The Issue The issues are whether Respondent is guilty of caring for a resident beyond the scope of Respondent's license and whether Respondent failed to ensure that an employee timely obtained a tuberculosis test.
Findings Of Fact Respondent owns and operates a licensed assisted living facility (ALF) known as Harborview Acres in Port Charlotte. Respondent's ALF license does not include an extended congregate care license or a limited nursing service license--both of which authorize an ALF to provide additional services to its residents. Petitioner conducted an biennial survey of Respondent's facility on August 24, 1998. As a result of findings made during the survey, Petitioner cited Respondent for two deficiencies that are at issue in this case. The first cited deficiency is Tag A 006, which asserts that Respondent's license does not authorize the type of care that it was providing to one resident, who is identified as Resident 3. Petitioner's surveyors saw one meal during which Resident 3 refused to feed herself. She ate while a staffperson helped her eat, but, as soon as the staffperson walked away, Resident 3 began to spill food onto herself. Resident 3 was confined to a wheelchair and required assistance in transfers from and to her wheelchair. She required assistance in various activities of daily living, such as dressing herself, combing her hair, and bathing. However, unknown to the surveyor and staff, Resident 3 was ill with a urinary tract infection. A few days previously, she had been walking with a walker, but otherwise without assistance, and had been feeding herself. The record does not permit a finding that the condition of Resident 3 was such as to require services beyond the scope of Respondent's license. During the survey, one surveyor reviewed staff files and found that the documentation for Staff 3, who had been hired on July 12, 1996, revealed no tuberculosis test since August 17, 1997. Zia Butt, the administrator, admitted that the employee's test was overdue. As Ms. Butt explained, the employee had gone to the County Public Health Office for a tuberculosis test, but the office had been unable to conduct the test and told her to return in a week. Petitioner properly classified this deficiency as a Class III deficiency. The failure of a caregiver to obtain annual tuberculosis tests indirectly or potentially threatens the physical or emotional health, safety, or security of the residents of the facility. The surveyor gave Respondent until September 21, 1998, for Staff 3 to obtain a tuberculosis test. The record does not establish that Respondent failed to correct this deficiency within the time permitted. Likewise, the record does not establish the factual basis for the allegation that this is a repeated offense.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration dismiss the Administrative Complaint against Respondent. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1999. COPIES FURNISHED: Karel L. Baarslag Senior Attorney Agency for Health Care Administration Post Office Box 60127 Fort Myers, Florida 33906-0127 Zia Butt Administrator Harborview Acres, Inc. 4950 Pocatella Drive North Port, Florida 34287 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue for consideration herein is whether Respondent's license to operate an Adult Congregate Living Facility, (ACLF), should be disciplined because of the deficiencies outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent's Matt Holohan and Noelle D. Holohan, his wife, operated an ACLF, Holohan's, located at 7737 91st Street North in Seminole, Florida. The Department was and is the state agency responsible for licensing and monitoring the operations of ACLFs in Florida. On April 20, 1989, Alice Adler, a human services program analyst with the Department's Tampa OLC, performed an annual survey of the Respondent facility during which she reviewed the facility operation for compliance with the Department's minimum standards. During the course of the survey, Ms. Adler discovered several minor discrepancies which included a failure to insure that each person employed by the facility who might come into contact with potentially infectious material, was trained in infection control procedures for blood and other bodily fluids, (ACLF 408) and a failure to insure that leisure activities were documented on a leisure calendar to indicate activity and approximate time. There were no assurances given or shown that residents were provided with a minimum of one hour per day of social and leisure activity, Monday through Friday, (ACLF 1011). Ms. Adler's evaluation revealed that the facility did not have any infection control procedures in place nor was the Administrator able to demonstrate any evidence that the staff, one lady hired to clean the facility on a regular basis, had been trained in such procedure. The Administrator, Ms. Holohan, had received Administrator training, but no additional training in the area in question. When Ms. Adler asked to see the records of the facility regarding training, and reviewed the employee records, she was unable to find any evidence of either a program or some time of unorganized training. With regard to the deficiency dealing with leisure time activities, her review failed to uncover any program of any nature. Ms. Adler discussed the matter with Ms. Holohan, and with the residents, and none were able