The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Azalea Manor operated a licensed 20-bed assisting living facility in St. Petersburg, Florida. Azalea Manor houses its residents primarily in two buildings. The buildings will be referred to herein as the Big House and the Small House. On January 20, 2011, S.M. was a resident of Azalea Manor and resided in the Small House. In addition to certain physical ailments, S.M. suffered from dementia. S.M. is approximately six feet tall, and on the date in question, weighed about 150 pounds. For at least several months leading up to, and including January 20, 2011, S.M. was prescribed medication for psychosis, depression, confusion, and memory loss. On January 20, 2011, S.M. was 65 years of age. On January 20, 2011, Joyce Spiker (Ms. Spiker) was employed by Azalea Manor as a caregiver. On January 20, 2011, the date upon which the instant action is based, Ms. Spiker was 66 years old, five feet, five inches tall, and weighed 300 pounds. Rasheena Nicole Wade (Ms. Wade), an Azalea Manor employee, started working for Azalea Manor on January 13, 2011. Ms. Wade's job duties included waking residents in the mornings and assisting them with getting dressed. Prior to January 20, 2011, Ms. Wade had worked with S.M. on one prior occasion and was generally unfamiliar with S.M. and her morning preferences and tendencies. On the morning of January 20, 2011, Ms. Wade was tasked with helping S.M. get dressed. Ms. Wade asked S.M. to get dressed several times, but for whatever reason, S.M. refused to do so. S.M. told Ms. Wade multiple times that she was not going to get dressed, and in furtherance of her general disposition of defiance, S.M. repeatedly slammed doors throughout her immediate living area. S.M. was obviously in an agitated state and Ms. Wade, being generally unfamiliar with S.M., called to the Big House for assistance. Ms. Spiker fielded Ms. Wade's phone call. In response to Ms. Wade's call for help, Mike, the son of the owner of Azalea Manor, went to the building where S.M. was located. Upon entering the building, Mike noticed that S.M. was not dressed. Mike encouraged S.M. to get dressed, but she refused. S.M. continued slamming doors and otherwise stating that she was not going to get dressed. Mike then advised S.M. that he was going to call Ms. Spiker and have her to come to the Small House to aid her in getting dressed. Mike then left the area where S.M. was located and phoned Ms. Spiker and asked for her assistance. Ms. Spiker, at the time of Mike's call, was still located in the Big House. Mike explained to Ms. Spiker the difficulty that he was having with S.M. and requested that she take over the situation with S.M. Before Ms. Spiker arrived at the Small House, Mike left the Small House and headed back towards the Big House. En route to the Big House, Mike encountered Ms. Spiker who was on her way to see S.M. During his encounter with Ms. Spiker, Mike again explained to her the difficulty that he was having with S.M. Following his discussion with Ms. Spiker, Mike returned to the Big House and Ms. Spiker went to the Small House and met with S.M. When Ms. Spiker arrived at the Small House, Ms. Wade was still present and witnessed the interaction between Ms. Spiker and S.M. that provides the basis for the instant action. When S.M. saw that Ms. Spiker had arrived at the Small House, she calmed down, went into her room, and started getting dressed. However, after making some progress towards getting dressed, S.M. again started to verbalize that she did not want to get dressed. Ms. Spiker told S.M. to finish getting dressed. Per Ms. Spiker's directive, S.M. finished putting on her clothing items, but refused to put on her sneakers. At this point, S.M. placed one of the sneakers on her bed and announced that she was not going to put the shoe on her foot. In response to S.M.'s pronouncement, Ms. Spiker grabbed the shoe, hit S.M. in the middle of the forehead with the sole of the shoe, then threw the shoe in S.M.'s lap and told her to put the shoe on her foot. S.M. then grabbed the shoe and threw it at Ms. Spiker. S.M. and Ms. Spiker then launched into a short volley of angry expletives. Soon thereafter, S.M. capitulated and placed the shoe on her foot. Ms. Wade was approximately four feet from Ms. Spiker and S.M. when the exchange occurred. S.M. did not sustain any injuries resulting from being hit on the forehead with the shoe. Within seconds of S.M.'s placing the shoe on her foot, one of the other residents in the Small House informed Ms. Wade that another resident had become very upset after overhearing the fracas between S.M. and Ms. Spiker. Ms. Wade immediately left the area where S.M. and Ms. Spiker were located so that she could tend to the needs of the resident that had become upset. At this point in time, Ms. Spiker was alone with S.M. The evidence is inconclusive regarding the amount