The Issue The issues to be resolved in this proceeding concern whether the Respondent should be accorded a "Conditional" or "Standard" rating as to its licensure and whether it should be subjected to an administrative fine and, if so, in what amount.
Findings Of Fact The Petitioner is an Agency of the State of Florida which conducts licensure surveys of nursing homes on an annual basis to ensure compliance with the state licensure requirements and federal certification requirements that the Petitioner Agency is statutorily charged with enforcing. A survey results in a report called a "Form 2567," which lists the deficiencies and their factual basis. A federal scope and severity classification, identified by the letters A-L, and a State classification scale or system identified by I-IV are assigned to any deficiency. The Respondent is a licensed, skilled nursing home facility located at 1001 Mar Drive, Fort Walton Beach, Florida 32548. The Respondent at all times pertinent hereto was a long- term Medicare provider and subject to Title 42, Code of Federal Regulation (CFR) Section 483. When a deficiency is determined to exist, changes in a facility licensure rating or status are determined by the level or scope and severity of such deficiencies, as determined under the state classification provided for in the statutory authority cited and discussed below. Fines are also based on the scope and severity and state classification of deficiencies. Between June 25-27, 2001, an annual re-certification survey (survey) was conducted of Westwood by the Petitioner Agency. Pursuant to that survey the Petitioner cited the Respondent for a "Class II " deficiency "FTag 324," as to which it was alleged that the Respondent had failed to provide adequate supervision and assistive devices to prevent resident number two from suffering falls. FTag 324 was cited under the federal scope and severity matrix or scale as a Level "G" deficiency. A level "G" deficiency equates to a Class II state deficiency severity level. The Agency cited Westwood under Section 400.23(8)(b), Florida Statutes (2001), for failure to provide the necessary care and services, thereby compromising Resident two's ability to attain or maintain her highest practicable physical, mental and psychosocial well-being, in accordance with a resident assessment and plan of care. The deficiency was originally cited by the four licensed surveyors on the survey team as being a Class III deficiency, but was later changed to a Class II deficiency (more severe) after the completion of an informal dispute resolution (IDR) process. In that dispute resolution process the Respondent was allowed to participate, but was not allowed to argue the scope and severity of the alleged deficiency and was not accorded the right to counsel. The Agency at hearing presented the testimony of Ms. Jackie Klug, a licensed surveyor who is trained and is registered as dietician. She was a surveyor responsible for the clinical record review, as to Resident two, and for interview of the staff at the Westwood facility, relating to the care provided to Resident two. She performed a limited clinical review of the records of Resident two. Ms. Klug is not a licensed nurse and does not have nursing training. The Agency also presented the testimony of Ms. Susan Acker, who is the Agency representative responsible for supervision of the long-term care, quality monitoring program and who is responsible for determining compliance of facilities receiving Medicare and Medicaid funding. She was qualified as an expert in nursing practice, surveying and survey practices. She was the Agency representative responsible for making the final determination as to the federal scope and severity of any potential deficiency and therefore the appropriate state classification of the deficiency. Ms. Acker performed a limited record review of portions of Resident two's records supplied by facility representatives after an informal dispute resolution hearing. Ms. Acker did not perform an independent clinical review of the resident, but relied upon the records gathered by Ms. Klug. After reviewing the documents provided to her after the IDR hearing, Ms. Acker determined that a federal scope and severity level of "G" existed, which equates to a state Class II deficiency or violation. State surveyors apply a Long-Term Care Facility Enforcement Grid to determine the scope and severity of a potential deficiency. After the scope and severity is determined under the federal scale, a corresponding state classification is assessed. There is not a separate state classification determination apart from the federal scope and severity determination. When a level "G" federal scope and severity is determined, a state classification of Class II deficiency is automatically applied. Under the Long-Term Care Facility Enforcement Grid and the state classification system, the alleged deficient practice must result in more than actual minimal harm and more than minimal discomfort in order to support a Class II designation. Resident two was admitted to the facility on November 10, 2000. She was admitted to the facility with the diagnoses of tardive dyskinesia, Alzheimer's disease and an unsteady gait. Within 11 days of being admitted to the facility, Resident two was assessed, which triggered a resident assessment plan or profile, and was determined to be at risk for falls. Resident two experienced approximately five falls starting on April 30, 2001, through June 23, 2001. Resident two suffered no physical injuries after any of the falls except for the fall on June 23, 2001. She suffered minor injuries in that fall, consisting of a bruised chin and abrasion in the area of her eye and a small skin tear to her right wrist. The injuries were minimal in nature and required only basic first aid normally associated with common minor skin abrasions. Resident two suffered no discomfort as a result of any fall other than the fall of June 23, 2001. Resident two was able to communicate pain or discomfort and had done so to the facility staff on a number of occasions. The records of Resident two contain no indication of any complaints of pain or discomfort resulting from any of the falls, and Resident two denied experiencing discomfort or pain as a result of any of the falls, including the fall of June 23, 2001. The facility documents and the testimony of the Respondent's witnesses established that Resident two exhibited no sign of decreased or limited functioning subsequent to any recorded fall incidents. Resident two continued her daily social, mental and physical activities in the same manner as prior to any fall, after each of the falls she experienced. Resident two experienced no falls from the time of her admission on November 10, 2001, through April 29, 2002. The Respondent was cited by the Petitioner in the Form 2567 for failure to provide adequate supervision and adequate assistive devices to prevent falls. Neither of the Agency witnesses at hearing was able to testify as to the exact level of supervision provided Resident two by the facility staff, nor could either witness testify as to the manner of the supervision of Resident two by the facility. Neither Agency witness provided any concrete evidence or recommendation as to what might constitute adequate supervision sufficient to ensure fall prevention of a resident in Resident two's physical and mental status and condition. Neither the facility personnel nor the Agency personnel testifying were able to determine a cause or pattern for the falls of Resident two. Agency witnesses were unable to determine what, if any, facility action or inaction might have caused the falls. There is some indication in the evidence that Resident two may have experienced fluctuations in blood pressure which under certain circumstances can cause dizziness and, potentially, falling. Additionally, as to one of the falls, there is indication in the evidence that the resident's shoes or type of shoes and the edge or corner of a carpet may have caused her to trip. If it has not already done so, the Respondent should take all possible steps to ensure that areas where Resident two, or any other resident, may walk are free of hazards which might contribute to falling, should closely monitor blood pressure and take appropriate clinical steps to ensure, if possible, the stability of blood pressure to try to prevent falls. Similar steps should be taken as to any other medical or clinical condition which may contribute to falling. Tardive dyskinesia is a condition resulting from the long-term use of psychotropic drugs. Although tardive dyskinesia may contribute to falls, if motor skills are affected, not all people affected by tardive dyskinesia have symptoms affecting their gait or ambulation. Resident two did not exhibit physical dysfunction to gross motor skills, but rather exhibited "tongue thrusting" and "spitting." Ms. Acker, the Agency nursing expert testifying, indicated that tardive dyskinesia could not be determined within reasonable medical certainty to be the cause of any of Resident two's falls. Although Resident two suffered from fluctuating blood pressure, which can contribute to falls if attendant dizzy spells occur, Resident two did not exhibit blood pressure symptoms or complications which actually caused physical dysfunction to her motor skills. Ms. Ackers indicated that blood pressure symptoms could not definitely be determined to be the cause of Resident two's falls. While such a fluctuation in blood pressure could not be determined to be the cause, based upon the evidence offered by Ms. Ackers or otherwise at the hearing, blood pressure fluctuation as a possible cause of the falling cannot be ruled out. Resident two was subject to the facility's general falls policy and a special fall prevention program known as "falling leaves." The facility's fall prevention policies were in conformance with generally accepted nursing home standards and customary policies utilized within the skilled nursing community or industry. The representatives of the Agency did not review the fall prevention policies of the facility when determining the existence of a deficiency and were unaware of the content of the facility policies for fall prevention at the time of the hearing. The fall prevention policies of the Respondent's facility were applied to Resident two. The Respondent supervised Resident two by placing her at a nurses station, within four feet of a charge nurse, so that she could be closely monitored. The Respondent also provided assistive devices in the form of a walker, to assist Resident two in safely ambulating. The walker is intended and designed to prevent falling which might result from the unsteady gait of Resident two. Resident two suffered from Alzheimer's disease. She was thus unable to remember simple instructions or to use assistive devices provided to her by the facility on a consistent basis. This behavior is consistent with certain stages of Alzheimer's disease, where patients or residents are unable to remember even simple instructions for any period of time. The Respondent did provide memory assistive devices, such as tethered alarms and visual aids, on her walker to assist Resident two in remembering to use her walker. She would sometimes impulsively arise and walk on her own, without the protection of using a walker. Physical therapy training to assist Resident two in ambulation was not appropriate. Resident two was unable to assimilate, incorporate and remember such training in her daily activities because of her Alzheimer's condition. Ms. Watson, a trained physical therapist, testified that physical therapy would have been unavailing in regard to Resident two, essentially because she was unable to remember physical therapy instructions or training modalities. In fact, Resident two was physically able to quickly rise from a sitting position and to ambulate without any real notice to staff members. Although staff members were positioned in close proximity to Resident two on a frequent basis, Resident two could still begin to ambulate quickly, without notice in time for the staff to act to protect her in all circumstances. As a result of her Alzheimer's condition, restraints were an inappropriate measure to prevent unexpected ambulation. Prior to using restraints, a treating physician must provide a physician's order for such restraints. The treating physician for Resident two was aware of her falls, but still did not provide an order for restraints.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore recommended that the Agency for Health Care Administration enter a Final Order according a standard license to Westwood and imposing a fine in the amount of $500.00 for a Class III violation. DONE AND ENTERED this 9th day of July, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 9th day of July, 2003. COPIES FURNISHED: Ursula Eikman, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Alex Finch, Esquire Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 Winter Park, Florida 32790 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 Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
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 At all times relevant hereto, Respondent was licensed by Petitioner as an Adult Congregate Living Facility (ACLF) and operated a home with thirteen residents. At a survey conducted April 25, 1985 some seventeen (17) class III deficiencies were noted by the survey team and these discrepancies were brought to the attention of the ACLF administrator at the exit interview held. Respondent was given thirty (30) days to correct these discrepancies. A follow-up inspection on Respondent's ACLF was conducted July 9, 1985. At this inspection the following discrepancies remained uncorrected: there was no assurance that staff providing assistance with personal hygiene have inservice or other training in personal hygiene care from a qualified instructor; four residents' files did not contain a completed Health Assurance form; physical examinations of three (3) of thirteen (13) residents did not include a statement that on the day of the examination the individual was free of communicable disease; and there was no three-compartment sink or other approved system available to sanitize kitchen utensils. Respondent acknowledged the deficiencies above-noted had not been corrected at the time of the reinspection. In mitigation, Respondent presented evidence that requests had been made of the doctors for the missing evidence in the residents' files and the doctors were inordinately slow in forwarding such information. With respect to staff training in personal hygiene, Respondent attempted to enroll its staff in the required training but ran into delays of a month or so in getting its personnel in these classes. With respect to the three-compartment sink, Respondent ordered the first replacement sink from a plumber who went out of business before installing the sink; a second sink was ordered but the sink was too small; and finally, Respondent replaced the deficient sink with the proper type.
