Findings Of Fact The Respondent, R & R Guest Home, Inc., is located at 720 S. W. 5th Street in Dania, Florida, and consists of four apartments which are designated as A building, B building, C building, and D building. Buildings A, B and C are contiguous. Building D is located east of the main complex. The Respondent facility received license number 10-06-0046 on December 2, 1981, allowing a capacity of 21 beds. This license had an expiration date of September 9, 1982. On March 31, 1982, the Respondent was advised that the allowable capacity had been increased to 37 beds, and on November 8, 1982, license number 10-06-0046 was reissued to show a capacity of 37. The capacity set by HRS was based on its regulations which require a usable floor space of 60 square feet per bed in rooms designated for multiple occupancy. A representative of HRS visited the R & R Guest Home on February 9, 1982, and on July 6, 1982, and found resident beds in use in excess of the licensed capacity of the facility. By notice dated July 7, 1982, HRS advised the Respondent that corrective action must be taken by July 21, 1982. Specifically, the HRS representative found 53 beds in place. The HRS representative again visited the R & R Guest Home on August 24 and on August 26, 1982, and once again found beds in the facility in excess of the licensed capacity of 37. In November of 1982 the HRS representative visited the Respondent, R & R Guest Home, and the excess beds found on the August visits were still in place. Respondents facility had been cited previously, in July of 1981 and in February of 1982, for having beds in excess of the licensed capacity, but these violations had been corrected. The Respondent's owner admits that on July 6, 1982, there were 43 beds on the licensed premises, and that on this date the authorized capacity was 37. The excess beds in the Respondent's facility were situated across doorways in the A building and in the B building, creating a situation that presented potential danger to the residents, in that they might not be able to exit the buildings in an emergency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilita tive Services assess fine of $1,000. against the Respondent, R & R Guest Home, Inc. THIS RECOMMONDED ORDER entered this 7th day of March, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1983. COPIES FURNISHED: Harold L. Braynon, Esquire 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Jesse H. Diner, Esquire Post Office Drawer 2088 Hollywood, Florida 33022-2088 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether respondent should be fined $3,350 for allegedly violating various agency rules.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Barbara Knight Manors, Inc., d/b/a Four Palms (Four Palms or respondent), operates a licensed adult congregate living facility (ACLF) at 302 11th Avenue Northeast, St. Petersburg, Florida. The facility is subject to the regulatory jurisdiction of petitioner, Department of Health and Rehabilitative Services (HRS). As such, Four Palms is required to adhere to various HRS rules codified in Chapter 10A-5, Florida Administrative Code (1987). On December 3, 1987, an HRS program analyst, Diane Cruz, conducted a change of ownership survey of respondent's facility. The survey was prompted by the fact that the facility had just been purchased by its present owner, Barbara Knight. During the course of the survey, Cruz noted the following deficiencies which constituted a violation of applicable portions of Chapter 10A-5, Florida Administrative Code (1987): the patient daily medication records were incomplete in that some medications administered to patients had not been documented by the staff (10A-5.024(1)(a)3., FAC); (2) two employees did not have medical certificates reflecting they were free from communicable diseases (10A-5.019(5)(g), FAC); there were no standardized recipes (10A- 5.20(1)(g), FAC) the facility did not have a one week supply of non-perishable food (fruit and vegetables)(10A-5.20(1)(k), FAC) two showers did not have grab bars (10A- 5.023(9), FAC); and there were no screens on the windows (10A-5.023(13), FAC) The deficiencies were noted in a survey report received in evidence as petitioner's exhibit 4. A copy of the survey report was given to the facility's administrator on January 14, 1988. The report advised the licensee that monetary fines could be imposed if the violations were not timely corrected. At the completion of the December 3 survey, Cruz held an exit interview with Knight and explained the reason why each deficiency was cited and the steps required to correct the same. Also, Cruz advised Knight that all deficiencies had to be corrected no later than February 3, 1988 and that she would return for an unannounced follow-up visit to verify whether such deficiencies had been corrected. An "exit letter" confirming this process was furnished to Knight, and