Conclusions THE PARTIES resolved all disputed issues and executed a Stipulation and Agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached Stipulation and Agreement. Based on the foregoing, this file is CLOSED. DONE AND ORDERED this 7D day of DcMen... I 2009, in Tallahassee, Leon County, Florida. I T&a . t:lo Secretary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY, ALONG WITH THE FILING FEE PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED. Filed November 2, 2009 1:20 PM Division of Administrative Hearings. Case No. 08-1995MPI ARCA vs. City of Jacksonville Fire Division Rescue Service Final Order CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by United States Mail and by facsimile transmission (904)630-1731 to Loree L. French, Esquire, Attorney for the Respondent; City of Jacksonville, 117 West Duval Street, t::5-_ Suite 480, Jacksonville, Florida 32202 this ...5.. 1) day of October, 2009. ?Sb RICHARD J. S::P, A:;y Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, FL 32308 (850) 922-5873 2
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what sanctions, if any, should be imposed.
Findings Of Fact Based on the evidence adduced at the final hearing and the record as a whole, including the stipulations contained in parties' Joint Prehearing Stipulation, the following findings of fact are made: Respondent operates an Assisted Living Facility (Facility) in "two houses" located on Southwest 40th Street in Miami, Florida. The Facility is licensed by the Agency under Chapter 400, Part III, Florida Statutes. The Facility's licensed capacity is 22 residents (11 in each "house"). At all times material to the instant case, there were ten residents living in the Facility (six in one "house" and four in the other). At all times material to the instant case, Maria Grillo was the owner/administrator of the Facility. Ms. Grillo has been involved in the operation of the Facility for the past 11 years. Her husband ran the Facility before he became ill and passed away in the late 1990's. Ms. Grillo helped him with the paperwork. Following her husband's death, Ms. Grillo took over his administrative responsibilities at the Facility. Ms. Grillo has a full-time job "outside of the Facility." Her work hours are 8:00 a.m. to 5:00 p.m., Monday through Friday. Ms. Grillo has designated (in writing) Mirta Dearmas to be in charge of the Facility in her absence. At all times material to the instant case, Ms. Dearmas has been Ms. Grillo's designee. Ms. Dearmas, who "has her own Assisted Living Facility," comes by to "check the [F]acility" in Ms. Grillo's absence. "[I]f there's any need for her to do paperwork or anything [else] before [Ms. Grillo] get[s] there," then she'll help [Ms. Grillo] out." She does not stay at the Facility the entire day. Ms. Dearmas provides these services free of charge, as a favor to Ms. Grillo. At all times material to the instant case, the Facility had three full-time paid employees (Alicia Torres, Ana Rodriguez, and Altair Goncalves) and one part-time paid employee (Maria Saveedra). Joseph Kraus is a surveyor with the Agency. Mr. Kraus performed a biennial survey at the Facility on August 28, 2002, during which he found what he believed to be six Class III violations. He cited the Facility for having these violations and gave Respondent until September 28, 2002, to correct them. Mr. Kraus conducted a follow-up survey at the Facility on October 8, 2002. His conclusion was that three of the six violations he had noted during his August 28, 2002, survey had not been corrected. Ms. Grillo was not at the Facility during either the August 28, 2002, survey or the October 8, 2002, follow-up survey. Ms. Dearmas accompanied Mr. Kraus as he surveyed the Facility on these dates. At the time of Mr. Kraus' October 8, 2002, follow-up survey, as had been the case on August 28, 2002, there was no documentation of a satisfactory annual fire safety inspection. The Facility had failed an annual fire inspection conducted by the Miami-Dade Fire Rescue Department, Fire Prevention Division (Fire Prevention) because of a burned-out light bulb in an exit sign in the Facility. The light bulb was replaced immediately following the inspection, but Fire Prevention did not return to the Facility to conduct a re-inspection until after Mr. Kraus' October 8, 2002, follow-up survey of the Facility. Although the Facility passed this post-October 8, 2002, re-inspection by Fire Prevention, the Facility was nonetheless without documentation of a satisfactory annual fire safety inspection at the time of both Mr. Kraus' August 28, 2002, survey and his October 8, 2002, follow-up survey. At the time of Mr. Kraus' October 8, 2002, follow-up survey, as had been the case on August 28, 2002, the Facility did not have an updated emergency management plan that had been approved by the Miami-Dade Fire Rescue Department, Office of Emergency Management (Emergency Management). Ms. Grillo had sent an updated emergency management plan to Emergency Management for approval in or around April of 2002. It was not until in or around early December, however, that she was first notified by Emergency Management that there were deficiencies in the updated plan that needed to be remedied before the updated plan could be approved. On or around December 4, 2002, shortly after receiving such notification, Ms. Grillo submitted to Emergency Management the materials that were necessary to remedy the noted deficiencies in the updated plan. Emergency Management subsequently