Recommendation It is recommended that a final order be entered assessing an administrative fine of $550 against Trevor Jones, d/b/a Brer Fox Retirement Home, Inc., with interest as provided by Section 687.01, Florida Statutes. DONE AND ORDERED this 10th day of April 1986 in Tallahassee, Leon County, Florida. K. N. AYERS 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 10th day of April, 1986. COPIES FURNISHED: Mr. William Page, Jr. Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Steve Huss, Esquire General Counsel Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Carol M. Wind, Esquire 2255 East Bay Drive Clearwater, Florida 33518 Mr. Trevor Jones 9675 94th Avenue North Sarasota, Florida 33546
Findings Of Fact At all times material hereto, Respondent has been licensed by the Department to operate an adult congregate living facility (hereinafter "ACLF"), which is located at 2610 Southwest 14th Avenue, Fort Lauderdale, Florida, and is known as Ficus Manor. The Department performs an announced annual survey on every ACLF. A survey is simply an inspection of the facility in order to determine the degree of compliance with Departmental rules and regulations. HRS-AA Form 1806, Classification of Deficiencies for ACLF Licensure Requirements, is completed by the Department's surveyors and forwarded to the facility, designating the deficiency and reference, class of deficiency, and date by which each deficiency must be corrected. A follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected. On October 19, 1988, then-Department employee Elizabeth Balle performed the annual survey of Ficus Manor. During that survey, she cited twenty-seven deficiencies. Compliance dates were established for each deficiency. A follow-up survey was conducted by Baller on January 26, 1989, at which time she noted on Form 1806 that only seven of the previously-cited deficiencies had not been corrected. Those deficiencies noted by Baller as not having been corrected by January 26, 1989, are as follows: ACLF 41 Facility does not provide documentation of daily awareness of the general health, safety and physical and emotional well being of residents. Ref: 10A-5.128(1)(b) ACLF 51 The facility does not provide staff and services appropriate to the needs of the residents as evidenced by a lack of towels and toilet paper. (refer to ACLF 49, 41, 23, 17) Ref: 10A-5.182(4) ACLF 52 Owners or administrators are to protect residents rights and freedoms in accordance with the following: evidenced by 49, 41, 23, 17, 106 Ref: Ch. 400.428, F.S. and Ch. 10A-5.182(5), F.A.C. ACLF 89 The facility does not provide uncrowded safe and sanitary housing to its residents, in the following was observed: as evidenced by dirty sheets. Ref: Ch. 10A-5.23(1), F.A.C. ACLF 109 The interior and exterior of buildings are not kept reasonable [sic] attractive, in that: rusted and or dirty legs on chair and tables. Ref: Ch. 10A-5.22(1)(d), F.A.C. ACLF 112 The building is not maintained in a clean, safe and orderly condition in that the following was observed: as evidenced by 108, 109, & 110. Ref: Ch. 10A-5.22(1)(g), F.A.C. ACLF 115 There was slight odor of urine in room #1400. Ref: 10A-5.22(1)(j) On March 7, 1989, a second follow-up visit was performed by Baller and by Gary Warnok, a registered dietician employed by the Department. On October 19, 1988, on January 26, 1989, and on March 7, 1989, there was no documentation of daily awareness of the general health, safety, and physical and emotional well being of the residents by designated staff. On October 19, 1988, towels and toilet paper were not available to all residents. Many of the residents' bathrooms had no toilet paper and no towels. The few bathrooms that did have toilet paper and towels only contained one towel even though that bathroom was utilized by four to six residents. By the time of the January 26, 1989, or of the March 7, 1989, follow-up visit, the facility had placed a handwritten, paper sign in each bathroom advising the residents that if they needed towels or toilet paper they should "ask the person in charge." However, the supply of towels and toilet paper in each bathroom had not been increased. On January 26, 1989, and on March 7, 1989, the supply of towels and toilet paper remained inadequate. At the time of the annual survey and at the time of the two follow-up visits, the sheets on the beds in some of the resident bedrooms were dirty or were clean but had stains which appeared to have resulted from dried feces or urine. On October 19, 1988, and on January 26, 1989, there were rusted and/or dirty legs on the chairs and tables in the dining room at the Ficus Manor facility. At the time of the annual survey and at the time of the two follow-up visits, there was a slight odor of urine in room 1400.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of three Class III violations and imposing a civil penalty in the amount of $250 each, for a total of $750, to be paid within 30 days from the date of the Final Order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of May, 1990. LINDA M. RIGOT 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 29th day of May, 1990. APPENDIX TO RECOMMENDED ORDER The proposed findings of fact found in Petitioner's 1st, 6th, 7th, and 10th unnumbered paragraphs have been adopted either verbatim or in substance in this Recommended Order. The proposed findings of fact found in Petitioner's 2nd - 4th and 8th unnumbered paragraphs have been rejected as being irrelevant to the issues under consideration in this cause. The proposed findings of fact found in Petitioner's 5th, 9th, 11th, 13th, 14th, and 16th unnumbered paragraphs have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. The proposed findings of fact found in Petitioner's 12th and 15th unnumbered paragraphs have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4-11 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. Copies furnished: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue North Tower, Room 526 Miami, Florida 33128 Donna Szczebak O'Neill, Esquire 2800 West Oakland Park Boulevard Suite 205 Fort Lauderdale, Florida 33311 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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 The issue presented is whether the Department of Children and Family Services discriminated against Petitioner when it terminated her employment.