to describe to her any type of regularly scheduled activity. Throughout the course of her evaluation, Ms. Adler was accompanied by Ms. Holohan and when the survey was concluded, she conducted an exit interview with Ms. Holohan during which she discussed the deficiencies discovered and agreed with her on dates by which these deficiencies were to be corrected. At the time she left the facility, Ms. Adler delivered to Ms. Holohan an exit notice which contained instructions as to how to protest any of the cited deficiencies and which invited comments and questions regarding further activity. Ms. Holohan signed an acknowledgment of Receipt for that form. Thereafter, after returning to her office, Ms. Adler completed a deficiency report outlining all deficiencies including those listed here, which was forwarded to the facility. The deficiency report was accompanied by a cover letter which included Ms. Adler's name and address as the person to contact for clarification of any questions regarding the deficiencies noted or with a request for an extension of time for correction. No questions were received nor were any extensions requested. Ms. Holohan acknowledged receipt of the notice of deficiencies on May 12, 1989. On July 13, 1989, Ms. Adler made a follow up visit to the facility and found that neither of the two deficiencies cited here had been corrected. With regard to the first, no procedures had been established and no written documentation was made available for her to review. With regard to the activities calendar, nothing had been established to correct this deficiency either. At that time Ms. Holohan indicated she had only two residents, one of whom was blind. They kept themselves busy and she didn't feel any formalized program was necessary. Mr. Holohan stated that at the time of Ms. Adler's first visit they had a lady available as an employee to do the housecleaning. When they were told that it was necessary that this employee have a health certificate of freedom from communicable diseases and be trained in the handling of hazardous materials, these requests were passed on to the employee who quit immediately rather than comply with either request. Thereafter, for several weeks, Ms. Holohan did the housecleaning by herself. In July, 1989, the Holohan's hired a certified nurse's aide to clean the house, and other than that individual, Ms. Holohan remained the only person in contact with body fluids. This aide was, however, not given the required training and, thereafter, left the facility's employment. Since that time, they have hired three other people on a part time basis who have received the proper required training. At the hearing, Mr. Holohan offered a handwritten procedure for handling infectious materials signed by Ms. Holohan, which was delivered, subsequent to the second inspection, to Ms. Adler at the Department's Tampa office. When this document was submitted, the deficiency was determined to have been corrected. However, neither at the time of the first survey, nor at the time of the second, was this document presented as evidence of compliance. Consequently, it is clear that at the time of both survey visits, though the documentation may have existed, it was not presented as is required by the Rule, nor was any indication given that it existed. At both visits, Ms. Holohan indicated none was in effect. Had such a document been presented on either visit, it would have been accepted and the deficiency not memorialized. The Department does not have a pre-written procedure against which it measures the programs developed by the facility. The onus of responsibility is on each facility to develop the program pertinent to that facility which it needs and since no standards are set by law, it is up to the facility to determine and outline what it proposes to do. In almost every case, the Department has to accept the submission by the facility. In this case, when the handwritten procedure mentioned above was submitted to the Department, it was satisfactory and the requirement satisfied. With regard to the activities deficiency, according to Mr. Holohan, it did not seem important to record those items that were considered important to the Department. He contends, however, that though no formal program was memorialized, they did the following things which, he feels, constitute an appropriate activities program. They subscribe to three magazines each month; either Mr. or Ms. Holohan takes the residents to the mall whenever they can do so and the residents desire; and both at the breakfast and dinner meals, Mr. Holohan conducts a discussion of current events. According to Mr. Holohan, most activities center around the meal times. At breakfast, for example, the residents' horoscopes are read from the paper. Another activity is the feeding of the wild squirrels and birds which come to the house. These above cited activities were not, however, listed on any formal activity report nor were they scheduled in advance, as is required, because they were considered to appear too trivial. Nonetheless, according to Mr. Holohan, the facility has an activities report as is required by the Department. Be that as it may, at neither the first nor second survey was such a report, required by the Department, kept and available. Mr. Holohan claims he is almost "insulted" by the Department's suggestion that his facility's activities are not what they should be. He claims to have spent approximately $1,500.00 in redoing the patio for the residents, and he also takes them on trips to the park and to concerts when the residents indicate they want to and are capable of going. No evidence was presented, however, as to how often this was actually done over the past year, for example. The key, however, is the residents' physical ability to participate in these activities, but Mr. Holohan claims he is ready to provide the service when requested. In addition, he purchased a four door automobile so that he would be able to take the residents more comfortably to wherever they wanted to go.