of time that Ms. Spiker and S.M. were alone in S.M.'s room. However, what is clear is that Ms. Wade, after having calmed the resident that had become upset, noticed when she saw S.M. about 15 minutes after having left S.M. alone with Ms. Spiker, that S.M. "had red on her lip." Ms. Wade believed that the "red" on S.M.'s lip was lipstick. It was eventually determined that the "red" was not lipstick, but instead was blood. On the day in question, S.M. had extremely dry and cracked lips. Soon after Ms. Wade saw S.M.'s red lips, S.M. left the Small House and went to the Big House where she found Nicole Wiggins (Ms. Wiggins). Upon seeing Ms. Wiggins, S.M. immediately ran to Ms. Wiggins and embraced her around the neck. Ms. Wiggins had worked with S.M. for several months prior to the incident and was someone with whom S.M. would converse with on occasion. S.M. was extremely upset and was literally shaking with fear when she embraced Ms. Wiggins. When Ms. Wiggins freed herself from S.M.'s embrace, she noticed that there was blood on S.M.'s lips. Ms. Wiggins asked S.M. about her bloody lips and S.M. explained that her lips were bloody because Ms. Spiker had pushed and kicked her in the face. Ms. Wiggins took S.M. to the bathroom in order to clean the blood from S.M.'s lips. During the process of trying to remove the blood from S.M.'s mouth, Ms. Wiggins noticed a small puncture wound on the inside of S.M's upper lip that was actively bleeding. Ms. Wiggins applied pressure to the wound and eventually the bleeding stopped. As a consequence of the incident, S.M. was allowed to stay home from work on January 20, 2011. Based on the current record and given Ms. Spiker's physical characteristics, the undersigned is unable to find as a matter of fact that Ms. Spiker kicked S.M. in the face, thereby causing blood to appear on S.M.'s lip. Ms. Wiggins reported the incident to her immediate supervisor and then reported the same to the DCF abuse hot-line (abuse hot-line) and the St. Petersburg Police Department. Additionally, Ms. Wade also reported the incident to the abuse hot-line. On January 20, 2011, an officer from the St. Petersburg Police Department was dispatched at approximately 10:15 a.m., to Azalea Manor to investigate the incident involving S.M. Upon arriving at Azalea Manor, the investigating officer spoke with S.M. and Ms. Wiggins regarding the incident. Ms. Spiker was not present during the officer's initial visit, but she subsequently met with the officer during the afternoon of January 20, 2011. As a part of the investigation, the officer asked Ms. Spiker if she knew Rasheena's (Ms. Wade) surname. Because Ms. Wade was a new employee, Ms. Spiker advised the officer that she did not know Rasheena's surname. In order to assist the officer, Ms. Spiker called Mr. McKenzie, explained to him why she was calling, and handed the phone to the police officer so that he could speak with Mr. McKenzie. The police officer spoke to Mr. McKenzie while in the immediate presence of Ms. Spiker. Although the investigating officer was able to secure Ms. Wade's surname, the officer never interviewed Ms. Wade as part of the investigation. The investigating officer determined that the allegations were criminally unfounded and the investigation was closed. In response to the abuse hot-line report, DCF, on January 20, 2011, also dispatched an investigator to Azalea Manor. When the DCF investigator arrived at Azalea Manor on the afternoon of January 20, 2011, the officer from the St. Petersburg Police Department was present. The DCF investigator met with Mr. McKenzie and informed him of the reason for her visit. During the meeting with the DCF investigator, Mr. McKenzie advised that he had already spoken with the officer from the St. Petersburg Police Department about the incident involving S.M. On January 21, 2011, the Department was contacted regarding the incident between Ms. Spiker and S.M. In response to notification of the incident, the Department, on January 24, 2011, visited Azalea Manor. While visiting Azalea Manor, the Department interviewed Mr. McKenzie and several employees. The Department's interview with Mr. McKenzie commenced at approximately 11:20 a.m. As a part of the Department's questioning of Mr. McKenzie, inquiry was made as to why he had not filed the initial adverse incident report. In response to this inquiry, Mr. McKenzie advised that he was unaware of the requirement for doing so. Within a few hours of completing his meeting with the Department, Mr. McKenzie filed the initial adverse incident report, which is officially entitled, "Assisted Living Facility Initial Adverse Incident Report – 1 Day (Day 1 Form)." Mr. McKenzie did not file a 15-day full report. Noted on the Day 1 Form was a check mark signifying that the incident had been reported to law enforcement officials. The Day 1 Form was signed by Mr. McKenzie. On January 24, 2011, Mr. McKenzie also fax filed an incident report with the Agency for Persons with Disabilities. On January 25, 2011, Mr. McKenzie issued a verbal warning to Ms. Spiker and provided her with refresher training on appropriate strategies for dealing with challenging situations. Mr. McKenzie also discussed the incident with S.M.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order and, therein, dismiss Count I of the Administrative Complaint and assess against Respondent, Eastwinds of Florida, Inc., d/b/a Azalea Manor of St. Peterburg, an administrative fine of $1,200 and a survey fee of $500. DONE AND ENTERED this 19th day of January, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 19th day of January, 2012.