Knight signed and acknowledged receiving the letter. On March 2, 1988, Cruz returned to the facility for an unannounced follow-up visit. The purpose of the visit was to ascertain whether the deficiencies noted on December 3 had been corrected. During the visit, Cruz observed the following deficiencies that had not been corrected: The daily medicine records were still not accurately documented (initialed); one staff member had no medical certi- ficate attesting she was free from communicable diseases; there were no standardized recipes; the facility did not have a one week supply of non-perishable food (fruit and vegetables) on hand; two showers did not have grab bars; and two bedrooms did not have screens on the windows. As the result of an unidentified complaint, an HRS analyst, Sharon McCrary, visited respondent's facility on March 28, 1988. McCrary discovered that one resident's records had not been properly documented (initialed) to reflect that the staff had observed the patient receiving medication that morning. This violation was the same type that had been previously noted during the December 3, 1987 survey. On June 24, 1988, Cruz and a registered dietician, Mary Cook, returned to Four Palms to conduct a routine, annual survey. During the course of their survey, the two noted the following deficiencies that constituted violations of chapter 10A-5: there were three employees who had no medical certificate showing they were free from communicable diseases (10A-5.019(5)(g), FAC); three residents required supervision when given medications, but there was no licensed nurse on the staff to supervise this activity (10A-5.0182(3)(c), FAC) the facility had no activities calendar (10A-5.0182(7)(a), FAC) live roaches were observed in the kitchen area (10A-5.020(1)(n)1., FAC); the facility did not have a one week supply of powdered milk on hand (10A- 5.020(1)(k), FAC) there were no meal patterns or modified menus at the facility (10A-5.020(1)(e), FAC), and a county sanitation report citing various health deficiencies contained no evidence that such deficiencies had been corrected (10A-5.024(1)(d)2.a., FAC). An exit interview was conducted after the survey, and respondent was advised that it had until July 24, 1988 in which to correct the deficiencies. Also, a copy of the survey report was furnished to respondent. On September 13, 1988, an unannounced follow-up survey was conducted by Cruz and Cook to determine if the previously noted deficiencies had been corrected. They observed the following deficiencies that were not corrected: One staff member had no medical certificate reflecting he was free from communicable diseases; the facility's records indicated one resident required supervision when given medications but the facility did not employ a licensed nurse; although an activities calendar had been prepared, it was incomplete; there were no modified menus in the kitchen; live roaches were observed in the kitchen area; and the deficiencies noted on the county health inspection report had not been corrected. Respondent did not deny that many of the violations occurred. However, its owner and administrator argued that HRS was unfair in filing an administrative complaint more that a year after the first violations were noted. The facility maintained that HRS should have assisted it in remedying the violations since the owner had just purchased the business a few months earlier and was going through a "learning curve." The owner contended that many of the chapter 10A-5 requirements were impractical for a small ACLF and that HRS was simply "nit-picking." Knight also claimed she did not understand what she had to do in order to meet HRS rule requirements. Respondent offered a number of excuses as to why the violations occurred. For example, she contended that (a) the screens were off the windows because the windows were being painted, (b) her employees either would not bring their medical certificates to work or would not see a doctor to obtain one, (c) the quantity of non-perishable foods required to be kept on hand was a judgment call and was not susceptible to precise measurement, (d) roaches can never be totally eradicated in Florida, (e) one of the bathrooms without a grab bar was not being used by the residents, (f) the patient medication records were inaccurate or incomplete due to a misunderstanding by the physician who had prepared some of those records, and it is impossible to prepare a detailed, accurate activities calendar for ACLF residents. While these matters may serve to mitigate the severity of any penalty to be imposed, they do not excuse or justify the rule violations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the administrative complaint and that it pay an administrative fine of $1600, or $100 per violation DONE and ORDERED this 3rd day of October, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 1989.