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Secretary issue a Final Order herein imposing an administrative fine of $250.00. RECOMMENDED this 2nd day of July, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1990. COPIES FURNISHED: Edward A. Haman, Esquire DHRS - Office of Licensure and Certification 7827 North Dale Mabry Highway Tampa, Florida 33614 Noelle M. Holohan Administrator Holohan's 7737 91st Street North Seminole, Florida 34647 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issues in DOAH Case No. 10-0528 are whether the allegations set forth in the Administrative Complaint dated December 4, 2009, are correct, and, if so, what penalty should be imposed. The issue in DOAH Case No. 10-1672 is whether the application for license renewal filed by Avalon's Assisted Living LLC, d/b/a Avalon's Assisted Living and d/b/a Avalon's Assisted Living at Avalon Park (hereinafter Avalon I), should be approved. The issue in DOAH Case No. 10-1673 is whether the application for license renewal filed by Avalon's Assisted Living II LLC, d/b/a Avalon's Assisted Living at Southwest (hereinafter Avalon II), should be approved.
Findings Of Fact Avalon I is a six-bed assisted living facility (ALF), operating at 1250 Willow Branch Drive, Orlando, Florida, 32828, and holding license number 10813 with Limited Nursing Services licensure. Avalon II is a six-bed ALF operating at 13230 Early Frost Circle, Orlando, Florida, 32828, and holding license number 11318 with Limited Nursing Services licensure. Avalon I and Avalon II are operated by a limited liability company owned by Chiqquittia Carter-Walker and Robert Walker. Mrs. Carter-Walker acts as the administrator of the facilities. On July 23, 2009, the Agency conducted an inspection of Avalon I and determined that there were three "Class II" deficiencies, commonly cited as "tags" in reference to applicable regulatory standards. Tag A029 alleged that the training certifications, contained within the facility's personnel files to document the provision of required employee education, were false and that the training had not been provided. The training certificates for one Avalon I staff member were not accurate and falsely indicated that the referenced employee received training that had not been provided. The falsification was deliberate and was not erroneous. The inaccurate documentation of employee training misstated the qualifications of the ALF staff, falsely indicated that the staff was adequately trained, and presented the potential for harm to the health of the residents. The Agency correctly identified the deficiency as Class II. Tag A427 was based on regulatory provisions that permitted a terminally ill resident, no longer meeting the criteria for continued ALF residency, to remain in the ALF under certain conditions. The July 23, 2009, inspection indicated that such a resident continued to reside at Avalon I without compliance with relevant conditions. The conditions under which the terminally ill resident was permitted to remain at the ALF required that the hospice coordinate the care and provision of additional medical services and that an interdisciplinary care plan be developed and implemented by the hospice in coordination with the ALF. The July 23, 2009, inspection revealed that the interdisciplinary care plan failed to adequately designate responsibility for the various kinds of care required by the resident. The inspection revealed that a terminally ill resident remained in Avalon I without receiving appropriate medication for pain management even though such medications had been authorized. Although the ALF had undertaken the responsibility of administering the pain medication, there were occasions when no Avalon I staff member authorized to administer the pain medication was present at the ALF. Patient records indicated that the hospice representative attempted at several junctures to contact Mrs. Carter-Walker by telephone to resolve the problem and that Mrs. Carter-Walker was not accessible to the hospice representative. The resident unnecessarily suffered pain because the issue was not resolved in a timely manner. The failure to provide a terminally ill resident with appropriate pain medication resulted in a direct threat to the physical and emotional health of the resident, and, therefore, the Agency correctly identified the deficiency as Class II. Tag A700 reflects standards for resident care and requires that appropriate services be provided to residents. The July 23, 2009, inspection indicated that one resident was not being provided a nutritional supplement and that two residents were not being provided appropriate pain-relieving medications. As to the provision of nutritional