Findings Of Fact On January 24, 1994, the Respondent, Aries Retirement Living, which is owned by W.T. Holding, Inc., filed an application for renewal of its license as an ACLF. The Aries application, completed by its administrator Patricia Holland, provided the following information: The mailing address for the administrator was completed as: 817 11th Street, West Palm Beach, Florida 33401. The mailing address for the corporate or limited partnership-corporate president or partner was: 817 11th Street, West Palm Beach, Florida 33401. At the time of the surveys (inspections) pertinent to these cases, Respondent had a conditional license to operate an ACLF for eight residents. The surveys were performed by two Agency employees who divided the review into two areas of expertise. Irwin Fried, a fire protection specialist, surveyed the Aries property for fire safety and physical plant regulation compliance. Meryl McDonald, a human services surveyor specialist, reviewed the property for all other areas of compliance. On March 14, 1994, and subsequently on June 1, 1994 and August 26, 1994, the financial records for the Aries facility were not available for review. Ms. McDonald requested the documents on each visit, but they were not provided by Aries until January 19, 1995. As a result, the Agency was unable to determine whether the facility was administered on a sound financial basis consistent with good business practice at the times of the surveys. Ms. McDonald also noted on the survey beginning March 14, 1994, that personal funds from one resident's account were used to purchase plastic gloves without the resident's consent. On December 7, 1994, the resident signed a consent for this appropriation of her funds. Despite requests from Ms. McDonald, Aries could not produce a certificate of liability insurance for review during the surveys. In this instance, Ms. McDonald asked Mr. Davis for the certificate but Aries did not present the information until January 19, 1995. For the survey and follow-ups conducted on March 14, 1994, June 1, 1994, and August 26, 1994, the last Health Quality Assurance inspection report was not posted in the Aries facility. At the times of the survey and follow-ups, Aries did not produce proof of radon testing. According to Mr. Davis, the radon testing was completed in October, 1994 (again several months after the request was made). Ms. McDonald brought several inaccuracies or deficiencies in the admission and discharge register maintained by Aries to their attention at the March 14, 1994 survey. Such inaccuracies included that seven residents were living in the facility but only three names were noted on the admission register. Further, none of other residents allegedly living in building two were listed. These inaccuracies continued uncorrected at the June 1, 1994, and August 26, 1994 follow-up visits. At the time of the March 14, 1994, survey and the follow-ups of June 1, 1994, and August 26, 1994, Aries could not establish that its Disaster Preparedness Plan had been reviewed by the Palm Beach County Disaster Preparedness Authority. According to Mr. Davis, this requirement was satisfied by the time of hearing. The Aries contract did not clearly provide a 30 days prior written notice of rate increase at the times of the survey or follow-ups. The statement disclosing Aries' medication storage policy was not given to each resident on admission. This deficiency was cited at the March 14, 1994, survey and remained uncorrected on June 1, 1994 and August 26, 1994. However, as of December 8, 1994, Aries corrected this deficiency. Aries could not produce the required demographic data for all residents, and military service information was not included for any resident. This deficiency was cited at the March 14, 1994, survey and remained uncorrected on June 1, 1994 and August 26, 1994. At the time of the March 14, 1994, survey, it was noted that a nurse was transferring insulin from labeled containers to syringes for one resident's later use. This procedure, although cited by Ms. McDonald, continued uncorrected on the June 1, 1994, follow-up. Later, the resident changed to tablets, and the deficiency was