Findings Of Fact The Department agrees in its proposed recommended order that Petitioner is an African-American female. There is no evidence as to her age. Petitioner began employment with the Department on June 15, 2007, as a child protective investigator (hereinafter "CPI"). As a new employee, she was subject to the requirement that she successfully complete a probationary period of one year. CPIs receive extensive and structured training through the University of South Florida and subsequently by the Department. The training is expensive, so decisions to terminate a CPI are not made casually since the Department has invested time and revenue in training that CPI. CPIs investigate reports of possible child abuse or neglect under strict statutory deadlines to ensure the safety of at-risk children. New reports received by the Department are assigned to individual CPIs on a rotating basis, and there are schedules so employees will know who is "on rotation." From October 2007 through approximately mid-January, Petitioner was taken off rotation so as to not receive new cases and her existing caseload was distributed to other CPIs in her unit. Relieving her of her responsibilities was necessary because Petitioner was disqualified from her employment position due to a felony conviction, and it was necessary for her to obtain an exemption from that disqualification. Petitioner was successful in obtaining that exemption and was able to resume her job duties. By March 2008, it was necessary to take Petitioner off rotation again so that she could get current on her existing caseload rather than continuing to miss statutory deadlines. From that time until Petitioner was terminated from her employment as a CPI in June, it was necessary to take Petitioner off rotation for approximately one week every month so she could catch up. No other CPI has been taken off rotation due to performance deficiencies. When Petitioner was taken off her regular duties until she obtained an exemption and during each of the time periods she was taken off rotation, the other CPIs in her work unit had to absorb her caseload and all of the new cases. There was, understandably, some dissatisfaction among her co-workers who had to do her work in addition to their own. Further, Petitioner had the lowest caseload of all the CPIs in her unit. Christine Henegar, Petitioner's immediate supervisor and the person who hired her, assigned an experienced CPI to be Petitioner's mentor due to Petitioner's performance deficiencies both as to her investigations and as to her documentation. Although Petitioner was directed to meet with her mentor weekly, she did not. When her mentor attempted to assist her, Petitioner responded with resistance. Petitioner's mentor reported to Henegar frequently regarding Petitioner's poor performance, her resistance, her lack of comprehension, and the need for her co- workers to absorb Petitioner's caseload. Both he and Henegar shared an ongoing concern regarding the safety of the children whose cases were assigned to Petitioner. They were concerned that children were being left at risk due to Petitioner's inadequate or inaccurate assessment of risk factors. Once Petitioner had received her exemption and resumed handling a caseload, it became apparent by February or March that her performance was deficient in a number of ways. E-mails between Petitioner and Henegar between March 26, 2008, and June 10, 2008, reflect the same concerns regarding Petitioner's deficiencies throughout that time period. In May, Henegar held two formal conferences with Petitioner to address her continued deficiencies, but no improvement was noted. As Petitioner approached the end of her probationary period without adequate improvement, Henegar consulted with her supervisors regarding Petitioner's continuing deficiencies. As required for all employees, Henegar prepared a written performance evaluation of Petitioner on the required form. She gave Petitioner a rating of l.8, although she testified that she was generous in her scoring of Petitioner and scored Petitioner higher than Petitioner deserved. A score of "1" means the employee's performance is consistently below expectations, and a score of "2" means the employee's performance sometimes meets expectations and needs improvement. The Department terminates employees who do not successfully complete their probationary period rather than allowing them to become permanent employees. However, the Department did not terminate Petitioner; rather, it gave Petitioner a position with ACCESS, a different program under the Department's jurisdiction. When Petitioner did not successfully complete her one-year probationary period in that program, she was terminated. Petitioner affirmatively states that she was not discriminated against relative to her employment in or dismissal from the ACCESS program. Janet Stott is a white female who started her probationary period as a CPI at the same time as Petitioner. She is not a similarly-situated employee. Although she and Petitioner assumed the same job duties at the same time, her performance improved over the course of her probationary period while Petitioner's deteriorated. By the end of her probation, Stott was a very good investigator. Petitioner's termination as a CPI was not based upon any single incident or her handling of the two cases that she attempted to focus on during the final hearing. Rather, it was based solely upon her over-all performance, which was reviewed during three meetings among her supervisors over a period of two months. Petitioner's race and/or her age were not considered by those decision-makers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the Petition for Relief filed in this cause. DONE AND ENTERED this 21st day of April, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 21st day of April, 2010. COPIES FURNISHED: Jane Almy-Loewinger, Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 430 Daytona Beach, Florida 32114 Beverly Joe O. Greenwade 106 Academy Avenue Sanford, Florida 32771 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in DOAH Case No. 10-0528 are whether the allegations set forth in the Administrative Complaint dated December 4, 2009, are correct, and, if so, what penalty should be imposed. The issue in DOAH Case No. 10-1672 is whether the application for license renewal filed by Avalon's Assisted Living LLC, d/b/a Avalon's Assisted Living and d/b/a Avalon's Assisted Living at Avalon Park (hereinafter Avalon I), should be approved. The issue in DOAH Case No. 10-1673 is whether the application for license renewal filed by Avalon's Assisted Living II LLC, d/b/a Avalon's Assisted Living at Southwest (hereinafter Avalon II), should be approved.
Findings Of Fact Avalon I is a six-bed assisted living facility (ALF), operating at 1250 Willow Branch Drive, Orlando, Florida, 32828, and holding license number 10813 with Limited Nursing Services licensure. Avalon II is a six-bed ALF operating at 13230 Early Frost Circle, Orlando, Florida, 32828, and holding license number 11318 with Limited Nursing Services licensure. Avalon I and Avalon II are operated by a limited liability company owned by Chiqquittia Carter-Walker and Robert Walker. Mrs. Carter-Walker acts as the administrator of the facilities. On July 23, 2009, the Agency conducted an inspection of Avalon I and determined that there were three "Class II" deficiencies, commonly cited as "tags" in reference to applicable regulatory standards. Tag A029 alleged that the training certifications, contained within the facility's personnel files to document the provision of required employee education, were false and that the training had not been provided. The training certificates for one Avalon I staff member were not accurate and falsely indicated that the referenced employee received training that had not been provided. The falsification was deliberate and was not erroneous. The inaccurate documentation of employee training misstated the qualifications of the ALF staff, falsely indicated that the staff was adequately trained, and presented the potential for harm to the health of the residents. The Agency correctly identified the deficiency as Class II. Tag A427 was based on regulatory provisions that permitted a terminally ill resident, no longer meeting the criteria for continued ALF residency, to remain in the ALF under certain conditions. The July 23, 2009, inspection indicated that such a resident continued to reside at Avalon I without compliance with relevant conditions. The conditions under which the terminally ill resident was permitted to remain at the ALF required that the hospice coordinate the care and provision of additional medical services and that an interdisciplinary care plan be developed and implemented by the hospice in coordination with the ALF. The July 23, 2009, inspection revealed that the interdisciplinary care plan failed to adequately designate responsibility for the various kinds of care required by the resident. The inspection revealed that a terminally ill resident remained in Avalon I without receiving appropriate medication for pain management even though such medications had been authorized. Although the ALF had undertaken the responsibility of administering the pain medication, there were occasions when no Avalon I staff member authorized to administer the pain medication was present at the ALF. Patient records indicated that the hospice representative attempted at several junctures to contact Mrs. Carter-Walker by telephone to resolve the problem and that Mrs. Carter-Walker was not accessible to the hospice representative. The resident unnecessarily suffered pain because the issue was not resolved in a timely manner. The failure to provide a terminally ill resident with appropriate pain medication resulted in a direct threat to the physical and emotional health of the resident, and, therefore, the Agency correctly identified the deficiency as Class II. Tag A700 reflects standards for resident care and requires that appropriate services be provided to residents. The July 23, 2009, inspection indicated that one resident was not being provided a nutritional supplement and that two residents were not being provided appropriate pain-relieving medications. As to the provision of nutritional supplementation, one resident with a history of weight loss had been prescribed a daily can of "Ensure" nutritional supplement. According to the facility records, the supplement had not been acquired by the ALF and had not been provided to the resident. As to the residents who were not receiving proper pain medication, one of the two was the terminally ill resident referenced in relation to Tag A427. As stated previously, the resident unnecessarily suffered pain because medication was not appropriately administered, which resulted in a direct threat to the health of the resident. Therefore, the Agency also correctly identified the deficiency cited as Tag A700 as Class II. The second resident had a history of hypertension and hypothyroid issues and had been prescribed a daily Ibuprofen (400mg) for pain. The Avalon I medication records indicated that, on some days, the medication had been provided twice daily to the patient, and, on other days, it had not been provided at all. The evidence establishes that the deficiencies identified in Tags A427 and A700 indicate a failure of the ALF to provide appropriate care and service to the residents of the facility. According to the uncontroverted testimony of Agency investigators as documented by the reports of their inspections, numerous lesser deficiencies were identified at Avalon I between 2007 and 2009, constituting a continuing pattern of inadequate performance and a failure to meet relevant standards. On August 5, 2009, an inspection conducted by the Agency at 1812 Crown Hill Boulevard, Orlando, Florida, 32828, indicated that an unlicensed ALF was operating at that address. On August 5, 2009, the Agency's investigator observed five individual residents in Avalon III. The investigator reviewed health assessments for the residents, all of whom required assistance with activities of daily living, including personal hygiene, ambulation, and meals. Medications for the residents were stored in a central area. The investigator reviewed medication observation records, indicating that the residents self-administered medications with observation by the Avalon III staff. Signage was present at Avalon III that identified Mrs. Carter-Walker as the administrator of the Avalon III facility. During the August 5, 2009, inspection, Mrs. Carter- Walker arrived at Avalon III and identified herself as the administrator of the facility. The investigator was familiar with Mrs. Carter-Walker and knew her as the administrator for Avalon I and Avalon II. Mrs. Carter-Walker identified herself as the Avalon III administrator to other care providers, including a clinical social worker, a registered nurse providing contract health care services to facility residents, and Administrators at other local ALFs. According to the testimony of an employee of Avalon III, there had been residents in the Avalon III location since at least June 16, 2009, at which time the staff member began to work at the facility. She worked five days per week, providing the resident services identified herein. During that time, there were always at least three residents in the facility. The same residents were present on a day-to-day basis. There is no evidence that such residents were transported out of the facility during the evening or that they did not otherwise remain at the Avalon III location overnight. A licensed practical nurse present at the Avalon III location on August 5, 2009, was the person who permitted the Agency's investigator to enter into the facility. The nurse was at the location to provide personal care assistance to a terminally ill resident receiving care through an agreement between the Mrs. Carter-Walker, as the facility administrator, and the hospice. After Mrs. Carter-Walker arrived at the Avalon III location, she was apparently unhappy that the nurse had permitted the investigator to enter the facility, and directed the nurse to leave immediately without providing further assistance to the resident. On the day of the investigation, the Agency investigator issued a "Notice of Unlicensed Activity/Order to Cease and Desist" to Robert Walker and Chiqquittia Carter-Walker for the Avalon III operation. Mr. Walker arrived during the inspection and identified himself as an owner to the Agency investigator. On August 14, 2009, the Agency received an application for licensure of an ALF at 1812 Crown Hill Boulevard, Orlando, Florida, 32828. The application, submitted by Robert Walker as the administrator, referenced the Avalon I and Avalon II as affiliated with Avalon III through ownership. Both Mr. Walker and Mrs. Carter-Walker submitted affidavits of compliance with background screening requirements as part of the Avalon III application. At no time was Avalon III licensed as an ALF. There was no evidence that the Avalon III residents were related to Mrs. Carter-Walker or her husband. There was no evidence that Avalon III was exempt from, or otherwise not required to comply with, relevant ALF licensing requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order revoking the licenses of Avalon I and Avalon II, denying the applications for license renewal filed by Avalon I and Avalon II, and assessing an administrative fine in the amount of $3,000 for the specific Class II deficiencies identified herein. DONE AND ENTERED this 28th day of January, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 28th day of January, 2011.