supplementation, one resident with a history of weight loss had been prescribed a daily can of "Ensure" nutritional supplement. According to the facility records, the supplement had not been acquired by the ALF and had not been provided to the resident. As to the residents who were not receiving proper pain medication, one of the two was the terminally ill resident referenced in relation to Tag A427. As stated previously, the resident unnecessarily suffered pain because medication was not appropriately administered, which resulted in a direct threat to the health of the resident. Therefore, the Agency also correctly identified the deficiency cited as Tag A700 as Class II. The second resident had a history of hypertension and hypothyroid issues and had been prescribed a daily Ibuprofen (400mg) for pain. The Avalon I medication records indicated that, on some days, the medication had been provided twice daily to the patient, and, on other days, it had not been provided at all. The evidence establishes that the deficiencies identified in Tags A427 and A700 indicate a failure of the ALF to provide appropriate care and service to the residents of the facility. According to the uncontroverted testimony of Agency investigators as documented by the reports of their inspections, numerous lesser deficiencies were identified at Avalon I between 2007 and 2009, constituting a continuing pattern of inadequate performance and a failure to meet relevant standards. On August 5, 2009, an inspection conducted by the Agency at 1812 Crown Hill Boulevard, Orlando, Florida, 32828, indicated that an unlicensed ALF was operating at that address. On August 5, 2009, the Agency's investigator observed five individual residents in Avalon III. The investigator reviewed health assessments for the residents, all of whom required assistance with activities of daily living, including personal hygiene, ambulation, and meals. Medications for the residents were stored in a central area. The investigator reviewed medication observation records, indicating that the residents self-administered medications with observation by the Avalon III staff. Signage was present at Avalon III that identified Mrs. Carter-Walker as the administrator of the Avalon III facility. During the August 5, 2009, inspection, Mrs. Carter- Walker arrived at Avalon III and identified herself as the administrator of the facility. The investigator was familiar with Mrs. Carter-Walker and knew her as the administrator for Avalon I and Avalon II. Mrs. Carter-Walker identified herself as the Avalon III administrator to other care providers, including a clinical social worker, a registered nurse providing contract health care services to facility residents, and Administrators at other local ALFs. According to the testimony of an employee of Avalon III, there had been residents in the Avalon III location since at least June 16, 2009, at which time the staff member began to work at the facility. She worked five days per week, providing the resident services identified herein. During that time, there were always at least three residents in the facility. The same residents were present on a day-to-day basis. There is no evidence that such residents were transported out of the facility during the evening or that they did not otherwise remain at the Avalon III location overnight. A licensed practical nurse present at the Avalon III location on August 5, 2009, was the person who permitted the Agency's investigator to enter into the facility. The nurse was at the location to provide personal care assistance to a terminally ill resident receiving care through an agreement between the Mrs. Carter-Walker, as the facility administrator, and the hospice. After Mrs. Carter-Walker arrived at the Avalon III location, she was apparently unhappy that the nurse had permitted the investigator to enter the facility, and directed the nurse to leave immediately without providing further assistance to the resident. On the day of the investigation, the Agency investigator issued a "Notice of Unlicensed Activity/Order to Cease and Desist" to Robert Walker and Chiqquittia Carter-Walker for the Avalon III operation. Mr. Walker arrived during the inspection and identified himself as an owner to the Agency investigator. On August 14, 2009, the Agency received an application for licensure of an ALF at 1812 Crown Hill Boulevard, Orlando, Florida, 32828. The application, submitted by Robert Walker as the administrator, referenced the Avalon I and Avalon II as affiliated with Avalon III through ownership. Both Mr. Walker and Mrs. Carter-Walker submitted affidavits of compliance with background screening requirements as part of the Avalon III application. At no time was Avalon III licensed as an ALF. There was no evidence that the Avalon III residents were related to Mrs. Carter-Walker or her husband. There was no evidence that Avalon III was exempt from, or otherwise not required to comply with, relevant ALF licensing requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order revoking the licenses of Avalon I and Avalon II, denying the applications for license renewal filed by Avalon I and Avalon II, and assessing an administrative fine in the amount of $3,000 for the specific Class II deficiencies identified herein. DONE AND ENTERED this 28th day of January, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2011.
