The Issue Whether FPSS Report No. 96-130813 should be amended or expunged, as requested by Respondent.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: South Florida Evaluation and Treatment Center (SFETC) is a state-operated facility that provides mental health services to forensic patients. Respondent was formerly employed at SFETC. He began his employment at SFETC in October 1992, after graduating from Bethune-Cookman College in Daytona Beach, Florida, where, before sustaining a serious knee injury, he played offensive and defensive tackle on the football team. His employment at SFETC was terminated in August 1997, as a result of an incident at the facility which occurred on December 2, 1996. At the time of the incident, Respondent was working the 7:45 a.m. to 4:15 p.m. shift as a UTR (Unit Treatment Rehabilitation) Specialist3 responsible for assisting and monitoring the activities of patients in Unit Seven South (which is located on the seventh floor of the facility). One of these patients was R. P. R. P. is short and stocky. He is considerably smaller (in terms of both height and girth) than Respondent. At the time of the incident R. P. was on medication that made him more sluggish than he otherwise would be. The incident occurred in the recreational therapy yard at approximately 3:30 p.m. when Respondent was escorting R. P. and other patients back to the unit and noticed that R. P. was not wearing his identification badge. Respondent located the identification badge in R. P.'s pocket. As Respondent was reaching into R. P.'s pocket, R. P. grabbed the badge and threw it on the ground. After picking up the badge, Respondent attempted to pin it on R. P.'s shirt. R. P. resisted Respondent's efforts and the badge again wound up on the ground. Respondent, with his back to R. P., bent down to pick up the badge a second time. As Respondent was bending down, R. P. jumped on Respondent's back. Concerned that he was in a vulnerable position, Respondent stood up quickly, causing R. P. to fall and hit the back of his head on the ground. Respondent did not intend to harm or injure R. P. He was simply trying to protect himself. While it is unfortunate that R. P. was injured as a result of the incident, it has not been shown that, in quickly standing up when R. P. jumped on his back, Respondent breached any standard of care that a UTR Specialist with his training and experience was required to follow. R. P. (who was bleeding from the back of his head) was taken in a wheelchair to the facility's medical clinic where his wound was closed (with sutures) and bandaged. Before leaving work that day, Respondent provided his supervisor with a written report of the incident in which he and R. P. had been involved earlier that day in the recreational therapy yard. In his report, Respondent stated that R. P. had hit the back of his head on a nearby wall. In making this statement (which was inaccurate inasmuch as R. P. had hit the back of his head, not against the wall, but on the ground), Respondent was relying on what someone else had told him. He himself had not seen R. P. fall. By the time he had stood up and turned around, R. P. had already landed on the ground.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting Respondent's request for amendment or expunction and reclassifying FPSS Report No. 96-130813 as "unfounded." DONE AND ENTERED this 22nd day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1998.
The Issue The issues for determination are: 1) whether Carden House failed to ensure daily observation by staff of a resident at the facility in violation of Florida Administrative Code Rule 58A-5.0182(1)(b); 2) whether Carden House failed to maintain written records of any significant changes in residents' normal appearance or state of health in violation of Florida Administrative Code Rule 58A-5.0182(1)(e); (3) if yes, what penalty should be imposed; and (4) whether Carden House is liable for a complaint survey fee of $400.00.