The Issue Whether Respondent, New Life Charities, Incorporated, Owner and Operator, Janae House Group Home (New Life or Janae House or Respondent), violated one or more of the group home licensure standards as alleged by the Agency for Persons with Disabilities (APD or Petitioner) in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Janae House is a group home owned by New Life located at 17130 Southwest 41st Court, Ocala, Florida 34473. It is licensed as a group home by APD. As a group home licensing agency, APD has multiple employees assigned to monitor group homes and their employees. In monitoring a group home's compliance with applicable licensing standards, APD also reviews findings of group home investigations conducted by the Department of Children and Families (DCF). The Complaint charges Janae House with two Class I violations of group home licensing standards from reported incidents allegedly occurring in 2013 and 2015. The Complaint further alleges that in 2014, Janae House was responsible for numerous other violations of group home licensing standards, including 10 alleged Class II violations and 25 alleged Class III violations. CLASS I VIOLATIONS Florida Administrative Code Rule 65G-2.0041(4)(a) includes as Class I violations "all instances where the Department of Children and Families has verified that the licensee is responsible for abuse, neglect, or abandonment of a child or abuse, neglect or exploitation of a vulnerable adult." The two alleged Class I violations against Respondent stem from 2014 DCF investigations of alleged incidents occurring in 2013 and 2014, respectively. According to Count I of the Complaint, Janae House's first alleged Class I violation occurred in 2013 and was verified in a February 2014 DCF investigative report prepared by Charles Bory. Mr. Bory conducted the investigation in person and testified at the final hearing regarding his investigation. At the time of the report, Mr. Bory was an adult protective investigator for the Department of Children and Families. Mr. Bory's investigation concerned an allegation that a New Life employee caused Janae House resident RB to fall and injure his shoulder. During the investigation, Mr. Bory spoke with the owner of New Life, Kevin Rivers, who denied the allegation, stating that the allegation was "crazy," that resident RB had tried to escape, fallen while doing so, and hurt his shoulder in the fall. Mr. Bory later interviewed the alleged perpetrator, a former staff member of New Life, who admitted that he and resident RB fell to the ground while he was holding resident RB and trying to stop resident RB from leaving. Given the staff member's admission, Mr. Bory found that the allegation was verified. Mr. Bory's testimony and the investigative report support the allegation, which is found to have occurred. The other alleged Class I violation is from a 2014 incident alleged in Count III of the Complaint. As to this second alleged Class I violation, although APD submitted DCF's investigative report, the investigator who conducted that investigation did not testify. Rather, APD called the investigator's supervisor, who advised that the investigator was no longer employed by DCF and was unavailable. The investigator's supervisor further testified that he did not know if any of the information in the investigative report was true. Under the circumstances, it is found that the investigative report for the 2014 alleged incident is hearsay and prepared in anticipation of litigation. Further, that 2014 investigative report is not corroborative of other evidence and the evidence is otherwise insufficient to find a Class I violation stemming from the 2014 incident.2/ CLASS II VIOLATIONS Rule 65G-2.0041(4)(b) classifies Class II violations as violations that "do not pose an immediate threat to the health, safety or welfare of a resident, but could reasonably be expected to cause harm if not corrected." In October 2014, APD Investigator Michael McKenna found a broken window at the Janae House that had been improperly repaired, with glass still lying in the yard and in the window frame. Given the fact that the Janae House is a behavioral home, a broken window with exposed broken glass presents a direct risk that a resident may hurt themselves or another. Mr. McKenna advised owner Kevin Rivers about the window and its danger during the October 2014 visit. On a return visit in November 2014, Mr. McKenna noted that the window was broken again, and that, for a second time, jagged glass was left in the window. When Mr. McKenna spoke to Mr. Rivers again, Mr. Rivers' response was that the investigator was intentionally looking for items to note. During her visit to Janae House on August 8, 2014, APD licensing supervisor Joyce Leonard observed that there was no carbon monoxide detector in the home and that the smoke detector needed a battery. Ms. Leonard also observed that the pantry door in the kitchen was broken. Mr. Rivers was advised of these deficiencies. Two months later, during a monitoring visit to Janae House on October 29 and 30, 2014, Investigator McKenna observed that there was still no carbon monoxide detector in the home and that the smoke detector lacked a battery. During that same visit, Mr. McKenna also observed broken doors and holes in the wall. In cases where a behavioral analyst is not available for residents needing behavioral services, APD regulations require a short one- or two-page sheet of procedures from the residents' health care provider for group home employees to follow in case of problematic