The Issue The issue in this case is whether Respondent is guilty of violating various provisions governing adult congregate living facilities and, if so, what penalty should be imposed.
Findings Of Fact Respondent is currently licensed to operate an adult congregate living facility at 1822 Nebraska Avenue, Palm Harbor, Florida. On May 25, 1993, Petitioner's surveyor conducted an annual survey of the facility. Petitioner's surveyor noted several deficiencies on the survey report and gave Respondent 30 days within which to correct the deficiencies. Upon resurvey on September 13, 1993, the Petitioner's surveyor found nine deficiencies uncorrected. In addition, Petitioner's surveyor found uncorrected one deficiency that had been cited during a survey on August 4, 1993. On May 25, 1993, Respondent had three employees. Two of them had been employed at the facility for over 30 days. Their files contained no documentation showing that they were trained in infection control procedures. The third employee was new and had no personnel file. At the September 13, 1993 resurvey, the three former employees had been replaced by three new employees. Two of the new employees had received the required infection control training, although their statements omitted a copy of the license of the registered nurse who did the training. The file of the other new employee lacked any statement concerning infection control training. However, Petitioner failed to show that the deficiencies cited in the May 25 survey were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. During both the May 25 and September 13, 1993 surveys, Respondent's sanitation inspection report was missing the second page, which would have listed violations and corrective actions regarding sanitation. On May 25, 1993, resident I. M. had been at the facility more than 30 days without a health assessment. On September 13, 1993, I. M. had been discharged, but four new residents had been at the facility more than 30 days without a health assessment. Petitioner failed to prove that the violation concerning I. M.'s health assessment was uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, Respondent failed to document that a person duly certified in first aid was on duty at all times. A staff member identified as being alone at the facility on weekends had no personnel file. On September 13, 1993, two staff members identified on the staffing chart as being alone at the facility had no documentation of first aid training. On September 13, 1993, a third staff member who was left alone at the facility claimed to be a certified nursing assistant and therefore exempt from the first aid certification requirement. Respondent and the employee had no documentation to indicate that the employee was a certified nursing assistant. As noted above, the former employees were no longer employed at the facility on September 13. Petitioner thus failed to prove that the May 25 deficiencies concerning first aid certification were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, three employees at the facility had no statement that they were free of signs and symptoms of communicable disease. On September 13, 1993, one of the new employees had no such statement. The other two employees had statements, but they were signed by a registered nurse rather than an advanced registered nurse practitioner. Due to the turnover of employees, Petitioner failed to prove that the May 25 deficiencies concerning communicable- disease certification were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, Respondent kept a supply of nonprescribed, over-the- counter drugs, such as aspirin and milk of magnesia, that were not labelled for use by a particular resident. However, Respondent remedied the violation during the May 25 visit. On September 13, 1993, the surveyor found approximately six bottles of unlabelled, nonprescription over- the-counter medication. These medications had been brought by the family of a newly admitted resident. Respondent corrected the labelling deficiencies during the May 25 survey. Petitioner thus failed to prove that the May 25 labelling deficiencies were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993 Petitioner's surveyor found no activities calendar and, based on resident interviews and her observations at the facility, no evidence of significant activities being provided. On September 13, 1993, Respondent had an activities calendar, but it did not specify the starting time or duration of resident activities. Petitioner proved that deficiencies concerning the activities calendar were uncorrected during the applicable timeframe. On August 4, 1993, Petitioner's surveyor found in a resident's room a full-bedside rail, which was not ordered by a physician. On May 25, 1993, Petitioner's surveyor found, evidently in a different resident's room, a half- bedside rail, which was not ordered by a physician. Respondent presented a physician's order for a hospital bed, but mechanical bedside rails were not addressed in the order. Due to the involvement of different residents, as well as different types of restraints, Petitioner failed to prove that the May 25 deficiency concerning the full-bedside rail was uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, the facility maintained a clearly inadequate supply of nonperishable food. During the September 13, 1993 resurvey, Respondent had significantly more nonperishable food on hand, consisting of 567.5 ounces of fruits and vegetables. The May 25 survey report informs Respondent only that he does not have on hand a one-week supply of nonperishable food. The survey does not calculate the amount of such food needed based on some formula. At the hearing, Petitioner's witness testified that the nonperishable food supply on September 13 was inadequate, based on a requirement of 16 ounces of fruits and vegetables per day for seven days for five residents. Based on the formula, Respondent needed a total of 560 ounces of nonperishable food on hand on May 25, 1993, when he had nowhere near an adequate amount. Under the formula, Respondent would have needed, on September 13, 1993, 784 ounces of nonperishable food because two more residents had been added to the facility. However, Petitioner failed to prove that 560 ounces of nonperishable food does not represent one week's supply for the seven residents at the facility on September 13, 1993. On May 25, 1993, Petitioner's surveyor found that one resident was residing at the facility without a signed contract. On September 13, 1993, at least one resident was without a signed contract.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of the violations set forth above and imposing a fine of $750. ENTERED on July 18, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 18, 1994. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 N. Dale Mabry Hwy. #100 Tampa, Florida 33614 James V. Vinson, Owner White House #1 1822 Nebraska Avenue Palm Harbor, Florida 34683 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308 Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303
Findings Of Fact Respondent is licensed to operate an adult congregate living facility known as Vereene's Love and Care Home, which is located at 1304 E. Gibbs Street, Melbourne, Florida. On February 27 and March 20, 1986, two representatives of Petitioner conducted an inspection of Respondent's facility. This inspection uncovered numerous violations, including 16 Class III violations. The facility was re-inspected on March 23 and 26 and April 21, 1987, and representatives of Petitioner determined that five Class III violations remained uncorrected. The uncorrected Class III violations were the failure of Respondent: to provide at least one staff member at the facility at all times with certification in an approved first aid course and documentation that all staff are free of communicable diseases; to maintain and make available physical examination records for one resident; to provide that one resident received medication in accordance with her prescription; to ensure that a refrigerator and chest freezer had accurate thermometers; and to maintain two freezers at a temperature below 0 degrees Fahrenheit. Representatives of Petitioner discussed the violations with Respondent at the time of the 1986 inspections. The parties agreed that Respondent would have varying deadlines, ranging from immediately to May 1, 1986, within which to correct the violations. Respondent proved at the hearing that the bottle of Diazide prescribed for a Mrs. Smith bore an incorrect dosage. Respondent and Mrs. Smith both testified that the physician had orally changed the dosage to one tablet every other day. Mrs. Smith produced a bottle containing this medication and bearing this dosage. The thermometers in the refrigerator and chest freezer were constantly falling off their shelves. The thermometers were always present in these two appliances.
The Issue The issue in this case is whether the Agency for Health Care Administration should deny Petitioner's application for renewal of its standard assisted living facility license with a limited mental health component.
Findings Of Fact The Agency is responsible for licensing and regulating assisted living facilities in Florida pursuant to Part III, Chapter 400, Florida Statutes (2001). Pursuant to that responsibility, the Agency is authorized to conduct surveys and follow-up surveys, to make visits and inspections of assisted living facilities, and to investigate complaints. Oakland Manor is an assisted living facility located at 2812 North Nebraska Avenue, in Tampa, Florida, licensed and regulated pursuant to Part III, Chapter 400, Florida Statutes (2001), and Rule Chapter 58A-5, Florida Administrative Code. The facility's license has a limited mental health component. Rory and Lisa McCarthy have owned and operated Oakland Manor since about December 1999. Mrs. McCarthy is the administrator of the facility. Between the dates of December 14, 2000 and September 18, 2001, the Agency conducted three appraisal visits, a moratorium monitoring visit, a complaint investigation, and a biennial license renewal survey of the facility. The Agency noted the results of these inspections on a form referred to as Agency Form 3020-0001 ("Form 3020"). The Form 3020 is the document used to charge assisted living facilities with deficiencies that violate applicable law and rules. The Form 3020 identifies each alleged deficiency by reference to a tag number. Each tag of the Form 3020 includes a narrative description of the allegations against the facility and cites the relevant rule or law violated by the alleged deficiency. In order to protect the privacy of the residents, the Form 3020 and this recommended order refer to the subject resident by a number rather than by a name. There are 24 tags at issue in the proceeding, some having been cited as repeat or uncorrected deficiencies. An uncorrected deficiency is one that was previously cited and has not been corrected by the time designated or by the time of the Agency's follow-up visit. A repeat deficiency is one that the facility has been cited for and that has been corrected, but after the correction, the deficiency occurs again. Section 400.419, Florida Statutes, requires that the Agency assign a class rating to the deficiencies alleged in its Form 3020. The classification rating assigned to a deficiency is based on the nature of the violation and the gravity of its probable effect on facility residents. On December 14, 2000, the Agency conducted an appraisal visit of Oakland Manor. As a result of this visit, the Agency cited the facility with four Class III deficiencies, including a Tag A519 deficiency for failure to maintain minimum staffing to meet the residents’ needs, a Tag A1001 for failure to provide a safe environment, Tag A1024 for failure to provide beds for two residents, and Tag A1033 for failure to provide each bathroom with a door in good working order to ensure privacy for residents. The Agency conducted a second appraisal visit of Oakland Manor on March 12, 2001, and cited the facility for seven deficiencies, including three uncorrected deficiencies from the December 14, 2000, visit. According to the Form 3020 for the March 12, 2001, appraisal visit, the uncorrected deficiencies were cited as Tag A519, for failure to provide minimum staffing; Tag A1001, failure to provide a safe environment; and Tag A1024, for failure to provide clean, comfortable mattresses. In addition to the alleged uncorrected deficiencies, the Agency cited the facility for four new deficiencies under Tag A210, Tag A212, Tag A523, and Tag A1004. Tags A519, A523, and A1001 were rated as Class II deficiencies. The other tags cited were rated as Class III deficiencies. Because the Agency found new violations of Tags A519, A1001, and A1024, and deficiencies under those same tag numbers were identified in December 2000, the Agency deemed those violations or deficiencies to be uncorrected deficiencies. On March 13, 2001, the day after the second appraisal visit, the Agency entered an Order of Immediate Moratorium ("Order"). The Order was based on the alleged violations cited from the March 2001 appraisal visit and stated that the conditions at the facility presented a significant threat to the health, safety or welfare of the residents. Under the Order, Oakland Manor was prohibited from admitting any residents. On June 13, 2001, the Agency conducted a complaint investigation based on a complaint that the Agency had received. The Form 3020 summarizing the Agency's findings during the June 13, 2001, investigation did not cite Oakland Manor for any continuing violations, but alleged that there was a violation of Tag A1114, relating to staff records standards. The A1114 deficiency was assigned a Class II violation. The Agency conducted a biennial license and limited mental health renewal survey on June 28, 2001. This survey is required for continued licensure. As a result of the biennial survey, the Agency cited Oakland Manor with the following ten deficiencies, none of which had been previously cited: Tags L200, L201, L202, L203, L400, A525, A634, A1005, A1101, and A1103. All of these tags were assigned Class III ratings. On September 18, 2001, the Agency conducted an appraisal/monitoring visit. As a result of this visit, the Agency cited Oakland Manor with two violations, Tag A519, related to staffing standards, and Tag A1004, related to physical plant standards, both of which were assigned Class III ratings. Because Oakland Manor was cited for deficiencies under Tag 519 during the March 12, 2001, visit, the Agency noted that the deficiency of Tag A519 was a repeat violation. The Form 3020 for each survey or visit indicated when each alleged violation should be corrected. In some cases, a specific date was given. In other instances, the correction was to be implemented "immediately." DECEMBER 14, 2000, APPRAISAL TAG A519 Tag A519 requires a facility to maintain the minimum staffing hours set forth in Rule 58A-5.019(4), Florida Administrative Code. Because Oakland Manor had a resident census of 26 in November 2000 and through the first two weeks of December 2000, the facility was required to have minimum staff hours of 294 per week. Based on a review of the facility's staffing schedule for the time in question, the Agency surveyor properly concluded that the facility did not maintain the required minimum staff hours of 294 in November 2000 and the first two weeks of December 2000. As a result of this finding, the Agency properly cited Oakland Manor with a Tag A519, Class III deficiency. DECEMBER 14, 2000, APPRAISAL: TAG A1001 The second violation for which Oakland Manor was cited was a Tag A1001 deficiency, which requires that assisted living facilities "be located, designed, equipped, and maintained to promote a residential, non-medical environment, and provide for the safe care and supervision of all residents." See Rule 58A- 5.023(1)(a), Florida Administrative Code. The violation was rated as a Class III deficiency. The allegation that Oakland Manor failed to meet the requirements of Tag A1001 is based on the following observations noted on the Form 3020: there were electrical wires and light fixtures hanging loose from the ceiling in the hallway on the first floor; the residents' room walls were dirty, the rooms had a foul odor and the smell of urine; the floors of the facility were dirty; residents were observed smoking in their beds; the toilet tank lid was missing; and discharge water from the washing machine in the breezeway was running over the walkway in the patio area. At the time of the survey, one resident's room had dirty walls and also had a foul odor. The floors of the facility were dirty and had food particles on them, and the facility had an "unpleasant odor." Also, two residents were observed smoking in their bedrooms, despite the facility's no smoking policy. Contrary to the observation noted on the Form 3020, there were no light fixtures hanging loose from the ceiling, nor had that situation ever existed. At hearing, there was no evidence presented by the Agency that there were light fixtures hanging loosely from the ceiling. The electrical wires, referred to in the Form 3020, were slightly visible and coming from a 9-foot ceiling. However, there were wire nuts on the wires and, thus, the wires were not a danger to the residents. There was water coming from the washing machine as noted by the Agency surveyor. Mr. McCarthy does not deny that allegation, but the water coming from the washing machine was "feed" water going into the machine and not "discharge" water as noted in the Form 3020. This problem was resolved the following day when Mr. McCarthy purchased and had a new washing machine installed. The surveyor observed one toilet that did not have a toilet tank lid. The owners do not dispute this, but the lid was not "missing" as noted on the Form 3020, but had likely been removed by one of the residents. When a resident removes the toilet tank lid, staff members routinely replace the lid. The surveyor was unaware of any regulation that requires the facility to secure the lids to prevent the residents from removing them. DECEMBER 14, 2000, APPRAISAL: TAG A1024 The third alleged violation for which the facility was cited was Tag A1024, which refers to the physical plant standard set forth in Rule 58A-5.023(4)(e), Florida Administrative Code. That standard requires that each resident bedroom or sleeping area, where furnishings are supplied by the facility, shall at a minimum, be furnished with, among other things, a clean comfortable bed with a mattress. It is alleged that this standard was not met as evidenced by the observation that the mattress in Room No. 10 was torn, and the filler appeared to be coming out of the mattress. The undisputed testimony was that the torn mattress was not being used by any resident of the facility, but was a mattress that was not being used. The Notice of Intent to Deny mischaracterizes the surveyor's findings under Tag A1024 as "failure to provide beds for two residents." This allegation was not addressed or proven by the Agency. DECEMBER 14, 2000, APPRAISAL: TAG A1033 The fourth alleged violation, cited under Tag A1033, relates to the physical plant standard set forth in Rule 58A- 5.023(5), Florida Administrative Code. That standard requires that each bathroom have a door in working order to assure privacy and that the entry door to the bathrooms with a single toilet is required to have a lock which is operable from the inside by the resident, with no key needed. The Agency alleged that this standard was not met in that the bathroom door on the first floor was not operable because the door was missing the striker plate that keeps the door tightly closed into the frame. The Agency noted that as a result of this alleged defect, residents using that bathroom did not have privacy. Based on Mr. McCarthy's testimony, there was a door leading into the bathroom, which had a working lock. In addition, the door with the missing striker plate had a hook and eye that allowed the door to be secured from the inside. MARCH 12, 2001, APPRAISAL TAG A519 Tag A519 requires the facility to meet the minimum staffing required by Rule 58A-5.019(4), Florida Administrative Code. Based on the resident census of 25 for March 4-12, 2001, and the surveyor's review of the staff work schedule for that week, Oakland Manor was cited for a Tag A519 deficiency. According to the facility's staff work schedule, there were 208 total staff hours for that week and not the required minimum staffing hours. The Form 3020 stated that the "[l]ack of adequate staffing has resulted in a malfunctioning sewage system which poses an immediate risk to the residents, staff, and public." In making this allegation, the Agency apparently assumed that the residents caused the sewage system problems and that if there had there been adequate staffing, these problems would not have occurred. The Agency then alleged that the malfunctioning sewage system posed an immediate risk to the residents, staff, and public. However, these assumptions and allegations are not supported by any evidence. There is no evidence that the sewage system problems were caused by the residents and/or lack of staffing. Moreover, there is nothing in this record which supports the claim that the malfunctioning sewage system posed an "immediate risk" to the residents, staff, or public. Clearly, there was a Tag A519 deficiency in that the facility failed to maintain the weekly minimum staff hours required. Also, because the facility had been cited for a Tag A519 deficiency during the December 14, 2000, appraisal, the Agency properly found that the Tag A519 deficiency, cited during the March 12, 2001, appraisal was an uncorrected deficiency. However, in this instance, the violation did not "directly threaten the physical or emotional health, safety, or security of the facility residents." Accordingly, the violation is not a Class II deficiency, as alleged by the Agency, but is a Class III deficiency. MARCH 12, 2001 APPRAISAL: TAG A523 As stated on the Form 3020, Tag A523 requires that, notwithstanding the minimum staffing ratio, all facilities have enough qualified staff to provide resident supervision, and provide or arrange for resident services in accordance with resident scheduled and unscheduled service needs, resident contracts, and resident care standards. See Rule 58A- 5.019(4)(b), Florida Administrative Code. The Agency alleged that Oakland Manor failed to meet this standard. The determination that Oakland Manor failed to meet the standard required by Tag A523 was based on the surveyor's observation and interview with the facility administrator. On the day of the survey, from 9:30 a.m. to approximately 11:00 a.m., the surveyor noticed that there was a strong odor of sewage coming from the basement area and standing water on the basement floor. The surveyor learned from the administrator that the matter came to her attention that morning and that a plumber had been called and had corrected a similar problem a week earlier. Mr. McCarthy explained that the lift station malfunction and the overflow of sewage into the basement had occurred the day of the Agency inspection. After a plumber came to the facility to repair the lift station and was unable to do so, an electric company was called and came out and immediately repaired the lift station. The Form 3020 notes that when the lift station backed up the week before, the plumber found t-shirts, garbage bags, bandannas, and a stick of deodorant clogging up the lift station. From this alleged statement, the surveyor erroneously concluded that some of the residents had thrown these and possibly other items into the lift