Findings Of Fact The Agency is the state agency charged with the responsibility of licensing assisted living facilities in Florida and with evaluating such facilities to ensure that they are in compliance with state regulations. Carden House is an assisted living facility in St. Petersburg, Florida, licensed by, and subject to, regulation by the Agency. On January 10, 2003, the Agency conducted a complaint investigation of Carden House following a complaint made to the Agency hotline. The complaint alleged that a resident at the facility (Resident #1) was "found dead on the bed" and that the facility had failed to properly supervise the resident. Sharon McCrary conducted the complaint investigation at Carden House. As part of the survey, Ms. McCrary interviewed staff at the facility regarding Resident #1 and reviewed documentation provided by the staff. Based on information obtained by staff at the facility, the Agency found that on January 9, 2003, at 8:30 a.m., Resident #1 was found dead by his caseworker, who had come to the facility to take the resident to an appointment. As a result of Ms. McCrary's interviews with staff, the Agency also made the following finding in its report of the investigation: According to information received from staff interview, Resident #1 had been sick during the holidays but attempts by his family member to take him to a physician were met with refusals by the resident. According to the staff [Tina], another staff member had told her that on 1/8/03 the resident [Resident #1] was coughing badly and couldn't catch his breath. Resident #1 reportedly told staff that he wasn't feeling well and was going to his room to go to sleep. Tina, a facility staff member, was interviewed by Ms. McCrary and provided the above information regarding Resident #1's condition on January 8, 2003. However, Tina was not on duty or present at the facility on January 8, 2003. Therefore, she had no first-hand knowledge regarding Resident #1's condition on January 8, 2003, the day prior to the resident's death. Bridget LaPoint was not at the facility during the investigation and, thus, was not interviewed by Ms. McCrary prior to the report being written. However, Ms. LaPoint was aware that Resident #1 had not been feeling well during the holidays, two weeks prior to his death. Moreover, at that time, Ms. LaPoint informed the resident's mother and his caseworker of his condition. During this time, Resident #1's mother had attempted to take him to the doctor, and he refused to go. On the evening of January 8, 2003, the night before Resident #1 was found dead in his bed, Ms. LaPoint saw Resident #1 and talked to him. During that conversation, Resident #1 told Ms. LaPoint that he was feeling much better and had a doctor's appointment the next day. The Complaint summary indicated that Resident #1 was last heard at about 3:00 a.m. on January 9, 2002, when asking someone for cigarettes. However, this factual allegation was not verified by the Agency evaluator or substantiated at hearing. On the morning of January 9, 2003, Resident #1 did not come down for breakfast, which at Carden House begins at 8:00 a.m. As of 8:30 a.m., no staff member had yet checked on Resident #1 to see if he wanted to come down for breakfast. Prior to any facility staff member's checking on Resident #1, his caseworker arrived at the facility and went to the resident's room to take him to a doctor's appointment. When the caseworker entered Resident #1's room at about 8:30 a.m., she discovered that the resident was dead. Ms. LaPoint had personal knowledge of Resident #1's health situation during the two weeks prior to his death, contacted appropriate individuals about taking him to the doctor, and spoke with him about his condition the night before he died. However, the facility provided no documentation or other written information to the Agency regarding Resident #1's health or any change in his health status. As a result of the complaint investigation, the Agency concluded that Carden House failed to maintain documentation that it was aware of Resident #1's changed health status or his illness and the facility's interventions, such as contacting his family, physician, or caseworker. The Agency further concluded that the lack of such documentation indicated that the facility had not monitored the Resident #1 on a daily basis, assisted him, or checked on his condition. During the investigation of Carden House, Ms. McCrary accompanied a facility staff member into the room of Resident #3. When Ms. McCrary entered his room, who was diagnosed as suffering from severe chronic schizophrenia, Leucopoenia, anemia, and gerd, Resident #3 acted in a very threatening manner and yelled obscenities toward her. As part of her complaint investigation, Ms. McCrary interviewed a facility staff member who reported that Resident #3 had also threatened her. The staff member apparently did not provide the dates, circumstances, or the nature of those threats to the Agency evaluator. However, the staff member told Ms. McCray that, lately, Resident #3 had not been taking his medication. A review of Resident #3's records confirmed that in December 2002 and in January 2003, the resident had not taken his medicine as prescribed. It is not unusual for residents such as Resident #3 to refuse to take their medication. However, when a resident refuses to take his medication, that information should be noted on his or her record. In the case of Resident #3, no such notations appeared on his records. There was no indication in the resident's records or other facility documents that the facility had contacted the resident's family, caseworker, or health care provider regarding his behavior, condition, or refusal to take his medication. As a result of the complaint investigation, the Agency cited Carden House for violating two minimum standards. First, the Agency alleged that, with regard to Resident #1, the facility failed to provide daily observation of the activities of the resident while on the premises and was not aware of the general health, safety, and physical and emotional well-being of the individual. Second, the Agency alleged that, with regard to Resident #1 and Resident #3, the facility failed