The Issue Whether Respondent is guilty of the isolated Class III deficiency alleged in Count II of the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is a licensed, skilled nursing home facility located in North Miami, Florida. Respondent was at all times pertinent hereto licensed by Petitioner pursuant to the provisions of Chapter 400 Part II, Florida Statutes. Petitioner is the agency of the State of Florida with the responsibility to regulate skilled nursing homes in Florida. Petitioner surveys nursing home facilities to evaluate their compliance with applicable rules. Petitioner classifies any deficiency noted by a survey according to the nature and scope of the deficiency. The severity of the deficiency determines the amount of any administrative fine and whether the licensure status of the facility should be "standard" or "conditional." A licensee’s failure to comply with an applicable statute or rule is a deficiency. A survey results in a report that lists each deficiency that is found, identifies the applicable regulatory standard that the surveyor believes has been violated, provides a factual basis for the alleged violation, and indicates the scope and severity of the deficiency. A facility is given a deadline to correct each alleged deficiency found during the initial survey. Disciplinary action is typically initiated if a facility has not corrected a deficiency as determined by a follow-up survey. Petitioner conducted a survey of Respondent during the period February 28 - March 3, 2005 (the initial survey). Barbara Catinella, who is a registered nurse and an experienced surveyor, participated in the initial survey on behalf of Petitioner. On March 1, 2005, Ms. Catinella observed perineal care being administered to two female residents (identified as Resident 26 and Resident 27). Each resident was being attended to following an episode of urinary incontinence. The first observation began at approximately 2:00 p.m. and the second began approximately thirty minutes later. Two certified nurses assistants (CNAs) administered the perineal care to Resident 26 and two different CNAs administered the perineal care to Resident 27. In both instances, the CNAs failed to properly perform the perineal care. In each instant, the CNAs performing the perineal care failed to open and clean the labia. At all times pertinent to this proceeding, Respondent had a policy as to perineal care for female residents that conformed to accepted perineal care standards. Paragraph 15 of the policy required Respondent's staff to do the following in sequence for a female resident who had suffered an episode of incontinence, whether the episode was of bowel, bladder, or both: For a female resident: Wet washcloth and apply soap or skin cleansing agent. Wash perineal area, wiping from front to back. Separate labia and was area downward from front to back. Continue to wash the perineum moving outward to and including thighs, alternating from side to side, and using downward strokes. Rinse perineum thoroughly in same direction, using fresh water and a washcloth. Gently dry perineum. Instruct the resident to turn on her side. Rinse wash cloth and apply soap or skin cleansing agent. Wash the rectal area thoroughly, wiping from the base of the labia and extending over the buttocks. Rinse. Dry area. 8. At all times pertinent to this proceeding, Respondent had a policy as to perineal care for male residents that conformed to accepted perineal care standards. Paragraph 16 of the policy required Respondent's staff to do the following in sequence for a male resident who had suffered an episode of incontinence, whether the episode was of bowel, bladder, or both: For a male resident: Wet washcloth and apply soap or skin cleansing agent. Wash perineal area starting with the urethra and working outward. Retract foreskin of the uncircumcised male. Wash and rinse urethral area using a circular motion. Continue to was the perineal area, including the penis, scrotum and inner thighs. Thoroughly rinse perineal area in [the] same order using fresh water and clean washcloth. Gently dry perineum following [the] same sequence. Reposition foreskin of uncircumcised male. Instruct or assist the resident to turn on his side. Rinse washcloth and apply soap or cleansing agent. Wash and rinse the rectal area thoroughly, including the area under the scrotum, the anus, and the buttocks. i. Dry area. The perineal care policy was adopted ". . . to provide cleanliness and comfort to the resident, to prevent infections and skin irritation, and to observe the resident's skin condition." Respondent's staff is trained to adhere to the perineal care policy. The perineal care provided Resident 26 and Resident 27 as observed by Ms. Catinella failed to adhere to Respondent's policy and constituted a failure to provide care and services to prevent potential urinary tract infection as alleged in the Administrative Complaint. Respondent argued that the failure to adhere to its policy by failing to spread and cleanse the labia would not cause a urinary tract infection as alleged in the Administrative Complaint. Respondent correctly argues that urine, in the body, is sterile and would not by itself cause a urinary tract infection. Most, but not all, urinary tract infections are caused by the e-coli bacteria found in