station. In view of this assumption, the surveyor alleged on the Form 3020 that: The lift station back up is occurring due to a lack of supervision of qualified staff to provide resident supervision and allowing the residents to freely access the lift station in the yard and put items in it. The size and accessibility of the lift station also poses a threat to residents due to the possibility of a fall while throwing in inappropriate items. The lift station was in the yard of the facility, but the residents do not have free access to the lift station, except the top external lid of the lift station. The residents can not remove the lid covering the lift station because the lid is made of steel and weighs over 200 pounds. Accordingly, the residents can not throw items in the lift station and, thus, there is no threat to the residents "due to the possibility of a fall while throwing" items into the lift station, as alleged by the Agency. The Agency deemed the Tag A523 violation as a Class II deficiency and required that the facility correct the deficiency immediately. The Agency failed to establish this allegation. MARCH 12, 2001, APPRAISAL: TAG A1001 The standards of Tag A1001 are stated in paragraph 20. Based on the surveyor's observations, Oakland Manor was again cited for a Tag A1001 deficiency. Tag A1001 was deemed by the Agency to be an uncorrected deficiency and designated a Class II violation. In the Form 3020, the Agency listed the following 12 alleged facts as the basis for the cited deficiency: Two large ladders were lying on the floor in the hallway, partially blocking access through the hallway. The bathtub and shower in the first floor shower room were badly stained and mildewed. In Room No. 1, the toilet was not working and there was an accumulation of feces in the toilet bowl. In Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. The wall and floors throughout the facility were dirty. In Room No. 8, there was an electric space heater in front of full length curtains. In Room No. 10, there were cigarette butts on the floor and the resident in the room was observed smoking, although smoking is not allowed in the facility. In the second residential building, the first bathroom had a dirty floor and the vinyl was very worn and there was no lid on the "toilet back." In the second residential building television room, there was a resident smoking even though there is a no smoking sign posted. There was a strong sewer odor emanating from the facility basement and the basement had standing water. The staircase to the second floor of the main building was covered with dirt and grime. The overhead light in the second floor hallway was not working and the staircase was very dark. The ladders, referred to in the Form 3020, were not lying on the floor but were leaning against a recessed part of the wall in the hallway. They were not blocking the passageway and, even with the ladders in the hallway, there was enough room for a 215-pound man to walk through the hall into the adjacent room. The reason the ladders were in the hall was that Mr. McCarthy was painting the facility. At the end of each day, when Mr. McCarthy was finished painting, he stored the ladders in an office in back of the kitchen or in a shed in the back of the facility. The surveyor reported that the bathtub and shower in the first floor shower room were badly stained and mildewed. Mrs. McCarthy testified that the shower stall is made of heavy marble and is original to the 100-year-old house and that many of the stains can not be scrubbed off. The substance the surveyor described as mildew was shampoo. The toilet in Resident Room No. 1 was described in the Form 3020 as having an accumulation of feces and not working. The toilet was stopped up, but was working and was put back into flushing order that same day, immediately upon the problem being called to her attention. The residents in that room placed female products in the toilet and caused it to stop up. However, the toilet was functioning in all respects when it was not stopped up. In Resident Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. This was not disputed. Every shift, staff is suppose to sweep, mop, and make sure that the room is cleaned out, but sometimes the residents put their laundry on the bed. The walls and floors throughout the facility were dirty as reported in the Form 3020. In an effort to keep the walls clean, they are painted every three or four months. The Agency surveyor observed a space heater in Room No. 8, which she characterized as a fire hazard. However, the heater was not plugged in and was not in use at that time. When the heater is in use, it is in the middle of the room and not near the curtain. In Room No. 10, the surveyor observed cigarette butts on the floor and the resident in the room was observed smoking, even though the facility had a no smoking policy and all residents were given copies of that policy, upon admission. In Oakland Manor’s second residential building, the surveyor observed that the floor was dirty and the vinyl was torn, and there was no lid on the toilet back. Mr. McCarthy confirmed that the vinyl was worn and did not dispute that the floor was dirty. At the time of the Agency inspection, the worn dirty vinyl was in the process of being replaced. With regard to the toilet backs, the residents remove the toilet tank lids, but they are always put back on. The Agency surveyor observed a resident smoking in the television room, even though there was a “No Smoking” sign posted in the room. At Oakland Manor, smoking in violation of the house rules is a continuing problem that the administrator and staff make efforts to correct. The Agency surveyor observed that there was standing water in the basement and a strong sewer odor coming from the basement. Other facts related to this observation are discussed in paragraphs 35 and 36. Mrs. McCarthy does not dispute this allegation, but the problem was promptly correctly. Mr. Carthy corrected the problem within 48 hours; he went into the basement and “squeegeed” all the standing water and otherwise treated the floor to dry it and deodorize it. The surveyor determined that the overhead light in the second floor hallway of the main house was not working. She reached this conclusion after she first observed the dark hallway and then tried to turn on the light and was unable to do so. There is no indication that the surveyor asked facility staff to turn on the light or inquired as to how the switch worked. The light operates by a three-way switch, and although there are two switches, only one of them turns on the light. Also, there are two lights in the stairwell so that if one light is burned out, the other one still works, but it does not appear that the inspector knew how to operate the three-way switch. No testimony was presented by the Agency regarding the allegation concerning the staircase to the second floor of the main house. Based on the Agency’s findings in the paragraph 40-d, e, and j, above, the facility was properly cited for the Tag A1001 deficiency. This was an uncorrected deficiency. MARCH 12, 2001, APPRAISAL: TAG A1004 Tag A1004 requires that all windows, doors, plumbing, and appliances in assisted living facilities be functional and in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. According to the Form 3020, Oakland Manor failed to meet this standard as evidenced by windows in the facility that were not functional and in good working order and failing to promptly repair broken glass, which "may result in injury to residents or staff." The surveyor observed the following: a large window pane in the front door was broken, the lower window pane in the dining room window was covered over with plywood, the first floor rear bathroom window was hanging off the hinge and the screen was missing; and the window pane of the outside door leading to the ramp was broken and covered with a garbage bag. The owners do not dispute that the pane in the front door was broken, but testified that the material was not glass, but Plexiglas. The door had been broken by one of the residents the day of the survey. Mr. McCarthy replaced the Plexiglas pane the same day and, four or five days later, replaced the entire front door with a solid door. As to the allegation that the lower half of the dining room window was covered with plywood, that there was not a glass pane in the lower part of the window. Rather, the plywood was placed there instead of the glass and was put in with trim molding and sealed with caulking. It appears that the window was designed that way to serve as a "fixed" window. The Agency acknowledged that window had been like that before the McCarthys purchased the facility. Moreover, the Agency had not previously indicated that this was a violation of any regulation. Although the Agency offered no suggestions to address its concern with the “fixed” window, Mr. McCarthy replaced the plywood with Plexiglas in an attempt to comply with the Agency requirements. The surveyor's observation regarding the first floor rear bathroom window was reversed. There was a screen on hinges that opened and closed and the top hinge of the screen was pulled out and hanging over a bit. However, the screen was there and the window was functional. Mrs. McCarthy does not dispute that the outside door had a broken glass pane that was covered with a garbage bag. The glass pane had been broken out earlier that day and the entire door was replaced within a day or so of the Agency's appraisal visit. The observations noted in paragraph 61 constitutes a violation of Tag A1004. MARCH 12, 2001, APPRAISAL: TAG A1024 The Tag A1024 requires that each resident room in an assisted living facility be furnished with, among other things, a clean comfortable mattress. See Rule 58A-5.023(4)(e)1., Florida Administrative Code. According to the Form 3020, the Agency alleged that Oakland Manor failed to comply with this standard in that "the facility did not provide appropriate beds for two residents." No mention is made in the Form 3020 of which residents did not have appropriate beds. The alleged Tag A1024 deficiency was based on the two reported observations of the surveyor. First, the Form 3020 notes that in Room No. 10, the surveyor observed "a medical crutch being used as a mattress support on one bed." Second, the surveyor noted her observation that in Room No. 4, there was "a ripped mattress with the filling coming out of the rips." The owners testified that the crutch was not being used to support the mattress and that bed was not being used by any of the residents. Mr. McCarthy did not know why the crutch was under the mattress, but it was not there for support because of the construction of the bed. As to the second observation, the owners do not dispute that the mattress also in Room No. 4 was ripped. However, the bed with the torn mattress was not being used by anyone and has been replaced. Finally, there were appropriate beds for all the residents because at the time of this survey, there were 26 residents and 32 beds. This testimony was not disputed by the Agency. Tag A1024 was deemed by the Agency to be an uncorrected deficiency and was designated as a Class III violation. The Agency gave the facility until March 15, 2001, to correct the deficiency. MARCH 12, 2001, APPRAISAL: TAG A210 Four additional new violations were cited as a result of the Agency's March 12, 2001, appraisal visit. These violations or deficiencies were assigned Tag A210, Tag A212, Tag A523, and Tag A1004. Tag A210 requires compliance with the standards set forth in Rule 58A-5.024, Florida Administrative Code. That rule requires that assisted living facilities maintain the records prescribed therein "in a form, place and system ordinarily employed in good business practice and accessible to the department and [A]gency staff." Rule 58A-5.024(1)(m), Florida Administrative Code, requires that the facility maintain all fire safety inspection reports issued by the local authority having jurisdiction or the State Fire Marshal within the past 2 years. In an interview, which occurred during this visit, the facility administrator advised the Agency surveyor that the fire inspection reports were not on the premises, but at the administrator's home. Based on this statement by the administrator, the Agency properly concluded that this standard was violated because the fire inspection records were maintained at the owner/administrator's home, and were not in a place accessible to Agency staff as required by the applicable rule. MARCH 12, 2001, APPRAISAL: TAG A212 The Tag A212 relates to facility records standards. According to the Form 3020, Oakland Manor failed to meet this standard in that it violated Rules 58A-5.020(3) and 58A- 5.024(1)(n), Florida Administrative Code. The former rule requires that "copies of inspection reports [relating to food hygiene] issued by the county health department for the last two years . . . be on file in the facility." The latter rule requires that all sanitation inspection reports issued by the county health department within the past two years be maintained in a form, place, and system ordinarily employed in good business practice and accessible to department or agency staff. The Form 3020 indicates and it is undisputed that the most recent copy of the sanitation inspection report was not on the premises, but at the administrator's home. MARCH 13, 2001, ORDER OF IMMEDIATE MORATORIUM On March 13, 2001, the day following the Agency’s March 12, 2001, appraisal visit to Oakland Manor, the Agency imposed a Moratorium on Admissions to the facility, which has remained in effect. JUNE 12, 2001, MORATORIUM MONITORING VISIT TAG A528 In the Notice of Denial, the Agency alleged that a Moratorium monitoring visit was made to Oakland Manor on June 12, 2001, during which the facility was cited for violating Tag A528. The Agency failed to establish this violation. JUNE 13, 2001, COMPLAINT INVESTIGATION TAG A1114 On June 13, 2001, the Agency conducted a complaint investigation of Oakland Manor. As a result of the investigation, the Agency alleged that the facility violated Tag A1114 by failing to include in an employee’s file documentation of compliance with Level 1 screening. The standards under Tag A1114 are set forth in Section 400.4275(2), Florida Statutes, and Rules 58A-5.019(3) and 58A-5.024(2)(a)3., Florida Administrative Code. Pursuant Rule 58A-5.019(3), Florida Administrative Code, a Level 1 screening is required for all employees hired after October 1, 1998, to provide personal services to residents. Also, personnel records for each staff member should include documentation of compliance with Level 1 background screening for all staff. See Subsection 400.4275(2), Florida Statutes, and Rule 58A-5.024(2)(a)3., Florida Administrative Code. Mr. and Mrs. McCarthy did not dispute this allegation. According to the Form 3020, the employee in question had been hired by the facility on or about May 15, 2001. Mrs. McCarthy told the surveyor that she had applied for the background screening about two weeks prior to the June 13, 2001, complaint investigation, but it had not yet been received. Later that day, the administrator provided the surveyor with a copy of an arrest report from the Tampa Police Department. The arrest report did not satisfy the standards required under Tag A1114. The deficiency constituted a failure to comply with the requirements of Tag A1114, and was properly designated a Class II deficiency. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG L200 Tag L200 requires assisted living facilities with a limited mental health license, such as Oakland Manor, to have a copy of each mental health resident’s community living support plan. See Subsection 400.4075(3)(a), Florida Statutes. In addition, Tag L200 requires that the mental health case manager and the mental health resident, in conjunction with the facility administrator, prepare the community living support plan within 30 days of admission to the facility or within 30 days after receiving the appropriate placement assessment. See Subsection 400.402(8), Florida Statutes, and Rule 58A.5.029(2)(c)3.a., Florida Administrative Code. According to the Form 3020, the surveyor reviewed the file of Resident 1, a limited mental health resident who was admitted to the facility on November 23, 1993, and did not find the resident’s community living support plan. The resident’s record did have the annual community living support plan, but the surveyors simply missed or inadvertently overlooked the document. There was a community living support plan in Resident 1’s file that was signed by the resident, the resident’s counselor, and the former facility administrator, and dated February 17, 1999. Attached to the community living support plan were progress notes, with the last entry dated October 14, 1999. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS L201, L202, L203, AND L400 Oakland Manor was cited for violating standards under Tags L201, L202, L203, and L400, all of which relate to community living support plans. Tag L201 requires that the community living support plan include the components enumerated in Rule 58A- 5.029(2)(c)3.a.(i)-(vi) and (viii), Florida Administrative Code. Tag L202 requires the assisted living facility to make the community living support plan available for inspection by the resident, the resident’s legal guardian, the resident’s health care surrogate, or other individuals who have a lawful reason to review the plan. See Subsection 400.4075(3)(c), Florida Statutes. Tag L203 requires that the community living support plan to be updated annually in accordance with See Rule 58A- 5.029(2)(c)3.a.(vii), Florida Administrative Code. Finally, Tag L400 requires the facility to assist the mental health resident in carrying out the activities identified in the individual’s community living support plan. See Subsection 400.4075(3)(d), Florida Statutes. The alleged deficiencies cited under Tags L201, L202, L203, and L400 were all based on the surveyor’s finding that the file of Resident 1 did not contain a community living support plan. In light of the finding in paragraph 80, that the annual community support plan was in the resident’s file, the Agency did not establish the deficiencies listed under Tags L201, L202, and L400. Oakland Manor failed to comply with the standards of Tag L203, in that the community living support plan had not been updated annually as required by the foregoing rule. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A525 Tag A525 was assigned to Oakland Manor based on the Agency's determination that for two facility employees, scheduled to work alone on the 11:00 p.m. to 7:00 a.m. shift, there was no documentation that they had received first aid training. This alleged deficiency constitutes a failure to comply with the staffing standards in Rule 58A-5.019(4)(a)4., Florida Administrative Code, which requires that at least one member who is trained in first aid and CPR be in the facility at all times. Oakland Manor was properly cited for a violation of Tag A525 which was designated a Class III deficiency. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A634 The Agency assigned a Tag A634 deficiency to Oakland Manor based on its determination that Oakland Manor failed to meet the medication standards set forth in Section 400.4256(1), Florida Statutes. That provision requires the facility to advise the resident or the resident's guardian or surrogate that the resident may receive assistance with self-administration of medication from an unlicensed person and that such assistance will not be overseen by a licensed nurse. As support for this violation, the Form 3020 noted that based on a review of three residents' files, there was no documentation that the facility had informed the residents as required by Section 400.4256, Florida Statutes. The facility does inform residents appropriately, based on documents included in the admissions package. However, the surveyors did not look anywhere except the residents’ files for that documentation. The residents also signed a letter giving their informed consent to comply with the Agency regulations, and a copy of that letter was faxed to the Agency soon after the citation. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A1005 As part of this survey, the Agency assigned a Tag A1005 deficiency, alleging that the facility failed to meet the physical plant standard required by Rule 58A-5.023, Florida Administrative Code. That rule requires that all furniture and furnishings be clean, functional, free of odors, and in good repair. This deficiency was based on a surveyor's observation of the main bathroom on the first floor of the main building. During a tour of the facility, the Agency surveyor observed human excrement on the bathroom floor, on the outside of the toilet bowl, and on the toilet seat. The surveyor also observed that an adult brief, filled with human excrement, had been thrown against the wall. After this was brought to the administrator's attention, the bathroom was cleaned immediately. However, several hours later, when the surveyor returned to the area, human excrement again had been smeared on the toilet seat. A few minutes prior to the surveyor returning to the bathroom, a resident exited the bathroom. Therefore, it is very likely that the resident who was in the bathroom soiled the toilet seat after it had been cleaned. The facility staff has a regular cleaning schedule and, pursuant to that schedule, the bathrooms are checked and cleaned several times, as necessary. However, the residents are entitled to their privacy in the bathrooms and staff does not check the bathroom every time a resident uses it. Tag A1005 was designated a Class III deficiency, and the facility was required to and did correct this deficiency immediately after it was discovered. In light of the totality of the circumstances, the Agency did not properly cite the facility for a violation of this tag. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS A1101 AND A1103 The Agency cited Oakland Manor for a Tag A1101 deficiency for failure to adhere to the staff record standards in Rule 58A-5.024(2)(a), Florida Administrative Code. That rule requires that the personnel records of each facility staff member contain the verification of freedom from communicable disease, including tuberculosis. The Tag A1101 deficiency was based on a review of eight personnel files, which revealed three files that contained no documentation that the respective employees were free from communicable disease. The three employees, for whom there was no documentation, had been hired two or three months prior to the June 28, 2001, re-licensure survey, on March 20, April 4, and April 20, 2001. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG A1103 The Agency cited Oakland Manor for a deficiency under Standards of Tag A1103. That tag requires that, within 30 days of being hired, a facility staff member must "submit a statement from a health care provider, based on an examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis." See Rule 58A-5.019(2)(a), Florida Administrative Code. The rule further provides that such "freedom from tuberculosis must be documented on an annual basis." The Tag A1103 deficiency was assigned based on the Agency's review of the personnel files of eight of the facility’s staff members. The Form 3020 states that the files of four employees, W.W., L.M., J.V., and M.J., hired July 5, 1992, November 1999, April 23, 2001, and March 20, 2001, respectively, did not contain documentation of freedom from tuberculosis, obtained from a test in the last 365 days. The Agency's finding that the facility failed to comply with the staffing standards in Rule 58A-5.019(2)(a), Florida Administrative Code, is well-founded as it relates to the staff members employed on July 5, 1992, and November 1999. However, the requirement that freedom from tuberculosis must be documented annually can not be the basis for the Tag A1103 deficiency, as it relates to the two employees hired on March 20, 2001, and on April 23, 2001, only two or three months from the date of the survey. SEPTEMBER 18, 2001, APPRAISAL VISIT TAG A519 On September 18, 2001, the Agency conducted an appraisal visit of the facility and cited it for a Tag A519 deficiency, which relates to failure to maintain minimum staffing standards required in Rule 58A-5.019, Florida Administrative Code. The cited deficiency was based on the fact that the facility census was sixteen. In accordance with the foregoing rule, on the day of the September visit, the resident facility was required to have a weekly minimum of 253 staffing hours, but the facility only had 208 hours. Based on its review of records proved by the facility, the Agency properly concluded that the facility did not meet the minimum staffing standards for the first two weeks of September 2001. The Agency designated the Tag A519 as a Class III deficiency and properly noted that this was a "repeat deficiency." SEPTEMBER 18, 2001, APPRAISAL TAG A1004 Tag A1004 requires that the windows, doors, plumbing, and appliances of the facility be in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. The Agency found that Oakland Manor was in violation of this standard. According to the surveyor, the basis for this alleged violation was that "certain light fixtures throughout the facility were being maintained in an unsafe manner" and that "numerous bare (uncovered by globe or shade) light bulbs were observed, specifically in the dining area and in the main building bathrooms." The Agency concluded that the "unprotected bulbs are in danger of being broken, putting the residents at risk." Although the Agency cited the facility for the exposed light bulbs, the surveyor testified that there is not a specific tag that addresses the hazards of a light bulb, but the designated Tag A1004 “was the best available citation, quite frankly.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order revising the survey reports to delete and/or modify the deficiencies described in the Forms 3020 that are not supported by the record and granting Oakland Manor's application for renewal of its assisted living facility license. DONE AND ENTERED this 4th day of October, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2002. COPIES FURNISHED: A. S. Weekley, Jr., M.D., Esquire Holland and Knight LLP 400 North Ashley Drive Tampa, Florida 33602 Eileen O'Hara Garcia, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701 Lisa McCarthy, Administrator Oakland Manor ALF 2812 North Nebraska Avenue Tampa, Florida 33602 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Conclusions Having reviewed the Administrative Complaint and Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $3,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. Any check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, FL 32308 Filed March 26, 2015 11:09 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 2U day of Maca , 2015, aw, Elizdyeth’Dudgk{ Secretary y for H€ Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Order, was served on the below-named persons by the method designated on this Debit Aer Cc ZL. , 2015. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, FL 32308-5403 Telephone: (850) 412-3630 Facilities Intake Unit Finance & Accounting (Electronic Mail) Revenue Management Unit (Electronic Mail) David Selby, Assistant General Counsel Louis F. Gerrard, President Office of the General Counsel Grace Manor at Lake Morton, LLC Agency for Health Care Administration c/o Mainstay Financial Services (Electronic Mail) 5578 Commercial Blvd. NW Winter Haven, FL 33880 (U.S. Mail) J. Davis Connor, Esq. Peterson & Myers, P.A. 225 East Lemon Street Lakeland, FL 33802-4628 (U.S. Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION Petitioner, . . CASE NO. 2013013450 vw a 2014002084 GRACE MANOR AT LAKE MORTON, LLC, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint : against the Respondent, Grace Manor at Lake Morton, LLC (“Respondent”), pursuant to Sections 120,569 and 120.87, Fla. Stat. (2013), and alleges: ‘This is an action against an assisted living facility (“ALF”) to impose a $2,000 fine for one State Class Il violation (Count 1) and a $ 1,000 fine for an uncorrected State Class TI violation (Count I). SS “JURISDICTIONAND VENUE ss— 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and Chapters 408, Part II, and 429, Part I, Fla. Stat. (2013). 2, Venue lies pursuant to Florida Administrative Code (“F.A.C.”) Rule 28-106.207. 1 EXHIBIT - 1 a oemec eae rena nipnpintetineccpinat: tty uinepiman menttinie manent pasa pammemnat ety arr sec nmmpematest ean neem at tt CT BE PARTIES 3. The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of all applicable State statutes and rules governing ALFs pursuant to Chapters 408, Part IL, and 429, Part ], Fla, Stat., and Chapter 58A-5, F.A.C., respectively. 4,, Respondent operates a 50 bed ALF at 610 East Lime St, Lakeland, FL 33801, Standard license #5217. 5, Respondent was at all times material hereto.a licensed facility under the licensing authority of the Agency and was required to comply with all applicable rules and statutes, COUNT I - $2,000 CLASS I FINE (Case No. 2013013450; State Tag A0030: Resident Care - Rights & Facility Procedures) 6 The Agency re-alleges and incorporates paragraphs 1-5 asif fully set forth herein. 7. The Agency’s surveyor conducted an unannounced complaint investigation (CCR 2013008974) on 8 October, 2013, 8. The surveyor learned this information during the survey: _-a,-Based_on interviews and-a-record-reviews, the facility failed-to ensure that Resident #1,-an-85-—— Sanne year old man, with received appropriate medical care in a timely manner which led to delayed medical care and extreme continual pain. b. Phone interview with Staff ‘A’, a former med tech/caregiver, on 10/9/13 at about 4:40 pm. She stated that the last night that Resident #1 was sent to the hospital, Staff “B’ (another - ‘categiver) and she were working, They did their final rounds. Resident #1 came.out about 10:30 - i 11:30 pm and complained about a burning, like a hot rod was in his eye. She called the resident care coordinator (RCC) and told her what was going on. She asked the RCC if she could give him a i brand name medication for Acetaminophen that he had scheduled for later in the moming. The RCC said Staff “A? wasn't supposed to but she could just this one time. Staff ‘A stated Resident #1 was hurting. She could tell he was in pain by his demeanor, About 11:30 to 12:30 am he started vomiting when he was in the recliner. He. was in the recliner so they could keep an eye on him. She called the RCC again and she said just keep an eye on him and she would deal with him in the morning. The RCC told Staff ‘A’ that she knew the family would be upset if they sent him out because he had done this thing before. At 12:30 to 1:30 am it got worse and his breathing got worse, He was breathing funny. His vitals were going crazy. His blood pressure was 200 and something over 100 and something. His pulse was fast and oxygen saturation was low. His breathing was irregular. She called the RCC again and she said to call the home health company. The guy she spoke to at home health asked why did he need to come and she explained the situation and the vitals. He stated based on Resident #1's vitals he should be sent out to the hospital. She called the RCC again and told her what home health said and the RCC said "no " , to not send him out and she would deal with him in the morning. At 1:30 to 2:30 am he was panic screaming (like yelling). He said now I know what it feels like to die alone. He already had problems:with his left eye and it was white and lie could not see out of it but he.could see out of his tight eye. However, then he complained that he could not see ~ ~ them and they were Fight in front of him. She called the RCC again and she responded again that she - would deal with him in the moming. At 3:30 am he was puking but she could hear it gurgling back in his hings. He was.aspirating. She called the RCC and told her that she was sending this man out even if she had to be written up. He was throwing up and now he‘is aspirating. She stated OK do started to move him onto the stretcher. He couldn't stand. He had a stroke. Emergency medical services (EMS) and the emergency room doctor asked her why the resident was not sent to the hospital earlier, A friend who worked at the facility told her the next day that Resident #1 died at 6:45 am. c Phone interview with Staff ‘B’,a med tech/caregiver, on 10/9/13 at approximately 5:40 “am. She reported that on the night of the incident at 11:00 pm, Resident #1 complained that his eye hurt and he had a bad headache, Staff ‘A’ called the RCC and she said to go ahead and give the brand name medication for Acetaminophen he had scheduled at.some point during the next morning, In an hour he stated it was getting worse. Staff ‘A’ called the RCC and she stated he did this before and to keep an eye on him, They sat with Resident #1 throughout the night in the living room in front. Resident #1 would freak out if he could not see them. He stated he could not see them and they were right in front of his face. He said to please not leave him because he did not want to die alone. Staff ‘A’ called again and finally got permission to call 911 from the RCC about 2:00 to 3:00 am. Paramedics asked if leaning to the side was normal for him and they told them it was not normal. They asked if his face drooping was:normal and they said, "no." They did a stress test and he was weaker on one side. He fell to the'side when they stood him up and stated they thought he had a stroke when they took him out:on a stretcher. Staff ‘B’ stated she felt like Resident #1 should have went out to the hospital the first time Staff ‘“ called the RCC. Resident #1 stated he felt like a hot rod was stabbing through his eye. It was not normal for him to come out of his room and complain d. Interview with the RCC about Resident #1 on 10/8/13 at about 2:15 pm. She stated that Staff ‘A’ called her orice for Resident #1's headache and she asked Staff ‘A’ if he had anything she could give him for pain and Staff ‘A’ said a brand name medication for Acetaminophen. The RCC said, " well give him that." Staff‘A’ called back later and stated he was throwing up and she told Staff‘ A” to send him to the hospital. It started about 1:00 am and she did not know how long in between before Staff ‘A’ called the second time. She stated she did not remember exact times “because it happened almost a year ago. 7 San et ecngioeeanygmeninepe bier see mane nt egress nemsmmn enue on Sibuset einer arsine ' i t ; @. Review of the EMS report dated 4/30/13. It indicated that the stroke alert was called at 3:28 am and Resident #1 arrived at the hospital at 3:43 am. ) f. Review of the hospital Emergency Department Note - Phiysician final report dated 4/30/13. It noted that the physician spoke directly to the staff at the facility and was told that at 11:00 pm or so Resident #1 had severe pain behind his right eye. He walked out to the nursing — station to request help. Resident #1 sat down in a chair near the nutsing station and stayed there for the next few hours. Somewhere between 3:00 and 3:15 am Resident #1 became less responsive and vomited and developed slurred speech. Facility staff did not notice left sided weakness. At the hospital Resident #1 was diagnosed with intracerebral hemorrhage (a type of stroke where an artery bursts in the brain and causes bleeding in the brain). g. Death. The hospital death record indicated that the resident died at 7:25 am on 4/30/13. h. Interview with the RCC on 10/8/13 at about 2:40 pm. Stafflet them know if residents-are sick and then they contact the nurse (a home health nurse because the facility has no nursés) and she comes to evaluate. If the nutse states they need-to go out to hospital then they send them. If it's night time staff call her (the RCC) and then the nurse is called and the nurse still comes to assess. They and the nurse might say to go ahead and send out. i. Interview with the executive director (ED). The ED revealed that Resident #1 's family was adamant about not sending him out to the hospital (not specifically talking about this event, but Previous ones). ; . _ j. Review of the hospital Emergency Department Note ~ Nursing final report dated 4/30/13. It revealed that EMS reported that the family was not thrilled with the idea of the resident being transported to the hospital. cde esate aspen era ety tatoo so tenn tnsennnenntammpanma aea i i 1 i i i i | | | k. Review of the facility's medical emergencies policy. It was located on page 93 and 94 of its Assisted Living Policy and Procedure Manual. Section 1 indicated that the administrator should be. contacted immediately and section 2 indicated that the administrator makes the determination of the severity of the situation. Section 3 indicated that the community summons emergency medical services by calling 911 when the resident exhibits signs and symptoms of distress and /or emergency : condition, One example included was sudden onset of severe pain. Resident #1 had indicated to staff that he felt like a hot rod was stabbing through his eye but medical care was still delayed for hours. 9. Florida’s law regatding residents having the right to a safe and decent living environment free from abuse and neglect is stated as follows: B r : ; i 429.28 Resident bill of rights.— . (1) No resident of a facility shall be deprived of any civil or legal rights, | ‘ benefits, or privileges. guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States.as a resident of a facility. Every resident of a facility shall have the right to: (a) Live ina safe and decent living environment, free from abuse and neglect. Section 429.28, Fla. Stat. (2013) 10. In sum, the facility failed to ensure that Resident #1 was free from neglect, to wit, he did not __ receive timely and appropriate medical care which led to extreme continual pain because he first alerted staff between the 10:30 to 11:30 pm time frame on.4/29/13 that he was in extreme pain but, despite his, e. g., repeated complaints of extreme pain, panic yelling, expressing his fear of dying alone, vomiting, lack of vision, crazy vitals, aspirating, leaning to the side and drooping face, 911 was not notified until about 3:30 atv the next iiditiing, an inappropriate delay of several hours. 11. Respondent was cited fora Class Il violation, defined as follows: 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be _ Classified according to the nature of the violation and the gravity of its probable effect on clients. .» Violations shall be classified:on the written notice as follows: (b) Class “II” violations are those conditions or‘oceurrences related to the operation and maintenance of a provider or to the care of clients which the agency _ determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A’fine shall be levied notwithstanding the correction of the violation. Section 408.813, Fla, Stat. (2013) 12. Florida-law states as follows as regards the fine for an ALF for a Class II violation: 429.19 Violations; imposition of administrative fines; grounds.— (1) In addition to the requirements of part II of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the actions of any person subject to level 2 background screening under s. 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. (2) Each violation of this part and adopted rules shall be classified ‘according to the nature of the violation and the gravity of its probable efféct on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: {b) Class “II” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation i inan n amount not less than $1,000 and een HOE ENCE $5,000 Lor CAC Via data (3) For purposes of this section, in determining if a penalty is.to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: (a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated. (b) Actions taken by the owner or administrator to correct violations. “~(e) ~~ Any previous violations: d)- The financial benefit to the facility of committing or continuing the violation, (e) The licensed capacity of the facility. Section 429.19, Fla. Stat, (2013) smear mre erin nites teins ingest cnn ee ne ene WHEREFORE, the Agency intends to-impose a $2,000 fine agninst Respondent pursuant to Sections 408.813 and 429, 19, Fla, Stat. (2013). COUNT Il - $1,000 UNCORRECTED CLASS III FINE (Case No. 2014002084; State Tag A0010 — Admissions —-Continued Residency) 13. The Agency re-alleges and incorporates paragraphs | - 5 as if fully set forth herein. fa survey - 11/21/13 (paras 14 —19) 14. A complaint investigation (CCR#2013012071) was conducted on 21 November, 2013. 15. Based upon record review the facility failed to ensure that an interdisciplinary care plan was developed and implemented for Resident #1, an 89 year old female receiving hospice care and services. A 11/21/13 review of her records showed that although she was retained at the facility on | hospice care it failed to develop and implement an interdisciplinary care plan developed by hospice. in coordination with her and/or another responsible party in order to meet her needs. 16. Florida law provides as follows as regards an ALF resident receiving hospice services: 58A-5.0181 Admission Procedures, “Appropriateness “of Placement and Continued Residency Criteria. (4) CONTINUED RESIDENCY. Except as follows in paragtaphs (a) through (e) of this subsection, criteria for continued residency in any licensed facility shall be the same as the criteria for admission. As part of the continued residency criteria, a resident must have a face-to-face medical examination by a licensed health. care provider at least every 3 years after the initial assessment, or after a significant change, whichever comes first. A significant change is defined in Rule 58A-5.0131, F.A.C. The results of the examination must be recorded on AHCA Form 1823, which is incorporated by reference in paragraph (2)(b) of this rule. The form must be completed in accordance with that paragraph. After the effective date of this rule, providers shall have up to 12 months to comply with this requirement. ©) A terminally ill resident who no longer meets the criteria for continued residency may continue to reside in the facility if the following conditions are met: 1. The resident qualifies for, is admitted to, and consents to the services of.a licensed 8 hospice which coordinates and ensures the provision of any additional care and . services that may be needed; 2. Continued residency is agreeable to the resident and the facility; 3, An interdisciplinary care plan is developed and implemented by a licensed hospice in consultation with the facility. Facility staff may provide any nursing service permitted under the facility’s license and total help with the activities of daily living; and : 4. Documentation of the requirements of this paragraph is maintained in the resident's file. Rule 58A-5.0181, F.A.C, | 17. Insum, the facility failed to develop and implement Resident #1’s interdisciplinary plan for hospice care and services. | 18. Petitioner cited Respondent for a Class III violation, defined as follows:. 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients, ~ .,. Violations shall be classified on the written notice as follows: (c) Class “IIT” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which emotional health, safety, or security of clients, other than class J or class II violations. The agency shall impose an administrative fine as provided in this section for a cited class III violation, A citation for a class TII violation must specify the time within which the violation is required tobe corrected, If a class III violation is corrected within the time specified, a fine may not be imposed, Section 408.813, Fla. Stat. (2013) 19. By letter dated 9 December, 2013, Respondent was notified of a mandatory correction date of 30 days from the letter’s 9 December date, to wit, on or about 9 January, 2014. 2% Survey - 1/31/14 (paras 20 - 25) 20. A revisit survey was conducted on 31 January, 2014, to check on the deficiencies cited during 9 the first survey on 21 November, 2013. 21, a, Based upon record review the facility failed to ensure that an interdisciplinary care plan was developed and implemented for resident #1, an 89 year old female receiving hospice care and services, . b. An 11/21/13 review of Resident #1’s records showed that although she was retained at the facility on hospice care it failed to develop and implement an interdisciplinary care plan with, hospice in coordination with her and/or another responsible party to meet her needs. c. During the revisit survey an interdisciplinary care plan was still not available for her. The facility had a hospice ‘Interdisciplinary Care Plans’ form which was a blank form with the words "Interdiciplinary Care Plans" hand written at the top of the page labeled as a "HHA Plan of Care and Note", The rest of the page corisisted of a check list to indicate the information for all areas pertaining to pain level, mental status, bathing, grooming, dressing, nutrition, activity tolerance and transfer. In sum, the form was empty in content and did not meet the intent of the requirement. d. During a staff interview the surveyor determined that they did not have a good discussion that they were going to develop their own form for this purpose. 22. Insum, the facility failed to correct the prior deficiency by still not having developed and implemented the required interdisciplinary care plan for Resident #1 who was still receiving hospice care and services. 23. Florida law regarding an ALF resident receiving hospice services is cited in paragraph 16. 24. Petitioner cited Respondent for a Class III violation, defined in paragraph 18. 10 25. The'same constitutes an uncorrected Class III violation with the fine determined as follows: WHEREFORE, the Agency intends to impose a $1,000 fine against Respondent, an ALF 429,19 - Violations; imposition of adminisirative fines; grounds.— (1) Inaddition to the requirements of part II of chapter 408, the agency “shall impose an administrative fine in the manner provided:in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility ... - (2) Each violation of this part:and adopted rules shall be classified - according to the nature of the violation and the gravity ofits probable: effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: (c) Class “III” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class III violation in an amount not less than $500 and not exceeding $1,000 for each violation. Section 429.19, Fla. Stat. (2012) in the State of Florida, pursuant to § 429,19 (2) (c), Fla. Stat. (2013). +k Submitted this @ day of April, 2014. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION 525 Mirror Lake Dr. N., Ste 330 Ph: (727) 552-1942 Fax: -1440 david.selby@ahca.myflorida.com _ By: z Q Edwin D. Selby Assistant General Counsel Fla. Bar No, 262587 41 | | i | 4 Le i j H 4 / L i : i L i f i f St Petersburg, FL 33701 5 i t i * : i i | i
The Issue Whether the Respondent, Shibor Group, Inc., d/b/a Abundant Life ALF (Respondent or Abundant Life), committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed. The Petitioner, Agency for Health Care Administration (Petitioner or AHCA) asserts an administrative fine in the amount of $1,313.00 ($1,000.00 fine and $313.00 survey fee) should be imposed in this matter.