approved the updated plan. At the time of Mr. Kraus' October 8, 2002, follow-up survey, as had been the case on August 28, 2002, an examination of the documentation in the personnel records maintained at the Facility revealed that only two of the Facility's staff members had cards documenting their completion of First Aid and CPR training, an insufficient number to ensure that there was, within the Facility at all times, an on-the-job staff member with such documented training. Based on the results of Mr. Kraus' October 8, 2002, follow-up survey, the Agency, through the issuance of an administrative complaint, announced its intention to "impose an administrative fine in the amount of Three Thousand dollars ($3,000.00)" against Respondent for having three uncorrected Class III violations at the Facility. The Facility has a history of previous violations, but these previous violations were minor and "always corrected."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency issue a final order finding Respondent guilty of the uncorrected violations alleged in Counts I, II, and III of the Administrative Complaint and fining Respondent in the amount of $1,000.00. DONE AND ENTERED this 1st day of May, 2003, 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 1st day of May, 2003. COPIES FURNISHED: Nelson Rodney, Esquire Agency for Health Care Administration 8355 Northwest 53rd Street Miami, Florida 33166 Maria Grillo Marisa's Home Care 10360 Southwest 40th Street Miami, Florida 33166 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Meadows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue Whether HRS should revoke respondent Sprayberry's certification as an emergency medical technician or take other disciplinary action, for the reasons alleged in the administrative complaint?
Findings Of Fact The parties are in apparent agreement that respondent Wiley R. Sprayberry has held emergency medical technician certification No. JT 004523, at all pertinent times. Warranted Search It was freezing cold at about ten o'clock on the night of February 13, 1986, when Eric Adams, Kenneth Allen Tate, Jerry Eldridge and Jesse Joyner, all of the Holmes County Sheriff's Department, arrived to execute a search warrant at the "ambulance shack," the building that Holmes County emergency medical technicians occupied between ambulance runs. The warrant issued earlier the same day, on the strength of an affidavit Wilburn G. Baker had executed that morning at the state attorney's office. (T. 343-4). Mr. Baker's visit to the state attorney's office followed a stormy meeting of the Holmes County Ambulance Service emergency medical technicians. During one such meeting Mr. Baker told Messrs. Sprayberry and Cullifer "that he wished neither one of them had worked there . . . " (T. 195) Wilburn Baker had begun working for the Holmes County Ambulance Service sometime after he obtained his own certification as an emergency medical technician in 1978, and was already on board when Wiley R. Sprayberry began, in 1983. Mr. Baker took over as director of the Service when Mr. Cullifer "stepped down on his own" (T. 207) in 1985. Affidavit and warrant notwithstanding, a motion to suppress evidence obtained in the February 13, 1986 search was later granted in the criminal proceeding in which Messrs. Sprayberry and Cullifer were accused of marijuana possession on that night. The criminal prosecution was subsequently abandoned altogether. Apparently, however, on the night of the search, the authorities did not foresee these developments. They had, indeed, invited television crews and other media representatives to be on hand to witness them apprehend the respondents, whom Mr. Baker assured them they would find in possession of marijuana. Gunfire In Winter As law enforcement personnel, including a dog handler, gathered outside, Messrs. Cullifer and Sprayberry lay in beds inside the ambulance shack, covers drawn, watching a television news program. They had returned not long before from taking a Mr. Whitaker to Dothan. Among those outside the ambulance shack was Mr. Baker. Some hours before the fact (T. 349), the sheriff's office told him when the search was to take place, so that other ambulance attendants could fill in for the respondent and Mr. Sprayberry when they were arrested. After knocking and announcing their intention to execute a search warrant, Officers Adams, Tate and Eldridge entered the ambulance shack. Mr. Sprayberry remained in bed during the reading of the search warrant, but Mr. Cullifer took the opportunity to get dressed. Mr. Cullifer followed Officer Adams outside. As they walked with Officer Tate toward Mr. Cullifer's black Jeep, Officer Adams asked for the keys to the vehicle. Mr. Cullifer answered that "it's not even locked, anybody could have put anything . . . in there." (T. 371) Although the Jeep, "a hunting type vehicle," (T. 263) was capable of being locked, "you could pick the door up and s[e]t it off" (T. 272) and Mr. Cullifer never locked it when he parked it outside the ambulance shack. Instead of giving Officer Adams the keys, respondent Cullifer opened the unlocked door of the Jeep, got inside, inserted a key in the ignition lock, and started the engine. Standing beside the driver's seat and facing him, Officer Adams reached for the keys with his left hand, but Cullifer drove forward, knocking Adams backward, although not down. When his orders to halt went, unheeded, Officer Adams fired three shots. A bullet lodged in the back of the