The Issue The issue is whether Respondent should have a civil penalty in the amount of $1,600.00 imposed for allegedly failing to timely correct three violations of administrative regulations, as alleged in the Administrative Complaint filed by Petitioner on February 18, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Northpointe Retirement Community (Respondent), was licensed to operate an assisted living facility (ALF) at 5100 Northpointe Parkway, Pensacola, Florida. As an ALF, Respondent is subject to the regulatory jurisdiction of Petitioner, Agency for Health Care Administration (AHCA). One regulatory responsibility of AHCA is to conduct periodic licensure surveys of ALFs to ensure that they are complying with certain standards embodied in Chapter 58A-5, Florida Administrative Code. If standards are not being met, depending on their nature and severity, the deficiencies are classified as Class I, II, and III violations, with Class I being the most serious violation. After deficiencies are noted in a licensure survey, the facility is given a time certain in which to correct those violations. If no correction is made, AHCA normally imposes a civil penalty upon the erring facility. Respondent is charged with having failed to timely correct one Class II and two Class III violations. By law, a Class II deficiency is one which the agency determines to have a direct or immediate relationship to the health, safety, or security of nursing home residents. A Class III deficiency is a deficiency which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home residents. On October 5 through 7, 1998, an AHCA representative conducted a routine licensure survey of Respondent's facility. During the survey, the representative noted, among other things, that Respondent did not have a staff member within the facility at all times who was certified in first aid, including cardiopulmonary resuscitation (CPR). If true, this omission contravened the requirements of Rule 58A-5.019(5)(f), Florida Administrative Code, and constituted a Class III violation. On November 12, 1998, AHCA conducted a second licensure survey of Respondent's facility. During the survey, its consultant discovered two standards being contravened. First, Respondent failed to comply with good sanitary practices in its food preparation area in various respects, which constituted a violation of Rule 58A-5.020(1)(b), Florida Administrative Code. The specific deficiencies are described in detail in Petitioner's Exhibit 2, and collectively they constituted a Class II violation. The same survey also revealed that Respondent failed to maintain an adequate emergency supply of water for drinking and cooking purposes. While Respondent had a private well on its premises to meet these needs, the quality of the water had not yet been tested by the Escambia County Health Department. In the absence of such testing, or the presence of any other emergency supply of water, Respondent violated Rule 58A-5.020(1)(i), Florida Administrative Code, a Class III violation. After the foregoing inspections had occurred, Respondent was given a written report containing a list of all violations, and it was given until December 3, 1998, in which to make corrections. On February 5, 1999, AHCA conducted a follow-up survey of Respondent's facility and noted that Respondent had still failed to remediate the previously cited deficiencies. First, during the late evening shift (11 p.m.-7 a.m.) on January 29, 1999, there was no person on duty in Phase II of the complex who was certified in first aid, including CPR. Second, the well had still not been inspected and approved for human consumption, and there was an inadequate amount of water on hand for the residents in the event of an emergency. Finally, although the earlier sanitary violations had been corrected, the AHCA representatives discovered a new sanitary violation in the food preparation area involving the improper thawing of meat. Under AHCA policy, unless no sanitary violations are found in the follow-up inspection, a continuing violation of the rule has occurred. Except for the first-cited deficiency, which is discussed below, the foregoing deficiencies constituted an uncorrected Class II violation and an uncorrected Class III violation. While admitting that a person certified in first aid was not present in one of his buildings during the late shift on January 29, 1999, Respondent's owner contended that the AHCA rule was still satisfied. Under his interpretation, the rule only requires that he have one person trained in first aid, including CPR, within the entire facility, rather than in each building; AHCA, however, interprets the word "facility" as meaning each building within the facility, and because there was no person in Phase II of the facility, it maintains that the rule was violated. For the reasons given in the Conclusions of Law, this interpretation of the rule is found to be clearly erroneous. As to the second violation, which pertains to sanitary food practices, Respondent admits that the violation occurred, but suggested that it pertained to mildew which developed behind loose caulking in the kitchen, which was later corrected. At the hearing, however, the ACHA consultant pointed out that the violation occurred because of improper thawing of food, and not caulking, and thus there was a continuing sanitary violation in the food preparation area. As to the lack of an emergency water supply, Respondent's owner pointed out that he had made a good faith effort to comply with the regulation, but had difficulty in determining from the local disaster preparedness authority exactly how much water per resident was required in the event of an emergency. Shortly after the follow-up survey, he purchased adequate amounts of bottled water to meet the requirements of the rule.