to maintain a written record of significant changes in the residents' normal appearance or state of health. The Agency classified the two deficient practices as Class II deficiencies because the Agency determined that the violations or deficiencies were serious and posed a great potential for harm to the residents. The Agency gave Carden House until January 31, 2003, to correct the alleged deficiencies. For each of the two alleged Class II violations, the Agency seeks to impose the maximum fine of $5,000.00, for a total of $10,000.00. The Agency seeks to impose a survey fee of $400.00 against Carden House for investigating the complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency of Health Care Administration enter a final order finding that Carden House violated Florida Administrative Code Rule 58A-5.0182(1)(e) and imposing a fine of $1,500.00. DONE AND ENTERED this 30th day of January, 2004, in Tallahassee, Leon County, Florida. S 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 30th day of January, 2004. COPIES FURNISHED: Bridget LaPoint Carden House 2349 Central Avenue St. Petersburg, Florida 33713 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701-3219 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
Findings Of Fact Petitioner has had a relationship with his wife since they were 16 years old. At the time the hearing was conducted, husband and wife were 24 years old. They had been married for approximately three years and had a child who was four years old. Beginning February 1995, Petitioner became suspicious that his wife was having an affair with another man. Around that time, the couple argued several times a week. This would cause Petitioner to leave their home. In addition, Petitioner and Mrs. McCall would not speak to each other for a couple of days following these arguments. On March 16, 1995, the man with whom Petitioner's wife was having the relationship called the couple's home. On that occasion, Mrs. McCall would not say who was speaking to her on the telephone and appeared secretive. It led to a further argument between Petitioner and Mrs. McCall. Petitioner then grabbed his keys and started to leave. Mrs. McCall struggled with him to get the keys out of his hand. During the struggle, Mrs. McCall was scratched on her chest. The noise that the couple made was sufficiently noticeable that the neighbors called the police to investigate. When the police arrived at Petitioner's home on March 16, 1995, Petitioner was sitting on the couch. The police noticed the visible marks on Mrs. McCall's chest. Consequently, Petitioner was charged with battery under Section 784.03, Florida Statutes. On March 18, 1995, Petitioner pled no contest to the offense of battery for the incident that took place on March 16, 1995 involving his wife. He was given two days unsupervised probation and required to pay $75.00 in court costs. The court adjudicated Petitioner guilty of the offense. After the March 16, 1995 incident the McCalls continued to argue. On April 11, 1995, when Petitioner left home to go to work that morning, he told Mrs. McCall that he was going to leave work in the afternoon and travel to Deland, Florida, to see his father. Instead, Petitioner went home that afternoon to get some papers before making the trip to see his father. When he arrived at his home a person named Renee, Mrs. McCall's friend, was watching the McCalls' child in one room, while Mrs. McCall was in bed with her male acquaintance in the McCalls' bedroom. When Petitioner discovered his wife with another man, he began to scream and yell and picked up his son to leave the home. Mrs. McCall tried to intervene and stop Petitioner from leaving the home with her son. During the course of this incident, Petitioner grabbed his wife by the arms and pushed her aside, causing her to fall against the wall. The areas upon which she was grabbed by Petitioner were bruised. Mrs. McCall is prone to bruising because she is a hemophiliac. Their child was not harmed during this physical exchange between the couple. After the exchange, Petitioner left the home and went to Deland, leaving the child with his mother. Before discovering his wife in bed with the other man, Petitioner did not know, as a matter of fact, that his wife was having a relationship with that person. When Petitioner discovered his wife in bed with the other man, he did not threaten her, notwithstanding the yelling and screaming. Renee had called the police when Petitioner arrived at the home, but the police did not arrive for one-half hour to one hour after Petitioner had left the home. Mrs. McCall was concerned about how her husband would react beyond the point where he had discovered her with another man. Therefore, she determined to make a complaint about her husband's physical activity in which he bruised her arms. Based upon that complaint, the police determined to arrest Petitioner. Following the trip to Deland Petitioner came back that night and spent the night with a friend in Jacksonville, Florida. The next morning Petitioner called Mrs. McCall and inquired concerning the circumstances of their exchange. Mrs. McCall told him that she had called the police after he left because she was afraid of what he might do to her and that made her "press charges". Petitioner responded by telling his wife where he was located and telling her to have the police come to that location and pick him up, which they did. When the police arrested Petitioner for the events on April 11, 1995, they again charged him with a violation of Section 784.03, Florida Statutes, and made mention that the battery for which he was accused was associated with domestic violence. Following the arrest, Mrs. McCall spoke with the state attorney's office to have them drop the charges for the battery that occurred on April 11, 1995. The state attorney's office was unwilling to drop the charges in view of the prior charge dating from March 16, 1995. Petitioner pled no contest to the battery offense related to the April 11, 1995 incident. He was given a 30-day sentence, credited with serving two days of the sentence, and the remaining 28 days of that sentence were suspended, conditioned upon the successful service of