driver's seat as the Jeep sped from sight. Bag Plus Partial Cigarette In reaching (unsuccessfully) for the car keys, Officer Adams spotted a large, transparent bag under the driver's seat containing a "[g]reen leafy substance" (T. 13) that resembled marijuana. It was on account of this that he felt justified in firing on Mr. Cullifer, whom he took to be a fleeing felon. Whether the bag was of the "Zip-Loc" type he could not determine. Perhaps five minutes after he left, Mr. Cullifer returned, to be greeted by Officer Tate who wrestled him to the ground and handcuffed him. In the ensuing search of the Jeep, Officers Tate and Joyner "found a roach and all sorts of residue of marijuana." (T. 15) Partial Cigarette Only Meanwhile, inside the ambulance shack, respondent Sprayberry had decided to get dressed after all. He had just buckled his belt when he heard gunshots outside. Curious, he started for the door, only to have Officer Eldridge slam him against the wall. He was leaning against the wall, arms outstretched, when the telephone rang. Somebody from the hospital wanted to know what was happening at the ambulance shack. Still inside the ambulance shack, Mr. Sprayberry was asked for the keys to his car. Saying they were not needed since he had left his car unlocked, Mr. Sprayberry nevertheless threw his keys to a sheriff's officer. In fact, however, the Sprayberry car was locked when Officer Adams had tried to gain access before going for the key. A search of Mr. Sprayberry's car yielded "cannabis traces," (T. 15) in the form of a partial marijuana cigarette or "roach." No Other Link To Sprayberry With the help of a specially trained dog, sheriff's officers also searched the ambulance shack. Officer Tate recalled the dog's signalling suspiciously while sniffing a certain filing cabinet drawer, but nobody even opened the drawer at the time. Except inside the vehicles, no marijuana was found. City police arrived in response to reports of gunfire. "[T]here w[ere] cameras everywhere and lights everywhere." (T. 311) Mr. Baker, among others, was interviewed by the press, but he was unable to say at hearing whether a newspaper had quoted him correctly to the effect that the arrests came as a surprise to him. (T. 350-354) During the years he had known them, Mr. Baker never saw either Mr. Cullifer or Mr. Sprayberry in possession of marijuana. (T. 158). He nevertheless came to believe that they used marijuana, or so he testified. This belief he claimed sprung from statements he attributed to Mr. Cullifer, who denied making them, and which did not pertain to Mr. Sprayberry, in any event; and from leafy matter and paraphernalia Mr. Baker said he found at the ambulance shack. But emergency medical technician Robert Mitchell Taylor, who has worked for the Holmes County Ambulance Service for nine years, testified that he never saw "any indication that anybody had possessed marijuana at the ambulance shack." (T. 197) Donnie Ray Brock, a paramedic who worked for the Holmes County Ambulance Service from '78 or '9, through '86 sometime" (T. 204) testified that, during his employment there, he never had reason to believe that Messrs. Cullifer or Sprayberry "possessed marijuana while at the ambulance shack." (T. 205-6) Judith Sharon Braxton, aside from Messrs. Baker, Cullifer and Sprayberry, the only other Holmes County Ambulance Service employee who testified, said she had never seen Mr. Cullifer or Mr. Sprayberry in possession of marijuana, although she conceded she probably would not recognize marijuana if she saw it. (T. 216) Attending a Patient On February 7, 1986, respondents transported a 79 year-old man from the hospital in Bonifay to Bay Memorial Medical Center in Panama City. As they left Doctors Memorial Hospital shortly after five o'clock in the afternoon, Mary Elizabeth "Libby" Streep Kolmetz, R.N., Director of Nurses, noticed that "down to the corner, they both remained in the front seat." (T. 73) Mr. Sprayberry was driving. She saw Mr. Cullifer in the other front seat for one or two minutes, including 30 to 60 seconds that elapsed before the ambulance began its journey. The ambulance is "basically a regular van with . . high-top roof . . . [t]wo bucket seats in the front and a sliding door in the middle for the EMT's to go back and forth through." (T. 231) Because the sliding door is routinely locked open, an attendant seated on the edge of the passenger's seat can see and hear the patient while he is on the radio. Not uncommonly the attendant remained in the front seat for a minute or two as the ambulance set out, in order to communicate by radio with Doctors Memorial or Holmes County Ambulance Service. A critical electrical cord attached to the only radio that worked was long enough that the attendant could have stood somewhat closer to the patient, but it was unsafe to stand. Although the driver might have operated the radio, this was not customary. The evidence did not show that Mr. Sprayberry's performance on February 7, 1986, departed from any standard of care or acceptable practice. Mr. Cullifer's testimony that he only left patients "to make a radio transmission" (T. 237) keeping an eye on them even then, and that he did not "stay away from a patient over two or three minutes," id., has been credited. The record made of the 79-year old passenger's vital signs on February 7, 1986, does not prove otherwise. While this record reflects minimal variation in blood pressure during the 50-minute trip, the reported pulse rates vary more, and the reported rates of respiration show still more variation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That HRS dismiss the administrative complaint filed against Wiley R. Sprayberry. DONE and ENTERED this 11th day of August, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 FILED with the Clerk of the Division Administrative Hearings this 11th day of August, 1988. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 14, 15 and 16 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 4 is not supported by the record cited. Petitioner's proposed finding of fact No. 8 has been adopted, in substance, insofar as material, except for the characterization of the bag as "Ziplock." Petitioner's proposed finding of fact No. 10 has been adopted, in substance, except as regards where the shots were aimed and where the bullets lodged. The last sentence of petitioner's proposed finding of fact No. 17 has not been adopted, despite testimony to this effect, because using the radio could distract the driver. Petitioner's proposed findings of fact Nos. 18 and 19 are rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed finding of fact No. 20, no evidence supported the allegation that Cullifer had given marijuana to Sherri Pate. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6, 8, 10, 11, 12, 13, 14, 16, 17, 18, 20, 21 and 22 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, the evidence did not clearly and convincingly rule out the possibility that Baker planted the marijuana cigarettes. Respondent's proposed finding of fact No. 7 is consistent with the evidence, but raises the question why he would be "frightened by the presence of police officers." With respect to respondent's finding of fact No. 9, nobody corroborated Baker's allegation of marijuana use or possession by respondent at any time other than February 13, 1986. Respondent's proposed finding of fact No. 15 is immaterial. With respect to respondent's proposed finding of fact No. 19, the cord would not reach far enough to allow the attendant to sit in the patient compartment. Respondent's proposed finding of fact No. 23 is rejected as unsupported by the evidence. COPIES FURNISHED: JOHN R. PERRY 2639 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32303 BONNIE K. ROBERTS P. O. BOX 667 BONIFAY, FLORIDA 32425 GREGORY L. COLER, SECRETARY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32399-0700
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Agency for Health Care Administration, was the state agency responsible for the licensing of and the regulation of activities of nursing homes in Florida. The Respondent, Integrated Health Services, Inc., operated Heritage Park of Bradenton, a 120-bed nursing home facility in Bradenton, Florida. Soon after his employment by the Respondent, Duane E. Hathaway, the facility maintenance director, was conducting a familiarization survey of the facility's physical plant. He had previously been briefed on the possible severity of hurricane winds experienced in the area and was interested in the two back-up systems the facility had to provide electrical power in the event the regular power supply was interrupted. One system was a battery system which would operate the nurse call system and fill certain other emergency requirements. The other back-up system was a 90 kw Kohler generator powered by a 460 horsepower Ford propane engine. This generator was to be the main power source during emergency conditions which resulted in the main power supply being interrupted. During the course of his inspection, Mr. Hathaway found that the generator was not performing properly. Not relying only on his own inspection, he had the unit surveyed by a local generator company, Tampa Armature Works, (TAW), which advised him the generator was not holding a load as it was supposed to do. Though the generator worked, its performance was not reliable in an emergency and often resulted in a requirement for each load factor to be brought on line manually. There also was a question as to whether it could carry a full load for an extended period of time. Under the Agency's rules governing the operation of nursing homes, existing licensed nursing homes are not required to have emergency generators unless they employ life support systems in the facility. Heritage Park of Bradenton does employ life support systems and did at the time in issue. Therefore, it was required to have an emergency generator installed and operable in the facility. When the difficulty was discovered with the facility's existing generator, either Mr. Hathaway or Ms. Wilingham telephoned to Mr. Jay Grollman, the director of design and construction for Integrated, Heritage's parent company, who knew of a spare generator located at the company's Miami facility. This generator in Miami was good for Heritage because it was nearby and was certified for use in health care facilities by the Agency. It had been installed and maintained at the Miami facility by TAW which, when contacted, indicated that all factors being considered, it was the best option for Heritage Park of Bradenton and would meet their needs. This generator also met all standards set by the National Fire Protection Association. Thereafter, Respondent hired TAW to move the generator from the Miami facility to the Bradenton facility and install it. It was packaged at Miami, placed on a truck and transported to Bradenton where it was installed. Once installed, done in one day, a load bank test was done which indicated some minor