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 determining that Respondent has violated Rule 58A-5.020(1)(b) and (i), Florida Administrative Code, and that an $800.00 civil penalty be imposed. The remaining violation should be dismissed. DONE AND ENTERED this 10th day of February, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2000. COPIES FURNISHED: Sam Powers, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Michael O. Mathis, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Mohammad H. Mikhchi, President Northpointe Community Retirement 5100 Northpointe Retirement Pensacola, Florida 32514 Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Sunrise operates as a skilled nursing facility at 4800 Nob Hill Road in the city of Sunrise, Florida. Sunrise is licensed by the State of Florida pursuant Chapter 400, Part II, Florida Statutes. Sunrise has 325 beds. At all times material hereto, Sunrise had approximately 275 to 285 residents. AHCA conducted a Standard survey of Sunrise on April 14 through 17, 2003, to determine if Sunrise was "in compliance with Federal participation requirements for nursing homes participating in the Medicare and/or Medicaid programs."2 AHCA determined that Sunrise was not in "substantial compliance" with the federal requirements in that, material hereto, Class III deficiencies had occurred, citing (1) Tag F-332, having a medication error rate of five percent or greater and (2) Tag F- 333, having significant medication errors. Further, the following Florida Administrative Code Rules were cited for the Class III deficiencies: Tag F-332, 59A-4.112(1), 59A-4.107(5), and 59A-4.1288; and Tag F-333, 59A- 4.1288. As to Tag F-332, two medication errors were found. Resident PR received Sorbitol Solution without a physician's order, instead of Lactulose, as ordered by the physician. Resident GW did not receive Reglan prior to eating breakfast as ordered by the physician. On the survey, Resident No. 31 is Resident PR and Resident No. 32 is Resident GW. As to Tag F-333, two medication errors were found. Resident MZ received Potassium Chloride Elixir in undiluted form or without water, contrary to the instructions on the medication. Resident GW did not have her Nitroglycerin Patch removed the prior evening, as ordered by the physician. On the survey, Resident No. 33 is Resident MZ. Moreover, AHCA determined that the medication errors, involving Potassium Chloride and Nitroglycerin, were significant medication errors because Potassium Chloride and Nitroglycerin are medications affecting the cardiovascular system. Significant medication error is defined by the Guidance to Surveyors - Long Term Care Facilities, in pertinent part, as follows: [O]ne which causes the resident discomfort or jeopardizes his or her health and safety. . . .Discomfort may be a subjective or relative term used in different ways depending on the individual situation. The evidence presented was insufficient to show that an individual Resident experienced discomfort due to the medication errors or to show that the medication errors had the potential to cause an individual Resident discomfort. The evidence presented was insufficient to show that the medication errors jeopardized an individual Resident's health and safety. Nevertheless, the medication errors had the potential to jeopardize the health and safety of the Residents. Also, material hereto, Sunrise was not cited by AHCA for failure to follow physicians' orders. The percentage of errors is calculated by dividing the number of medication errors by the total number of medication opportunities. In the survey of Sunrise, AHCA's surveyors used the "Medication Pass Worksheet" (MPW). If one or more errors are found, the MPW provides that another 20 to 25 opportunities should be observed. Four medication errors were observed. Sixty-two medication opportunities were observed, which included the additional opportunities observed by the surveyors. The percentage of medication errors was 6.45 percent. AHCA required Sunrise to correct the deficiencies cited by May 17, 2003. Further, a Plan of Correction (POC) was required to be submitted by Sunrise to correct the deficiencies cited. Sunrise submitted a POC. By certified letter dated, April 25, 2003, AHCA notified Sunrise, among other things, that the survey found that Sunrise was not in substantial compliance; that a POC was required to be submitted by a time certain; that remedies would be recommended if substantial compliance was not achieved by May 17, 2003; that the recommended remedies would include a mandatory denial of payment for new admissions being imposed on July 17, 2003, if substantial compliance was not achieved by that time; and that AHCA may accept the POC as Sunrise's allegation of compliance until substantiated by a revisit or other means. On May 22, 2003, a re-survey was conducted by AHCA. AHCA determined that Sunrise was not in substantial compliance with the federal requirements. Material hereto, AHCA found Class III deficiencies during the survey of May 22, 2003, citing (1) Tag 281, providing or arranging services that fail to meet professional standards of quality, including failing to follow physician's orders and having significant medication errors, and (2) Tag F-332, having a medication error rate of five percent or greater. Further, the following Florida Administrative Code Rules were cited for the Class III deficiencies: Tag F-281 and Tag F-332, 59A-4.112(1), 59A-4.107(5), and 59A-4.1288. As to Tag F-281, pertinent hereto, Resident BC was administered five medications prescribed for Resident HF. The medications were Provera, Prednisone, Claritin, Multivitamin with Mineral, and Flomax. On the survey, Resident No. 2 is Resident BC and Resident No. 1 is Resident HF. Also, as to Tag F-281, pertinent hereto, Resident RP was administered Thera M, a multiple vitamin with minerals, when her prescription was for Theragram, a vitamin only. On the survey, Resident No. 19 is Resident RP. Further, as to Tag F-281, pertinent hereto, Sunrise was cited for failure to follow physicians' orders. As to Tag F-332, the same method for the calculation of percentage errors was used. Six medication errors were observed. Fifty medication opportunities were observed, which included the additional opportunities observed. The percentage of medication errors was 12 percent. AHCA required Sunrise to correct the deficiencies cited by June 22, 2003. The evidence presented was insufficient to show that an individual Resident experienced discomfort due to the medication errors. However, the medication errors had the potential to cause the Residents to experience discomfort. The evidence presented was insufficient to show that the medication errors jeopardized an individual Resident's health and safety. Nevertheless, the medication errors had the potential to jeopardize the health and safety of the Residents. By certified letter dated May 30, 2003, AHCA notified Sunrise, among other things, that, based on the survey conducted on May 22, 2003, Sunrise was not in substantial compliance due to Tag F-281 and Tag F-332 being found; that the investigative survey was still ongoing; and that the recommendation would be made to impose the same remedies recommended in the letter dated April 25, 2003. By letter dated July 23, 2003, AHCA notified Sunrise, among other things, that, as a result of a second follow-up visit completed on July 14, 2003, Sunrise was in substantial compliance as of July 15, 2003. Sunrise was issued a conditional license by AHCA effective May 22, 2003 and expiring September 30, 2003. At the expiration of the conditional license, Sunrise was issued a standard license.
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: Upholding the issuance of a conditional license to Richmond Health Care, Inc., d/b/a Sunrise Health & Rehabilitation Center. Imposing a fine of $1,000 upon Richmond Health Care, Inc., d/b/a Sunrise Health & Rehabilitation Center. DONE AND ENTERED this 17th day of May 2004, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2004.
The Issue Whether respondent committed the violations alleged in paragraphs 3(b), (c), (d) and (e) of the Administrative Complaint.