behaviors. While monitoring Janae House on February 24, 2014, APD Senior Behavior Analyst Scott Traynor noted that, although Janae House resident JR had the need, no behavior analyst was available for resident JR. There was also no behavior procedure sheet specific to resident JR. CLASS III VIOLATIONS Rule 65G-2.0041(4)(c) classifies Class III violations as "statutory or rule violations related to the operation and maintenance of the facility or to the personal care of residents, other than Class I or Class II violations." When Joyce Leonard visited Janae House on August 8, 2014, Ms. Leonard observed that there was garbage strewn throughout the front yard. On his October 29 and 30, 2014, visit, Michael McKenna discovered that there was no physical exam on file for resident JR, there were no financial records of residents’ personal funds available for review, a Janae House staff member was administering medication to residents even though there were no current medication administration training credentials on file, and there was no communication log for Janae House staff. During that same visit, Mr. McKenna observed exposed light bulbs in their fixtures, filthy rugs throughout the home, a dryer was full of lint, numerous wasps nests on the outside of the building, and various debris littered throughout the grounds. New Life owner, Mr. Rivers, was made aware of these deficiencies at the time and advised that he would correct them. Corrections, however, were not made. Upon Mr. McKenna’s return to Janae House on November 20, 2014, there were no financial records available for review for resident KJ’s personal funds, no documentation of an annual dental visit for resident KJ, no weekly schedule for staff, and light bulbs were still exposed. During Scott Traynor’s visit to Janae House on February 24, 2014, he found that a board-certified behavior analyst was not monitoring at least 50 percent of Janae House staff each month as required, and that Janae House did not have site-specific reactive strategy procedures for staff to implement, if needed. He also discovered that, despite ADP’s request, the behavior analyst for Janae House resident DJ did not present resident DJ's behavior plan to the local review committee for review, and that Janae House staff was not conducting quarterly or semi-annual quality assurance meetings to review reactive strategies and develop strategies for behavioral incident reduction. APD also alleged that, during her review and investigation, former APD Medical Case Manager Victoria McKenna discovered that Janae House had violated a number of medical regulations. Ms. McKenna, however, did not testify. Rather, APD attempted to prove the alleged medical violations by submitting reports and notices of violations allegedly observed by Ms. McKenna and by offering the testimony of Michelle Young, a current APD medical case manager, who testified that notices of noncompliance are the same regardless of who does them. However, as in the alleged Class I violation that was only supported by an investigative report, it is found that the notices of violations prepared by Ms. McKenna, without more, are hearsay, prepared in anticipation of litigation, and insufficient to prove the alleged medical violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order finding that Respondent violated the group home licensing standards as concluded above and revoking Respondent’s group home license. DONE AND ENTERED this 14th day of July, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2016.
The Issue At issue is whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what penalties should be imposed.
Findings Of Fact The Department is authorized to regulate child care facilities pursuant to sections 402.301-402.319, Florida Statutes. Section 402.311 authorizes the Department to inspect licensed child care facilities. Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301-402.319. A Step Above is a child care facility operating pursuant to License Number C07VO0425. The facility is located at 1122 Dr. Mary McLeod Bethune Boulevard, Daytona Beach, Florida 32114. Cynthia McGuire-Moore is the owner of A Step Above. Jennifer Overley works for the Department as a child care regulation licensing counselor. At the time of the hearing, Ms. Overley had worked in this position for two years. Ms. Overley was assigned to A Step Above as a licensing counselor. Among her duties was to inspect the facility on a regular basis to assure that it met the statutory and rule requirements regarding the ratio of staff to children. Ms. Overley testified that she first discovered a ratio violation at A Step Above on December 17, 2015. At the time, there was a requirement of one staff member for each four children. Ms. Overley observed a ratio of one staff member to seven children at A Step Above on that date. Ms. Overley testified that, under these circumstances, the licensing counselor is required to stay at the facility until the management brings it into ratio compliance. On this occasion, Ms. McGuire-Moore remedied the situation by having some parents come in and pick up their children. Because this was a first violation, Ms. Overley offered technical assistance and issued an administrative warning letter. Ms. Overley discovered a second ratio violation on March 30, 2016. She stated that Ms. McGuire-Moore was out of ratio in two rooms. In the first room, the ratio requirement was one staff person per four children, and the actual ratio was one staff member per seven children. In the second room, the required