Findings Of Fact The Petitioner is the state agency charged with the authority to regulate and administer laws regarding the operation of assisted living facilities (ALF) within the State of Florida. This authority extends to all matters governed by or complained of in this case. The Respondent operates a six-bed ALF located at 7040 Fillmore Street, Hollywood, Florida. Abundant Life is licensed and is subject to all laws governing the operation of ALFs within the State of Florida. In accordance with Florida law, the Respondent is required to maintain records at its facility so that duly authorized persons from the Petitioner can review the records to assure compliance with the various regulations and rules governing the operation of ALFs. An administrator of an ALF is charged with knowing the pertinent laws and with maintaining the appropriate records to show compliance with such rules and regulations. Sherifat Orukotan is the administrator of the Abundant Life facility in this case. Generally speaking there are two types of surveys performed at an ALF. “Survey” is another word for “inspection” or “investigation.” The first type of survey is a routine review of the facility and a verification of its records to assure compliance with law. These surveys are performed on a scheduled basis for purposes of licensure or relicensure. Typically, before a renewal of a license, the facility is “surveyed.” The Respondent pursues a second type of survey when it receives a complaint regarding the licensed facility. The complaint causes a health facility evaluator to be directed to the licensed facility to review the complaint in the context of the operation of the home. In this case, both of these types of surveys were involved. On February 23, 2004, Mr. Sanders conducted a complaint survey at the facility. This matter involved an 84- year-old resident at Abundant Life who had received a notice on February 12, 2004, that directed her to leave the facility. The notice to this resident provided, in pertinent part, “You are here by given 30days to leave the facility, Starting from 02-12-04.” (Errors in original.) The subject resident required the highest level of care in that she needed assistance with all activities of daily living. She also suffered from an altered mental status that meant supervision and assistance were required. At the time of the survey, Ms. Orukotan was advised that the pertinent provisions of Florida law require a minimum of 45 days' notice to a resident who is being requested to vacate. Ms. Orukotan did not acknowledge knowing the 45-day requirement. The contract forms used by Ms. Orukotan represented a resident would only be provided with 30 days' notice. As a result of the surveyor’s findings regarding this resident, the Respondent was given until March 24, 2004, to correct the violation found on February 23, 2004. When Mr. Sanders did the follow up survey, the Respondent had corrected the problem by extending another 15 days to the resident so that a total of 45 days notice was provided. On December 22, 2004, Mr. Sanders responded to the Respondent in connection with another complaint. This complaint dealt with another resident. The resident, a 62-year-old male stroke victim, was scheduled to leave the facility on December 19, 2004. The resident had paid for accommodations through that date. On December 14, 2004, however, Ms. Orukotan had locked the resident out of the facility. Due to a dispute with the resident over expenses that were claimed to be owed, the administrator did not want the resident to come back into the home. As it happened, the resident’s girlfriend had come to the facility on December 14, 2004, and picked him up. At that time, according to the chart notes for the resident, Ms. Orukotan told the girlfriend she would not let the man back in unless the facility received additional payment. Ms. Orukotan gave the girlfriend the man’s medications and refused to open the door for him when they returned to the home at around 7:15 p.m. Only after police came to the scene did Ms. Orukotan relent and let the resident back into the home. When Mr. Sanders met with Ms. Orukotan regarding the incident, she provided the chart notes that chronicled the events as outlined above. (See Petitioner’s Ex. 6) As a result, Mr. Sanders cited the Respondent for a repeat violation, as he deemed this situation the same as the February 23, 2004, incident. A 45-day notice had not been provided to the resident. This was the second time the Respondent had failed to provide a resident with sufficient notice to vacate. Both of the citations regarding the 45-day notice issue were given as Class III violations. The Petitioner maintains that failure to provide the requisite notice may put a resident at risk for physical or emotional injury. Generally speaking, residents of ALFs are there because they are frail or unable to meet all of their daily living needs without assistance. A discharged resident without appropriate accommodations cannot provide for him or herself. Many residents are elderly or, like the second resident in this case, require assistance while they recover from a medical event. Finding a proper place to reside under these circumstances can prove difficult. The 45-day requirement is to assure that sufficient time is given to the relocating resident. Persons who work in ALFs must be free from tuberculosis (TB). Tuberculosis is a highly communicable disease that is very serious, especially to frail or at-risk populations. In order to diagnose whether or not someone has TB, a person must have some medical evaluation. The most common test for TB is a skin screening. This “TB skin test” is routinely administered and is considered a credible proof of whether a person should be considered a health risk. Unfortunately, the TB skin test does not work, or is inadequate, to provide a credible medical response if the person taking the skin test has ever received a BCG vaccine. The BCG vaccine causes a person to register a false positive on the TB skin test. Accordingly, only a chest X-ray or a sputum test (not relevant to the instant case) could rule out TB under that situation. In this case, because Ms. Orukotan had received a BCG vaccine at some point in her history, she was required to present evidence of a chest X-ray to establish that she was TB-free. In order for Ms. Orukotan’s doctor to document annually that she is free from TB, the administrator must have a chest X-ray every year. This requirement is known to Ms. Orukotan because she had been cited for (and had corrected) this deficiency prior to January 11, 2005. On January 11, 2005, Mr. Sanders requested the valid annual documentation showing that Ms. Orukotan was free from TB. At that time the only report provided to him was a statement from Dr. Siegel that stated Ms. Orukotan was free from “communicable disease.” Ms. Orukotan had not had a chest X-ray within a year of the January 11, 2005, survey date. On January 11, 2005, the administrator did not have any documentation that stated she was free from TB on any date within a year of that time. On January 14, 2005, Ms. Orukotan obtained a TB screening and chest X-ray from Dr. Siegel to document she was free from TB. This documentation was provided to AHCA on the follow-up survey date. Based upon her prompt response, the deficiency cited was deemed corrected. A chest X-ray is not valid for two years to rule out TB. On January 11, 2005, Ms. Orukotan had not had a chest X-ray within two years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order against the Respondent that imposes an administrative fine in the amount of $1000.00 for the repeated Class III violations and a survey fee that equals the lesser of one half of the facility's biennial license and bed fee or $500.00. S DONE AND ENTERED this 11th day of April, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2006. COPIES FURNISHED: Sherifat J. Orukotan Shibor Group, Inc. 6641 Southwest 8th Street Pembroke Pines, Florida 33023 Lourdes Naranjo, Esquire Agency for Health Care Administration Spokane Building, Suite 103 8350 Northwest 52nd Street Miami, Florida 33166 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Christa Calamas, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether the Respondent’s group home license issued by the Agency for Persons with Disabilities (APD) should be revoked or otherwise disciplined on charges stated in an Administrative Complaint, APD License 5604-6GA.
Findings Of Fact The Respondent, Aspiring Ambitions, LLC, is owned and operated by Tanya Warren. The Respondent holds APD license 5604- 6GA to operate a group home for developmentally disabled residents on Spillers Avenue in Tampa. The license was issued in April 2017 and had no prior incidents of any kind until September 2017. Tanesha Clarke3/ was listed on the Respondent’s license application as a “director,” but the evidence was that Ms. Clarke was not an owner or director, but rather an employee providing direct care to residents and performing some additional duties for the Respondent. Count I On September 12, 2017, Ms. Clarke and another employee of the Respondent were on duty at the Spillers Avenue home. Ms. Clarke became frustrated when H.B., a resident in the home, urinated on the floor and couch. In her frustration, Ms. Clarke struck and kicked H.B., who was defenseless due to his disability. The other employee on duty did not immediately call the abuse hotline or report the incident to Ms. Warren. The next day, the incident was reported via the abuse hotline. The identity of the reporter is confidential by statute. It was not Ms. Warren, who still did not know about the incident. A sheriff’s office child protective investigator responded to the group home to investigate on behalf of the Department of Children and Families (DCF). It was quickly established that Ms. Clarke had physically abused H.B., and she was arrested. Ms. Warren could not be contacted immediately, and APD sent a licensing specialist to the home to help take care of the residents in Ms. Clarke’s absence until Ms. Warren arrived about 20 minutes later. Ms. Warren fully cooperated with the investigation. She denied having any reason to be concerned that Ms. Clarke would abuse a resident. Two of the three other staff interviewed, plus a social worker who provided services to residents of the group home, also denied ever seeing Ms. Clarke behave in an abusive manner towards a resident and denied having any reason to be concerned that Ms. Clarke would abuse a resident. The staff member who was on duty with Ms. Clarke on September 12, 2017, stated that she had seen similar behavior by Ms. Clarke previously but did not report it to Ms. Warren or to anyone else. The investigation verified the abuse by Ms. Clarke, and APD licensing explained to Ms. Warren that her license would be in jeopardy if Ms. Clarke continued to work at the group home. Ms. Warren understood and fired Ms. Clarke. Ms. Warren also provided additional in-service training to the rest of her staff on the Respondent’s zero tolerance for abuse and on what to do and how to report incidents of abuse against residents of the facility. No further follow-up by the child protective team was deemed necessary. Count II On November 24, 2017, which was the Friday after Thanksgiving, a resident of the Spillers Avenue group home bit another resident, A.S., on the shoulder. The bite was fairly severe and resulted in a red bite mark. On that evening, there were five residents and only one direct care employee at the home. A second employee who was scheduled to work that evening called in sick and arrangements were not made to replace the sick employee for the evening. Because of their disabilities, the Respondent’s residents that evening were considered in moderate need of supervision, and two direct care employees were required to be on duty to meet staffing requirements. The Respondent’s employee on duty that evening noticed the bite mark while bathing A.S. and made a record of it in the home’s log. She did not call the abuse hotline or report the incident to Ms. Warren. The employee, who had been working for the Respondent for a few months, had not been trained on the policy of zero tolerance for abuse, including what to do and how to report in the event of an incident causing injury to a resident. On the following Monday, A.S. went to school, where the bite mark was noticed, and A.S. was seen and treated by a physician. The physician reported the abuse, and a DCF investigation was opened. At first, it was not clear how or when the bite was inflicted. Ms. Warren was contacted and fully cooperated. She discovered the bite incident entry in the home’s log, and the investigation was converted to an investigation of the Respondent. The DCF investigation was closed as substantiated for inadequate supervision by the Respondent (i.e., Ms. Warren) for two reasons: first, inadequate staffing; and, second, inadequate training of staff on what to do and how to report in the event of an incident causing injury to a resident. No findings were made against the employee on duty at the time of the bite incident because she had not been trained adequately, which was the responsibility of the Respondent (i.e., Ms. Warren). In response to the incident, Ms. Warren expressed her intention to ensure proper staffing and to train staff on the policy of zero tolerance of abuse, including what to do and how to report in the event of an incident causing injury to a resident. On follow-up by APD on December 27, 2017, it was determined that staffing was correct, the required zero tolerance training had been delivered, and there were “no other concerns at this time.” Count III In December 2017, APD conducted an annual licensing survey of the Respondent’s group home. It was determined that there was a broken window in one of the bedrooms. The Respondent had the window fixed before the follow-up inspection in January 2018. Shortly before (perhaps the night before or morning of) the re-inspection, a resident broke the window again, punching it completely out this time. When the inspector arrived, the bedroom was cold (well below 68 degrees Fahrenheit), as the temperature had gone down into the 30s overnight. Ms. Warren promptly had the window fixed again. The Respondent did all that could reasonably be expected under the circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that APD enter a final order dismissing Counts I and III, finding the Respondent guilty under Count II, and fining the Respondent $1,000. DONE AND ENTERED this 20th day of August, 2018, 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 20th day of August, 2018.
The Issue Did Cristal commit deficient practices as cited in the Notice of Intent to Deny for Renewal Application justifying denial of its application for license renewal? May the Agency impose administrative fines and assess survey fees against Cristal for violations alleged in the Administrative Complaint that are proven? If so, what amount should the fines and fees be?
Findings Of Fact Agency for Health Care Administration The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of the statutes governing ALFs, codified in chapter 429, part I, and 408, part II, Florida Statutes, as well as the related rules in Florida Administrative Code chapters 58A-5 and 59A-35.3 The Agency conducts biennial inspections (commonly referred to as surveys) of ALFs to determine compliance with the regulatory requirements. § 408.811(1)(b), Fla. Stat. The Agency may also perform surveys to investigate complaints. Regardless of the catalyst for a survey, Agency surveyors document any non- compliance found in a Statement of Deficiencies upon completing the survey. Deficiencies are cited by a “tag” that describes the deficiency and is supposed to establish a correction period. The tag is a numeric or alpha-numeric identifier of the regulatory standard found deficient. "A deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is required or approved by the agency." § 408.811(4), Fla. Stat. A: I do believe that, yes. (Tr. Vol. IV, p. 273). 3 Unless otherwise noted, citations to Florida Statutes are to the 2018 codification, and citations to rules in Florida Administrative Code are to the 2018 versions. The rules were recently transferred to other chapters. There are no material differences between the 2017 and 2018 versions of the statutes and rules. Deficiencies must be categorized as Class I, Class II, Class III, Class IV, or unclassified deficiencies. § 408.813(2), Fla. Stat. In general, the class correlates to the nature and gravity of the deficiency. Class I violations present an imminent danger to residents. Providers must abate or eliminate Class I violations within 24 hours unless the Agency sets a different period. The law requires the Agency to impose a fine for Class I violations, even if they are corrected. § 408.813(2)(a), Fla. Stat. Class II violations directly threaten the health, safety, or security of residents. The Agency must levy a fine for a Class II violation even if it is corrected. § 408.813(2)(b), Fla. Stat. Class III violations indirectly or potentially pose a threat to the health, safety, or security of residents. An Agency citation for a Class III violation must specify the time within which the violation must be corrected. If a provider timely corrects a Class III violation, the Agency may not impose a fine. § 408.813(2)(c), Fla. Stat. Class IV violations do not threaten the health, safety, or security of residents. An Agency citation for a Class IV violation must specify the time within which the violation must be corrected. If a provider timely corrects a Class IV violation, the Agency may not impose a fine. § 408.813(2)(d), Fla. Stat. Cristal Palace Resort PB, LLC Cristal was, at all material times, an ALF in Palm Bay, Florida, operating under the Agency's licensing authority. Cristal's license authorized it to operate a 252-bed facility. Cristal was required to comply with all applicable statutes and rules. The Agency first licensed Cristal, located in a former hotel, to operate as a 252-bed ALF in May 2015. Cristal's license authorizes extended congregate care services, a higher level of services than under a standard ALF license. ALF licenses are valid for two years. Cristal applied to renew its ALF license with the extended congregate care specialty licensure. Nuri Dorra owns Cristal Palace. In his home country, Mr. Dorra is an architect. During a few periods of time, he served as Cristal Palace's administrator. Mr. Dorra has completed the training required to serve in that position. During the time period relevant to this matter, Cristal's census ranged from the mid-forties to the high fifties. Observations on Surveys, Notices of Deficiency, and Hearsay4 This dispute involves charges arising from four surveys conducted by the Agency. Referred to by the last day of the survey period, they are the May 10, 2017, survey; the July 13, 2017, survey; the September 14, 2018, survey; and the December 5, 2018, survey. Several surveyors participated in each survey. The surveyors created 30 documents referred to as Statements of Deficiency or surveyors' notes. (Agency Exs. 124 through154). All of them have two or more Agency employee names on them. The persuasive evidence does not prove who authored which part of most of the documents. Some witnesses testified about specific documents and statements in the documents. But in many cases they did not testify about or identify the specific portions of the documents that they authored. All of the surveyor notes and Statements of Deficiencies are hearsay accounts of what people told surveyors, descriptions of documents that surveyors read, and conditions surveyors observed. Often, the statements in the documents and in the testimony are vague and lacking detail about the circumstances in which the surveyor gathered the information. This undermines credibility and persuasiveness. The undersigned reminded the parties during the hearing of section 120.57(1)(c) and its prohibition against basing findings of fact solely upon hearsay unless it would be admissible over objection in civil actions. (Tr. Vol. I, p 24; v. II, p. 404; vol. IV, p. 661). Hearsay evidence is admissible to supplement or to explain other evidence. It is not sufficient alone to support a finding of fact, unless it would be admissible over objection in a civil action. Wark v. Home Shopping Club, 715 So. 2d 323, 324 (Fla. 2d 4 This part of the Conclusions of Law is placed here to illuminate the reasoning leading to many of the factual findings that follow. Much of Cristal's evidence suffers from the same hearsay issues. DCA 1998); See also Bellsouth Advert. & Publ'g Corp. v. Unemployment Appeals Comm'n, 654 So. 2d 292 (Fla. 5th DCA 1995). Out-of-court statements of testifying witnesses remain hearsay. Most hearsay issues involve an out-of-court statement that was made by one person and subsequently related in court during the testimony of another person. However, an extrajudicial statement made by the same person who is testifying also falls within the definition of hearsay. See Kenneth S. Broun, McCormick on Evidence § 251 (6th ed. 2006). The fact that the opposing party has an opportunity to cross-examine the witness about the prior statement does not remove the statement from the classification of hearsay. Powell v. State, 99 So. 3d 570, 573 (Fla. 1st DCA 2012). The only hearsay exception that might apply to the survey notes and Statements of Deficiencies is the public records exception of section 90.803(8), Florida Statutes. Proving that this exception applies requires establishing a predicate. That includes proving the documents set forth matters observed pursuant to duty imposed by law as to which matters there was a duty to report. For the most part, the survey notes are the joint work product of several surveyors. For most of the notes there is no persuasive evidence proving who authored which part of the documents. Many of the documents also recount and rely upon statements made by either residents or staff of Cristal. A hearsay statement that includes another hearsay statement is admissible only when both statements conform to the requirements of a hearsay exception. Juste v. Dep't of Health & Rehab. Servs., 520 So. 2d 69 (Fla. 1st DCA 1988); Harris v. Game & Fresh Water Fish Comm'n., 495 So. 2d 806 (Fla. 1st DCA 1986). The public records exception does not include factual findings of an investigation. Lee v. Dep't of Health & Rehabilitative Servs., Fla. 698 So. 2d 1194, 1200 (Fla. 1997). In the facts of this case, the AHCA surveyors were conducting an investigation after the first effort to revoke or deny Cristal's license failed. This was no routine re-licensure exercise. The surveys were inextricably bound up with a complaint investigation. For this reason too, the survey notes and deficiency findings do not satisfy the hearsay exception. Also, the predicate for admission under the exception requires proof of who prepared the record and that the person who prepared it personally observed the events described. Kimbrough v. State, 852 So. 2d 335, 336 (Fla. 5th DCA 2003). For many of the surveys and statements of deficiency, due to the documents having multiple authors, the Agency did not establish the required predicate. For these reasons, no findings of fact are based solely upon matters described in the surveyor notes or statements of deficiencies. See Carter v. State, 951 So. 2d 939, 943 (Fla. 4th DCA 2007); Reichenberg v. Davis, 846 So. 2d 1233 (Fla. 5th DCA 2003); Scott v. Dep't of Prof'l Reg., 603 So. 2d 519 (Fla. 1st DCA 1992). Investigative reports, including the Statements of Deficiency and survey notes here, present another evidential problem. Much of the information recited in them is gathered from other sources, not the personal observations of the author. They also often include or depend upon hearsay. Rivera v. Bd. of Trs. of Tampa's Gen. Emp't Ret. Fund, 189 So. 3d 207, 213 (Fla. 2d DCA 2016). Application of the hearsay rule is no mere legal technicality. The hearsay rule is one of the oldest and most effective means of ensuring decisions that determine people's lives and fortunes are based on reliable information. The Fifth District Court of Appeal described the importance of the rule as follows: Rules governing the admissibility of hearsay may cause inconvenience and complication in the presentment of evidence but the essence of the hearsay rule is the requirement that testimonial assertions shall be subjected to the test of cross examination. 