Findings Of Fact Respondent, Kinder Kastle Day Care Center (Kinder Kastle), located in Bradenton, Florida, is licensed to operate as a child day care facility under Chapter 402, Florida Statutes, and Chapter 10M-12, Florida Administrative Code. On June 17, 1987, and on July 17, 1987, Kinder Kastle was inspected by Laura D. Winfrey to determine whether Kinder Kastle was in compliance with the provisions of Chapter 402, Florida Statutes, and Chapter 10M-12, Florida Administrative Code. When Ms. Winfrey inspected Kinder Kastle on June 17, 1987, there was one staff person in the room with 10 babies between one year and 18 months old. On July 17, 1987, when Ms. Winfrey reinspected the facility, there was one staff person responsible for nine babies between the ages of one year and 18 months. The staff person present in the room advised Ms. Winfrey of the children's ages. During the inspection of June 17, 1987, Ms. Winfrey noted that the exit lights were not turned on. At the time of reinspection on July 17, 1987, the exit lights still were not lit. However, the rooms where the exit lights were located had windows. Therefore, because the facility was only used during the daytime, the exit lights were visible even when they were not turned on and the regular lighting was off. Ms. Pillsbury, the respondent, testified that she had attempted to have the exit lights fixed in early July, so they would be continuously lit, but due to equipment that had to be ordered and other difficulties, the lights were not permanently turned on until October of 1987. During both inspections, Ms. Winfrey noted that respondent was using two different types of baby gates to block interior doorways. Ms. Winfrey considered that one of the gates was unsafe because it was not approved by the Consumer Product Safety Board. 1/ The gate had a bar and clip type mechanism and had to be moved to the side to allow exit from the room. Ms. Winfrey remembered seeing a bulletin from the Consumer Product Safety Board regarding that particular type of gate; however, she could not remember what was in the bulletin concerning the gate. Ms. Winfrey felt that the gate might be a hazard because it is not permanently attached to the wall. If it were removed from the doorway and set aside, Ms. Winfrey felt that the gate could fall and injure a child. The "approved" gate is of latticed design, consisting of hinged wood slats. The gate is permanently attached to one side of the door and opens and shuts in accordion fashion. Because of the manner of opening and closing, it is very easy for children to get their fingers pinched in the gate. The slats in the accordion gate are not as sturdy as those in the other gate and are more easily broken. There was no competent evidence presented to establish that the accordion gate was safer or more effective than the other gate respondent was using. When Ms. Winfrey inspected the facility on both occasions, she requested random samples of children's files to determine whether they contain the information required. On June 17, 1987, none of the files contained statements outlining respondent's disciplinary policies signed by the children's parents. On July 17, 1987, Ms. Winfrey inspected four files from each age group, and only four of the files had disciplinary policy statements signed by the children's parents. Ms. Pillsbury stated that of the files checked on the second visit, many of the children had not been back to the day care center since the first inspection. However, Ms. Pillsbury picked the files to be inspected by Ms. Winfrey. Ms. Pillsbury stated that all parents did get a copy of a disciplinary statement; however, there was nothing in the files documenting that this had been done. Respondent did not dispute the allegation that she failed to submit a fingerprint card, affidavit of good moral character and Abuse Registry Form within the required time frames in violation of Section 402.3055(3), Florida Statutes, and Rule 10M-12.002(1)(b)2. and (1)(e), Florida Administrative Code. On June 17, 1987, Ms. Winfrey advised Ms. Pillsbury of the violations she observed and informed Ms. Pillsbury that the violations needed to be corrected by July 17, 1987, when the facility would be reinspected. Kinder Kastle has been cited for violations on previous occasions and has paid an administrative fine.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent violated Rule 10M-12.002(1)(b)2. and (1)(e), Florida Administrative Code, Rule 10M- 12.002(5)(a)1., Florida Administrative Code, and Rule 10M-12.008(2)(f)2., Florida Administrative Code, as alleged in paragraphs 3(a), (b), and (e) of the Administrative Complaint; dismissing the charges set forth in paragraphs 3(c) and (d) of the Administrative Complaint; and imposing a total administrative fine of $135 to be assessed as follows: $30 for the Class III violation, $30 for the Other violation, and $75 for the Class II violation. DONE AND ENTERED this 19th day of January, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1988.
Findings Of Fact The Respondent, Willia's Bahamas Home Care Center (Willia's), is an Assisted Living Facility (ALF) located at 125 W. Dixie Highway, Riviera Beach, Florida, with a standard license to operate an ALF for 24 residents. Petitioner, Agency for Health Care Administration (Agency), surveyed the facility on November 9, 1994 and cited deficiencies. A time frame was given to the facility for the correction of thirty deficiencies. As a result of the survey of November 9, 1994, the facility was issued a conditional license. On September 28, 1995, a fire inspector from the Riviera Beach Fire Department conducted an appraisal visit of the facility. Many deficiencies were cited and the facility was furnished with a letter dated September 29, 1995, listing the deficiencies and requesting that Willia's notify the Fire Department when the deficiencies were corrected so that the Fire Department could conduct a follow up inspection. During the September 28, 1995, visit, the fire inspector noticed that a lawn mower was in an inside room with a container of combustible liquid next to a gas water heater. This condition posed an immediate threat to the residents of the facility and the fire inspector had the facility move the lawn mower before he left the facility. The fire inspector also noted on the September 28 visit that the fire alarm system was not working. The fire alarm system had been out of service for some time and was not being monitored. There were no reports of testing or inspection of the fire alarm system. The lack of a working fire alarm system prevented immediate identification of a fire problem, the immediate alerting of the residents for escape, and the immediate notification to the fire department. On January 4, 1996, an employee of the Riviera Beach Fire Department, made a follow-up visit to Willia's. The fire alarm system was still non- functional and had been since July, 1995. The facility is a two-story building which does not have a sprinkler system. The lack of a functional fire alarm system posed a threat to the safety of the residents. On September 28, 1995, the Environmental Services' section of the Department of Health and Rehabilitative Services conducted an appraisal visit of the facility. Deficiencies were cited and the facility was furnished with an inspection report dated September 28, 1995, which listed the deficiencies. The following deficiencies were a threat to the health, safety, and welfare of the residents: 1) hot water at a temperature of 122 degrees Fahrenheit; 2) an extension cord that was too long which presented a trip hazard; and 3) protruding nails. On October 13, 1995, Environmental Services conducted a follow-up visit and found that the most serious of the deficiencies had been corrected. On September 28, 1995, the Agency conducted an appraisal visit of Willia's along with Nathan Wetiz, a member of the Ombudsman Council. Thirty one deficiencies were cited. Fifteen of these deficiencies had been previously cited during the November 9, 1994, visit by the Agency. The facility was given a statement of deficiencies along with a time frame for correcting the deficiencies. Some of the residents of the facility were entitled to receive personal funds from OSS/SSI. The records at the facility showed that the residents were being asked to sign for the funds two months before the funds were due to be disbursed. At the time of the September 28, 1995 appraisal visit both Mary Jane Battaglia, R.N. and Mr. Weitz found that residents' medications