feces. Respondent established that incontinent residents typically receive perineal care from Respondent's staff 10 times during a 24-hour period. Respondent also established that the facility uses only anti-bacterial soap for perineal care. Based on those considerations, Respondent argued that the perineal care observed by the surveyors may have led to a skin irritation, but that it would not have resulted in a urinary tract infection as alleged in the Administrative Complaint. The greater weight of the credible evidence established clearly and convincingly that the failure to spread and cleanse the labia has the potential for various adverse consequences for the resident, including urinary tract infection.3 If staff does not spread and cleanse the labia, the fact that anti-bacterial soap is being used is irrelevant. If the soap does not reach the labia, that area will not be cleansed, regardless of the number of times perineal care is administered during a typical day. Petitioner established the Class III violations pertaining to perineal care as to the initial survey by the requisite evidentiary standard. Petitioner also established that the violations should be considered "isolated" since there were some 55 incontinent residents in Respondent's facility at the time of the initial survey and only two episodes of improper perineal care were observed. Respondent was provided with a correction date thirty days from the conclusion of the initial survey to correct the noted deficiencies by coming into substantial compliance with accepted perineal care standards. The first follow-up survey occurred April 19-20, 2005. Eleanor Kennedy participated in that follow-up survey and testified, in her deposition, as to three incidents of perineal care that she observed. During the course of the follow-up survey, Ms. Kennedy observed two CNAs administering inappropriate perineal care to a female resident referred to as Resident 15. Ms. Kennedy observed that this resident had suffered an episode of incontinence involving both bowel and bladder. In the course of administering the perineal care, the CNAs failed to open and clean the labia. In addition to observing perineal care to Resident 15, Ms. Kennedy observed perineal care administered to a female resident referred to as Resident 16 and a male resident referred to as Resident and to a male resident referred to as Resident The perineal care administered to Resident 16 and to Resident 17 were inconsistent with Respondent's perineal care policy. The CNAs performing the perineal care for Resident 16 did not follow the proper sequence for cleaning. They first washed the resident's abdominal folds and thigh creases and then opened and washed the labia with the same disposable cloth. Ms. Kennedy testified that the sequence of the cleaning is significant because it risked the transfer of bacteria from the areas first washed to an area that could result in a urinary tract infection. The CNAs who performed the perineal care for Resident 17 first washed the resident's face, underarms, and back. Then, without changing water, the CNAs took a clean cloth and washed the resident's groin area, his retracted foreskin area, and the urinary urethral meatus. The CNAs then dried the resident, but failed to follow the required sequence. As with Resident 16, Ms. Kennedy testified that the incorrect sequence followed by the CNAs risked the transfer of bacteria to an area that could result in a urinary tract infection. Although this sequence clearly violated Respondent's perineal care policy, Respondent established that the potential for urinary tract infection as a result of the sequence was reduced because anti-bacterial soap was used. Ms. Kennedy was uncertain as to whether the use of anti-bacterial soap would alleviate the concerns she had as to the care given these two residents. Because of that uncertainty, it is found that Petitioner did not prove that the perineal care provided Resident 16 and Resident 17 constituted a failure to provide care and services to prevent potential urinary tract infection as alleged in the Administrative Complaint. The perineal care provided Resident 15 as observed by Ms. Kennedy failed to adhere to Respondent's policy and constituted a failure to provide care and services to prevent potential urinary tract infection as alleged in the Administrative Complaint. On May 26, 2005, Petitioner conducted a second follow- up survey and determined that Respondent was in substantial compliance with applicable regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is recommended that Count I of the Administrative Complaint be dismissed. It is further RECOMMENDED that Petitioner find Respondent guilty of an isolated, Class III deficiency based on Count II of the Administrative Complaint. It is further RECOMMENDED that Petitioner assess an administrative fine against Respondent in the amount of $1,000.00 for the Class III deficiency found in Count II of the Administrative Complaint and that Petitioner's records reflect that Respondent's licensure was classified "conditional" for the period April 20 - May 19, 2005, and that Respondent's licensure was classified as "standard" before and after those dates. DONE AND ENTERED this 6th day of February, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 6th day of February, 2006.