difficulties which were remedied at once. The building load test was then done successfully and so was a subsequent bank test. The generator now is working properly and is currently tested weekly. Only minor discrepancies are ever noted and these are immediately corrected. On December 20, 1995, during the course of an annual inspection of the Respondent's Bradenton facility, Mr. Mehaffey, the Agency team's fire inspector, was advised by Mr. Hathaway that the facility's emergency generator recently had been changed out because they had been having problems with it in the past and had chosen to replace it. When Mr. Mehaffey asked if the facility had submitted plans for approval in advance of the change, Mr. Hathaway did not know. Somewhat later that day, however, in the Administrator's office, Ms. Willingham indicated that plans for the change-out had not been submitted in advance. At that point, Ms. Willingham indicated the facility had other approved work under way and she thought the generator change-out might be included in that. Nonetheless, Mr. Mehaffey wrote up the change-out as a violation on a formal complaint which was consistent with other prior instructions he had received. According to Ms. Willingham, who has been an administrator with the Respondent for several years, renovations other than the replacement of the generator had been granted a CON waiver by the Agency and submitted to the Agency's OPC before the generator work was contemplated, She was advised in September, 1995 by Mr. Hathaway that the existing generator was not up to snuff, and because it was the middle of a very active hurricane season, she called Mr. Grollman for advice. Because the Heritage Park facility has contracts to receive evacuees from other facilities during emergencies, and also has the need to shelter staff families and others in need, a reliable emergency generator is important to have in the event of a hurricane or other disaster. Ms. Willingham's immediate concern was for resident safety. When Mr. Grollman recommended the change in the generator, the new unit was installed within a week and a half of identification of the problem. As a result of the December 1995 annual survey, the facility was awarded a superior rating. Aside from the write-up for the generator, only a few minor deficiencies were identified, none of which were serious and all of which were corrected immediately. The generator write-up was included only because representatives of the facility, Mr. Hathaway and Ms. Willingham, had advised the Agency inspector of the change-out. No attempt was made to hide it. After the inspection, on December 31, 1995, Mr. Grollman, by letter, contacted the OPC to see if the generator replacement could be added to the existing project. Mr. Grollman's rationale in support of that proposal was that the failure to secure advance approval was an oversight occasioned by the emergency situation and the partial and impending failure of the system during the hurricane season. No immediate response from the Agency was forthcoming. However, on June 4, 1996, Mr. Gregory signed the Administrative Complaint reflecting the intention to impose a $5,000.00 fine. On June 24, 1996, another official from OPC, by letter, advised Ms. Willingham that the construction project had been surveyed and occupancy of the area approved subject to certain deficiencies noted in the survey. Only six deficiencies were noted. Of these, only one related to the generator, and that one required " a grade in wall opening at the generator exhaust area." In reality, that was a construction item. The cost of the project to which the generator was added was initially $285,000. The cost of shipping and moving the generator was an additional $25,000. Ms. Willingham recognized that the Agency's rule requires that all "contemplated" new construction or acquisition be submitted for prior approval but she is bemused by what the term "contemplated" actually means. Her prior inquiries to the Agency provided no clear answer. One source she contacted, not further identified, indicated that replacement of a product with a like product does not require prior approval. A question as to the need to seek prior approval to replace wall paper met with diametrically opposing advice. Ms. Willingham contends, and it is obvious, that she did not make a conscious decision not to seek agency approval of the generator change. She merely felt it was not that sort of project which needed to be reported. Fire alarm and nurse call replacements were called in for prior approval. OPC employs teams of architects and engineers to review all plans for modifications of and improvements to regulated health care facilities and reviews on site the construction related thereto for compliance with pertinent agency rules and statutes dealing with fire safety. It also reviews system installations and design criteria, air distribution, pressure relationships and fire alarm, nurse call and gas transmission systems. OPC is a part of the Governor's Emergency Operation Center and provides response teams in hurricane, flood or emergency areas to do assessments and give assistance as necessary. Some teams are based at diverse areas throughout the state. Teams are constantly on the road, and other teams stand ready in the office to be deployed in any emergency situation. According to Mr. Davis, a professional engineer who was working for the Agency at the time, personnel from OPC's Orlando office were available to go to Bradenton on