were being recorded in error. Medications were recorded as having been administered on the day after the survey. The records showed that residents were not being given their medications at the prescribed times. The nurse counted the medications of one resident and compared them with the medication record and found that there were medications which were not being given as prescribed. Such medications included Persantin which reduces blood clots and Verapamil which reduces the heart rate and prevents strokes. During the September 28 visit, Ms. Battaglia discovered that one resident was inappropriate for an ALF. This resident required the assistance of two people to help her stand. The resident was unable to propel herself in a wheel chair and had diminished vision. She had to be given her medications, which were being administered by unlicensed staff. The resident needed 24-hour nursing supervision. During the visit, Mrs. Mackey was observed being verbally abusive to the resident, telling her to shut up and calling her stupid. In addition to the deficiencies discussed in the preceding paragraphs, the following deficiencies were also cited. The weight records of the residents were being filled in without weighing the residents, thereby threatening the residents's health since there would be no way to track whether the residents were actually losing weight. One resident was being restrained by 3/4 bedside rails without a physician's order. Activities were not being provided for the residents. There was no documentation that the nutritional needs of the residents were being met. Menus were not being reviewed by a licensed dietitian. The posted menus were not being followed and the meals were not served on time. Two screw-in fuses were missing in the day room, which could lead to residents being shocked. On October 10, 1995, the Agency advised the facility that it was being placed under a moratorium. At that time Willia's had a census of nine residents. By letter dated October 17, 1995, the Agency gave written notification to the facility of the moratorium. A follow-up visit was conducted on November 29, 1995 by Joe Narkier and Nathan Weitz. Twenty deficiencies were cited including nineteen uncorrected deficiencies and a violation of the moratorium imposed on October 10, 1995. Eleven of these deficiencies were deficiencies which had been cited during the November 9, 1994 survey. At the time of the November 29 revisit, the following conditions still threatened the health, safety, and welfare of the residents. The fire alarm system still was not working. There was an inappropriate resident in the facility, who needed care beyond that which the facility was licensed or staffed to provide. Medication records were inaccurate. Semi-annual weights were still not being recorded for all residents. Menus were not being followed and meals were not being served on time. Another follow-up visit was conducted on January 10, 1996. The deficiencies which were noted in the November 29 visit had not been corrected. Administrative Complaint number 9-95-639 ACLF was issued against Willia's, fining the facility $2,400 as a result of twelve deficiencies which were found at the November 9, 1994 survey which were repeat violations found during the September 28, 1995 appraisal visit. No hearing was requested by the facility. A Final Order was issued by the Agency on December 1, 1995, imposing the fine against Willia's for the repeat deficiencies alleged in the administrative complaint. At the final hearing Mrs. Mackey, the administrator of Willia's stated that she was going to voluntarily surrender her license to the Agency. She tendered the license to the Agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the imposition of the moratorium. DONE AND ENTERED this 15th day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 15th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5676 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact: Paragraphs 1-9: Accepted in substance. Paragraph 10: Accepted to the extent that the resident were signing for funds before the funds were due to be disbursed. Rejected that the residents were not receiving funds as hearsay. Paragraphs 11-12: Accepted in substance. Paragraph 13: The tenth sentence is rejected as hearsay. The remainder is accepted in substance. Paragraph 14: Accepted in substance. Paragraph 15: The eighth sentence is rejected as hearsay. The tenth sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 16: Accepted in substance. Paragraph 17: Rejected as unnecessary. Paragraph 18: Accepted in substance. Paragraph 19: Accepted in substance to the extent that Mrs. Mackey intended to voluntarily surrender the license for the facility. Respondent's Proposed Findings of Fact: The Respondent did not file proposed findings of fact. COPIES FURNISHED: Linda L. Parkinson Senior Attorney Agency For Health Care Administration Division of Health Quality Assurance 400 West Robinson Street, Suite S-309 Orlando, Florida 32801-1976 Willia Mae Mackey Owner/Administrator Willa's Bahamas Home Care Center 125 Old Dixie Highway Riviera Beach, Florida 33404 R. S. Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact Respondent, ACLF, was inspected May 5, 1985, and some 29 Class III deficiencies were noted and a schedule of correction was established to have these deficiencies corrected by June 6, 1985. At a follow-up visit July 11, 1985, some 19 of these deficiencies had been corrected while 10 remained uncorrected. As a result of failure to timely correct these deficiencies Respondent was assessed a $1000 fine which was paid. A subsequent inspection of Respondent's facility was conducted on February 3, 1986, with the following previously reported violations uncorrected: No personnel policies and work assignments. No written work schedule for employees. No assurance staff trained in providing personal hygiene care. Written job descriptions not available for review. Employees not furnished written policies governing conditions of employment. Strong urine odor in rear bedroom. Additionally, eight new Class III deficiencies were noted with four classified as food service standards, three physical plant standards and one fire safety standard. Respondent submitted a schedule to correct these deficiencies (Exh. 3) indicating all deficiencies corrected prior to 2/27/86. No reinspection has been conducted by Petition to confirm these Class III deficiencies have been corrected. New discrepancies noted on February 3, 1986, included menu not posted where it could easily be seen by residents, menu not corrected as served, oven door broken off, potentially hazardous food at room temperature in kitchen, screen on front door torn, clothes closet door off track, vanity in bedroom had part of facing missing, exposed wiring in living room area, shower head missing in one bathroom, and two ceiling fans serviced by extension cord wiring. The menu was posted on the side of the refrigerator where it had been kept for three years and was readily visible to residents. Respondent testified the menu was corrected as served on the back of the menu, but the inspector contended such corrections must be on a separate paper. This testimony was not rebutted. The inspection on February 3, 1986, occurred shortly after the breakfast meal was served and all of the food had not been replaced in the refrigerator. This included one can of fruit that was the subject of this discrepancy. No inquiry was made as to how or when the screen was torn on the front door. Exhibit 3 indicates the deficiency was repaired February 10, 1986. All of these discrepancies were corrected by February 21, 1986 (Exh. 3). All discrepancies at any inspection relating to fire safety were timely corrected by Respondent. Respondent facility is operated by Mrs. Gilpin, her husband and adult daughter, who comprise the employees of the facility. Each testified that he/she has all of the certifications required to work in an ACLF and that each job description was included in the daily work schedule that was posted. It appears from the testimony that at times other employees have been utilized and Ms. Gilpin stated they fill out time cards showing time they commenced and stopped work and that their work schedule is included in the cleaning schedule they carry out. Respondent explained the strong urine odor as coming from the room occupied by a patient with a urostomy early in the morning before the room was cleaned. The death of this person subsequently solved the odor problem.