The Issue Whether the Agency for Health Care Administration (AHCA) should deny Petitioner's application for renewal of a standard assisted living facility (ALF) license.
Findings Of Fact Although evidence was presented concerning all factual and legal issues, including mitigation, a recitation of all of that evidence is not necessary to a resolution of this case. Survey allegations and defense theories which were not proven will not be discussed, except as necessary, and only findings of fact which are dispositive will be made. AHCA is the state agency for quality control and licensing of ALFs. In order to ensure quality control of such facilities, AHCA conducts annual, biennial, and follow-up surveys. It also conducts complaint investigations as needed. Peggy Watkins and Timothy G. Watkins, Sr., hold a standard ALF license to operate Watkins Health Center, which they own. They held such a license and operated that facility throughout the 1996-1998 biennial licensure period. This case arises upon the denial of Watkins' renewal application for a standard ALF license. The renewal application was denied on the basis of deficiencies found by AHCA surveyors during the biennial licensure period. The reasons for denial are set out in the April 15, 1999, amended denial of renewal application letter which states the reasons for denial as: . . . It has been determined by the Agency for Health Care Administration that your application does not meet or comply with the standards as an ALF pursuant to Chapter 400, Part III, Florida Statutes (F.S.), and Chapter 58A-5, Florida Administrative Code (F.A.C.) Further, the licensee has committed an intentional or negligent act which materially affects the health and safety and walfare [sic] of the residents of your facility. See 400.414(1)(a), Florida Statutes Suppelment [sic] (1998). This specific basis for this determination is: The administrator failed to adequately supervise residents and endangered the lives of the residents at your facility. The facility failed to meet minimum licensure standards pursuant to Section 400.414(1)(e) and (i), F.S., as evidenced by two repeated class II deficiencies, eight repeated class III deficiencies cited by the Agency between June 11, 1996 and October 9, 1998, during biennial and follow-up surveys, and complaint investigations. Petitioner contends that all or some of the cited deficiencies did not exist, were merely record-keeping flaws, or otherwise were not so serious as to require denial of the renewal application. Petitioner also asserts that all deficiencies were corrected by the respective follow-up surveys; that if a follow-up survey had been conducted after the October 1998 biennial survey, those deficiencies also would have been found to have been corrected; and that since a final follow-up survey was not conducted, the October 1998 survey results should not be used against Petitioner for purposes of denying the standard license renewal. In making surveys and investigations, AHCA follows a team approach. Surveyors on a team individually observe and note flaws and tentatively assign "tag" numbers to them, based on categories of deficiencies. Under each tag, all flaws in that category which are observed on that date are described with specificity. Members of the survey team write-up their individual observations and then meet together to discuss the flaws before the team finalizes the tagging and classing of all observations, with Class I being the most severe type of defect and Class IV being the least severe type of defect. See Section 400.419(1)(b), Florida Statutes, as set out more fully in the following Conclusions of Law. Complaint investigations may be done by a team or by only one surveyor. Although it is axiomatic that some subjectivity will be inherent in tagging and classing of violations, it is found, upon the evidence as a whole, that all surveyors who testified herein were adequately trained and professionally motivated within statutory and rule standards for surveying. Having different surveyors participate on different complaint investigations and surveys contributed to a fair assessment and diminished the possibility of unfairness through any individual surveyor's improper motive or subjectivity. It is further found that the surveyors herein appropriately followed survey protocols by using samples and stating percentages instead of tracking each specific resident or bedroom or bathroom from survey to survey. The utilization of sampling and percentage methodology is fairer to a facility than the tracking method proposed by Petitioner because the sampling and percentage methodology does not factor-in either a facility's consistent failures or consistent successes in any single location within the facility and because it provides a better overview of whole-facility compliance. In making these following Findings of Fact, I have not considered a survey tag or violation severity classification to have been proven without direct testimony by at least one surveyor who observed the deficiency on the date specified. The mere fact that a survey report contained a specific tag and class and that the same survey then became a business record of the Agency is not sufficient to establish that the deficiency actually existed. In addition to surveyors who evaluated Watkins during the biennial licensure period, AHCA presented the testimony of John Morton as an expert in regulation and operation of ALFs. His testimony sometimes differed from the on-site surveyors in ranking of various deficiencies, but overall his classifications were substantially the same. In considering Mr. Morton's testimony with regard to tags and classifications of deficiency, I have considered that he has been employed as a surveyor by the Agency for 20 years as a health facility evaluator, that he is a State-certified ALF administrator, and that he is a federally-certified quality control supervisor. While his opinions have been considered in determining the reasonableness or unreasonableness of the on-site surveyors' tags or classifications for specific deficiencies, Mr. Morton's opinions have not been applied to raise or lower the classifications assigned by the surveyors because Mr. Morton did not actually participate in any survey of Watkins. Watkins housed mentally ill residents throughout the 1996-1998 biennial licensure period. It was stipulated that these residents sometimes behave in bizarre ways, often require psychotropic medications, and are unpredictable, scatological, and unsuccessful at using restrooms. 3/ In 1995, AHCA began to create a licensing process for "limited mental health" resident facilities, pursuant to Section 400.4075, Florida Statutes (1995). The Agency acknowledged that Petitioner applied for such a license in April 1997. Its licensing officer, Ms. Huff, testified that the Agency "put a hold on such licenses." No legal authority for this "hold" was cited. The Agency contends that it sent Petitioner a request for further applicant information in October 1997 and never received the information. Petitioner contends that Mr. and Mrs. Watkins never received the Agency's request. The Agency failed to demonstrate the contents of its request for further information, and clearly, if sent, the October 1997 request was not sent to Petitioner's owners within 90 days of receipt of Petitioner's April 1997 application. Surveys, complaint investigations, and follow-up surveys of Watkins, pursuant to its 1996-1998 biennial standard license, were conducted by the Agency on June 11, 1996; July 31-August 1, 1996; September 5, 1996; October 18- 20, 1996; October 27, 1997; November 10, 1997; January 27, 1998; May 4, 1998; June 15-16, 1998; and July 6, 1998. On October 8-9, 1998, a biennial survey was conducted. It was not established that the Agency targeted Watkins for more investigations and surveys than other ALFs. Agency personnel had no control over when complaints were made against Watkins, which complaints required Agency investigation, and once the Agency had cited Watkins for a deficiency(ies), surveyors were required to return timely for compliance follow-ups until the biennial survey. On June 11, 1996, the Agency conducted a survey of Watkins. In the course of that survey, surveyor Sandra Holbert observed five residents taking food and drink off discarded dining trays and consuming it themselves. A staff member was present and did not intervene. Ms. Holbert observed the five residents return to the kitchen door and receive additional portions. She interviewed residents and found that they knew they were free to get second portions if they desired. The survey team correctly recorded this deficiency as a Class II, Tag A700, Resident Care Standard violation. The other tags cited for the June 11, 1996, survey on the June 18, 1996, survey report were not proven. On July 31-August 1, 1996, the Agency conducted a complaint investigation of Watkins. Surveyor Richard G. Glover reviewed Watkins' staffing and found it to be deficient. The minimum full-time equivalent staff (FTE) hours per week required for Watkins' resident census were 288, and the actual hours posted were 260. Despite explanations then, and at hearing, by Administrator Peggy Watkins that her time when working as a staff person was overlooked or ignored by Mr. Glover, I find more credible Mr. Glover's testimony that on July 31-August 1, 1996, Mrs. Watkins was unable to explain when the current work schedule had changed and that even if he added in the hours Mrs. Watkins had told him she worked, the total hours would not match the FTE requirements. Mr. Glover concluded that there were no time sheets nor payroll cards present in the facility on the date of his visit to support Ms. Watkins' contention. This deficiency was recorded as a Class II, Tag A505 (later re-numbered A507) Staffing Standards violation on the August 15, 1996, survey report, and proven at the hearing. The August 15, 1996, report also recorded that two resident bedrooms had broken windows: in one broken window, the shards of glass had been taped with gray tape, and in the second broken window, the shards of glass remained in the pane. This situation was classified on the report as a deficiency under Tag A705, Resident Care Standards, but it is unclear from Mr. Glover's testimony whether he personally saw the broken windows on July 31-August 1, 1996. On September 5, 1996, the Agency conducted a follow- up investigation/survey of Watkins. In the course of that survey, Mr. Glover again reviewed Watkins' staffing and found that it was deficient. The minimum hours, per week, required for the resident census at that time were 288, and upon the same type of review as noted in Finding of Fact 19, above, it was verified that the actual hours worked were 279. Weighing the credibility of Petitioner's several witnesses against the surveyors' contemporaneous request for, and the contemporaneous absence of, actual timesheets, I find that this deficiency was fully established as a repeat Class II Tag A505 deficiency on September 5, 1996. Also on September 5, 1996, Mr. Glover personally observed that two resident bedrooms