changed to corrected as of the August 26, 1994, follow-up. Also with regard to medications, Aries could produce no records or documentation to show how medications were disposed of when the resident left the facility. This lack of documentation was noted on March 14, 1994, and remained uncorrected on June 1, 1994 and August 26, 1994. When Ms. McDonald surveyed the food supply, she noted that a one week supply of non-perishable food, based on the number of weekly meals the facility had contracted to serve, was not on hand. Nor was there enough water in storage for emergencies. Food supplies on hand lacked sufficient protein. This shortage was noted on March 14, 1994, and remained uncorrected on June 1, 1994 and August 26, 1994. Mr. Davis removed dented and bulging cans after the March 14, 1994 survey. Mr. Fried surveyed the Aries property on March 14, 1994, and found the following conditions: Hot water temperature for resident use was recorded at 126 degrees F at 12:30 p.m. on the dates of the survey. On January 19, 1995, this was still uncorrected. The structure had openings in the walls which were uncorrected on June 8, 1994. The facility had exposed water pipes and exposed electrical wires or missing plates which were uncorrected on June 8, 1994. The fire and smoke detector system did not interconnect the front and back buildings to warn staff of an emergency. This condition continued from April 11, 1994 through January 19, 1995. The doors to the sleeping rooms were not self closing and latching to reduce smoke circulation during an emergency. This condition was noted during the April 11, 1994, survey and was uncorrected on June 8, 1994. The Aries facility did not have a secondary means of egress from the upstairs of the front building. This condition was noted during the April 11, 1994, survey and was uncorrected on June 8, 1994. The exit lights were not illuminated in the front Aries building and two locks were noted on the upstairs front exit and downstairs rear exit. This condition was noted during the June 8, 1994, visit and remained uncorrected for the August 25, 1994, follow-up. Ms. Holland, the administrator for Aries at all times material to these cases, was not at the property during any of the surveys or follow-up visits. Ms. Holland is employed full-time at a hospital and spends irregular hours at the Aries facility. Mr. Davis was present for the March, 1994, survey but was not present for the subsequent visits. Aries employees attempted to reach Mr. Davis when survey or follow-up visits were made to the facility. At the times of the visits, both Ms. McDonald and Mr. Fried requested to speak to the Aries staff member in charge. All deficiencies noted were itemized to Aries personnel in discussion at the times of the surveys. Additionally, written notice of the alleged deficiencies was provided to Aries at its address of record. Respondent's allegations of poor mail delivery or lack of notice have not been deemed credible. The Respondent did not claim it had not received the deficiency notices until December 7, 1994. During the June and August, 1994, follow-up surveys, Aries did not claim it had not received the deficiency statement from the prior survey or follow-up. All deficiencies alleged in these cases are Class III violations.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration enter a final order imposing an administrative fine in the amount of $8000.00. DONE AND RECOMMENDED this 5th day of April, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 5th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 94-5078 and 94-6908 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 13 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: The Respondent's "Proposed Order" was not in a format to readily review for proposed findings of fact. Paragraph 1 states: Petitioner has failed to meet its burden pursuant to Florida Statutes Section 400.419(1)(a) of communicating a recommended corrective action and informing the facility of the deficiencies prior to imposing violations and penalties. Such statement is rejected as a conclusion of law which is not established by this record. Paragraphs 1a. through 1e. are rejected as irrelevant, contrary to the weight of credible evidence, or argument. Paragraph 1f. is a restatement of law, not a fact and is rejected as such. Paragraph 2 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 3 is rejected as argument or conclusion of law not applicable to this case. Paragraphs 4a. through 4u., except as specifically found above, are rejected as contrary to the weight of the credible evidence or irrelevant. Paragraph 5 is rejected as argument or conclusion of law not applicable to this case. COPIES FURNISHED: Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Esther Zaretsky 1655 Palm Beach Lakes Boulevard Forum III, Suite 900 West Palm Beach, Florida 33401 Linda L. Parkinson Agency for Health Care Administration Division of Health Quality Assurance 400 W. Robinson Street, Suite S-309 Orlando, Florida 32801