probation. The probation was served for nine months. Petitioner was adjudicated guilty for the offense and was required to participate in a program for individuals who had committed offenses involving domestic violence. The program emphasized controlling one's aggression. Petitioner completed the program related to management of his aggression. In the program to deal with domestic violence, Petitioner and other participants were required to discuss the experiences they had concerning domestic violence. The McCalls lived apart from April, 1995 until January, 1996. During that time, Petitioner kept their child for the most part because his living arrangements were more suitable than those under which Mrs. McCall existed. While they were estranged, initially, the couple did not do things together and would separately spend time with their child. At the end of their estrangement the couple began to do things as a family unit. Subsequent to being reunited, the McCalls had been seeing a marriage counselor for about a month at the time the hearing was conducted. The McCalls had been to four sessions with the counselor and intended to continue seeing a marriage counselor in the future. The McCalls described their relationship as improving since they have been reunited. Prior to the events in March and April, 1995, in which Petitioner battered Mrs. McCall in the manner described, Petitioner had never struck his wife. As explained at the hearing, Mrs. McCall is not concerned that her husband will batter her in the future. Petitioner holds a bachelor's degree in psychology. He has one year of study in sociology in a bachelor's-level program. In the past, he worked two and one-half years for ARA Living Centers, providing direct care to adults. He left that position and took employment with an organization known as New Directions. This was a mental-health position, working with children on an out- patient basis. Petitioner held this job for approximately two years. Beyond that point, Petitioner took a position as a child-guidance case worker in a mental-health capacity. It was that position that prompted the screening that was conducted in January, 1996, leading to the decision to disqualify him from that employment. The procedures followed in the disqualification are as detailed in the preliminary statement above. Petitioner contested the decision to deny him an exemption from disqualification. His request to be heard before the Respondent and to seek a formal hearing to contest the preliminary decision by Respondent denying the exemption from disqualification were both timely filed. Before being terminated from his position as a child-guidance counselor based upon the disqualification, Petitioner had worked voluntarily at a group home for children. In the past, when working with children and adults, Petitioner has never been disciplined or reprimanded concerning his conduct in providing that care. Mr. George Robinson is an HRS Protective Services worker. He began work with Respondent on June 12, 1995. Prior to that employment, Mr. Robinson worked in the Mental Health Center in Jacksonville, Florida, as a discharge planner. Mr. Robinson knew Petitioner when they attended college. He considers Petitioner his friend and speaks highly of Petitioner's character. In addition, Mr. Robinson is familiar with Petitioner's work history and recommended that Petitioner receive a position at the Mental Health Center of Jacksonville, Florida, where Petitioner was employed from November 15, 1993 through November 30, 1995. Jane Escobar, M.S.W., Manager, Children's Department for the Mental Health Center of Jacksonville, Inc. refers to Petitioner's work history with that organization. Among the duties Petitioner performed with the organization was as an individual assigned to the Therapeutic Group Home within the Mental Health Center, in which position Petitioner worked with emotionally-disturbed children. This work entailed association with counseling groups, individual social skills training, chart documentation, and recreational activities. It also involved interaction with families and other treating professionals. Following receipt of his bachelor's degree, Petitioner was promoted to a position of mental-health counselor within the Mental Health Center, a position which required him to carry a case load of approximately 15-18 clinical cases, involving individual counseling with children, family work, and often involving seeing the children in their homes, as well as at their schools, and in his office. Petitioner left the position with Mental Health Center of Jacksonville in good standing to pursue a career-enhancing position. Ms. Escobar considers Petitioner to be a well-liked and a highly-respected clinician. Ms. Escobar indicates that the Mental Health Center would willingly return Petitioner to employment if a position were available at the Center. Mr. Val Thomas has written to commend Petitioner for his work as a counselor for Mr. Thomas' son. Mr. Thomas attributes Petitioner's good works for helping the Thomas family to correct problems which their son was having. Ms. Nancy Edmonds, a clinical social worker, speaks favorably of Petitioner, whom she has known in a professional and personal capacity for two years. She is impressed by Petitioner's moral character and finds Petitioner to be an understanding and caring person. She has found him capable of dealing with the most difficult circumstances in their work, without losing his composure. She finds that he works well with children and adolescents. Mr. Brian J. Maxson is the First Step Coordinator at Hubbard House, the facility in which Petitioner participated in group sessions concerning his conduct toward his wife, as a condition of his probation. Mr. Maxson confirms that Petitioner completed that program. At present, Petitioner works with AT&T in soliciting customers to use its services. He had held that position for two months when the hearing commenced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner an exemption from disqualification to work with children in positions of special trust. DONE AND ENTERED this 14th day of June, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 14th day of June, 1996.