The Issue This is a case in which the Petitioner seeks to terminate the Respondent's employment contract as a teacher. The grounds upon which the proposed action is based are alleged in a Notice of Specific Charges of Unsatisfactory Performance dated May 13, 1998.
Findings Of Fact At all times material to this case, the Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida. At all times material to this case, the Respondent, Michael J. Akpan, was an employee of the School Board of Miami- Dade County, Florida. At all times material to this case, the Respondent possessed an annual employment contract as a teacher and was subject to the Memorandum of Understanding between United Teachers of Dade and the School Board. At all times material to this case, the Respondent was certified to teach middle grades science. This certification allows the Respondent to teach certain science courses to ninth and tenth grade students. During the 1997/1998 school year, the Respondent was teaching at North Miami Senior High School (NMSHS).1 The Respondent was placed in an alternative education assignment in which the students were at risk of dropping out of school. During that school year, the Respondent had difficulty controlling the conduct of students in his classroom. There were numerous instances of student misconduct and disruption of such gravity as to require intervention by school security personnel and assistant principals. Teachers employed by the Petitioner School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between the Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate the Respondent's performance. The same TADS documents are used for all grade levels, subject areas, and teachers, whether new or veteran. TADS observers record deficiencies which are observed during the observation period and then provide a prescription for performance improvement.2 A post-observation conference is held with the teacher to discuss the prescription. Then the cycle of assessment/prescription begins again. Under the TADS procedure as incorporated into the labor contract between the School Board and UTD, teachers who are in Annual Contract Two status, such as the Respondent, must have a minimum of two observations during each school year. One of those two observations must be done by the principal. During its 1997 session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers who are observed to have unsatisfactory performance. Because the statutory amendment impacted the implementation of TADS, the Petitioner and UTD negotiated a Memorandum of Understanding with respect to the implementation of the new procedures required by the 1997 statutory amendments. The Memorandum of Understanding is an amendment to the labor contract between the Petitioner and the UTD. The Memorandum of Understanding reads as follows, in pertinent part: Performance Probation Period Upon identification of any deficiency, either through the observation/assessment process OR a Category VII infraction, the PRINCIPAL MUST, within 10 days, conduct a conference-for-the-record which addresses: results of the observation/assessment, or Category VII infraction, stipulations of the Performance Probation (90 calendar days excluding school holidays and vacations), which begins upon the employee's receipt of written plan of assistance (prescription), the plan of assistance and professional development opportunities to help correct documented deficiencies within a specified period of time, future required observations/assessments and possible employment actions. A minimum of two observations/assessments must be conducted subsequent to the completion of the initial prescriptive timelines and during the Performance Probation. The annual evaluation decision will be based upon the result of the last observation/assessment as illustrated in the chart titled, Examples of Assessments/ Observations and Annual Evaluation/Employment Contract Decisions for Employees on Performance Probation. In the event that an employee is absent on authorized leave in excess of 10 consecutive workdays, the Performance Probation is suspended until the employee returns to active duty, at which time it resumes. If the Performance Probation has not been completed during the current year of employment, the annual evaluation is withheld pending completion of the Performance Probation during the subsequent year of employment. Teachers who have not completed the requirements of the Performance Probation are ineligible for summer school employment. Within 14 calendar days after the close of the Performance Probation, the evaluator (principal) must assess whether the performance deficiencies have been corrected and forward a recommendation to the Superintendent. Within 14 calendar days after receiving the evaluator's recommendation, the Superintendent must notify the employee in writing whether the performance deficiencies have been satisfactorily corrected and whether the Superintendent will recommend that the School Board continue or terminate his or her employment contract. If the employee wishes to contest the Superintendent's recommendation, the employee must, within 15 calendar days after receipt of the Superintendent's recommendation, submit a written request for a hearing. On October 13, 1997, the Respondent was observed in his classroom by Assistant Principal Carrie Figueredo for one hour. The Respondent was found to be deficient in several categories and his performance was assessed as unsatisfactory. The observed deficiencies on this occasion included a failure to maintain appropriate classroom management. More than 90 percent of the students were "off task." Most of the students were either sleeping, filling out job applications, or otherwise inattentive. On October 20, 1997, Assistant principal Figueredo held a post-observation conference with the Respondent, discussed the Respondent's deficiencies with him, and provided the Respondent with a number of prescriptive activities, which it was hoped would help him improve his performance as a classroom teacher. On November 21, 1997, the Respondent was formally observed in his classroom by Principal Charles Hankerson. Principal Hankerson assessed the Respondent's performance as unsatisfactory. Among other things, Principal Hankerson observed that the Respondent continued to have serious deficiencies in the area of classroom management. On December 2, 1997, Principal Hankerson held a conference for the record with the Respondent to address his unsatisfactory performance. During that conference Principal Hankerson made recommendations as to how the Respondent might improve the specific areas of his unsatisfactory performance, and also discussed the Respondent's future employment status with Petitioner School Board. The Respondent was placed on a Performance Probation status in accordance with Section 231.29(3)(d), Florida Statutes, and he was provided with a plan of assistance to help him correct his deficiencies within the prescribed time frame. The Respondent's 90-day probation period began on December 8, 1997, which is the day on which he was furnished with a copy of the written plan of assistance. March 8, 1998. was the ninetieth day following December 8, 1997. During the Respondent's 90-day probation period there were at least 12 school holidays and school vacation days.3 Accordingly, the Respondent's probation period extended until at least March 20, 1998.4 On January 20, 1998, the Respondent was observed in his classroom by Assistant Principal William Henderson. Assistant Principal Henderson observed the Respondent