ratio was one staff member per four children and the actual ratio was one staff member per five children. Ms. McGuire-Moore was not at the facility when Ms. Overley first arrived. Ms. McGuire-Moore’s appearance restored the required ratio in one of the rooms. Ms. McGuire- Moore proceeded to rearrange the children in the second room to bring it into ratio. Ms. Overley testified that she issued an administrative letter to Respondent for the second violation. She also counseled Ms. McGuire-Moore regarding ratio violations and how to stay in ratio. Ms. Overley discovered a third ratio violation on June 16, 2016. At that time, a ratio of one staff person per six children was required, and she observed that the ratio was one staff person to nine children. Before Ms. Overley left the facility, another staff person arrived to bring it into the required ratio. The Department issued A Step Above a fine and another administrative warning letter. Ms. Overley testified that she discovered the fourth ratio violation on July 21, 2016. The ratio on that day was one staff member to ten children when it should have been one staff member to four children. Ms. Overley stated she stayed on-site until another staff person arrived. A Step Above was issued another fine, another administrative action letter, and was placed on six-months' probation. The probation period ran from October 2016 to February 2017. Ms. Overley also stated that during the probation period, she visited the daycare every month as required by law, and noted that A Step Above was in ratio for the entire term of its probation. Ms. Overley testified that in February 2017, the facility was placed on a provisional license because Ms. McGuire-Moore had allowed her director’s credential to lapse. Ms. McGuire-Moore received her new director’s credential in October 2017 and A Step Above was shortly thereafter returned to the status of a regular license. At the outset of the hearing, the Department stipulated that its revocation action was based only on the facility’s repeated ratio violations and not on Ms. McGuire-Moore’s lapsed director’s license. As to the fifth and final ratio violation that led the Department to seek revocation of A Step Above’s license, Ms. Overley testified that she went to the facility on September 21, 2017, to check on the status of Ms. McGuire- Moore’s director’s credential renewal. While there, Ms. Overley noted that the facility was once again out of ratio. The required ratio was one staff person per four children, and A Step Above was at one staff person per twelve children. Some of the children were infants. Because this was the fifth ratio violation, the Department began revocation proceedings. Ms. Overley testified that she had several conversations with Ms. McGuire-Moore as to the need to remain within ratio. Ms. Overley suggested that the facility reduce the need for employees by enrolling older children and declining to care for infants and one-year-olds, whose care requires more staffing. Ms. Overley testified that she conducted an inspection of A Step Above on December 15, 2017, while this formal hearing on revocation was pending. She observed the facility to be out of ratio yet again, with a ratio of one staff person per eight children, when the proper ratio was one to four. Ms. Overley was unsure how to proceed, as the revocation process was already underway and a formal hearing was scheduled. She consulted her supervisor, and together they determined that a cease and desist letter should be issued to A Step Above. Ms. Overley delivered the cease and desist letter on December 22, 2017, with directions that A Step Above should close its doors by December 29, 2017. Ms. Overley testified that she has since gone by the facility three times and has observed no activity. Family services counselor supervisor Betsy Lewis testified regarding the matrix that the Department follows when it discovers violations. Ms. Lewis testified that chapter 402 sets forth the Department's enforcement procedures and standards. Violations are classified according to their severity, with Class I being the most severe and Class III being the least severe. The ratio violations in this case are Class II violations, indicating that there is no imminent danger to a child, but there is the potential for harm. Ms. Lewis testified that Department rules provide for progressive discipline for repeated violations. As to Class II violations, a first violation would result in only a citation and technical assistance to the daycare. A second Class II violation results in a $50.00 fine, and a third Class II violation results in a $60.00 fine. A facility receiving a fourth Class II violation is usually placed on probation, as A Step Above was in this case. A fifth violation requires the Department to suspend or revoke the daycare’s license and to impose a fine of up to $100.00. Under all the circumstances, the Department chose to seek revocation and a $50.00 fine. Ms. McGuire-Moore testified on behalf of A Step Above. She did not contest the violations, but also declined to take responsibility for them. She blamed her employees for not showing up on time. Ms. McGuire-Moore also stated that she had been unaware that a daycare’s license could be revoked for repeated ratio violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order revoking License Number C07VO0425 issued to A Step Above Christian Academy, LLC, d/b/a A Step Above Christian Academy, LLC. DONE AND ENTERED this 21st day of March, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2018.