5 Wigmore on Evidence, § 1362 (Chadbourne Rev. 1974). As stated by Professor Wigmore, the hearsay rule is "that most characteristic rule of the Anglo-American law of evidence -- a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world's methods of procedure." 5 Wigmore on Evidence, at § 1364. Dollar v. State, 685 So. 2d 901, 903 (Fla. 5th DCA 1996). Survey Ending May 10, 2017 Tag 8 – Residents 9 and 14 – Alleged violations of rule 58A-5.0181(2) and section 429.26(4)-(6): The rule establishes admission criteria for an ALF. Facilities document compliance with the criteria by obtaining and maintaining an accurate and complete report of a health assessment of the resident from a licensed health care provider completed within 60 days before admission or within 30 days of admission. This ensures that residents meet specific admission criteria. The health assessment form for Resident 14 did not document the type of assistance the resident required for bathing. The form did not indicate whether the resident had a communicable disease. The form indicated that the resident required 24-hour nursing or psychiatric care. Rule 5A-5.0181(2) provides that residents requiring 24-hour licensed professional mental health treatment do not qualify for admission to an ALF. The form is dated February 2, 2017, more than 60 days before the survey. For this resident, Cristal violated the rule. Section 429.26(4) through (6) imposes similar requirements. The Agency also proved that Cristal violated the statute. The deficient health assessment document for Resident 14 posed an indirect or potential risk to this resident. It is properly classified as a Class III violation. Agency proposed finding of fact 10 said nothing about Resident 9's health assessment form. This charge is deemed abandoned. Tag 53 – Resident 10 – Alleged violation of rule 58A-5.0185(4)(d): The rule requires that a facility performing clinical laboratory tests for residents, including blood glucose testing, must comply with the federal Clinical Laboratory Improvement Amendments of 1988 (CLIA) and chapter 483, Part I, Florida Statutes. The rule further requires the facility to maintain its federal CLIA certificate at the facility. The requirements do not apply if a third party is assisting the resident perform the test. Agency surveyor Robin Williams observed a nurse, Coralie Prince, contracted to serve residents at Cristal, assisting Resident 10 with testing the resident's blood glucose using an Accu-Chek machine. The Agency depends upon hearsay to prove Cristal did not have a CLIA certificate. The Agency did not prove a violation of rule 58A-5.0185(4)(d) by a preponderance of the evidence. Tag 54 – Resident 9 – Alleged violation of rule 58A-5.0185(5): The Agency's PRO, in finding of fact 12, states that Tag 54 asserts a violation of the health assessment rule. It does not. The Tag 54 violations described in the Notice to Deny involve allegations of failure to maintain medication observation records (MORs). Also, rule 5.0185(5), cited in Agency proposed finding of fact 12 governs medication records. The Agency has not identified record evidence to support the tag. Tag 55 – Resident 8 – Alleged violation of rule 58A-5.0185(6): Agency proposed finding of fact 13 asserts this tag charges a violation of the rule's requirement that residents who possess their medications must keep them in a secure place out of sight of other residents. Tag 55 does not. It charges failure to properly handle discontinued medications. The Agency did not identify evidence proving a violation of rule 58A-5.0185(6). Tag 56 – Resident 10 – Alleged violation of rule 58A-5.0185(7): The rule requires that all centrally stored medications that are separated from their original packaging be labeled with the resident's name and the drug's identifying information. Cristal's medication cart contained three separate sets of medication pens containing insulin. None were labeled with a resident's name or drug identity. The labeling requirement is important. Without the label the residents are at risk for receiving the wrong medication. This violation presented an indirect or potential risk to residents. The Agency properly classified it as a Class III violation. Tag 93 – Alleged violation of rule 58A-5.020(2): The rule establishes food service standards. Rule 58A-5.020(2) requires facilities to date and plan menus at least one week in advance, and post them conspicuously or otherwise make them easily available to residents. The facility may substitute items of comparable nutritional value for menu items. Facilities must keep the menus, with substitutions noted, on file for six months. During the survey period Cristal had a menu posted. But it was not dated. Cristal maintained undated menus it called "rolling menus," labeled Week 1, Week 2, Week 3, and Week 4. These are no substitute for dated menus. Unless the first date that the Week 1 menu was served is known and unless there was never a deviation from the sequence, you could not know what food was offered on any date. The rolling menu explanation, also, does not fit the calendar because not all months have four weeks or begin on the same day. The menu for the noon meal served on May 8, 2017, included a tossed salad. Cristal did not offer residents a tossed salad at that meal. The Agency proved the violation. Findings of Fact 168, 169, and 181 in Cristal I also found Cristal violated this rule. Cristal's violation of the rule was an indirect or potential risk to residents properly classified as a Class III offense. Tag 152 – Physical Plant/Safe Living Environment – Alleged violation of rule 58A-5.023(3): among other things the rule requires a facility to provide "a safe living environment pursuant to section 429.28(1)(a), Florida Statutes." Section 429.28(1)(a) says that residents have a right to "[l]ive in a safe and decent living environment, free from abuse and neglect." During the survey period, some facility carpeting was stained and dirty. Decorative borders on walls were scuffed. Some were missing. A witness testified that one posted elevator permit was expired. The expiration date is unknown. The Agency offered no documents or photographs to show the permit was expired. The outdoor pool contained an unidentified dark black liquid. The pool enclosure displayed a sign stating that the pool was closed for maintenance. The indoor pool, which was not closed off, had unidentified white, bubbly particles floating on top. At least one kitchen air conditioning unit was not working during the days of survey. As kitchens usually are, the kitchen was hot. The Agency witness testified the sweating kitchen staff were a food contamination risk. The Agency did not offer evidence to support that assertion. Health inspectors regularly inspected the kitchen and found it satisfactory. The preponderance of the evidence did not prove what caused the carpet stains or how long they had been there. The preponderance of the evidence did not prove what the black fluid was or what the white particles were. In addition the outdoor pool did not put residents at risk because the pool was closed off for repairs. The evidence proved many parts of Cristal were unsightly and needed repair. The Agency did not offer evidence proving the nature or significance of any risks allegedly created by the conditions. It did not prove the unsightly conditions created risks. For example, although Ms. Crawford's notes (AHCA Ex. 116, depo. Ex. 1) indicated that her assignments included observations of mold, the Agency did not offer evidence proving the substance suspected to be mold was mold. A preponderance of the evidence did not persuasively prove that the conditions were unsafe or indecent. Tag 160 – Alleged violation of rule 58A-5.024(1): Rule 58A-5.024(1)(i) requires facilities to have a grievance procedure readily available. Agency Exhibit 124 is the only evidence identified to prove this violation. It is a completed Statement of Deficiencies and Plan of Correction form. It is hearsay. It states that "based on a record review" the facility did not maintain a grievance procedure. The record provides no information about what the "record review" consisted of or what was reviewed. It also states that "the administrator's designee" said she could not locate the grievance log and procedure. Exhibit 124 is hearsay, as is the statement it reports. Furthermore, Agency Exhibit 69 is Cristal's grievance procedure. Tag 30 – Resident 3 – Alleged violation of rule 58A-5.0182(6) and section 429.28(1)-(2): Agency proposed finding of fact 18 claims that the rule requires a facility to give a resident 45 days' notice of intended discharge. The rule does not impose this requirement. Section 429.28(1)(k) does. It requires 45 days' notice of termination of residency, with exceptions including certification by a doctor that the patient requires "emergency relocation to a facility providing a more skilled level of care … ." The Agency relies upon the testimony of Surveyor Vilma Pellot to prove this charge. She testified that Resident 3 was transferred to the hospital because he had blood in his urine. The testimony does not indicate where the witness obtained that information, specifically whether she observed a record or was told the information. Ms. Pellot testified that a representative of Cristal told the hospital's discharge planner that Cristal could not take Resident 3 back because Cristal was not using its extended congregate care license, which would authorize it to provide the resident the care now needed. The information the Agency relies upon to prove the charge depends upon hearsay. The Agency did not prove the violation alleged in Tag 30 as presented in Agency proposed finding of fact 18. Tag 25 and Count I of the Complaint – Residents 1, 4, 5, and 6 – Alleged violations of rule 58A-5.0182(1) and section 429.26(7): The rule requires the facility to provide care and services, including supervision, appropriate for each resident. It also requires a facility to maintain a written record of significant changes in each resident's health. It further requires an ALF to document communications with residents' health care providers and responsible parties about significant changes in a resident's condition. Section 429.26(7) requires a facility to notify a doctor when a resident shows signs of dementia or cognitive impairment or changes that may contribute to dementia or impairment. Section 429.26(7) imposes a similar obligation. Rule 58A-5.0131(32), quoted below, defines "significant change." "Significant Change" means a sudden or major shift in behavior or mood inconsistent with the resident's diagnosis, or a deterioration in health status such as unplanned weight change, stroke, heart condition, enrollment in hospice, or stage 2, 3 or 4 pressure sore. Ordinary day-to-day fluctuations in functioning and behavior, a short-term illness such as a cold, or the gradual deterioration in the ability to carry out the activities of daily living that accompanies the aging process are not considered significant changes. The Agency alleged that Cristal admitted Resident 4 in June 2016 and that Cristal documented that the resident suffered over 20 falls starting the day after admission through February 10, 2017. Thus the falls could not have been a change in condition. They also do not fit within the rule definition of "significant change." In fact, Count I alleges that on the day of admission, the fall risk score was 22 on a scale of zero to 28. Agency proposed finding of fact 19 addresses the claimed violation. It argues Cristal's records lack documents showing any effort to minimize the falls. If proven, the absence of the documentation would not violate the supervision requirements of rule 58A-5.0182(1) or section 429.26(7), even though it may violate other rule and statutory requirements not charged. The Agency did not prove the charged rule and statute violations by a preponderance of the evidence. It did not offer the records into evidence. The cited rule does not require intervention as the Agency argues. The Agency also did not prove the resident showed signs of cognitive impairment or changes that may contribute to dementia or impairment. Tag 25 also alleged that Resident 6 was prescribed an inhaler for use at 9:00 a.m. and that on May 8, 2017, Cristal staff provided the inhaler at 11:30 a.m. The resident was receiving oxygen at the time. The Agency did not prove the charge by non-hearsay evidence. Its proof depends upon a hearsay account of what the resident said. Also the Agency did not prove by a preponderance of the evidence that the inhaler was prescribed for use at 9:00 a.m. Agency proposed finding of fact 19 refers to charged violations of the same rule and statute related to Residents 1 and 5. But it does not address the charges. It does not cite to evidence to support them. Charges related to Residents 1 and 5 are deemed abandoned. Survey Ending July 13, 2017 Tag 8 and Count XV – Residents 4, 7, 11, 19, 21, 22, 24, and 32 – Alleged violations of Rule 58A-5.0181(2) and section 429.26(4)-(6): The rule establishes admission criteria for an ALF. Facilities must document compliance with the criteria by obtaining and maintaining an accurate and complete report on an Agency form of documented health assessment of the resident by a licensed health care provider, completed either 60 days before admission, or within 30 days after admission. This ensures that residents meet specific admission criteria. Rule 58A-5.0181(2)(c) requires a facility to obtain any required information not contained in the assessment within 30 days after admission. Thus proving the date of admission is important to proving violation of the rule. The health assessment for Resident 24 was dated March 30, 2016. The Agency maintains that the resident was admitted to Cristal in July of 2017. The only evidence of the admission date was the testimony of Lorienda Crawford that she "identified this resident was admitted into the facility in July of 2017 … ." There is no document to corroborate this bare assertion or any information, such as an explanation of how Ms. Crawford determined the admission month that would make the statement persuasive. The Agency did not prove Resident 24's admission date by a preponderance of the evidence. Consequently it did not prove the charges in Tag 8 and Count XV for Resident 24. The health assessment form for Resident 22 did not provide the required medical certification identifying the professional who conducted the assessment. The Agency proved the violation alleged by Tag 8 and Count XV for Resident 22. Section 429.26(4) requires a facility to maintain the assessment as a permanent part of each resident's record. Although Cristal had a partially completed assessment for Resident 7, the clear and convincing evidence proved that Cristal did not maintain it as a permanent part of the resident's record. The Agency proved the charges of Tag 8 and Count XV for Resident 7. The violation posed an indirect or potential risk to the resident and is properly classified as a Class III violation. The assessment form for Resident 32 did not contain a response to the section asking if the individual needed help taking medications. There is no proof that Cristal obtained this required information. But the form is dated June 13, 2017. The last day of the survey was 30 days after. In addition the Agency did not prove Resident 32's date of admission. The Agency, therefore, did not prove the charges described in Tag 8 and Count XV for Resident 32. The health assessment for Resident 4 indicated a diagnosis of dementia and described the resident's cognitive or behavioral status as aware with confusion. Yet the form did not contain a response in the area asking if the resident required 24-hour nursing or psychiatric care. This is a deficiency the rule required Cristal to correct within 30 days after admission. The form is dated January 8, 2017. The July 2017 survey dates are well after the 30 days allotted the facility to obtain missing information, even assuming the form was provided at the latest authorized date. The Agency proved the charges of Tag 8 and Count XV for Resident 4. The absence of this information created an indirect or potential risk to residents. The Agency properly classified the offense as a Class III violation. Cristal produced a health assessment form for Resident 7. It was not with the resident's records as required. The form for Resident 7 also did not provide the required medical certification identifying the professional who conducted the assessment. It is also undated. The Agency proved Cristal violated the requirement to maintain the form with Resident 7's records. Although Agency proposed finding of fact 20 asserts Tag 8 and Count XV alleged current health assessment violations for Residents 11, 19, and 21, the Agency does not identify evidence supporting the assertion in its proposed finding of fact 20. The violations related to these residents are deemed abandoned. Tag 53 – Residents 6 and 23 – Alleged violations of rule 58A-5.0185(4): The rule requires a facility to employ or contract with an appropriately licensed individual to be available to administer medication. The Agency's proof relies upon hearsay. It did not prove the violation as to either resident. 56. Tag 54 – Residents 3, 6, 8, 9, 12, 14, 16, 24, 25, 26, 27, and 28 – Alleged violations of rule 58A-5.0185(5): The rule requires ALFs to maintain up-to-date MORs for all residents receiving assistance with medication. Several residents' MORs did not document compliance with medication administration directions. The MORs for Residents 24, 25, 26, 27, and 28 stated that administration of medication was to be observed. The MORs did not document observation of the administration of several medications on several days. For Resident 16, the MOR did not indicate whether Donepezil was administered on the 11th of the month as prescribed. For Resident 9, the MOR did not indicate whether Lisinopril was administered on the 9th and l0th of the month. For Resident 14, the MOR indicated that the medication Lorazepam was administered three times. But only one dose was absent from the medication container. Resident 3's MOR was blank for two doses of potassium. Resident 8's MOR was blank for one dose of aspirin. Resident 12's medication record was blank for nine doses of Levothyroxine. Cristal asserted the missing documentation was due to Cristal's transition to an electronic record system. The facility's obligation to maintain records and the resident's need for accurate records is not abated by a change in recordkeeping systems. These multiple violations were indirect or potential risks to residents. The Agency properly classified them as Class III violations. Tag 55 and Count XVII – Residents 33, 36, 37, 38, and 39 – Alleged violations of rule 58A-5.0185(6): The rule imposes medication storage and disposal requirements. It requires that a facility give unused medications to residents at discharge unless, after receiving notice, the resident abandons the medications by inaction. The Agency asserts that, when Cristal changed pharmacies, Cristal allowed medications of the discharged Residents 33, 36, 37, 38, and 39, to be removed and donated to a "third-party charity." The Agency further asserts that Cristal did not obtain resident consent to dispose of the medications. To prove the rule-required elements, the Agency needed to prove that the residents were discharged and that the medications were not offered to them. The Agency evidence is a mélange of "observation of medications, record review, and interview." The Agency's evidence depends upon hearsay and provides insufficient detail to make the vague descriptions of "record review" and "interview" persuasive. The "interview" references mean that unknown parts of the factual statements come from hearsay. The credible persuasive evidence is not sufficient to prove the Agency's claims by a preponderance of the evidence. Tag 56 and Count XIII – Resident 19 – Alleged violation of rule 58A-5.0185(7): Rule 58A-5.0185(7) governs medication labeling and orders. Rule 58A-5.0185(7)(c) states: If the directions for [medication] use are "as needed" or "as directed," the health care provider must be contacted and requested to provide revised instructions. For an "as needed" prescription, the circumstances under which it would be appropriate for the resident to request the medication and any limitations must be specified; for example, "as needed for pain, not to exceed 4 tablets per day." The revised instructions, including the date they were obtained from the health care provider and the signature of the staff who obtained them, must be noted in the medication record, or a revised label must be obtained from the pharmacist. The Agency maintains that Resident 19 had several "as needed" prescriptions which did not specify the circumstances in which administration of the medications would be appropriate and that Cristal did not obtain revised instructions to correct the deficiency. The evidence offered to support this charge is general testimony, without detail, such as identification of what records the witness reviewed. A representative example follows. "That Resident No. 19 has several medications of the prescription already [sic] as p.r.n., as needed." Asked in a broad and general way if she was able to find "any orders regarding the as-needed medication," the witness replied "I did not." (Tr. Vol. III, p. 497). The Agency did not prove the charged violation by a preponderance of the evidence. Tag 93 – Food Service – Alleged violation of rule 58A-5.020(2): The rule establishes food service standards. Rule 58A-5.020(2), among other things, requires facilities to date and plan menus at least one week in advance. It also requires facilities to post the menus conspicuously or otherwise make them easily available to residents. During the survey period a menu was posted. It was not dated. In addition, a meal served one day of the survey was not the meal described in the posted menu. This is the third time Cristal violated the food service rule, in the same way. The Agency proved a violation of the rule during the survey period ending May 10, 2017, (Finding of Fact 33) and in Cristal I. The violation created an indirect or potential risk to residents and was properly classified as a Class III violation. The refusal to comply with this simple requirement also manifests a repeated disregard for the rules governing operation of an ALF. Tag 152 – Physical Plant/Safe Living Environment – Alleged violation of rule 58A-5.023(3): Among other things, the rule requires a facility to provide "a safe living environment pursuant to section 429.28(1)(a), Florida Statutes." Section 429.28(1)(a) says that residents have a right to "[l]ive in a safe and decent living environment, free from abuse and neglect." At the time of the July 2017 survey, sand filled the pool that had black fluid in it in May. Many of the conditions noted during the May survey remained, including exposed pipes with unidentified brown material on them and broken ducting. The photographed areas of Cristal look poorly maintained and unattractive. But, as with the similar conditions from the May survey, there is no persuasive evidence identifying what substances caused the brown spots on the pipes, what the pipes convey, or generally how the conditions observed pose a threat to resident safety or were, as the Agency surveyor stated, "hazardous to their health." The surveyor also went to the crux of the failure of proof for this tag saying, "We don't know what this black stuff was and all that… ." Expert testimony on this issue may have made a difference in the outcome. The same is true about testimony stating a lobby bathroom was leaking. The witness did not testify to observations establishing that the bathroom was the leak's source. The photograph provided does not support a finding that the leak came from the bathroom. A photograph does show that Cristal placed warning signs at the affected area. There is no evidence proving how long the condition had existed or if there had been a reasonable period of time to repair the problem. The Agency did not