Recommendation The Hearing Officer would, based on the foregoing Findings of Fact and Conclusions of Law, recommend that no action be taken because Dr. Evangelakis has not suffered a demotion or other personnel action appealable to the Career Service Commission. DONE and ENTERED this 24th day of August, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1976. COPIES FURNISHED: Douglas E. Whitney, Esquire HRS, Legal Services 1323 Winewood Blvd. Tallahassee, Florida 32301 E. Leonard Fleet, Esquire 4001 Hollywood Blvd. Hollywood, Florida 33021 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel & Retirement Department of Administration 530 Carlton Building Tallahassee, Florida 32304
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Sylvan L. Stahl, Jr., for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner's wife would be allowed to operate a child day care center in her home, a position she is now barred from holding because her husband has a disqualifying offense and lives in the same household. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on February 13, 1998, a DCFS committee denied the request. Petitioner is now barred from employment in which he would have contact with children because of a disqualifying offense which occurred in September 1989. At that time, Petitioner was arrested in Citrus County, Florida, for the offense of armed robbery, a felony under Chapter 812, Florida Statutes (1989). Although the documents pertaining to the offense were not made a part of this record, Petitioner established that in September 1989, he attempted to rob a bank with a firearm. Under a plea bargain arrangement with the prosecutor, he pled guilty to the charge and was sentenced to four and one-half years in prison, to be followed by ten years of supervised probation. Petitioner served only the three-year mandatory minimum sentence, and he then successfully completed his probation after only three years. No person was injured during the incident. After being released from prison, Petitioner worked for three years with a pallet firm owned by his father, rising to the position of supervisor. During his three-year tenure with the firm, Petitioner increased the size of the company from five to twenty employees. For the last six months or so, Petitioner has been employed by Emergency One, an Ocala firm which manufactures fire trucks. He also has a second job with his brother-in-law's landscaping firm. The two jobs require that Petitioner begin his work day at 7:00 a.m. and that he continue working until 1:30 a.m. Petitioner's wife intends to operate a small day care center out of the family home. It is fair to infer that due to Petitioner's lengthy working hours, he will spend little, if any, time at his home while the children are entrusted to his wife's care. Since his arrest and plea of guilty almost nine years ago, Petitioner has had no other blemishes on his record. He has been steadily employed since 1994 in positions of responsibility. Petitioner is married to a minister's daughter, has a young child, and has recently purchased a new home. Letters received in evidence corroborate the testimony of him and his wife that he will pose no threat to children if the exemption is granted. Petitioner expressed remorse for his actions in 1989, calling his conduct "stupid," and indicating he was "confused" at that time. Given his continuous employment history, good conduct during his shortened probation period, stable family life, and the time elapsed since the disqualifying offense, it is found that Petitioner is sufficiently rehabilitated to justify granting the exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification from employment in a position of special trust. DONE AND ENTERED this 14th day of May, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sylvan L. Stahl, Jr. 11848 Southeast 71st Avenue Road Belleview, Florida 34420 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