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 The issues in DOAH Case No. 10-0528 are whether the allegations set forth in the Administrative Complaint dated December 4, 2009, are correct, and, if so, what penalty should be imposed. The issue in DOAH Case No. 10-1672 is whether the application for license renewal filed by Avalon's Assisted Living LLC, d/b/a Avalon's Assisted Living and d/b/a Avalon's Assisted Living at Avalon Park (hereinafter Avalon I), should be approved. The issue in DOAH Case No. 10-1673 is whether the application for license renewal filed by Avalon's Assisted Living II LLC, d/b/a Avalon's Assisted Living at Southwest (hereinafter Avalon II), should be approved.
Findings Of Fact Avalon I is a six-bed assisted living facility (ALF), operating at 1250 Willow Branch Drive, Orlando, Florida, 32828, and holding license number 10813 with Limited Nursing Services licensure. Avalon II is a six-bed ALF operating at 13230 Early Frost Circle, Orlando, Florida, 32828, and holding license number 11318 with Limited Nursing Services licensure. Avalon I and Avalon II are operated by a limited liability company owned by Chiqquittia Carter-Walker and Robert Walker. Mrs. Carter-Walker acts as the administrator of the facilities. On July 23, 2009, the Agency conducted an inspection of Avalon I and determined that there were three "Class II" deficiencies, commonly cited as "tags" in reference to applicable regulatory standards. Tag A029 alleged that the training certifications, contained within the facility's personnel files to document the provision of required employee education, were false and that the training had not been provided. The training certificates for one Avalon I staff member were not accurate and falsely indicated that the referenced employee received training that had not been provided. The falsification was deliberate and was not erroneous. The inaccurate documentation of employee training misstated the qualifications of the ALF staff, falsely indicated that the staff was adequately trained, and presented the potential for harm to the health of the residents. The Agency correctly identified the deficiency as Class II. Tag A427 was based on regulatory provisions that permitted a terminally ill resident, no longer meeting the criteria for continued ALF residency, to remain in the ALF under certain conditions. The July 23, 2009, inspection indicated that such a resident continued to reside at Avalon I without compliance with relevant conditions. The conditions under which the terminally ill resident was permitted to remain at the ALF required that the hospice coordinate the care and provision of additional medical services and that an interdisciplinary care plan be developed and implemented by the hospice in coordination with the ALF. The July 23, 2009, inspection revealed that the interdisciplinary care plan failed to adequately designate responsibility for the various kinds of care required by the resident. The inspection revealed that a terminally ill resident remained in Avalon I without receiving appropriate medication for pain management even though such medications had been authorized. Although the ALF had undertaken the responsibility of administering the pain medication, there were occasions when no Avalon I staff member authorized to administer the pain medication was present at the ALF. Patient records indicated that the hospice representative attempted at several junctures to contact Mrs. Carter-Walker by telephone to resolve the problem and that Mrs. Carter-Walker was not accessible to the hospice representative. The resident unnecessarily suffered pain because the issue was not resolved in a timely manner. The failure to provide a terminally ill resident with appropriate pain medication resulted in a direct threat to the physical and emotional health of the resident, and, therefore, the Agency correctly identified the deficiency as Class II. Tag A700 reflects standards for resident care and requires that appropriate services be provided to residents. The July 23, 2009, inspection indicated that one resident was not being provided a nutritional supplement and that two residents were not being provided appropriate pain-relieving medications. As to the provision of nutritional supplementation, one resident with a history of weight loss had been prescribed a daily can of "Ensure" nutritional supplement. According to the facility records, the supplement had not been acquired by the ALF and had not been provided to the resident. As to the residents who were not receiving proper pain medication, one of the two was the terminally ill resident referenced in relation to Tag A427. As stated previously, the resident unnecessarily suffered pain because medication was not appropriately administered, which resulted in a direct threat to the