for 60 minutes. During this observation, the Respondent was found deficient in techniques of instruction. Assistant Principal Henderson observed that the Respondent was not addressing the needs of the students, that there was confusion as to the assignment, and that the Respondent wasted too much time initiating the lesson. On January 27, 1998, Assistant Principal Henderson had a post-observation conference with the Respondent, during which he discussed the Respondent's deficiencies, and provided the Respondent with a number of prescriptive activities to assist the Respondent in correcting his deficiencies. Among those activities were, that the Respondent should meet with his department chairperson and review strategies which would be appropriate for the students assigned to the Respondent's classes. The Respondent was also directed to submit lesson plans to Assistant Principal Henderson. On February 27, 1998, the Respondent was observed in his classroom by Assistant Principal Figueredo for two hours. Assistant Principal Figueredo found the Respondent to be deficient in several areas, including classroom management.5 This was Assistant Principal Figueredo's second observation of the Respondent. While she noted some minimal improvement since her earlier observation, the Respondent's performance on February 27, 1998, was still not anywhere near an acceptable level. On March 5, 1998, Assistant Figueredo held a post- observation conference with the Respondent, discussed the Respondent's deficiencies with him, and provided the Respondent with a number of prescriptive activities in order to assist the Respondent in correcting his deficiencies. Among those prescriptive activities was a requirement that the Respondent develop lesson plans to be reviewed by Assistant Principal Figueredo's and by the Respondent's department chairperson. The Respondent was also directed to maintain a time log to determine when students arrived. Additionally, the Respondent was assigned several exercises in the Activities Manual to assist him in the area of teacher/student relationships. On March 27, 1998, Principal Charles Hankerson observed the Respondent in the classroom. On this occasion Principal Hankerson found the Respondent to be deficient in three categories: classroom management, techniques of instruction, and teacher/student relationships. This was the confirmatory observation, which did not require a prescription. The assistance provided to the Respondent through his prescriptions was appropriate assistance related to the Respondent's observed deficiencies. The Respondent completed all of the prescriptions. Nevertheless, the Respondent continued to fail to plan for lessons, continued to fail to manage his students, and continued to fail to interact appropriately with his students. These continued failures resulted in a failure of the Respondent to meet the instructional needs of his students. As a result of the Respondent's unsatisfactory performance during each of the last three observations described above, Principal Hankerson notified the Superintendent of Schools that the Respondent had not satisfactorily corrected his performance deficiencies during the probation period, and Principal Hankerson recommended that the Respondent's employment be terminated. On April 2, 1998, the Superintendent of Schools timely notified the Respondent that he was going to recommend that the School Board terminate his employment contract because he had failed to satisfactorily correct his performance deficiencies during his period of probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the action to terminate Respondent's annual contract. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1999.
The Issue The issues are whether Respondent is guilty of caring for a resident beyond the scope of Respondent's license and whether Respondent failed to ensure that an employee timely obtained a tuberculosis test.
Findings Of Fact Respondent owns and operates a licensed assisted living facility (ALF) known as Harborview Acres in Port Charlotte. Respondent's ALF license does not include an extended congregate care license or a limited nursing service license--both of which authorize an ALF to provide additional services to its residents. Petitioner conducted an biennial survey of Respondent's facility on August 24, 1998. As a result of findings made during the survey, Petitioner cited Respondent for two deficiencies that are at issue in this case. The first cited deficiency is Tag A 006, which asserts that Respondent's license does not authorize the type of care that it was providing to one resident, who is identified as Resident 3. Petitioner's surveyors saw one meal during which Resident 3 refused to feed herself. She ate while a staffperson helped her eat, but, as soon as the staffperson walked away, Resident 3 began to spill food onto herself. Resident 3 was confined to a wheelchair and required assistance in transfers from and to her wheelchair. She required assistance in various activities of daily living, such as dressing herself, combing her hair, and bathing. However, unknown to the surveyor and staff, Resident 3 was ill with a urinary tract infection. A few days previously, she had been walking with a walker, but otherwise without assistance, and had been feeding herself. The record does not permit a finding that the condition of Resident 3 was such as to require services beyond the scope of Respondent's license. During the survey, one surveyor reviewed staff files and found that the documentation for Staff 3, who had been hired on July 12, 1996, revealed no tuberculosis test since August 17, 1997. Zia Butt, the administrator, admitted that the employee's test was overdue. As Ms. Butt explained, the employee had gone to the County Public Health Office for a tuberculosis test, but the office had been unable to conduct the test and told her to return in a week. Petitioner properly classified this deficiency as a Class III deficiency. The failure of a caregiver to obtain annual tuberculosis tests indirectly or potentially threatens the physical or emotional health, safety, or security of the residents of the facility. The surveyor gave Respondent until September 21, 1998, for Staff 3 to obtain a tuberculosis test. The record does not establish that Respondent failed to correct this deficiency within the time permitted. Likewise, the record does not establish the factual basis for the allegation that this is a repeated offense.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration dismiss the Administrative Complaint against Respondent. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 4th day of June, 1999. COPIES FURNISHED: Karel L. Baarslag Senior Attorney Agency for Health Care Administration Post Office Box 60127 Fort Myers, Florida 33906-0127 Zia Butt Administrator Harborview Acres, Inc. 4950 Pocatella Drive North Port, Florida 34287 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issues in this case concern the challenge by Orange Park Care Center, Inc. (Orange Park) to the classification of certain deficiencies discovered in an inspection of the nursing home facility as conducted by the State of Florida, Department of Health and Rehabilitative Services (HRS). In particular, Orange Park believes that the choice by HRS to classify the NH-148(2) and (3), deficiencies as class II, in contrast to Class III, was inappropriate. Finally, Orange Park requests that it be recognized as a superior facility, assuming that the classification scheme in question, as posed by HRS, is found to be incorrect.