Findings Of Fact The Petitioner, Pamela Williams, doing business as Secure Home Management, seeks a license to operate an adult congregate living facility (ACLF) in Palatka, Florida. The Respondent is an agency of the State of Florida charged with regulating the operation and practices of adult congregate living facilities and licensure thereof, together with enforcement of licensure standards contained in Chapter 400, Part II, Florida Statutes (1981). Preliminary discussions and informal meetings between representatives of the Department and the Petitioner, Pamela Williams, occurred at various times in January 1983, during which discussions the Petitioner was advised by the Department that she was required to apply for an ACLF license in order to legally operate her business. The Petitioner took the position that the facility she operates was a transient rental facility and thus exempt from the ACLF licensing provisions contained in Chapter 400, Part II, Florida Statutes, which exemption is provided for at Section 400.404(d) of that chapter. However, as a result of these informal discussions between the parties, the Petitioner ultimately elected to apply for licensure as an ACLF and did so on January 31, 1983. After further deliberations by the Department, requests for additional information and further informal negotiations and conferences, the Respondent Department ultimately elected to deny the application for licensure and so informed the Petitioner on May 4, 1983. In essence, the reasons for the Respondent's denial of the application for licensure was the belief by the agency and its representatives that the applicant Petitioner lacked the financial ability to provide continuing adequate care to residents under authority of Section 400.414(1)(b), Florida Statutes (1981). Subsequent to the denial of licensure, the Petitioner made a number of good-faith efforts to attempt to meet the Respondent's criteria for licensing in the area of furnishing proof of financial responsibility. For instance, on April 15, 1983, just before denial of licensure, a letter from Jack Allen, a financial backer of the Petitioner, was provided to the Department promising adequate financial support. That letter was admitted as Petitioner's Exhibit 1. However, the Department nonetheless elected to deny licensure, being unsatisfied that that constituted adequate establishment of financial security for the proposed licensed institution. Following the denial of the license, the Petitioner and the Respondent continued to attempt to resolve the problem regarding establishment of financial support for the institution. The Petitioner in that regard furnished the Respondent with additional documentary evidence from Jack Allen, dated May 12, 1983, and admitted as Petitioner's Exhibit 2, in which unlimited resources were promised in order to assure that the ACLF would embark on its operations on a secure financial footing. Sometime in August 1983, in part at the behest of the Respondent, the Petitioner retained an attorney, with the result that a document establishing financial worth and responsibility for operating the facility with adequate provision for care for its residents from a financial standpoint was provided the Department, with the result that after certain other informal negotiations the license was ultimately issued on October 14, 1983, authorizing Pamela W. Williams, d/b/a Secure Home Management, to operate the subject ACLF. Prior to this licensure, the Petitioner continued to operate the facility while making good-faith attempts to meet the requirements of the Department and during which time the dispute concerning whether she needed licensure or conversely whether she came under the above-described exemption was unresolved in part between the parties. It was established through Petitioner's testimony, as well as that of Lee Darden, a representative of the Division of Aging and Adult Services of HRS, that at all times pertinent hereto, before and after licensure, the residents of the Petitioner's facility received at least adequate care and that the failure of the Petitioner to be licensed did not in any way jeopardize the health, safety or well-being of any of the Petitioner's residents.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that no fine be assessed and levied upon Pamela W. Williams, d/b/a Secure Home Management. DONE and ENTERED this 10th day of February, 1984, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 10th day of February, 1984. COPIES FURNISHED: Albert W. Whitaker, Esquire Post Office Drawer D Palatka, Florida 32078-0019 James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 1000 NE 16th Avenue, Building H Gainesville, Florida 32601 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