health of the resident. Therefore, the Agency also correctly identified the deficiency cited as Tag A700 as Class II. The second resident had a history of hypertension and hypothyroid issues and had been prescribed a daily Ibuprofen (400mg) for pain. The Avalon I medication records indicated that, on some days, the medication had been provided twice daily to the patient, and, on other days, it had not been provided at all. The evidence establishes that the deficiencies identified in Tags A427 and A700 indicate a failure of the ALF to provide appropriate care and service to the residents of the facility. According to the uncontroverted testimony of Agency investigators as documented by the reports of their inspections, numerous lesser deficiencies were identified at Avalon I between 2007 and 2009, constituting a continuing pattern of inadequate performance and a failure to meet relevant standards. On August 5, 2009, an inspection conducted by the Agency at 1812 Crown Hill Boulevard, Orlando, Florida, 32828, indicated that an unlicensed ALF was operating at that address. On August 5, 2009, the Agency's investigator observed five individual residents in Avalon III. The investigator reviewed health assessments for the residents, all of whom required assistance with activities of daily living, including personal hygiene, ambulation, and meals. Medications for the residents were stored in a central area. The investigator reviewed medication observation records, indicating that the residents self-administered medications with observation by the Avalon III staff. Signage was present at Avalon III that identified Mrs. Carter-Walker as the administrator of the Avalon III facility. During the August 5, 2009, inspection, Mrs. Carter- Walker arrived at Avalon III and identified herself as the administrator of the facility. The investigator was familiar with Mrs. Carter-Walker and knew her as the administrator for Avalon I and Avalon II. Mrs. Carter-Walker identified herself as the Avalon III administrator to other care providers, including a clinical social worker, a registered nurse providing contract health care services to facility residents, and Administrators at other local ALFs. According to the testimony of an employee of Avalon III, there had been residents in the Avalon III location since at least June 16, 2009, at which time the staff member began to work at the facility. She worked five days per week, providing the resident services identified herein. During that time, there were always at least three residents in the facility. The same residents were present on a day-to-day basis. There is no evidence that such residents were transported out of the facility during the evening or that they did not otherwise remain at the Avalon III location overnight. A licensed practical nurse present at the Avalon III location on August 5, 2009, was the person who permitted the Agency's investigator to enter into the facility. The nurse was at the location to provide personal care assistance to a terminally ill resident receiving care through an agreement between the Mrs. Carter-Walker, as the facility administrator, and the hospice. After Mrs. Carter-Walker arrived at the Avalon III location, she was apparently unhappy that the nurse had permitted the investigator to enter the facility, and directed the nurse to leave immediately without providing further assistance to the resident. On the day of the investigation, the Agency investigator issued a "Notice of Unlicensed Activity/Order to Cease and Desist" to Robert Walker and Chiqquittia Carter-Walker for the Avalon III operation. Mr. Walker arrived during the inspection and identified himself as an owner to the Agency investigator. On August 14, 2009, the Agency received an application for licensure of an ALF at 1812 Crown Hill Boulevard, Orlando, Florida, 32828. The application, submitted by Robert Walker as the administrator, referenced the Avalon I and Avalon II as affiliated with Avalon III through ownership. Both Mr. Walker and Mrs. Carter-Walker submitted affidavits of compliance with background screening requirements as part of the Avalon III application. At no time was Avalon III licensed as an ALF. There was no evidence that the Avalon III residents were related to Mrs. Carter-Walker or her husband. There was no evidence that Avalon III was exempt from, or otherwise not required to comply with, relevant ALF licensing requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order revoking the licenses of Avalon I and Avalon II, denying the applications for license renewal filed by Avalon I and Avalon II, and assessing an administrative fine in the amount of $3,000 for the specific Class II deficiencies identified herein. DONE AND ENTERED this 28th day of January, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2011.