Findings Of Fact At all times relevant to this cause, Orange Park was licensed as a nursing home through recognition by HRS and thereby certified to participate in the Medicaid program. On December 12, thru 14, 1983, an annual license survey/ inspection was conducted in the nursing home facility. This survey was by officials within HRS. Prior to that survey Orange Park had been rated as a superior facility. In the course of the survey, deficiencies were discovered to include two deficiencies described as NH-156 and NH-157. Those deficiencies were characterized by HRS as Class II deficiencies, which if an accurate depiction would cause Orange Park to lose its superior rating as a nursing home facility. Other deficiencies included a deficiency known as NH- 148. There were several aspects to that deficiency. The first part of the deficiency pertained to a contention that no documentation could be found indicating that the consulting pharmacist to Orange Park had reviewed the matter of controlled drugs accountability. The second item related to a claim that Lidocaine and Isuprel, medications related to cardiac care were in the Emergency Medication kit, notwithstanding the fact that the effective date of those medications has passed or expired. The expiration dates were in February and July, 1983, respectively. The final contention related to the NH-148 deficiency dealt with the substance Benadryl, as prescribed for a patient within the nursing home on a p.r.n. basis. This substance bore an expired date of September, 1983. All substances were placed in the Emergency Medication Kit, based upon a decision of the pharmaceutical services committee within the nursing home. Although David Hodge, pharmacist and consultant to HRS testified that outdated drugs may promote harm to the patient when administered, he was not certain of the implications of using the outdated or expired medications described in this paragraph. Certain conferences or exit interviews were conducted between staff members of HRS and the nursing home and through those conferences the impression was gained that the NH-148 violations described constituted Class III violations or deficiencies. The NH-156 and 157 deficiencies continued to be perceived by HRS staff as Class II violations. On that subject, effective February 29, 1984, correspondence was forwarded to the administrator of Orange Park, acknowledging corrections which had been made to the deficient conditions including NH-148, 156, and 157. Those items had been corrected effective February 20, 1984. In this correspondence there is attached a sheet classifying the deficiencies, reflecting NH-148 as Class III and NH-156 and 157 as Class II. Prior to the February 29, 1984 correspondence discussed above, namely on February 17, 1984 Orange Park had challenged the classification of NH-156 and 157 as being Class II deficiencies, which challenge was referred to the Division of Administrative Hearings for consideration. On June 21, 1984, correspondence was addressed to the administrator of Orange Park from Ivan B. Owen, Supervisor, Area I, Office of Licensure and Certification, of HRS. That correspondence stated, during a recent review of our files it was discovered that a typographical error was made on page 2 of your survey report of December 12-14, 1983, (copy attached). The revised page 2 has been altered to indicate that NH-148(2) and (3), are classified as Class II deficiencies and NH-158 and 157 are Class III deficiencies. This adjustment occasioned an amended petition by Orange Park challenging NH-148(2) and (3) as being Class II deficiencies. That amendment to the position of HRS defined the nature of the hearing for which the Recommended Order is being entered. It gave definition in the sense that Orange Park accepted the characterization of NH-156 and 157, as being Class III deficiencies; however, it took issue with the classification of NH-148(2) and (3) as being Class II deficiencies. Having considered the testimony of the witnesses for HRS, it is not clear why the decision was made to change the proposed classification of NH-148 from a Class III to a Class II deficiency. Therefore, in terms of placing due regard or deference on the interpretation or policy choice of HRS, related to decision to change its position on the classification, deference cannot be afforded, there being no record basis supporting this policy decision. As a consequence, the decision on the question of classification must be made based upon a review of the underlying evidential facts measured against the statute and rules pertaining to the classification of deficiencies, without the benefit of an HRS policy statement. The HRS change in position is made more bewildering given the fact that in the inspection of another nursing home facility, known as the Green Cove Springs Geriatric Center, as conducted on November 14 through 16, 1984, an NH-147 violation was found and classified as Class III based upon the fact that an outdated ampule of Meperidine was found in the Emergency Medication Kit, a similar circumstance to that of the present case. In examining the conditions in existence at the time of inspection there were other containers of Lidocaine and Isuprel in the Emergency Medication Kit which were not outdated and could have been utilized for the benefit of patients, assuming that the appropriate medical professional followed the facility procedures and read the expiration dates on the expired containers of Lidocaine and Isuprel prior to the administration of those substances and discarded those which had expired. The history of those particular items within the Emergency Medication Kit indicated that neither of the substances had ever been administered for the benefit of a patient. The issue of the ability of the nursing home to properly utilize the two substances in the nursing home setting was also presented, and left some question about the ability to use those substances and the willingness to use the substances given that uncertainty. The likelihood of pursuing their utilization is further put to question given the close proximity of a hospital wherein the medications could be given without that quality of concern. The questioned Benadryl has not been administered to the patient for whom it was prescribed during that patients stay in the facility between December, 1982 and October, 1984. This medication could have been given by a duly licensed professional, however to use this expired medication it would be necessary to disregard the policy of reading the label and discovering the expired condition. Additional Benadryl was found in the Emergency Medication Kit which was in date. Should the Class II deficiencies pertaining to NH-148, be set aside, Orange Park would be entitled to receive a superior rating as a nursing home, per stipulation of the parties.