prove the claims of Tag 152 by a preponderance of the evidence. Tag 160 and Count XXII – Facility Records – Alleged violation of rule 58A- 5.024(1): Rule 58A-5.024(1)(b) requires an ALF to maintain a readily available, up-to- date admission and discharge log. The log must list, among other things, a resident's date of discharge, reason for discharge, and location to which the resident was discharged. The Agency claimed Cristal's log did not list reasons for discharge or the locations to which residents were discharged for several residents. The log, Agency Exhibit 41, is illegible. The only other evidence offered was a general statement that "[t]he facility did not indicate on the log the reason for discharge and the place for discharge for several residents." (Tr. Vol. II, p. 393). The Agency's evidence was not persuasive. The Agency did not prove this tag and count by a preponderance of the evidence. Tag 30 – Residents 14, 24, 26, 27, and 28 – Rule 58A-5.0182(6) and section 429.28(1)-(2): Rule 58A-5.0182(6)(e) requires facilities to compensate residents for work performed for the facility other than work performed in their own living areas and provided for in the resident's contract. The rule requires compensation "in compliance with state and federal wage laws." Section 429.28 is part of the Resident Bill of Rights. It does not contain a prohibition or requirement about residents performing work for a facility. Agency proposed finding of fact 28 asserts Cristal violated the rule by failing to compensate Resident 14 for work performed as a facility employee. It cites only Agency Exhibit 151 to support this charge. The exhibit contains only hearsay reports of Resident 14 volunteering to work at the front desk two hours a day for $20.00 per day. In addition, the hearsay does not establish that the resident was not paid or that $10.00 per hour did not comply with state and federal wage laws. Proposed finding of fact 28 also lists Residents 24, 26, 27, and 28. But it makes no specific claims about them and cites no evidence mentioning them. Charges related to them are deemed abandoned. The Agency did not prove Tag 30. Tag 162 – Residents 7, 18, 24, 27, and 31 – Alleged violation of rule 58A- 5.024(3): Rule 58A-5.024(3) imposes a number of recordkeeping requirements upon ALFs. Facilities must retain resident records for two years after a resident's departure, except for contracts, which an ALF must retain for five years. Fla. Admin. Code R. 58A-5.024(3)(q). The rule requirement that the Agency argues Cristal violated is the requirement to maintain a weight record, initiated on admission, for each resident. The Agency and its witnesses incorrectly state that the rule requires facilities to record resident weights every six months. That requirement applies only for residents receiving assistance with daily living activities. Fla. Admin. Code R. 58A-5.024(3)(f). When the surveyors asked Cristal to provide the weight records, staff presented a binder with tabs bearing people's names. But the pages were empty. There were no weight records for Resident 24, even in the resident's individual file. Not recording weights creates a risk that material weight gains or losses will go unnoticed and therefore unaddressed. Cristal's failure to comply with the rule was an indirect or potential risk to residents. The Agency properly classified the failure as a Class III violation. The records for Resident 3 contained only an order for an ultrasound and the test results. They did not include the required health assessment form, demographic information (such as the resident's birth date), MORs, or physician records. Cristal's failure to comply with the rule created an indirect or potential risk to the resident. The Agency properly classified the violation as a Class III violation. Agency finding of fact 29 refers to a violation in this tag involving Resident 27. It does not otherwise identify a violation. Consequently this charge is deemed abandoned. Agency finding of fact 29 refers to a violation in this tag involving Resident 18. It does not otherwise identify a violation. Consequently this charge is deemed abandoned. The Agency contends that Cristal did not maintain accurate records of the medication orders for Resident 7. On July 10, 2017, Resident 7 had a bag of medications in her room. Her records did not contain a health assessment form or orders indicating whether she required assistance or observation administering medication. The health assessment form was not signed by a licensed professional. On July 12, 2017, staff produced an order dated that day stating the patient could self-administer medications. This violation, although a Class III violation, was cured for that patient. Tag 25 – Residents 8, 9, 13, 16, 21, 24, 30, 31, and 32 – Alleged violations of rule 58A-5.0182 and section 429.26(7): Agency proposed finding of fact 30 addresses these alleged violations. Rule 58A-5.0182(1) sets standards ALF supervision of residents. Rule 58A-5.0182(1)(c) requires facilities to maintain a general awareness of a resident's whereabouts. Section 429.26(7) requires a facility to "notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment." The Agency alleged, but did not prove, failure of Cristal to be aware of Resident 31 leaving to go camping or on an errand. The Agency did not prove a violation involving Resident 31 by a preponderance of the evidence. The Agency described Resident 32 suffered a chemical burn on her lower body. The Agency relied upon hearsay to prove claims about Cristal's care for this resident after the burn. It did not assert a failure of supervision. As important for this proceeding, the rule and statute the Agency claims Cristal violated, do not address quality of medical care. The Agency did not prove the charged violation for Resident 32. Hearsay corroborated by a party admission proved that at some point in Resident 30's stay at Cristal, the facility sent her to a hospital because of complaints of pain and numbness. A complaint requiring medical attention from a hospital is a significant change in condition. Cristal did not notify the resident's health care provider of this development. The records corroborate hearsay from the manager at that time reporting she did not notify the resident's health care provider, as required by rule 58A-5.0182(1)(d). Failure to advise a resident's health care provider of a condition serious enough to require treatment at a hospital violates rule 58A- 5.0182(1)(d). The violation presents a direct risk to the resident. The Agency properly classified the violation as Class II. Although the Agency listed Residents 8, 9, 13, 16, 21, and 24 in proposed finding of fact 30, it does not address care provided or cite evidence purportedly proving any violations involving their care. Those alleged violations are deemed abandoned. Tag 81 – Staff Training – Alleged violation of rule 58A-5.0191(2): Rule 58A.0191(2)(b)3 says that within 30 days of employment, direct care staff must receive in-service training that covers facility emergency procedures. Agency proposed finding of fact 31 alleges that a staff member began working at Cristal on May 8, 2017, and that at the time of the survey, Cristal had employed the staff member for more than 30 days. The proposed finding does not identify the staff member. Review of the exhibit cited indicates that this proposed finding refers to Staff D. The proposed finding further alleges that Staff D had not received the required emergency procedure training within 30 days of employment. The Agency's sole evidence about Staff D's hire date was this testimony: "So for this staff, in review of this staff's record, they were hired on May 8, 2017." Among other things, the testimony did not identify the document the witness relied upon or provide grounds to determine that it is reliable. The Agency offered no documents to support the charge. The evidence offered to prove Staff D did not receive the required training was equally sparse. The Agency did not prove the charge by a preponderance of the evidence. Rule 58A-5.0191(2)(f) requires that within 30 days of employment direct care staff must receive in-service training that covers resident elopement and response policies and procedures. As with the inadequate attempts to prove deficient emergency procedure training, the Agency also failed to present evidence satisfying its burden of proof for this charge. Survey Ending September 14, 2018 Tag 8 and Count XV – Residents 4, 13, 15, 23, 33, and 34 – Alleged violations of rule 58A-5.0181(2): The rule establishes admission criteria for an ALF. Facilities document compliance with the criteria by obtaining and maintaining an accurate and complete resident health assessment by a licensed health provider documented on an Agency form completed either 60 days before admission, or within 30 days after admission. This ensures that residents meet specific admission criteria. The health assessment form for Resident 13 did not include the date on which the health care provider conducted the examination. This makes it impossible to determine if the provider conducted the assessment during the required time period. Cristal did not contact the provider to obtain the missing information. This violation posed an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation. The most recent health assessment for Resident 15 was dated June 4, 2018. It provided conflicting information that the resident required both the administration of medications and assistance with self-administration of medications. Despite having over 90 days to obtain clarification of these conflicting instructions, Cristal had not done so. Thus the assessment did not comply with rule 58A-5.0181(2)(a)5. This violation posed an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation. Agency proposed finding of fact 33 refers to violations for Residents 4, 23, 33, and 34. However, it provides no information about the alleged violations and does not cite to evidence that might indicate violations for those residents. Therefore, those claims are deemed abandoned. Tag 54 – Residents 3, 12, 14, 18, 33, and 34 – Alleged violations of rule 58A- 5.0185(5): Rule 58A-5.0185(5)(b) requires ALFs to "maintain a daily medication observation record (MOR) for each resident who receives assistance with self- administration of medications or medication administration." It further lists required information for each MOR. Resident 12's June 16, 2018, MOR for Travatan ZO, which was to be administered nightly, did not show that the medication was administered on June 16, 2018. The MOR also did not show that Risperidone was administered on July 1, 2018, when the MOR indicated that it should be administered twice a day. The MOR did not record administration of Vitamin B1 on July 29, 2018, although it was to be administered daily. These deficiencies created an indirect potential risk to the resident, which is properly classified as a Class III violation. The MOR for Resident 18 on July 23, 2018, did not document administration of 21 different medications or provide an explanation why the medications were not administered, if they were not. This created an indirect or potential risk to the resident. It is properly classified as a Class III violation. The MOR for Resident 3 for August 7 and 16, 2018, indicated that multiple medications were withheld pursuant to physician's order. Cristal did not produce documentation of the physician's orders to withhold. Rule 58A-5.0185(5) does not, however, require maintaining the orders as part of the MOR. The Agency did not prove the alleged Tag 54 violation involving Resident 3 by a preponderance of the evidence. Agency proposed finding of fact 34 did not identify any support for violations related to MORs for Residents 14, 33, and 34. These claims are deemed abandoned. Tag 55 and Count XVII – Residents 18, 13, and 17 – Alleged violation of rule 58A-5.0185(6): Rule 58A-5.0185(6)1 requires a facility to return centrally stored medications of those residents for whom "[t]he facility administers the medication" and in other circumstances not involved here. The rule also requires an ALF to store or return discontinued medications to the resident, in case the medication is re- prescribed. Tag 55 and Count XVII assert that Cristal improperly returned medications of Resident 18 to a former pharmacy when Cristal changed pharmacies. The Agency's evidence relies upon hearsay and is not persuasive. The Agency did not prove its assertions about returning medications to the former pharmacy by a preponderance of the evidence. Resident 13 kept Pepto-Bismol, hydrogen peroxide, and an over-the-counter foot medication unsecured in the resident's bedroom. Resident 17 kept aspirin, ibuprofen, and arnica cream unsecured in the resident's bedroom. The preponderance of the evidence does not prove that the facility administered those medications. Therefore the Agency did not prove a violation of the requirement in rule 58A- 5.0185(6)1 for central storage of medications administered by the facility. Tag 56 and Count XIII – Resident 19 – Alleged violation of rule 58A- 5.0185(7): Rule 58A-5.0185(7)(c) requires a facility to ask a provider who prescribes a medication "as needed" to clarify the prescription by describing the circumstances under which administering the medication is appropriate. The physician's orders for Resident 19 included a prescription originating on June 4, 2017, for Senokot Suboxone, as needed. The orders did not explain when administering the medication was appropriate. Cristal did not obtain a physician's order clarifying when the medication should be provided. Resident 19 had diagnoses of dementia and altered mental status. The unlicensed staff providing assistance with self-administration of medications did not have the training or expertise to determine when a cognitively impaired resident needed a medication. The failure to obtain clarification created an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation. Tag 152 and Count XIX – Physical Plant/Safe Living Environment – Alleged violations of rule 58A-5.023(3): Rule 58A-5.023(3)(a)1 says a facility must provide a safe living environment. Rule 58A-5.023(3)(a)2 states that all ALFs "[m]ust be maintained free of hazards… ." Rule 58A-5.023(3)(a)3 states that all ALFs "[m]ust ensure that all existing architectural, mechanical, electrical and structural systems and appurtenances are maintained in good working order." The Agency, in proposed finding of fact 37, incorrectly describes the rule as requiring a "decent living environment." Photographs and testimony about personal observations of Agency personnel on the days of the survey establish that Cristal was in run-down condition. Carpeting in the common areas, was dirty. Something had stained the carpet in front of a resident's door and in some residents' rooms. Small areas of sheet rock were broken or worn away. Some walls were dirty and stained near the baseboards. A baseboard was cracked and separated from the wall. The baseboard's paint was chipped. Some baseboards were missing. Some tiles in an elevator were cracked. The lobby ceiling had water leaks. Buckets were placed in the lobby to catch the drips. A black substance coated some of the ceiling vents and some carpets. Some ceiling tiles were missing. Cristal did not have an operational emergency generator. The evidence did not prove how long the conditions had existed. The evidence did not show what the stains and dark substances were or what caused them. The Agency did not offer testimony from mechanical experts, structural experts, mold remediation experts, or other experts who could have established the cause of the conditions described above or the nature of the risks, if any, they presented to residents. The Agency failed to offer persuasive evidence that the unsightly conditions observed and photographed at Cristal were unsafe or hazardous. It also did not offer persuasive evidence that Cristal's architectural, mechanical, electrical, or structural systems were not in good working order. The Agency did not prove the charged violations by a preponderance of the evidence. Tag 160 and Count XXII – Residents 22, 24, and 32 – Alleged violations of rule 58A-5.024(1): Rule 58A-5.024(1)(b) requires a facility to maintain an up-to-date admission and discharge log. At the time of the survey, Residents 22, 24, and 32 had been discharged. Cristal's log did not list these three residents as discharged. This finding relies upon a report of what the administrator said. Section 90.803(18)(a) permits consideration of the testimony as a party admission. This rule violation created an indirect or potential risk to the residents. It is properly classified as a Class III violation. Rule 58A-5.024(1)(d) requires a facility to have the "[t]he facility's emergency management plan, with documentation of review and approval by the county emergency management agency, as described in Rule 58A-5.026 F.A.C." readily available. The only evidence the Agency identifies (in proposed finding of fact 38) as proving a violation of this requirement is a surveyor's testimony that, "I identified that they do not have a copy of their emergency plan that was approved by the county or a satisfactory fire inspection." (Tr. vol. I, p. 130). The witness did not say how she "identified" the absence of the plan (or approval of a plan) or what files, if any, she reviewed. It is impossible to divine from the witness' single sentence if she "identified" the absence of the plan from statements of other people. Reliance upon hearsay statements by all the Agency witnesses was a common failing. The minimal and uninformative testimony is not persuasive. It does not suffice to prove by a preponderance of the evidence that Cristal did not maintain an approved emergency management plan. Rule 58A-5.024(1)(k) requires a facility to have readily available "[a]ll fire safety inspection reports issued by the local authority or the State Fire Marshal pursuant to section 429.41 F.S., and Rule Chapter 69A-40, F.A.C., issued within the last two years." The only evidence offered to support this charge is the vague and unpersuasive sentence quoted above. The Agency did not prove by a preponderance of the evidence that Cristal failed to maintain the required fire safety inspection reports. In addition, on September 30, 2018, the City of Palm Bay Fire Marshal's Office found Cristal "in compliance with all applicable Florida State Fire Codes." (C. Ex. 7). Rule 58A-5.024(1)(i) requires facilities to maintain "[a]ll sanitation inspection reports issued by the county health department pursuant to Section 381.031, F.S. and Chapter 64E-12, F.A.C, issued within the last two years." The Agency relies, in proposed finding of fact 38, upon the surveyor testimony discussed above. The testimony is not persuasive and did not prove the claimed violation by a preponderance of the evidence. It does not even refer to sanitation inspections. Tag 162 and Count XI – Residents 2, 23, 33, and 34 – Alleged violations of rule 58A-5.024(3): Rule 58A-5.024(3)(g) requires "facilities that will have unlicensed staff assisting the resident with the self-administration of medication, [to maintain] a copy of the written informed consent described in Rule 58A-5.0181, F.A.C., if such consent is not included in the resident's contract." The signed informed consent form for Resident 2 provided the following opportunity to record the resident's consent: "In our facility, staff assisting residents with self-administration: will or, will not be overseen by a licensed nurse." Neither "will" nor "will not" is selected. However, the Agency did not place the resident's contract in evidence. So the record does not establish the condition precedent to requiring a separate consent form. The Agency's attempted proof of this issue suffered the same failing in Cristal I, as stated in paragraph 299 of the Recommended Order. Contrary to Agency proposed finding of fact 39, Count XI does not allege a violation of this rule. Agency proposed finding of fact 39, addressing this charge, lists Residents 23, 33, and 34, as people whose records also lacked the required consent. The proposed finding does not identify evidence supporting the charge. The Agency did not prove a violation related to these residents. Tag 167 – Residents 2 and 18 – Alleged violation of rule 58A-5.205 and section 429.24: Among other things, the rule requires facilities to execute contracts with residents. The rule requires a number of provisions for the contracts. One is, "[a] provision that residents must be assessed upon admission and every 3 years thereafter, or after a significant change … ." Hearsay testimony of Ms. Williams indicated that Resident 18's contract did not contain this provision. The records for Resident 18 did not include a supplement to the contract with this provision. The fact that Cristal subsequently obtained a supplement to the contract with the provision (C. Exhibit 14, p. 210) corroborates Ms. Williams' testimony. The supplement is dated November 9, 2018, more than 30 days after the Agency advised Cristal of the deficiency. Clear and convincing evidence proved Cristal violated rule 58A-5.205. The Agency properly classified this as a Class IV violation. The Agency also claims in proposed finding of fact 40 that the contract for Resident 2 did not contain the required assessment provision. The Agency did not prove this claim, as described in proposed finding of fact 40. It cites to Agency Exhibit 126. The exhibit does not mention Resident 2's contract. The Agency also cites to pages 130 through 220 of Volume I of the transcript and all of Volume II to support its claim. The cited testimony does not establish by a preponderance of the evidence that Resident 2's contract did not have the required provision. The Agency did not prove the charged violation as to Resident 2. Tag 25 and Count X – Residents 13 and 15 – Alleged violations of Rule 58A- 5.0182(1) and section 429.26(7): Agency proposed finding of fact 41 addresses the alleged violations. Rule 58A-5.0182(1) establishes supervision requirements for the care of ALF residents. Rule 58A-5.0182(1)(d) requires a facility to contact a resident's health care provider or other appropriate party if a resident exhibits a "significant change." Rule 58A-5.0182(1)(f) requires a facility to maintain a written record of any significant changes. The Agency maintains in proposed finding of fact 41 that Resident 13 declined 11 medications and that this was a significant change that should have been reported. Resident 2's MOR reflected that Resident 2 refused assistance with administration of 13 medications on September 8, 2018, and one medication on September 10, 2018. The Agency did not present evidence proving how refusing assistance amounted to a significant change in the resident's condition, as defined in rule 58A-5.0131(32). In addition, it offered only hearsay to prove that Cristal did not inform the resident's health care provider. And nothing indicates that informing the health care provider is recorded on the MOR. The Agency did not prove the charged violation. The Agency maintains that Resident 15's MORs show the resident declined numerous medications in July and September. The evidence did not show this. The resident's MORs document the resident declining assistance in July and September of 2018, not declining medication. The Agency did not prove that declining assistance with medications amounted to a significant change in the resident's condition, as defined by rule. In addition it offered only hearsay to prove that Cristal did not inform the resident's health care provider. Finally, there is no place on the MOR to indicate that a facility informed a resident's health care provider or other appropriate person about a significant change. So the absence of a notation on the MOR does not lead to a conclusion that the facility did not communicate with the health care provider. The Agency did not prove the violation involving Resident 15. Section 429.26(7) imposes obligations to report signs of dementia, signs of cognitive impairment, or a change in a resident's condition to a physician. The Agency did not prove a violation of this statute involving Resident 15 by a preponderance of the evidence. Agency proposed finding of fact 41 discusses application of a topical gel to Resident 