had broken windows. In one broken window, the shards of glass had been taped with gray tape. In the second broken window, the shards of glass remained in the pane. He recorded this deficiency under Tag A705, Resident Care Standards. He noted the broken windows as a repeat of the same Class II deficiency found on the July 31- August 1, 1996, complaint investigation. Also included under Tag A705, were the September 5, 1996, observations by Mr. Glover of bedroom lights being out and exposed overhead lights. During the same survey, Mr. Glover identified the need for a preventive maintenance program to prevent grease build-up contamination in the vent over the kitchen range from falling into the food on the range. Without direct proof of broken windows on July 31-August 1, 1996 (see Finding of Fact 20, above), it is not possible to label the broken window on September 5, 1996, as a "repeat" deficiency. However, it is specifically found, pursuant to Mr. Glover's direct testimony, that the broken windows, defective lights, and greasy stove existed on September 5, 1996, constituting a Class II, Tag A705, Resident Care Standards deficiency at that time. On October 18-20, 1996, during a follow-up investigation, Mr. Glover noted that both the A505 staff deficiency and A705 grease build-up situation had been corrected. On October 27, 1997, the Agency conducted a complaint investigation of Watkins. Surveyors Ana Lopez- Edwards and Mr. Glover tagged and classified three deficiencies. The ALF license was not posted or located. This was Tag A003, Class III, a Facility Record Standards deficiency. Advocacy information, including the Resident Bill of Rights, was not posted, and this was tagged as A201, Class III. They found no documentation that residents were receiving, at admission, packets of rules and regulations, as required by law. This was classified as Tag A308, Class III, because, by inference, it was a denial of the rights of the residents, or the residents' representatives, to be aware of, and to function in, their surroundings. These deficiencies certainly presented an impediment to residents lodging complaints or seeking third party intervention. Surveyors also cited and directly testified to the following specific observations on October 27, 1997: twenty percent of resident bedrooms contained non-operational overhead lights, which were frequently uncovered. One fixture had a broken bulb with an exposed lighting element. The concern with the light fixtures was that a resident could stick his hand into the exposed lighting element. Two bedrooms and three bathrooms had a strong urine odor. Thirty percent of the bedrooms had no window covering. Other bedrooms had curtains only partially covering the windows. One bathroom had a stained window which partially exposed any resident in the bathroom. Fifty percent of the bathrooms were not adequately cleaned. Seventy-five percent of the bathrooms contained no soap or towels. Two bathroom commodes were non-functional. Surveyors also found that the hot water temperature in one resident bathroom was 96 degrees Fahrenheit, when the hot water temperature is required to be between 105 degrees and 115 degrees Fahrenheit. Many of the foregoing specific flaws had been raised on previous survey reports, but only the lighting deficiencies and window problems were observed previously and on October 27, 1997, by testifying surveyors, so as to prove- up repeated specific flaws. Nonetheless, since all the foregoing flaws which were observed on October 27, 1997, fit within the specifications for Tag A705, Resident Care Standards, I am satisfied that a "repeat" Class III, A705 deficiency has been proven for October 27, 1997. On October 27, 1997, a Class III, A902 Tag, Maintenance and Housekeeping Standards, was correctly assigned to the absence of drawer pulls and other furniture deficiencies in many bedrooms. Additionally, on October 27, 1997, Tag A1010 was validly assigned a Class III, Physical Plant Standards deficiency, in that 50 percent of the bedrooms were without reading lamps. On this same survey, surveyors found that one resident bathtub was not equipped with a required safety handrail. The Agency validly cited this deficiency under Tag 1018, Physical Plant Standards, as a Class III deficiency. On November 10, 1997, a complaint investigation was performed. Minimal testimony was presented, and no deficiencies were proven for this date. On January 27, 1998, a follow-up survey of Watkins occurred. At that time, surveyors cited Watkins under Tags A003, A201, A705, A902, A1001, A1018 and A1022 as uncorrected from the October 27, 1997 date, and cited additional deficiencies as being out of compliance with State Standards under Tags A200, A700, A702, A703, A706, A1002, and A1016, all of which were cited as either Class II or Class III deficiencies, some of which were allegedly repeat deficiencies. The only direct evidence as to the validity of these January 27, 1998, citations was introduced through the testimony of surveyor Ana Lopez-Edwards. Ms. Lopez-Edwards testified to the presence of strong urine odors on January 27, 1998, and to a "musty" smell about the entire facility on that date. This direct evidence only proves-up a very small portion of the several flaws listed to make up the citation of a repeat Tag A705, Resident Care Standards. Without more, that entire tag assigned on January 27, 1998, is not proven and it cannot legitimately be classified as a repeat Class III deficiency for that date. Ms. Lopez-Edwards also verified that during the January 27, 1998, survey, she had observed a Watkins resident kneeling in a public road that abuts the property. This is a paved road with numerous speed bumps designed to slow down vehicular traffic. Ms. Lopez-Edwards alerted one of Watkins' staff members to the resident's peril. The staff person told Ms. Lopez-Edwards, "That's Mr. ---, he does that all the time." The staff person then walked away without intervening to remove the resident from the road. On January 27, 1998, surveyors classified this incident under Tag A700 as a Class III deficiency. At hearing, Ms. Watkins admitted that the resident was at risk while in the road, but contended that he was actually to the side of the road when observed by Ms. Lopez- Edwards. Ms. Watkins testified that, "Now you ask was that health, a risk for him per se, being in the road I would say, yes, but this is what he does constantly." Apparently, this particular resident constitutes both a "wanderer" and a religious devotee. While ALF residents are entitled to visit outside the facility and to practice their freedom of religion, the ALF has an obligation to protect them from inadvertent self-injury. The evidence is clear that although rural, the paved road passing Watkins represents a danger to this potentially self-injurious resident, and the ALF was deficient in not intervening to protect him. The citation of this incident under Tag A700 as a Class III, Resident Care Standard deficiency was appropriate. Although the specific incident was not a "repeat," the Tag was a "repeat" of June 11, 1996. On May 4, 1998, a follow-up survey and new complaint investigation was conducted. At that time, Watkins' logbook stated that a resident had disappeared at some time after 8:00 p.m. on April 20, 1998. The logbook did not mention any notification to the administrator, neighbors, or police. The logbook further stated that at 3:30 or 4:00 a.m., April 21, 1998, the resident returned and was at Southwestern State Hospital in Thomasville. It apparently was unclear from the log book whether this patient was picked up at Southwestern State Hospital in Thomasville, Georgia, or was taken there by Administrator Peggy Watkins after his return, but Ms. Watkins' testimony concerning the incident was as follows: Q: With regard to the resident named M.T. having disappeared back in 4/98, are you familiar with that incident? A: Yes. Q: One it was - was the resident in fact - were his whereabouts in fact unknown? A: At that particular time, yes. Q. All right. And once that determination was made, what action was taken: What action was taken, if any? A: Well it wasn't on my shift, but it was told to me that she called, she reported him missing. Q: To whom? A: To the sheriff's department. Q: By calling 911? A. Yes, by calling 911 she reported him missing. . . And probably that morning about 4:00 that morning, they called and stated his whereabouts. And I went after him probably around 7:00 that morning. Clearly, Ms Watkins admitted leaving the patient in police custody an additional three hours. The Agency validly tagged this as a Class III, Tag A700, Resident Care Standards, deficiency. The A700 classification makes it a repeated tag. Also in the course of the May 4, 1998, survey, Mr. Glover observed, and correctly assigned, a Tag A705 Resident Care Standards Class III deficiency because an east bathroom light was inoperable; a second floor bedroom did not have a light bulb cover for the overhead fan light; and the second floor bedroom had no window covering, thus exposing the resident within. Some of the tag components are repeats; the tag itself is a repeat. Mr. Glover also assigned yet another Tag A705, Class III repeat deficiency for findings that included 20 percent of the resident bedrooms observed having non-operational overhead lights or uncovered overhead lights and one fixture with a broken bulb and an exposed lighting element; two bedrooms and three bathrooms with strong urine odor; and 30 percent of the bedrooms observed having no window covering while others had curtains that only partially covered the windows. So as to be fair to the facility, Mr. Glover and other surveyors tested the bedroom lights during the survey, both from the wall switches and the pull cords in each of the rooms they observed. It is immaterial that the defective bedrooms and bathrooms observed for the repeat deficiency ratings on May 4, 1998, may not have been the same bedrooms and bathrooms as were found defective when this problem was cited previously. Sampling is within survey protocols, and facilities have the obligation of the whole physical plant meeting standards. A complaint was initiated by the Jefferson County Health Department, and on June 15-16, 1998, the Agency conducted an investigation. By observations and interviews on that date, Mr. Glover concluded that a repeat Tag A705, Class II, Resident Care Standards citation was appropriate because the facility was not being maintained in a safe, sanitary manner ensuring the safety of residents and their physical well-being. This was proven by direct evidence as follows. Temperatures were measured at 6:40 p.m. on June 15, 1998, and bedrooms were found to be between 88 degrees and 92 degrees Fahrenheit. Agency standards provide that residents' rooms may not exceed 90 degrees Fahrenheit. Two bedrooms were missing ceiling tiles and had damaged screens. The air conditioner compressor was non-operational. Ms. Watkins advised Mr. Glover that the facility's air conditioning had been off since June 11, 1996, and that she was having difficulty getting a repairman to come. In