The Issue The issue is whether Respondent should have a civil penalty in the amount of $1,600.00 imposed for allegedly failing to timely correct three violations of administrative regulations, as alleged in the Administrative Complaint filed by Petitioner on February 18, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Northpointe Retirement Community (Respondent), was licensed to operate an assisted living facility (ALF) at 5100 Northpointe Parkway, Pensacola, Florida. As an ALF, Respondent is subject to the regulatory jurisdiction of Petitioner, Agency for Health Care Administration (AHCA). One regulatory responsibility of AHCA is to conduct periodic licensure surveys of ALFs to ensure that they are complying with certain standards embodied in Chapter 58A-5, Florida Administrative Code. If standards are not being met, depending on their nature and severity, the deficiencies are classified as Class I, II, and III violations, with Class I being the most serious violation. After deficiencies are noted in a licensure survey, the facility is given a time certain in which to correct those violations. If no correction is made, AHCA normally imposes a civil penalty upon the erring facility. Respondent is charged with having failed to timely correct one Class II and two Class III violations. By law, a Class II deficiency is one which the agency determines to have a direct or immediate relationship to the health, safety, or security of nursing home residents. A Class III deficiency is a deficiency which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home residents. On October 5 through 7, 1998, an AHCA representative conducted a routine licensure survey of Respondent's facility. During the survey, the representative noted, among other things, that Respondent did not have a staff member within the facility at all times who was certified in first aid, including cardiopulmonary resuscitation (CPR). If true, this omission contravened the requirements of Rule 58A-5.019(5)(f), Florida Administrative Code, and constituted a Class III violation. On November 12, 1998, AHCA conducted a second licensure survey of Respondent's facility. During the survey, its consultant discovered two standards being contravened. First, Respondent failed to comply with good sanitary practices in its food preparation area in various respects, which constituted a violation of Rule 58A-5.020(1)(b), Florida Administrative Code. The specific deficiencies are described in detail in Petitioner's Exhibit 2, and collectively they constituted a Class II violation. The same survey also revealed that Respondent failed to maintain an adequate emergency supply of water for drinking and cooking purposes. While Respondent had a private well on its premises to meet these needs, the quality of the water had not yet been tested by the Escambia County Health Department. In the absence of such testing, or the presence of any other emergency supply of water, Respondent violated Rule 58A-5.020(1)(i), Florida Administrative Code, a Class III violation. After the foregoing inspections had occurred, Respondent was given a written report containing a list of all violations, and it was given until December 3, 1998, in which to make corrections. On February 5, 1999, AHCA conducted a follow-up survey of Respondent's facility and noted that Respondent had still failed to remediate the previously cited deficiencies. First, during the late evening shift (11 p.m.-7 a.m.) on January 29, 1999, there was no person on duty in Phase II of the complex who was certified in first aid, including CPR. Second, the well had still not been inspected and approved for human consumption, and there was an inadequate amount of water on hand for the residents in the event of an emergency. Finally, although the earlier sanitary violations had been corrected, the AHCA representatives discovered a new sanitary violation in the food preparation area involving the improper thawing of meat. Under AHCA policy, unless no sanitary violations are found in the follow-up inspection, a continuing violation of the rule has occurred. Except for the first-cited deficiency, which is discussed below, the foregoing deficiencies constituted an uncorrected Class II violation and an uncorrected Class III violation. While admitting that a person certified in first aid was not present in one of his buildings during the late shift on January 29, 1999, Respondent's owner contended that the AHCA rule was still satisfied. Under his interpretation, the rule only requires that he have one person trained in first aid, including CPR, within the entire facility, rather than in each building; AHCA, however, interprets the word "facility" as meaning each building within the facility, and because there was no person in Phase II of the facility, it maintains that the rule was violated. For the reasons given in the Conclusions of Law, this interpretation of the rule is found to be clearly erroneous. As to the second violation, which pertains to sanitary food practices, Respondent admits that the violation occurred, but suggested that it pertained to mildew which developed behind loose caulking in the kitchen, which was later corrected. At the hearing, however, the ACHA consultant pointed out that the violation occurred because of improper thawing of food, and not caulking, and thus there was a continuing sanitary violation in the food preparation area. As to the lack of an emergency water supply, Respondent's owner pointed out that he had made a good faith effort to comply with the regulation, but had difficulty in determining from the local disaster preparedness authority exactly how much water per resident was required in the event of an emergency. Shortly after the follow-up survey, he purchased adequate amounts of bottled water to meet the requirements of the rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order determining that Respondent has violated Rule 58A-5.020(1)(b) and (i), Florida Administrative Code, and that an $800.00 civil penalty be imposed. The remaining violation should be dismissed. DONE AND ENTERED this 10th day of February, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2000. COPIES FURNISHED: Sam Powers, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Michael O. Mathis, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Mohammad H. Mikhchi, President Northpointe Community Retirement 5100 Northpointe Retirement Pensacola, Florida 32514 Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
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
