughout its licensure, Island was continuously used by the former Department of Health and Rehabilitative Services as a facility to place residents, who were difficult to manage, on a temporary basis. Due to multiple deficiencies being cited at the relicensure survey, AHCA recommended that Island's administrator obtain additional training. At the follow-up survey, Island's personnel files did not show that the administrator had obtained the additional training, and AHCA cited this failure to obtain the additional training as a deficiency. AHCA failed to demonstrate that the deficiency was an uncorrected deficiency for which Island was cited at the relicensure survey.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Imposing an administrative fine of $300 for each demonstrated violation consisting of a Class III deficiency as to the Administrative Complaint, totalling $6,100. Issuing Island Retirement Home, Inc., a conditional license for a 6-month period under terms and conditions as determined by the Agency for Health Care Administration. DONE AND ENTERED this 17th day of July, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1998.