Mr. Glover's opinion, Watkins had an obligation to remove residents to a cooler environment once the temperature hit 90 degrees Fahrenheit. On June 16, 1998, the second story reception room light was flickering on and off, indicating a possible short circuit. There also were at least six residents in the common area, smoking cigarettes, with no sprinkler system in place. Watkins has a "no smoking" policy, which clearly was not being enforced by its staff. Mr. Glover was particularly concerned about the electrical system. On July 6, 1998, the Agency conducted a second follow-up to its June 15-16, 1998, complaint investigation. In the course of that survey, Mr. Glover observed that 50 percent of the bathrooms in the facility needed cleaning between the hours of 9:00 and 10:30 a.m.; a rear bathroom located in the single-story building had no hot water accessible to the residents; one bathroom commode was found to be non-functioning at 9:30 a.m.; hot water in the bathroom located on the first floor of the two-story building recorded a water temperature of 80 degrees Fahrenheit; and approximately twenty-five percent of the resident bedrooms had a musty odor. These combined defects were validly assigned a repeat Tag A705, Class III deficiency. On July 6, 1998, and referring back to the May 4, 1998, survey, the team found that the east bathroom light remained inoperable; the second floor bedroom still did not have a light bulb cover for the overhead fan light; and a second floor bedroom still had no window covering. These deficiencies were also validly classified as a repeat Tag A705 Class III deficiency. On October 8-9, 1998, when four surveyors conducted the biennial/renewal survey of Watkins, the facility had a census of 34 residents, 25 of whom were limited mental health residents. Under Tag A006, the Agency cited this as a Class III, absence of license deficiency. However, due to the confusion regarding the status of Watkins' limited mental health resident ALF license application, this citation is found to be without validity. In October 1998, under Tag A100, the Agency cited Watkins with a Class III deficiency for not having its fiscal records on the premises. However, since it was shown that the fiscal records could have been made available at the time of the survey from another location, I find that this citation also lacks validity. In October 1998, under Tag A203, Watkins was cited with a Class III deficiency for failure to maintain adequate written admission and discharge records. This deficiency was substantiated through Nurse Huff's observations, interviews, and testimony. However, this information was made available and conformed in the course of the survey, and therefore should not count against Watkins in this proceeding. In October 1998, under Tag A206, surveyors cited Watkins for having a total of 28 facility incident reports between January 1, 1998 and September 15, 1998, without having documented any prevention or intervention measures to prevent reoccurrences. In fact, 16 out of the 28 reports constituted reoccurrences. All of this information was transcribed from facility records. Therefore, I find this deficiency cited as a Tag A206, Class III deficiency to be accurate and proven. In October 1998, under Tag A208, Watkins was cited for failure to develop a management plan approved by the Office of Emergency Management for Evacuations and Disasters. At formal hearing, however, Watkins demonstrated through Alternative Approaches to Life Safety Worksheets and Fire Drill Reports that it had consistently held regular fire drills. Although regular fire drills do not satisfy all parts of the required standard, they somewhat mitigate the situation, so that a Class III citation would not be in order. In October 1998, under Tag A213, Nurse Huff noted that Watkins' personnel records for its staff were inadequate and not current. Two staff members, among the facility's eight employees on that date had no personnel files at all, and six out of the eight staff members did not have various types of required training documented in their personnel files. One staff member had previously been diagnosed with tuberculosis, and no negative test update was available in her personnel file. At hearing, Watkins produced all missing personnel records, including tuberculosis, HIV/AIDS training, training in self-administration of medicines, First Aid/CPR certifications, and ALF training, but with very few exceptions, none of the required training or medical clearances were obtained by staff members prior to the October 1998 biennial survey. Most such records were obtained by the employees after the October 1998 survey. Some were even earned after the October 1998 survey. Watkins asserts that securing these certifications within the 60 days' correction period provided for on the survey form was sufficient compliance with State standards so as to preclude using this deficiency against Watkins in this proceeding. I find otherwise. Not only was Watkins unable to demonstrate record compliance on the date of the survey, but many of its staff were uncertified in important categories on the date of survey, thus exposing residents to inferior care and safety up to the date those staff members finally became certified. Assigning a Tag A213, Class III to this deficiency was appropriate and valid. Under Tags A301 (rated Class III), A302 (rated Class III), and A305 (rated Class III), Ana Lopez-Edwards observed and described deficiencies concerning residents' admission height and weight recordation, contracts not signed by residents upon entry into the facility, and absence of required demographic data, respectively. Only the A301 deficiency, failure to record initial heights and weights in a reasonably accessible manner were proven to present even a potential or indirect threat to residents, which defines a Class III offense. The other flaws were paperwork problems, worthy of a Class IV citation at the worst. In October 1998, under Tags A401 and A404, the Agency cited Watkins for two Class III deficiencies arising out of the failure to have six out of eight resident health assessments performed and on file within the time frame established by statute and rule. This citation appears to be a duplicate citation, and at hearing, mitigation was demonstrated due to the refusal of health care professionals to perform any health assessments until such time as a resident qualifies for Medicare. At worst, this citation should constitute a single Class III violation. In October 1998, under Tag A406, the Agency cited Watkins with a Class III deficiency in that out of a sample of eight residents, there was no documentation on those residents' capacity to "self preserve." However, at hearing, Petitioner demonstrated through Alternative Approaches to Life Safety Worksheets and Fire Drill Reports, a consistent history of regular fire drills and recording of residents' ability to evacuate timely. The issue then became whether Watkins' failure to maintain this information in an accessible place clearly related to each respective patient so that it could be effectively used in case of emergency should be cited as a Class III deficiency. I view this as a Class IV or "paperwork" offense at worst. Although the Agency cited Watkins in October 1998, under Tag A409, for two inappropriate resident placements, it was demonstrated at hearing that there was only one inappropriate placement and that was a paperwork error corrected immediately by the physician who had made it. Therefore, this citation was invalid. The minimum staff hours for the resident census in October 1998, were 288 hours per week. The actual hours staff worked in that week was 279. Surveyors found that Watkins was under-staffed by nine hours for the week. Watkins knew from long experience that its necessary FTE hours were 288. Surveyors validly cited this as a repeat deficiency under Tag A507, Class II, Staffing Safeguards. Considering the content, weight, and credibility of Watkins' several witnesses against the Agency's witnesses' testimony and its surveyors' contemporaneous request for, and the absence of, actual timesheets on the date of survey, I find that this repeat deficiency was fully proven. In October 1998, under Tag A511, Watkins was cited with a Class II deficiency, based on staff interviews and a record review, for frequently operating without any staff on duty who are certified in First Aid, including CPR. I find this survey citation to be valid for the reasons given in Findings of Fact 50-53 and 58, above. In October 1998, under Tag A512, a Class III deficiency was cited, the core of which was that various staff members, particularly food staff personnel, did not have documentation of freedom from tuberculosis on an annual basis on file with the facility administrator on the date of the survey. At hearing, some staff were able to demonstrate prior tuberculosis screenings, while others were not. I find this survey citation to be valid for the same reasons given in Findings of Fact 50-53, above. In October 1998, under Tag A513, Watkins was cited for a Class II deficiency due to its failure to appoint in writing a staff member trained in First Aid and CPR to act in the absence of the administrator. This citation was made upon direct observations by qualified surveyors, who saw an undated appointment for a person without CPR certification documentation. At hearing, Watkins was able to demonstrate that Etta Brinson had been timely appointed, in writing, but had been certified in CPR on November 13, 1998, after the survey. Although there was some evidence that certification is good for three years, it was not sufficient to show that Ms. Brinson's November 13, 1998, certification renewed one from 1995. I find this citation to be valid for the same reasons given in Findings of Fact 50-53, above. On the same date, Watkins was cited under Tag A804, Class III, for failure to maintain nutrition and dietary standards and under Tag A1024, Physical Plant Standards, relating to fire safety reports within the last year. However, neither of these tags was proven. Insufficient evidence with regard to the absence of fire safety reports was presented by the Agency, and Watkins affirmatively demonstrated the existence of dietary menus and food substitution lists which had been prepared by a registered dietitian and were available within the facility on the date of survey. In October 1998, under Tag A901, upon surveyors' observations, Watkins was sited for a Class III deficiency based on peeling wallpaper in the dining room; missing ceiling tiles exposing the building's superstructure in two locations; unclean dining room chairs; and flies and spiders present elsewhere. Ms. Watkins confirmed that the ceiling tiles are light and that one had blown off the morning of October 9, 1999, and that she had been unable to replace it prior to the survey. This citation was adequately proven. In October 1998, under Tag A902, Watkins was validly cited for a Class III deficiency based on direct testimony of mildew on the main icemaker; 20 percent of the chests of drawers in the resident bedrooms missing