The Issue Whether Respondent, New Life Charities, Incorporated, Owner and Operator, Janae House Group Home (New Life or Janae House or Respondent), violated one or more of the group home licensure standards as alleged by the Agency for Persons with Disabilities (APD or Petitioner) in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Janae House is a group home owned by New Life located at 17130 Southwest 41st Court, Ocala, Florida 34473. It is licensed as a group home by APD. As a group home licensing agency, APD has multiple employees assigned to monitor group homes and their employees. In monitoring a group home's compliance with applicable licensing standards, APD also reviews findings of group home investigations conducted by the Department of Children and Families (DCF). The Complaint charges Janae House with two Class I violations of group home licensing standards from reported incidents allegedly occurring in 2013 and 2015. The Complaint further alleges that in 2014, Janae House was responsible for numerous other violations of group home licensing standards, including 10 alleged Class II violations and 25 alleged Class III violations. CLASS I VIOLATIONS Florida Administrative Code Rule 65G-2.0041(4)(a) includes as Class I violations "all instances where the Department of Children and Families has verified that the licensee is responsible for abuse, neglect, or abandonment of a child or abuse, neglect or exploitation of a vulnerable adult." The two alleged Class I violations against Respondent stem from 2014 DCF investigations of alleged incidents occurring in 2013 and 2014, respectively. According to Count I of the Complaint, Janae House's first alleged Class I violation occurred in 2013 and was verified in a February 2014 DCF investigative report prepared by Charles Bory. Mr. Bory conducted the investigation in person and testified at the final hearing regarding his investigation. At the time of the report, Mr. Bory was an adult protective investigator for the Department of Children and Families. Mr. Bory's investigation concerned an allegation that a New Life employee caused Janae House resident RB to fall and injure his shoulder. During the investigation, Mr. Bory spoke with the owner of New Life, Kevin Rivers, who denied the allegation, stating that the allegation was "crazy," that resident RB had tried to escape, fallen while doing so, and hurt his shoulder in the fall. Mr. Bory later interviewed the alleged perpetrator, a former staff member of New Life, who admitted that he and resident RB fell to the ground while he was holding resident RB and trying to stop resident RB from leaving. Given the staff member's admission, Mr. Bory found that the allegation was verified. Mr. Bory's testimony and the investigative report support the allegation, which is found to have occurred. The other alleged Class I violation is from a 2014 incident alleged in Count III of the Complaint. As to this second alleged Class I violation, although APD submitted DCF's investigative report, the investigator who conducted that investigation did not testify. Rather, APD called the investigator's supervisor, who advised that the investigator was no longer employed by DCF and was unavailable. The investigator's supervisor further testified that he did not know if any of the information in the investigative report was true. Under the circumstances, it is found that the investigative report for the 2014 alleged incident is hearsay and prepared in anticipation of litigation. Further, that 2014 investigative report is not corroborative of other evidence and the evidence is otherwise insufficient to find a Class I violation stemming from the 2014 incident.2/ CLASS II VIOLATIONS Rule 65G-2.0041(4)(b) classifies Class II violations as violations that "do not pose an immediate threat to the health, safety or welfare of a resident, but could reasonably be expected to cause harm if not corrected." In October 2014, APD Investigator Michael McKenna found a broken window at the Janae House that had been improperly repaired, with glass still lying in the yard and in the window frame. Given the fact that the Janae House is a behavioral home, a broken window with exposed broken glass presents a direct risk that a resident may hurt themselves or another. Mr. McKenna advised owner Kevin Rivers about the window and its danger during the October 2014 visit. On a return visit in November 2014, Mr. McKenna noted that the window was broken again, and that, for a second time, jagged glass was left in the window. When Mr. McKenna spoke to Mr. Rivers again, Mr. Rivers' response was that the investigator was intentionally looking for items to note. During her visit to Janae House on August 8, 2014, APD licensing supervisor Joyce Leonard observed that there was no carbon monoxide detector in the home and that the smoke detector needed a battery. Ms. Leonard also observed that the pantry door in the kitchen was broken. Mr. Rivers was advised of these deficiencies. Two months later, during a monitoring visit to Janae House on October 29 and 30, 2014, Investigator McKenna observed that there was still no carbon monoxide detector in the home and that the smoke detector lacked a battery. During that same visit, Mr. McKenna also observed broken doors and holes in the wall. In cases where a behavioral analyst is not available for residents needing behavioral services, APD regulations require a short one- or two-page sheet of procedures from the residents' health care provider for group home employees to follow in case of problematic behaviors. While monitoring Janae House on February 24, 2014, APD Senior Behavior Analyst Scott Traynor noted that, although Janae House resident JR had the need, no behavior analyst was available for resident JR. There was also no behavior procedure sheet specific to resident JR. CLASS III VIOLATIONS Rule 65G-2.0041(4)(c) classifies Class III violations as "statutory or rule violations related to the operation and maintenance of the facility or to the personal care of residents, other than Class I or Class II violations." When Joyce Leonard visited Janae House on August 8, 2014, Ms. Leonard observed that there was garbage strewn throughout the front yard. On his October 29 and 30, 2014, visit, Michael McKenna discovered that there was no physical exam on file for resident JR, there were no financial records of residents’ personal funds available for review, a Janae House staff member was administering medication to residents even though there were no current medication administration training credentials on file, and there was no communication log for Janae House staff. During that same visit, Mr. McKenna observed exposed light bulbs in their fixtures, filthy rugs throughout the home, a dryer was full of lint, numerous wasps nests on the outside of the building, and various debris littered throughout the grounds. New Life owner, Mr. Rivers, was made aware of these deficiencies at the time and advised that he would correct them. Corrections, however, were not made. Upon Mr. McKenna’s return to Janae House on November 20, 2014, there were no financial records available for review for resident KJ’s personal funds, no documentation of an annual dental visit for resident KJ, no weekly schedule for staff, and light bulbs were still exposed. During Scott Traynor’s visit to Janae House on February 24, 2014, he found that a board-certified behavior analyst was not monitoring at least 50 percent of Janae House staff each month as required, and that Janae House did not have site-specific reactive strategy procedures for staff to implement, if needed. He also discovered that, despite ADP’s request, the behavior analyst for Janae House resident DJ did not present resident DJ's behavior plan to the local review committee for review, and that Janae House staff was not conducting quarterly or semi-annual quality assurance meetings to review reactive strategies and develop strategies for behavioral incident reduction. APD also alleged that, during her review and investigation, former APD Medical Case Manager Victoria McKenna discovered that Janae House had violated a number of medical regulations. Ms. McKenna, however, did not testify. Rather, APD attempted to prove the alleged medical violations by submitting reports and notices of violations allegedly observed by Ms. McKenna and by offering the testimony of Michelle Young, a current APD medical case manager, who testified that notices of noncompliance are the same regardless of who does them. However, as in the alleged Class I violation that was only supported by an investigative report, it is found that the notices of violations prepared by Ms. McKenna, without more, are hearsay, prepared in anticipation of litigation, and insufficient to prove the alleged medical violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order finding that Respondent violated the group home licensing standards as concluded above and revoking Respondent’s group home license. DONE AND ENTERED this 14th day of July, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 14th day of July, 2016.