The Issue Whether allegations in the Administrative Complaint dated September 21, 1992, constitute grounds for revoking or failure to renew the license of Alice White, d/b/a Miss Patty's Day Care Center.
Findings Of Fact Alice P. White is the owner/operator of Miss Patty's Day Care Center in Bradenton, Florida which is licensed for 30 children. This facility has been in operation for approximately 15 years. On August 14, 1992 an infant at this day care center was checked by Respondent and found to be not breathing. Respondent called 911 for emergency medical assistance and commenced CPR. Emergency medical support arrived shortly thereafter and took the infant to the hospital where it was pronounced dead. Sheriff's deputies investigated the incident immediately and questioned Respondent who was quite upset over the incident. Respondent initially told the deputy that the baby choked while she was feeding him in her arms. This was false which Respondent admitted after being informed a couple of days later that the medical examiner had concluded that the infant died from Sudden Infant Death Syndrome (SIDS). Factually, the eight month old infant had been put to bed in his crib shortly after noon with a bottle feeder for the nap. One of the attendants at the day care center was overseeing the infants in this room. She did not stay in the room every minute but periodically went in and out of the room. On August 14, 1992 Respondent returned from a trip to bring children back from a Bible study course and when she entered the area where the babies were sleeping she observed the aide in charge of these babies having some lunch. Respondent then went into the room with the babies and found the infant not breathing. The only charges in the Administrative Complaint regarding this incident is contained in paragraphs 5 and 8 of the Administrative Complaint. Paragraph 5 alleges the baby died and paragraph 8 alleges that Respondent had provided the sheriff's department with misinformation regarding the infant choking while she was feeding him and that this infant had been left alone for 30 minutes without supervision before being noticed by Respondent. No credible evidence to support the lack of adequate supervision of this infant before its death was presented. The discrepancies found during the quarterly inspections of the facility for the past 3 1/2 years were predominantly minor offenses such as inadequate record keeping, failure to document all staff had received prescribed training or innoculations, lack of current vehicle driver certificate, unsafe outdoor equipment, or minor food service violations, failure to provide employee background screening, inadequate staff to child ratio, inadequate bathroom supplies, and lack of immunization records. These are all classified as Class III violations as defined in Rule 10M-12.011(7)(c), Florida Administrative Code. All of the violations noted in paragraph 9 above were corrected within the prescribed time period and no Administrative Complaint was ever issued against Respondent prior to the instant Administrative Complaint. During the investigation at this day care center following the infant's death, and while the sheriff's deputies were on the scene questioning Respondent and her employees, three additional violations are noted in paragraph 7 of the Administrative Complaint. The first of these allege the center had 18 children in part of the facility with no staff present in the room. At the time this infraction occurred Respondent was out on the patio being interrogated by a deputy and another deputy had called the aide supervising the 18 children out of the room to question her. When Respondent returned inside the center and observed the aide being questioned by the deputy she sent another aide into the room with the 18 school age children. The second allegation was that there were 36 children in the facility although the center was licensed for only 30. Without attempting to justify the violation Respondent testified that this occurred a day or two before school started when the teachers had to be at school but the pupils did not. These excess children were children of teachers who requested Respondent to take them during the time these teachers had to be at school. As a favor to these mothers who had previously used her day care center Respondent temporarily exceeded her authorized number of children. The third violation resulted when Respondent left the children she was supervising to open the door to admit the HRS inspector who supervised the facility. While Respondent was opening the door to let the inspector into the facility the proper ratio of staff to child was not maintained. In response to the inspection reporting the lack of supervision of the 18 school age and excess children in the facility (Exhibit 20) Respondent prepared a list of the facility's weak points and steps initiated to correct them (Exhibit 23). On August 28, 1992 Respondent voluntarily closed her day care center pending the completion of all investigations (Exhibit 24). One witness who has used Respondent's facility for her children for some ten years or more ardently and emotionally supported the renewal of Respondent's license. In addition eight other letters from parents of children who used Respondent's facility voiced strong support for Respondent and expressed an earnest desire for her facility to reopen. Also another letter (Exhibit 26) signed by 19 additional parents strongly supported the renewal of Respondent's license. All of these people, with full knowledge of the unfortunate incident of August 14, 1992, expressed an intent to return their children to Respondent's facility as soon as it is reopened.