handles; an expired health department sanitation certificate; and a cabinet in the dining room missing a door. In October 1998, Watkins also was cited for four Class III deficiencies under Tags A1016 for 15 percent of its water faucets not being labeled for hot and cold water; under Tag A1018 for an insufficient quantity of non-slip surface in the tubs and showers; under Tag A1021 for absence of a written infection control policy; and under Tag A1022 for using torn and threadbare linens. However, upon considering the evidence as a whole, I find that the criteria applied by the surveyors to these quantities and samples was so subjective as to have not proven any of these violations. Also, insufficient direct evidence was presented to prove-up a citation for Tag A1024 concerning fire inspection deficiency as a Class III deficiency in October 1998. In October 1998, Medical Standards Tags A600, A605, A606, and A610 were cited against Watkins for the following reasons established by observation. The A600 Tag was assigned because six out of eight sampled resident records offered by the facility did not have documentation of the method of management of medication administration. Staff was interviewed and was unable to provide further information regarding the appropriateness of the manner of medication, supervision, and assistance as required by State standards. A Class III deficiency was validly assigned. Also, in October 1998, surveyor Linda Huff, who was accepted as an expert on nursing, cited Watkins for multiple problems in the administration of medication. Watkins' medication administration record (MAR) or medicine log which Nurse Huff reviewed on that date, did not match the prescription bottle labels from which patient medications were being dispensed by facility staff. While she was not able to opine whether the bottle labels or the MAR were correct, Nurse Huff believed that the very fact that the prescription labels and the MAR were not identical exposed residents to dangerous drug mix-ups, dangerous drug interactions, and incorrect over- and-under medication by facility staff, who have only limited knowledge of medicine. On October 9, 1998, Nurse Huff had found, in Watkins' dispensary, a bottle labeled for Resident P.H. as Loperamide, two milligrams up to four times a day as necessary for diarrhea. However, this drug was not reflected in the MAR which Nurse Huff reviewed that day. Etta Brinson regularly assisted with medications at Watkins. She testified at hearing and identified Petitioner's Exhibit No. 4 as Watkins' MAR or medical log for October 1998. Ms. Brinson admitted that P.H. had been prescribed Loperamide and that she had not noted that drug on Petitioner's Exhibit No 4 because the drug had been prescribed "as needed." Nurse Huff considered this a safety issue. Nurse Huff had found a prescription bottle for Thorazine, made out to Resident W.C., during the course of the October 1998 survey. However, on the day of the survey, this prescription was not recorded in the MAR provided her by Watkins. On Exhibit P-4, identified by Ms. Brinson at hearing as Watkins' MAR, Chlorpromazine was indicated for W.C. Ms. Brinson admitted that she kept two different MARs for Resident W.C. Ms. Brinson stated that she kept one MAR in a separate folder, which she had not shown to Nurse Huff in October 1998. Ms. Brinson testified that she had made a second MAR for Resident W.C. and kept it in a separate folder because he had a prescription "as needed" for hiccups. Ms. Brinson understood that the drug Chlorpromazine was a medication for hiccups. Nurse Huff stated that "Thorazine" and "Chlorpromazine" are different names for the same drug and that it is a serious problem to refer to the same drug by two different names because only a doctor, pharmacist, or registered nurse would know that they are the same drug. In October 1998, Nurse Huff had found that Resident G.M. had in Watkins' dispensary a prescription bottle marked "Clozaril, 25 milligrams, take one i.p.o. twice daily." Exhibit P-4 and the MAR which Nurse Huff saw in October 1998, showed that Watkins' staff were giving Clozaril, 100 milligrams, one tablet twice-a-day and two tablets at bed for a total of 300 milligrams. It also stated "Clozaril 25 milligrams, take two tablets twice-a-day," which is another 100 milligrams. There was no bottle of Clozaril, 100 milligrams, in Watkins' dispensary in October 1998. Nurse Huff testified that Clozaril is a central nervous system anti- psychotic drug which must be administered in slowly increased doses over time. The MAR indicated that G.M. was receiving ten times the dose of Clozaril as was indicated on his prescription bottle. Nurse Huff found this to be a health hazard. Ms. Brinson admitted that she would be concerned if the prescription bottle for G.M.'s Clozaril did not match the MAR. In October 1998, Nurse Huff also considered the situation of Resident W.I. She found in Watkins' dispensary a prescription bottle for W.I. labeled for Glucophage, "500 milligrams, two tablets in the morning and one tablet at night." She also reviewed an Insulin vial labeled for W.I. for Insulin to be administered in the morning and at night. The MAR she reviewed in October 1998, showed W.I. receiving Glucophage only in the morning and Insulin in the morning and at night. Generally speaking, when Glucophage is prescribed, it is prescribed instead of Insulin. Nurse Huff interviewed staff to see if there were a problem and even interviewed W.I. because the administration of both Insulin and Glucophage together could have such an impact on W.I.'s health. During these survey interviews, Nurse Huff determined that W.I. was on a 1500-calorie diabetic diet and took Insulin and Glucophage only in the mornings. However, at hearing, Exhibit P-4 showed W.I. getting one 500 milligram Glucophage tablet morning and night and no Insulin at all. Ms. Brinson testified that W.I. was not administered Insulin in October 1998. Ms. Brinson also stated that Watkins had a policy of taking discontinued prescription medications to the pharmacy for disposal. If W.I. was not being administered Insulin as of October 1998, Watkins' policy of disposing of discontinued medications clearly had not been followed because W.I.'s Insulin vial was still there. Moreover, based on any construction of the discrepancies in the records, Watkins did not meet medical standards. With regard to the preceding medical record problems, related in Findings of Fact 68 through 74, the Agency recorded a Class II deficiency under Tag A605, Medication Standards, on the October 1998 survey. Upon all the evidence, this deficiency assignment was proven valid. In October 1998, under Tag A606, Watkins was cited with a Class II deficiency for, among other things, keeping improperly labeled samples of prescription medicines. Evidence showed that certain samples were being dispensed to a resident without that resident's name and the dosage being placed on the sample box as required by law. Therefore, a Tag A606, Class II deficiency was proven. Tag A610, citing a Class III deficiency for improper labeling or absence of labeling of over-the-counter drugs was insufficiently proven by direct evidence. Considerable time was expended in the course of the hearing directed to issues of a pervading urine smell, the existence or absence of regularly-scheduled recreational activities for the residents, and the general cleanliness of Watkins' facility, particularly the stove hood, which problems were cited on several surveys. From the credible evidence as a whole, I find that despite constant cleaning by at least one Watkins' staff member, one or more parts of the facility contained pervasive urine odors at all times. It was also established that although Watkins addressed stove hood cleanliness through an independent contractor cleaning it every six months, the stove hood frequently was less than sanitary. However, due to the methods of presentation of evidence herein and the necessity of categorizing multiple defective components by tags and classes, Finding of Fact 78 does not comprise a single tag or class of deficiency so as to establish "repeat" deficiencies, except where specifically noted in other Findings of Fact, above. The Agency's repeated citations of Watkins for failure to provide structured recreational activities to its residents was refuted by direct evidence. Satisfactory recreational activities were provided by Watkins' contract with Apalachee Mental Health for at least four hours every week day within Watkins' facility and for optional field trips of approximately four hours, one day per week. Watkins also affirmatively established through testimony and its Policy and Procedure Manual that it had an infection control policy with regard to urine, feces, and laundry in place, contrary to citations by the Agency. The Agency did not establish that the infection control policy had to be in writing. Watkins also affirmatively established that it regularly employed a handyman to repair damage caused by residents, and that on at least one occasion when Watkins was cited for having a hole in the drywall, on-going repairs were actually in progress on a bathroom. This situation, however, does not account for all of the times that disrepair of the facility was cited. Moreover, there being some discrepancy between the testimony of Peggy Watkins and Mr. Clark, the handyman, as to when this particular bathroom repair occurred, this bathroom repair "in progress" cannot form a basis to refute all citations for damage to the walls of the facility. Due to the November 17, 1998, date of the original intent to deny the license renewal application, the Agency conducted no follow-up survey after the biennial survey of October 1998. An Ombudsmen Report done within 32 days of the Agency's October 1998 survey, found that Watkins "appeared satisfactory" under its criteria, which are not the same as the State's criteria. Representatives of the County Fire Department and County Health Department testified that they believed that Watkins had the best interest of its residents in mind and did the best job it could of providing a reasonably satisfactory facility. Laura Harris, who is employed with Apalachee Center for Human Services as its Program Supervisor for the Jefferson County Outpatient Program, and who trains its surveyors, testified as an expert witness in the areas of staff training, administration training, and quality of care. In her opinion, the overall quality of care at Watkins ranks eight and one- half on a scale of one-to-ten, and the facility itself ranks seven on a scale of one-to-ten.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for renewal of its standard assisted living facility standard license be denied and that the provisional assisted living facility license currently in use by Petitioner be revoked. DONE AND ENTERED this 17th day of February, 2000, in Tallahassee, Leon County, Florida. Hearings Hearings ___________________________________ ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative 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 this 17th day of February, 2000.