15. The resident had a prescription for a topical gel, Diclofenac Sodium, one or two grams to the affected area. A surveyor observed a staff member squeezing a portion of gel onto the staff member's index finger instead of measuring the gel with the pharmacy-provided measuring tape. The surveyor had not heard the resident request any specific amount of the gel. That does not mean the resident had not requested it before the surveyor came within hearing distance. In addition, improper measurement of the medication would not violate section 429.26(7) or rule 58A- 5.0182(1), although it may violate other rules or statutes not charged. Tag 78 – Staffing Standards/Staff B – Alleged violation of rule 58A-5.019(2): The rule establishes requirements for ALF staff. Rule 58A-5.019(2)(a) requires staff to provide, within 30 days of beginning employment, a health care provider's written statement documenting "that the individual does not have any signs or symptoms of communicable disease." Cristal produced a completed form stating that Staff B satisfied the requirement. The Agency's evidence offered to prove that Cristal had not fulfilled its obligation to maintain a health care provider's statement for Staff B was the testimony below and a nearly identical statement in the surveyor's notes on the Statement of Deficiencies. Staff B, when I reviewed her record, she had a statement in the record, and the space for the healthcare provider's signature and name was not legible. Could not determine who completed the form. There were no credentials listed, like "M.D." or "advanced registered nurse." We could not determine who completed the form because the signature was not legible. (Tr. Vol. II, p. 403). The Agency could have entered the form into evidence. But it did not. The absence of the form makes it impossible to determine the accuracy of the witness' characterization or to be confident that the credentials were not provided on the form, rather than also being "illegible." The rule does not impose a legibility requirement on a doctor's signature. These failings result in a failure to prove the charge by a preponderance of the evidence. Tag 93 and Count XXI – Food service standards – Alleged violation of rule 58A-5.020(2): The rule requires a facility to maintain a three day supply of nonperishable food. Fla. Admin. Code R. 58A-5.020(2)(h). It also imposes a requirement to have an emergency supply of water. The rule says: "Water sufficient for drinking and food preparation must also be stored, or the facility must have a plan for obtaining water in an emergency, with the plan coordinated with and reviewed by the local disaster preparedness authority." Cristal's food manager identified an uncovered 100 gallon barrel as containing the facility's sole emergency water supply. This was the only visible supply of emergency water. The barrel contained a dark substance with slime and white particles floating on top. The description of the water and accompanying photographs convincingly establish that the fluid was not potable water. Cristal's administrator at the time also testified at hearing that Cristal did not comply with the requirement for an emergency supply of water. The Agency proved the charged violation by clear and convincing evidence. Cristal's violation was a direct risk to residents. The Agency properly classified it as a Class II violation. Tag 90 and Count V – Staff Training – Alleged violations of rule 58A- 5.0191(11) - (12): Rule 58A-5.0191(11)(a) requires that all facility employees receive at least one hour of training in the facility's Do Not Resuscitate Orders (DNRO) procedures within 60 days of the rule taking effect, if employed on that date, or within 30 days of hiring if hired while the rule was in effect. Rule 58A-5.0191(11)(b) requires newly hired employees to receive the same one hour of DNRO training within 30 days after beginning employment. Rule 58A-5.0191(12) requires a facility to maintain documentation of the training. Agency proposed finding of fact 44 addresses the charged violations of this rule. Ms. Gulian-Andrews testified about the alleged deficiencies involving Staff D. The whole of her relevant testimony was her response: "No, there was not," to the question, "And was there any documentation regarding the facility's specific training?" (Tr. Vol. I, p. 118). There is no testimony about what files she reviewed or how she determined which files to review. Also her memory was not clear enough for her to be certain about other training documents. "Q: Now, was there an online training certificate? A. I think there was, but it does not say in this [referring to surveyor notes]." This is not persuasive evidence establishing by a preponderance of the evidence that Staff D did not have the required training. The Agency relies on the deposition testimony of surveyor Lorienda Crawford (Ex. 116, pp. 4 - 13) to support its claim that Staff A did not have the required certificate. The observations on the evidence about Staff D apply here. The Agency did not prove the charged violation involving Staff A's training. Tag 81 and Count VI – In-service Training – Alleged violations of rule 58A- 5.0191(2) and (3): Rule 58A-5.0191(2) imposes a number of in-service training requirements for staff who provide direct care to residents. Also, rule 58A- 5.024(2)(a)1 requires ALFs to maintain documentation of compliance with all training and continuing education requirements in each staff member’s personnel records. Training in the facility's emergency procedures is one of the training requirements. Training in the facility's elopement policies and procedures is another. Agency proposed finding of fact 45 maintains that Cristal's records did not document that Staff A, B, and C received training in facility-specific emergency procedures and elopement policies. The testimony relied upon suffers from a lack of specificity, details, and information about how the witnesses searched for the required documents leaving the testimony unpersuasive. Also the Agency did not prove that the employees provided direct care. This failure to prove an element of the violation results in the Agency not proving the charged violation. (Paragraph 61 of the Recommended Order in Cristal I highlights the significance of the distinction between requirements imposed upon direct care staff and others.) Rule 58A-5.091(3) requires HIV/AIDS training for all employees. Agency proposed finding of fact 45 did not identify any evidence relevant to a violation of this rule. The agency failed to prove the charged violations by a preponderance of the evidence. Tag 200 and Count XXVI – Environmental Emergency Control Plan – Alleged violation of rule 58A-5.036: Rule 58A-5.036(1) requires an ALF to prepare a detailed plan "to address emergency environmental control in the event of the loss of primary electrical power … ." The requirements for the plan include "acquisition of a sufficient alternate power source such as a generator(s), maintained at the assisted living facility, to ensure that the facility" can maintain ambient air temperatures "at or below 81 degrees Fahrenheit for a minimum of ninety-six (96) hours in the event of the loss of primary electrical power." Fla. Admin. Code R. 58A-5.036(1)(a). The rule also requires a facility to submit its plan to the local emergency management agency for review and approval. Fla. Admin. Code R. 58A-5.036(2). An ALF must maintain a readily available copy of the plan. Rule 58A-5.036(4) requires facilities to implement the plan no later than June 1, 2018. The rule authorizes the Agency to extend an ALF's deadline to January 1, 2019. It also acknowledges a facility's right to seek a waiver or variance under section 120.542, Florida Statutes. To obtain an extension, a facility must show delays caused by issues beyond the facility's control, such as zoning approval processes and construction delays. At the time of the September 2018 survey, Cristal did not have an approved emergency plan. It did not produce a plan for resident care in the event of power loss. Brevard County's Emergency Management office did not approve Cristal's emergency power plan until December 20, 2018. Cristal did not have an emergency generator. It did not have a lease for a generator. The closest Cristal came to documenting fulfillment of the generator requirement was providing an unsigned copy of a rental application. On October 7, 2018, Cristal entered into a lease for a generator. However, by letter dated July 31, 2018, the Agency advised Cristal, "The Agency for Health Care Administration (Agency) has received your request for an extension of time up to January 1, 2019, to come into full compliance with Rule 58A- 5.036, Florida Administrative Code (F.A.C.). Your request has been reviewed and meets the criteria as indicated in the rule and has therefore been approved." (C. Ex. 6). The letter does not limit the extension to just the generator requirement of rule 58A-5.036. Consequently, the Agency did not prove the charged violation by a preponderance of the evidence Tag 813 – Background Screening – Alleged violation of rule 59A-35.090(3)(c): The rule requires a provider, like an ALF, to maintain in an employee's personnel file the eligibility results of an employee's background screening and, in some circumstances, an attestation of compliance with background screening requirements. Fla. Admin. Code R. 59A-35.090. The personnel file for contracted Staff E did not contain current background screening eligibility results. When asked to produce the screening results, Cristal did not. A review of the Agency's background screening website, however, revealed that Contracted Staff E had an eligible screening effective March 29, 2018. The failure to maintain the background screening proof in contracted Contracted Staff E's personnel file is an unclassified violation. Tag 814 and Count XXVII – Background screening – Alleged violation of section 435.12, Florida Statutes: Section 435.12(1) requires the Agency to create a web-based system known as the Care Provider Background Screening Clearinghouse (Clearinghouse). The Clearinghouse maintains the results of background screening and shares them among specified agencies. The law requires employers of persons subject to background screening to register with the Clearinghouse and maintain the employment status of all staff, other than those providing services through a contract with another entity, with the Clearinghouse. Section 435.12(2)(c) requires employers to report initial employment and any changes in status within ten business days. Staff E contracted to provide nursing services at Cristal and worked there regularly. Cristal did not report her employment to the Clearinghouse. Cristal, however, added Contractor E and her background screening results to the Clearinghouse on September 11, 2018, during the survey. Also Contractor E, who also owned an ALF, was background screening eligible with fingerprints retained by the Clearinghouse that would not expire until March 8, 2023. Cristal did not prove that Contractor E was an employee of a separate entity working at Cristal by virtue of a contract with the separate entity. Cristal's failure to report Contractor E's employment to the Clearinghouse is an unclassified violation. Tag 30 and Count IV – Residents 14 and 30 – Alleged violation of rule 58A- 5.0182(6) and sections 429.28(1) - (2): Surveyor Lorienda Crawford noticed that Resident 14's bed had half-rails. The resident was unable to raise and lower the rails. Cristal's Director of Nursing was not aware the resident had obtained them. The half-rails, however, were plainly visible and would have been seen by any employee entering the room. The record does not contain evidence indicating how long the half- rails had been in place. The resident's records did not contain a physician's order for bed rails or anything else indicating that a health care provider had approved their use. Cristal Exhibit 14, page 201, is a document purporting to record telephoned orders for the rails and the resident's consent. Since it records an oral communication, it is inadmissible hearsay. The evidence does not establish a predicate for the business records exception. In addition, the absence of evidence about how, when, and by whom the document was created alone makes it unpersuasive. Rule 58A-5.0182(6)(g) provides: "[T]he use of physical restraints by a facility on a resident must be reviewed by the resident's physician annually. Any device, including half-bed rails, which the resident chooses to use and can remove or avoid without assistance, is not considered a physical restraint." The clear and convincing evidence proved the charged violation. This violation posed an indirect or potential risk to the resident and was properly classified as a Class III violation. Section 429.28(1) guarantees facility residents several rights including 45- day notice of termination of residence, the right to a grievance process, the right to manage their own financial affairs, and the right to a reasonable opportunity for regular exercise. Section 429.28(2) requires prominent display of the Residents' Bill of Rights and contact information for the Elder Abuse Hotline and other resources. These provisions are not implicated in the facts asserted in Agency proposed finding of fact 49. Although the Agency's proposed finding of fact 49 refers to a violation involving Resident 30 and Count IV alleges violations involving other residents, proposed finding of fact 49 only addresses a violation involving Resident 14. All other charges in Count IV are deemed abandoned. Survey Ending December 5, 2018 The December survey was a follow up to the September 2018 re-licensure survey. Tag 30 and Count IV – Residents 4, 11, and 33 – Alleged violations of rule 58A-5.0182(6) and section 429.28(1): Section 429.28(1) is part of the Residents' Bill of Rights described earlier. Rule 58A-5.0182(6), also described earlier, imposes requirements for implementing the rights. Rule 58A-5.0182(6)(b) requires a facility to have a written grievance procedure and to "be able to demonstrate that such procedure is implemented upon receipt of a complaint." Cristal has a grievance policy and procedure. They require Cristal's Executive Director to investigate a complaint and respond to the resident with a resolution within 24 hours or to extend the investigation period. They also require the Executive Director to document the resolution in the resident's chart. A cook whom the residents liked and felt was a good cook gave Cristal notice that she was quitting. Resident 33 was one of several residents who, on September 29, 2018, collectively submitted a complaint on the Cristal grievance log. The grievance stated, "We are furious that we no sooner have a new cook whom everyone seems to like and she's given notice that she's leaving. Now what? Can't Noiri chip in to keep her or is that a joke?" The residents demanded that Cristal increase the cook's pay so she would not leave. (AHCA Ex. 104) Resident 33's chart did not contain documentation of the resolution of the grievance. Cristal's administrator acknowledged that he had not spoken to the residents about their complaint. He, understandably, did not view it as a grievance about Cristal because the residents were not complaining of something Cristal did. The separation was the cook's decision. Nonetheless, Cristal's procedure required Cristal to respond to the complaint with a resolution, even if it was just to reject the grievance. Cristal did not do this. It was unable to demonstrate that, in this instance, it followed its grievance procedure. The Agency proved the charged, technical violation. The violation did not create a risk of any sort to the residents. The violation is unclassified. The Agency asserts that Resident 4 had complained of losing $600.00 and that Cristal had not followed its grievance process. The grievance is not recorded in the grievance log. The evidence to support this charge is vague, lacking details such as dates that might add credence. The evidence is uncorroborated hearsay. The witness's recall and the thoroughness of investigation of the complaint are questionable since the witness also testified that she could not find a Cristal grievance policy, although Cristal unquestionably had one. The witness also expressed difficulty remembering the claimed loss without consulting her survey notes. The Agency did not prove this charge by a preponderance of the evidence. One of the surveyors smelled cigarette smoke on the first floor. She believed the smell was coming from the room of Resident 11. The Agency maintains that this proves Cristal did not provide the "safe and decent living environment, free from abuse and neglect" required by section 429.28(1)(a). The Agency does not maintain that tobacco use at an ALF makes it unsafe and indecent. It could not plausibly do so since rule 58A-5.0182(6)(d) requires a facility to have rules and procedures that must address the facility's policies about alcohol and tobacco use. This plainly contemplates possible tobacco use at an ALF. The Agency claims Resident 11 was violating Cristal's tobacco policies. But it did not offer Cristal's tobacco policies into evidence. The Agency failed to prove the claimed violations involving Residents 4 and 11. Tag 8 and Count XVI – Residents 15 and 16 – Alleged violations of rule 58A- 5.0181(2) and section 429.26(4)-(6): The requirement to obtain and maintain accurate and complete health assessments imposed by the rule and statute were discussed earlier. The health assessment form for Resident 15 stated on page one that the resident required a nurse to administer medication. On page four the form indicated Resident 15 only needed assistance with self-administration, which may be performed by non-licensed personnel. Cristal bore the obligation to seek clarification of the conflict. It had not done so. The Agency proved by clear and convincing evidence that Cristal violated rule 58A-5.0181(2)(a)5 with Resident 15. The Agency had cited Cristal for this very violation with this resident during the September 14, 2018, survey. (Finding of Fact 89). This violation posed an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation. The Agency argues that Cristal did not have a completed health assessment form for Resident 16. Agency Exhibit 109, the health assessment form for Resident 16 indicated that the provider conducted the examination on October 31, 2020, an obvious typo. Cristal Exhibit 28, pages 1 through 5, also a health assessment form for Resident 16, records a July 27, 2018, date of examination. It is complete and detailed. The record includes contradictory and sincere, credible testimony from surveyor Ms. Williams and Cristal former Administrator Mr. Marcotte, both of whom reviewed the document on the day of the survey. The unresolved and unexplained conflict results in a failure to prove the alleged violation involving Resident 16 by a preponderance of the evidence. Tag 54 – Resident 3 – Alleged violation of rule 58A-5.0185(5)(b): The rule requires an ALF to "maintain a daily medication observation record (MOR) for each resident who receives assistance with self-administration of medications or medication administration." It must include a chart recording each time the medication is administered, any missed dosages, refusals to take the medication, and medication errors. The rule states emphatically: "The MOR must be immediately updated each time the medication is offered or administered." On December 4, 2018, a Cristal unit manager provided surveyor Robin Williams a November 2018 MOR for Resident 3 with a print date of December 4, 2018. The MOR indicated that Resident 3 was to receive Morphine Sulfate ER 30 milligram tablets once every eight hours to be taken by mouth. The MOR did not record administration of the drug at 2:00 p.m. on November 17, 2018, or the 10:00 p.m. dose on November 22, 2018. Ms. Williams discussed the omission with Cristal's unit manager. The next day the unit manager gave Ms. Williams a copy of the MOR printed December 5, 2018. This copy had staff initials indicating that the two omitted dosages had been administered. The unit manager offered no explanation of why the MOR had changed. The details of the surveyor notes, testimony from the surveyor at the hearing, the clear and distinct memory of the witness at the hearing, the precision of her testimony, as well as the consistency of the testimony with the contemporaneous survey notes left no uncertainty about the truth or accuracy of Ms. Williams' testimony. The clear and convincing evidence proves that Cristal violated the requirement to immediately update the MOR. This violation posed an indirect or potential risk to the resident. The agency properly classified it as a Class III violation. Tag 55 and Count XVIII – Resident 37 – Alleged violation of rule 58A- 5.0185(6): The rule requires facilities to centrally store medications which it administers. The Agency failed to prove this charge by a preponderance of the evidence. Its proof relies upon hearsay. The witness’s memory was not clear and distinct. One example is this testimony on page 424 of Volume II of the Transcript. So later it was found that the resident would go to the pharmacy and pick up her own medication. And she would – she would bring everything back, but she kept those two. And the resident – it was "concerned" because the resident had a history of suicide and the healthcare provider did not want her to have her medication. In addition, the evidence did not prove that Cristal administered the medication. It proved that Cristal assisted the resident with administration. Tag 56 and Count XIV – Residents 12 and 39 – Alleged violation of rule 58A- 5.0185(7): Rule 58A-5.0185(7)(c) requires a facility to contact the prescriber of any medication with directions to administer "as needed" to obtain revised instructions. Surveyor Vanessia Bulger testified that during the survey ending December 5, 2018, the instructions on Resident 12's Tramadol and on her MOR said that the medication should be administered as needed. She also observed that the label and MOR instructions for Ventolin HFA, 108, stated to administer the drug as needed. She testified that the instructions on the MOR did not indicate when to administer the medications. The MORs do. For Tramadol, the MOR says it should be administered as needed for pain. For Ventolin, the MOR says that it should be taken for shortness of breath. There is no explanation why the witness either did not see the instructions or did not mention them during testimony. The Agency did not prove the alleged violation involving Resident 12.5 Agency proposed finding of fact 55, which addresses the alleged violations involving Residents 12 and 39, does not identify any evidence related to a violation involving Resident 39. That claim is therefore deemed abandoned. Tag 152 and Count XX – Physical Plant/Safe Living – Alleged violations of rule 58A-5.023(3): The carpeting of the first floor of Cristal had multiple large, black stains. They also had an odor. The Agency offered no evidence about what caused the stains or the odor. The hallway paint of the first floor was chipped. Paint was peeling from the walls. The walls were also scuffed. The wall board between two doors was broken near the baseboard. Scars and bumps on walls caused by wheelchairs are normal in ALFs. Damage caused by residents requiring repair is common in ALFs. Rule 58A-5.023(3) requires ALFs to provide a safe living environment, to maintain a hazard-free facility, and to insure that systems and appurtenances are in good working order. The Agency did not offer evidence to show what caused the 5 This determinative contrast between a witness's recollection of what a document stated and what the document actually stated is a compelling example of the risks in relying upon testimony about a document to prove what a document says. stains, such as evidence that they were due to mold. It also did not offer persuasive evidence to show how long the conditions identified had existed. The items described above are unsightly and make the facility unattractive at best. But a preponderance of the evidence does not establish that they make the facility unsafe or hazardous or that any building system is not in good working order. The Agency did not prove these charges. Tag 163 – Resident 3 – Fraudulent Records – Alleged violation of section 429.29: Agency proposed finding of fact 57 addressing these charges relies upon the same facts as those involving the charge about Resident 3's MOR in Findings of Fact 159 and 160. A preponderance of the evidence does not establish that the obvious change was made to deceive or misrepresent. It could as easily have been Cristal’s effort to cure the deficiency. Section 429.29 is the only statute that the Agency argues, in proposed finding of fact 57 that Cristal violated. That section, titled "Civil actions to enforce rights," creates a cause of action for residents whose rights established under Chapter 429 are violated. It also specifies the damages available, the burden of proof, the standard of proof, and the elements that a party must prove to recover. It does not create any requirement or prohibition affecting the operation of ALFs in general or regarding alleged fraud in ALF records specifically. Tag 168 and Count VII – Resident 4 – Alleged violation of section 429.24(3)(a): Section 429.24 governs contracts between ALFs and residents. Subsection (3)(a) requires contracts to include a refund policy. The policy must "provide that the resident or responsible party is entitled to a prorated refund [of advanced rent or security deposit upon departing the ALF] based on the daily rate for any unused portion of payment beyond the termination date after all charges, including the cost of damages to the residential unit resulting from circumstances other than normal use, have been paid to the licensee." The law further requires an ALF to make the refund within 45 days of the termination date. It also states that if a facility fails to comply with the refund provisions the Agency shall impose a fine equal to three times the amount due the resident. On August 13, 2018, Nathan Marcotte, Cristal's Administrator at the time, gave Resident 4 a letter reading as follows: This is to inform you that Cristal Palace Resort PB LLC is no longer able to operate as a secured memory care facility. While we regret to inform you of this decision, we are excited about the opportunity for you to find a community in which you can thrive and be stimulated in the manner you deserve. Pursuant to our agreement and Florida regulations, this notice is being issued and gives 45 days to relocate. We have thoroughly enjoyed working with you, and only make this decision based on your needs and quality of life. We ask that you please not feel abandoned or alone in this process-we at Cristal Palace have become family, and we intend to assist in every manner possible. Additionally, as an act of good faith, we have decided to refund your community fee of $1,500, as it is in no way the fault of your or your family that we have come to this decision. Please do not hesitate to call so that we can begin assisting you in finding your next, permanent home. Resident 4 lived at Cristal for four months. As of the date of the hearing, Cristal had not paid the promised $1,500. Cristal's contract with Resident 4 contained the required refund terms. Mr. Marcotte testified that he made a mistake and wrote the letter before checking for damage or other items that could be lawfully deducted from the required refund. Mr. Marcotte did not testify that he followed the process section 429.24(3)(a) requires an ALF to follow if it intends to make a claim against a refund. The required process includes providing written notice of the claim. He also did not identify any specific damages or charges that Cristal maintained it was entitled to deduct from the refund. Clear and convincing evidence proved Cristal violated section 429.24(3)(a) by not giving Resident 4 his refund. The statute authorizes the Agency to collect a fine equal to three times the amount due the resident. In this case that amount would be $4,500.00. The statute requires the Agency to remit one-half of the fine ($2,250.00) to the resident or the resident's estate. Tag 90 and Count V – Alleged violation of rule 58A-5.0191(11): This rule governs DNRO training requirements addressed earlier. The rule requires direct care staff and staff involved in resident admission to receive at least one hour of facility- specific training in DNRO policies and procedures. Rule 58A-5.0191(12)(c) requires an ALF to document that staff completed required training. Therefore, if Cristal provided staff the required facility-specific training in DNROs, Cristal would have been able to provide the surveyors with documentation of the training. This is another instance where the witness's testimony describing documents she said she saw is too vague and imprecise to be persuasive. The witness said broadly that "the staff did not have the required do not resuscitate order training." (Tr. Vol. II, pp. 413 - 414). The witness did not identify which staff members allegedly did not receive the required training. For that matter, neither does the Agency's proposed finding of fact 59, which addresses this charge. It refers only to "staff." The witness offered only general descriptions of certificates and agendas that she reviewed. She provided no information about where she found them, what efforts she made to determine if they were the only relevant documents, when the staff members were employed, or in what capacity they worked. The Agency did not offer the documents into evidence. This testimony is insufficient to be corroborated by the statements recorded in the surveyors' notes. In addition, the notes suffer from the same deficiencies as the testimony, other than identifying individual staff members. Furthermore, the notes are a collective work leaving the reviewer to guess which portions of them the witness authored. The Agency did not prove these charges by a preponderance of the evidence. Tag 81 and Count VI – In-service Training – Alleged violation of rule 58A- 5.0191(2) - (3): Agency proposed finding of fact 60 maintains that Staff C and F did not receive the training required by rule 58A-5.0191(2) and (3.) Agency proposed finding of fact 60 addresses this charge. Rule 58A-5.0191(2)(a)-(d) requires specific training for staff who provide direct care to residents. The Agency did not prove by a preponderance of the evidence that Staff C and F provided direct care to residents. (Page 26 of the Recommended Order in Cristal I highlights the significance of the distinction between requirements imposed upon direct care staff and others.) In addition, Agency Exhibit 137, which is the surveyor notes that the Agency cites as supporting this charge, distinguish between staff and caregivers. Agency Exhibit 137 describes Staff C and F as staff, not caregivers. The Agency failed to prove that Cristal was required to provide the training required by rule 58A- 5.0191(2)(a)-(d) to Staff C and F. Rule 58A-5.0191(2)(f) requires all facility staff to receive in-service training on the facility's elopement policies and procedures within 30 days of employment. It does not require that the training last a specific period of time. The Agency did not prove by a preponderance of the evidence that Staff C and F did not receive elopement training. In fact, Agency Exhibit 137 indicates that they did. Rule 58A-5.0191(3) requires facility employees to "complete a one-time education course on HIV and AIDS … ." The record citations that the Agency provided in proposed finding of fact 60 to prove the charges here do not mention HIV and AIDS education or training. The alleged violation involving HIV and AIDS training is deemed abandoned. The Agency also did not prove a violation of rule 58A- 5.0191(3). Tag 161 – Staff Records – Alleged violation of rule 58A-5.024(2) and section 429.275(2), Florida Statutes: Rule 58A-5.024(2)(a) mandates that the personnel records for each staff member contain "a copy of the employment application, with references furnished… ." The Agency maintains in proposed finding of fact 61 that the personnel records of employee G did not contain an employment application. The only evidence the Agency cites to prove this charge is Agency Exhibit 137, which is the composite surveyor notes of eight individuals. It states the personnel record for staff (G) did not contain an employment application. It also states that the administrator confirmed the record did not contain an application and that the administrator could not produce one. The surveyor notes are inadmissible hearsay which is not sufficient to prove what the administrator said. In addition, if the notes were not hearsay, they would not be persuasive because the details are sketchy. For instance, the notes do not advise how the surveyors made sure they had reviewed the entire personnel record. Also the notes do not identify who authored the observations and statements they record. The Agency failed to prove this charge. Section 429.275 requires facility administrators and owners to maintain accurate business records and liability insurance coverage. It lists documents that the administrator and owner must maintain in the personnel records for each staff member. A copy of the employment application with references is not one of the required records. The Agency did not prove Cristal violated this statute. Tag 25 and Count X – Resident 15 – Alleged violation of rule 58A-5.0182(1) and section 429.26(7): Rule 58A-5.0182(1)(d) requires a facility to contact a resident's health care provider or other appropriate party if the resident exhibits a "significant change." Section 429.26(7) requires a facility to notify a licensed physician "when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment." The Agency contends, in proposed finding of fact 62, that the statement in MORs for Resident 15 say Resident 15 "declined numerous prescribed medications" in September and October of 2018 document a “significant change" or "change of condition" requiring Cristal to contact the resident's health care provider. The Agency cites Exhibit 141, Surveyors' Notes, to support its claim. That document states Resident 15 refused to take her medications on nine days in November. One of the surveyors, Ms. Williams, testified that Resident 15's MORs for July 2018 and September 2018 document that the patient refused medications. The MORs are Agency Exhibits 83 and 84. The exhibits do not indicate that the resident refused medications. They indicate that Resident 15 declined assistance with administration of several medications. The Agency's Medication Practices rule separately defines assistance with self-administration and administration. Compare, Fla. Admin. Code R. 58A-5.0185(3) and Fla. Admin. Code R. 58A-5.0185(4). Assistance includes minor actions such as opening the medication container or making water or cups available. Id. The Agency did not prove that Resident 15 declined medication. The Agency did not prove that refusing assistance with medication was a "significant change." The Agency also did not prove that if the resident had refused the medications, the refusal would have amounted to a significant change. It offered only a witness's broad, conclusory, summary opinion. The witness did not discuss information such as the conditions the medications treated, the likely effect of not taking them, or any perceived changes in the resident's condition. The witness did not identify changes in the resident's conduct that were signs of dementia or cognitive impairment. The Agency did not prove the charged violations by a preponderance of the evidence. Tag 162 – Resident 35 – Alleged violation of Rule 58A-5.024(3): Rule 58A- 5.024(3)(g) requires facilities that will have unlicensed staff assist residents with self- administration of medications to maintain "a copy of written informed consent described in Rule 58A-5.0181, F.A.C. if such consent is not included in the resident's contract." Fla. Admin. Code R. 58A-5.0181(1)(e)1 requires written, informed consent for unlicensed staff to provide assistance administering medication. Cristal uses an informed consent form that calls for the resident to choose "will" or "will not" to indicate consent to unlicensed staff assisting with self-administration of medications. The form for Resident 35 was signed and dated August 22, 2018. Neither "will" nor "will not" was selected. When the surveyor asked the administrator about the form, he took the form to the resident who selected "will not." The administrator provided the surveyor a copy of the amended form. This was on December 4, 2018, the day of the survey. The Agency described this matter in its proposed finding of fact 63. It did not seek a determination that this was a deficiency of any class, a tacit acknowledgement that Cristal timely cured the violation. Tag 200 and Count XXVI – Detailed Emergency Environmental Control Plan – Alleged violation of Rule 58A-5.036: This violation was also among the charges arising from the September visit. The alleged violation of Tag 200 is that Cristal did not have an emergency power supply as required by rule 58A-5.036(1). At the time of the December visit, Cristal did not have the required emergency power supply installed. It did have two generators awaiting installation. But the Agency extension of the time period during which Cristal must establish an emergency power supply was still in effect. As of January 9, 2019, Cristal had one installed LP gas fueled generator. The evidence does not indicate that the generator's cooling capacity satisfied rule requirements. The generator was not connected to a fuel source. Live electrical wiring was exposed. Clear and convincing evidence proves that Cristal was not in compliance with rule 58A-5.036(1) in January, 2019. But this was not the month for which the Agency charged a violation as presented in Agency proposed finding of fact 64. The Agency did not prove the charged violation. Tag 816 and Count XXIII – Background Screening Compliance – Alleged violation of section 408.809(2): Agency proposed finding of fact 65 and Count XXIII assert that section 408.809(2), Florida Statutes, "requires that persons subject to criminal history background screening execute an attestation of compliance with the provisions of Chapter 435, Florida Statutes, as part of the background screening process." The Agency claims that the personnel records of Cristal staff F and G did not contain an attestation of compliance. Section 408.809(2)(c) is the part of the statute that the Agency argues Cristal violated which refers to an attestation of compliance. The relevant part of the statute establishes an alternative to the background screening through the Agency requirement permitting a provider to use proof of meeting the background screening requirements of five other agencies in lieu of meeting the requirements if the provider satisfies three requirements. The pertinent part says: Until a specified agency is fully implemented in the clearinghouse created under s. 435.12, the agency may accept as satisfying the requirements of this section proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly Affairs, the Agency for Persons with Disabilities, the Department of Children and Families, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under chapter 651, provided that: The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in s. 435.04 and this section; The person subject to screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and Such proof is accompanied, under penalty of perjury, by an attestation of compliance with chapter 435 and this section using forms provided by the agency. The statute does not require an affidavit or attestation of compliance for providers that do not rely upon the exception. Also, Cristal and the Agency participated in the Clearinghouse. In fact the Agency seeks to sanction Cristal for not reporting employment of a different individual to the Clearinghouse. (Tr.,Vol. I, pp. 133 and 134). Cristal maintains that its Exhibit 11 includes an attestation by each employee. The exhibit contains attestations dated December 6, 2016. The record does not establish that the individuals who signed the attestations are Staff F and G. The Agency did not prove that Staff F and G were relying upon the alternative means of satisfying background screening requirements. In fact, the testimony in Volume II of the Transcript, pages 486 to 498, cited by the Agency, does not mention this alleged violation. Testimony about the alleged violation appears at page 427 of Volume I and pages 471 and 472 of Volume III. It only says the records did not contain affidavits. The testimony says nothing about the circumstances in which compliance attestations are required. Consequently, the Agency did not prove this charge. Tag 77 – Administrator – Alleged violation of rule 58A-5.019(1) and section 429.176: The Agency charges three Tag 77 violations, one each for the July, September, and December survey periods. Proposed Agency findings of fact 32, 50, and 66 address these tags. For July 2017, the Agency asserts the violation amounts to a class III violation. This is also the charge of Count XXIV. For September 14, 2018, the Agency asserts the violation is a Class II violation. For December 5, 2018, the Agency asserts the violation is a Class III violation. This is also the charge of Count XXV. All three Tag 77 violations rely upon the tag violations alleged for each survey period. Count XXIV is the companion to the Tag 77 charge for the September survey period. Section 429.176 states: If, during the period for which a license is issued, the owner changes administrators, the owner must notify the agency of the change within 10 days and provide documentation within 90 days that the new administrator has completed the applicable core educational requirements under s. 429.52. A facility may not be operated for more than 120 consecutive days without an administrator who has completed the core educational requirements. The Agency does not propose any findings of fact about changes in Cristal administrators. Consequently, this claim is deemed abandoned. This Recommended Order does not address the statute further. Rule 58A-5.019(1) requires that: [e]very facility must be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including management of all staff and the provision of appropriate care to all residents as required by chapters 408, Part II, 429, part I, F.S. and rule chapter 59A-35, F.A.C., and this rule chapter. Each of the proposed findings asserting Tag 77 violations relies upon the tags from its survey period. Each proposes that: [t]he totality of the deficient practices cited during the [survey period] reflect multiple failures in facility compliance with minimum standards including resident care, record keeping, physical plant and resident safety. The multiple failures demonstrate the administrator was not fulfilling the administrator's role in the management of staff and the provision of resident care. For the survey period ending July 13, 2017, the proven failures upon which the Agency can rely for Tag 77 are four class III violations, asserted in Tags 8, 54, 93, and 162, and one class II violation asserted in Tag 25. The Tag 8 offenses are deficient health assessment forms for Residents 22, 7, and 4. The Tag 54 offenses are deficient MORs for three residents. The Tag 93 offense is a failure to comply with requirements for dating, posting, and conforming to menus. The Class III offense in Tag 162 was failure to maintain weight records required by rule. The Class II offense proven for Tag 25 was failure to notify a resident's health care provider when the patient was transferred to a hospital. These offenses follow three Class III offenses from the May 10, 2017, survey period, two of which are the same as the July offenses. They include Tag 8 health assessment form deficiencies which should have triggered increased attention to fulfilling the requirement to ensure proper completion of the forms. Yet the violation persists in the July period. The May deficiencies also include a Tag 56 deficiency of failing to identify the patient who was to receive medication and a Tag 93 violation of failing to post the resident menu as required. The menu violation should have focused Cristal on complying with the relatively simple requirement to date, post, and maintain menus. Instead Cristal did not cure the problem, giving rise to another Tag 93 offense for the July 13, 2017 period. These offenses demonstrate a failure to operate and manage Cristal to provide appropriate care to the residents. The clear and convincing evidence supports the Agency determination that this failure is an indirect or potential risk to residents. It is properly classified as a Class III violation. For the survey period ending September 14, 2017, the proven failures upon which the Agency can rely for Tag 77 are five Class III violations, one Class II violation, and two unclassified violations. The unclassified violations both involve background screening recordkeeping. The Tag 813 deficiency is for failing to have background screening results in a personnel file, although the Clearinghouse reported a clear background screening for the staff member. The Tag 814 deficiency is for failing to report the contractual employment of the staff member to the Clearinghouse. The Class IV violation, identified as Tag 167, is for failure to have a required contractual provision in Cristal's contract with Resident 18. The first Class III violation is that once again Cristal has a Tag 8, health assessment form violation. Tag 54 is the second Class III violation. Once again Cristal has a Tag 54 violation involving deficient MORs. The third Class III violation is Tag 56. Cristal did not seek rule-required clarification of a "use as needed" prescription. The fourth Class III violation is a Tag 160 violation for failing to maintain an accurate admission and discharge log. The fifth Class III violation is a Tag 30 violation for permitting bed-rails, which are considered a restraint, without proper authorization or consent. For the period ending September 14, 2018, Cristal continued its pattern of failure to comply with recordkeeping requirements. It also failed to comply with an important and elementary requirement to maintain an emergency supply of water. This is the Class II violation of Tag 93. These violations reflect a sustained failure to manage the facility in a way that provides Cristal's residents appropriate care. These management failures create a direct risk to residents. The Agency properly classified the September Tag 77 as a Class II violation. The proven offenses supporting the Tag 77 violation for the period ending December 5, 2018, are two Class III violations, one unclassified violation, and a contractual violation. The Tag 30 violation is unclassified. It is for failure to process complaints about a cook's decision to quit as a grievance. One Class III violation is yet another Tag 8 failure to obtain and maintain complete health assessments. The other Class III violation is another Tag 54 deficiency involving failure to keep accurate MORs. The fine is for failure to follow the statutorily required process for refunding deposits and advance payments. The repeating nature of the offenses involving health assessments and MORs create an indirect or potential risk to residents. The Agency proved the September Tag 77 and Count XXIV, in part. The Agency correctly classified this as a Class III violation.
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: denying the application for license renewal of Cristal Palace Resort PB, LLC; imposing administrative fines in the total amount of $23,000; and requiring the Agency to remit $2,250 of Cristal's fine to Resident 4 or Resident 4's successors or heirs. DONE AND ENTERED this 17th day of March, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 March, 2020. COPIES FURNISHED: Nicola Brown, Esquire Agency for Health Care Administration Suite 330H 525 Mirror Lake Drive North St. Petersburg, Florida 33701 (eServed) John E. Terrel, Esquire John E. Terrel, P.A. Suite 11-116 1700 North Monroe Street Tallahassee, Florida 32303 (eServed) Thomas J. Walsh, II, Esquire Agency for Health Care Administration Suite 330H 525 Mirror Lake Drive North St. Petersburg, Florida 33701 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration Mail Stop 1 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Mail Stop 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 (eServed)