very short notice if necessary and, in fact, were going there on a regular basis. As such, they could have taken part in an approved generator swap-out had Respondent sought approval. That being the case, the Agency contends, there was no emergency situation justifying non-compliance with the "prior approval" rule. Another function of OPC is to see that all required tests are carried out on new generators and that they are properly installed and within code before they come on line. The office also participates in the development of generator watch situations in the case of temporarily non-conforming generators. A significant part of the office operation is to approve plans for emergency situations. A generator is a part of the electrical system of a nursing home. In the instant case, a 30-bed medical specialty unit was being constructed which would hold patients needing life support. In a case such as here, the existing generator might be increased in size and the generator integrated with the existing electrical system. Nursing home administrators are advised by an Agency newsletter of all new requirements. In August 1994, this newsletter included an article concerning the requirements for submittal of plans for any construction or modification, regardless of how small. In addition, in either April or May 1994, Mr. Gregory sent a mass mailing to every nursing home administrator in the state regarding the need to advise OPC in advance of every modification so that a determination could be made if further review is necessary. Mr. Gregory receives three to four replies per day (300 - 400 per year) from which he determines whether the proposed project is sufficient or what else might be needed. Generator problems he has experienced include leaking oil, a loss of coolant or air pressure, overheating, a lack of monitoring alarms and the like. In the instant case, the Respondent did not submit plans for any generator upgrade in 1995 prior to the installation. What Mr. Gregory describes as "upgraded construction" came to his attention through a December 20, 1995 recommendation for administrative complaint submitted by Mr. Mehaffey. After receiving it, Mr. Gregory discussed the situation and what had to be done to rectify the situation by telephone with the planning director for Integrated, Mr. Grollman. He also had a discussion with the architect of the approved project. That project did not address the need for a different generator. Mr. Gregory contends that when Respondent identified the need for a replacement generator it should have phoned OPC and so indicated. The parties would then have had a dialogue on what had to be done to include, if necessary, sending an engineer to the site to insure the generator was installed correctly and according to code. In the instant case, TAW, which installed the generator, was not under the supervision of a professional engineer as Gregory indicates was required. The generator in issue was installed before any plans were submitted for review. As a result, according to Mr. Gregory nothing was done to insure it was installed and tested properly and according to code. No information was provided to the Agency to indicate if the new generator matched the need it would be used to meet or if it was the proper size, had the proper breaker ratings or the appropriate ACI ratings. Even though the Agency learned of the installation in December 1995, it did not send out an engineer to inspect the work until April 1996. Information received from the installer by the Agency's design engineers, and from the plans sent in, indicated deficiencies. Inspection showed the generator had an overheating problem along with other installation issues relating to alarms. These deficiencies, acknowledged by Mr. Hathaway, were corrected and the installation approved with the other construction in June 1996, well after the generator was installed. Mr. Gregory knows of no Agency rule which refers to emergency situations, except for the state emergency plan, EFS-8, which deals with natural or nuclear disasters. The plans for the generator were finally submitted in March 1996, after Mr. Gregory spoke with the architect who was supervising the new approved project. The architect said he would arrange for the plans to be submitted for inclusion in the ongoing project. Mr. Gregory concurred with this plan subject to CON office approval. Nevertheless, even in light of this and considering the conversations with Mr. Grollman and Mr. Mehaffey; and recognizing there was no intent to deceive shown by the Respondent, Mr. Gregory still recommended imposition of the maximum fine. This was after Respondent, in December 1995, requested, in writing, a waiver of the Administrative Complaint and agreed that the plans and installation would be modified as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that the Agency for Health care Administration assess an administrative fine of no more than $500 for Respondent's failure to submit plans for generator replacement to the Agency in advance of project initiation, as required. RECOMMENDED this 15th day of November, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1996. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway, Number 100 Tampa, Florida 33614 R. Bruce McKibben, Jr., Esquire Holland and Knight Post Office Box 810 Tallahassee, Florida 32302-0810 Sam Power Agency Clerk Agency for Health Care Administration Fort Knox Building Three, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