The Issue The issue in this case is whether Petitioner, Department of Children and Families (Department), should impose a $75 fine on Respondent, Jumpstart Enrichment Program, Inc. (Jumpstart), and place it on probation for up to six months for not complying with child care facility staff-to-children ratio requirements for the fourth time.
Findings Of Fact The Department has issued Respondent license C09OR0629 to operate a child care facility in Orlando under sections 402.301 through 402.319, Florida Statutes, and Florida Administrative Code Chapter 65C-22. The statutes and rules have minimum staff-to-children ratio requirements that are clear, but not uncomplicated, and not always easy to implement. It is necessary to have one staff person for every four children from birth to age one, for every six aged one to two, for every ten aged two to three, for every 15 aged three to four, for every 20 aged four to five, and for every 25 aged five or older. Generally, the ratio requirement for a mixed group of children aged two or older is dictated by the age group with the largest number of children in the group. However, if children under the age of two are present, the ratio requirement for a group is dictated by the age of the youngest child. It was undisputed that staff-to-children ratio requirements are Class II standards under the Department's rules. Citation Issued January 6, 2012 The Administrative Complaint alleges that a citation for insufficient staff was issued to Respondent during a Department inspection on January 6, 2012. It alleges that this was the fourth violation of the standard, justifying a $75 fine and probation for up to six months conditioned on being subject to unannounced visits to ensure compliance with all statutes and codes and on ensuring the maintenance of appropriate staff-to- children ratio. On January 4, 2012, Sabrina Hayles and Conswela Green were the staff on duty at Jumpstart. Eight children were present that morning when Ms. Hayles left the facility to go to lunch. She took two of the children with her so that Ms. Green would meet ratio requirements for the remaining six. While Ms. Hayles was gone, a grandmother dropped off another child, which put the facility out-of-compliance with staffing ratio requirements. Ms. Green asked the grandmother to stay until Ms. Hayles returned, but she said she had an appointment and could not stay. Ms. Green accepted the child into the facility and telephoned Ms. Hayles to tell her to return to the facility because they were out-of-compliance. Ms. Hayles, who already was on her way back, arrived several minutes later. The facility's being out- of-compliance was observed by staff from the Early Learning Coalition of Orange County (ELCOC), who happened to drop some paperwork off at the facility at that time. ELCOC reported the ratio violation to the Department, which investigated the allegation on January 6 and issued a citation. The Administrative Complaint alleges that this was Respondent's fourth insufficient staff violation and that the previous violations were on September 9 and April 14, 2011, and on August 20, 2010. Alleged Violation on September 9, 2011 There was no evidence of a staffing ratio violation on September 9, 2011. Actually, there was a staffing violation on September 7, 2011. One staff was caring for an infant and five toddlers; two staff were required. ELCOC reported the violation to the Department. When apprised of the violation, Michael Collins, the owner and director of the facility, took immediate action to increase staffing and bring the violation to an end as soon as possible. The Department investigated on September 9, 2011, verified the violation through interviews with Shawnda Bernard, and cited Respondent for the violation on September 9, 2011. Alleged Violation on April 14, 2011 Another entity involved in child care and school readiness, referred to in the hearing as Devoreaux, reported to the Department on April 12, 2011, that there was one staff caring for 13 children, when two staff were required. The Department investigated on April 14, 2011, determined from interviews with staff that the violation had in fact occurred, and cited Respondent for the violation. There was hearsay evidence of another staffing violation after the Department's inspection on April 14, 2012. The second alleged violation was not proven by any direct evidence or by any hearsay evidence that would be admissible over objection in a civil action. See § 120.57(1)(c), Fla. Stat. Alleged Violation on August 20, 2010 On August 20, 2010, the Department conducted a routine inspection and cited Respondent for having six children at its facility and no staff, just the owner/director, Mr. Collins. Two qualified staff were required for the six children. There was an unscreened volunteer there, who would have counted and made the staffing ratio sufficient prior to August 1, 2010, when the law changed to require staff to be screened. First Affirmative Defense In May 2011, the Department filed an Administrative Complaint against Respondent charging staffing ratio violations on August 20, 2010, and on August 6 and December 28, 2009, plus numerous other kinds of violations, including some on August 20, 2010. In October 2011, the Department and Respondent settled the charges in that Administrative Complaint by payment of a $500 fine (reduced from $2,205) and a reduced period of probation, through August 15, 2011. The alleged facts and charges were not admitted as part of the settlement. The settlement included a provision that the Department would "make no further orders and will take no further action on the Administrative Complaint and underlying violations in connection with this proceeding that is being settled." It also including a provision in the next numbered paragraph saying: However, if in the future, the Petitioner should have to take administrative action against the Respondent, the Respondent agrees that the Petitioner shall not be estopped from using the facts set forth in the Administrative Complaint in this case as additional basis' [sic] for any future denials, revocations or other administrative actions, taken against the Respondent by the Petitioner resulting from any future non- compliances with applicable statute, code or agreements, by the Respondent. Since one of the "facts set forth" in the settled Administrative Complaint was that Respondent had insufficient staffing on August 20, 2010, the Department was not estopped from using those facts as it does in this case--i.e., as one of the three staffing violations that preceded the one in January of 2012. Second Affirmative Defense Because of the insufficient staffing on January 4, 2012, ELCOC withheld payment for that day under the federal school readiness program it administers, which requires qualified staff to be present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order: finding Respondent guilty as charged; fining Respondent $75; and placing Respondent on probation for six months, with unannounced visits to ensure compliance with all statutes and codes, including the maintenance of appropriate staff-to-children ratio. DONE AND ENTERED this 17th day of September, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 17th day of September, 2012. COPIES FURNISHED: Stefanie C. Beach, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1782 Jack P. Caolo, Esquire 131 East Woodland Drive Sanford, Florida 32773 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Anna L. Elam, was not offered employment as an elementary school teacher and was therefore discriminated against by the Respondent, Flagler County Schools, on the basis of her age.
Findings Of Fact The Petitioner filed an Amended Charge of Employment Discrimination with the Florida Commission on Human Relations (“Commission”) on February 15, 2003. The Commission investigated the amended complaint and issued a determination of no cause that discrimination had occurred. The Petitioner timely requested a formal administrative hearing and the petition was duly referred to the Division of Administrative Hearings by the Commission. Upon notice, this matter was set for formal hearing on December 18, 2003, at the Flagler County Courthouse in Bunnell, Florida. Following a Motion for Continuance filed by the Respondent, the final hearing was reset for February 17, 2004, at the same location in Bunnell, Florida. The Petitioner called and spoke with Melissa Young, assistant to Administrative Law Judge P. Michael Ruff, and to Claudia Lladó, assistant to the undersigned, to inform them that she had no legal counsel and was therefore not going to appear at the February 17, 2004, hearing. Both assistants informed the Petitioner that she should attend the hearing and inform the undersigned personally as to her intention of whether to proceed. The undersigned convened the hearing in Bunnell, Florida, on February 17, 2004. Counsel for the Respondent appeared at the hearing along with approximately five witnesses for the Respondent who intended to testify. Neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner appeared at the hearing or within 45 minutes of the time scheduled for the hearing, 10:00 a.m. Neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner submitted any evidence via deposition, sworn testimony or documentary evidence prior to, at the time of, or subsequent to the hearing on February 17, 2004. Other than the calls to the assistants to the judges, neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner has contacted the undersigned or his assistant subsequent to the hearing on February 17, 2004.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, arguments of the Respondent and the fact that the Petitioner voluntarily absented herself from the hearing, it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 19th day of February, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Anna L. Elam 23 Patric Drive Palm Coast, Florida 32164 Andrew B. Thomas, Esquire 1625 Lakeside Drive Deland, Florida 32720 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