Recommendation It is RECOMMENDED that a final order be issued finding Alice P. White, d/b/a Miss Patty's Day Care Center, not guilty of all charges in the Administrative Complaint and that the license to resume operations be issued forthwith to Alice P. White d/b/a Miss Patty's Day Care Center. DONE AND ENTERED this 28th day of May, 1993, in Tallahassee, Florida. K. N. AYERS 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 28th day of May, 1993. APPENDIX Proposed findings submitted by Petitioner are accepted except as noted below. Those proposed findings neither noted below nor included in Hearing Officer's findings were deemed unnecessary to the conclusions reached: Rejected insofar as child not being supervised. See HO #6. See HO #11 and #12. Fifth sentence rejected insofar as it states child was without supervision for 30 minutes. Sixth sentence inconsistent with fifth sentence. Proposed findings submitted by Respondent are accepted. Those not included in Hearing Officer's findings were deemed unnecessary to the conclusions reached. COPIES FURNISHED: Robert Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Raymond Deckert, Esquire 4000 W. Dr. Martin Luther King Jr. Blvd. Tampa, Florida 33614 Donald B. Hadsock, Esquire 1806 Manatee Avenue West Bradenton, Florida 34205
The Issue This is a case in which the Petitioner seeks to terminate the Respondent's employment contract as a teacher. The grounds upon which the proposed action is based are alleged in a Notice of Specific Charges of Unsatisfactory Performance dated May 13, 1998.
Findings Of Fact At all times material to this case, the Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida. At all times material to this case, the Respondent, Michael J. Akpan, was an employee of the School Board of Miami- Dade County, Florida. At all times material to this case, the Respondent possessed an annual employment contract as a teacher and was subject to the Memorandum of Understanding between United Teachers of Dade and the School Board. At all times material to this case, the Respondent was certified to teach middle grades science. This certification allows the Respondent to teach certain science courses to ninth and tenth grade students. During the 1997/1998 school year, the Respondent was teaching at North Miami Senior High School (NMSHS).1 The Respondent was placed in an alternative education assignment in which the students were at risk of dropping out of school. During that school year, the Respondent had difficulty controlling the conduct of students in his classroom. There were numerous instances of student misconduct and disruption of such gravity as to require intervention by school security personnel and assistant principals. Teachers employed by the Petitioner School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between the Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate the Respondent's performance. The same TADS documents are used for all grade levels, subject areas, and teachers, whether new or veteran. TADS observers record deficiencies which are observed during the observation period and then provide a prescription for performance improvement.2 A post-observation conference is held with the teacher to discuss the prescription. Then the cycle of assessment/prescription begins again. Under the TADS procedure as incorporated into the labor contract between the School Board and UTD, teachers who are in Annual Contract Two status, such as the Respondent, must have a minimum of two observations during each school year. One of those two observations must be done by the principal. During its 1997 session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers who are observed to have unsatisfactory performance. Because the statutory amendment impacted the implementation of TADS, the Petitioner and UTD negotiated a Memorandum of Understanding with respect to the implementation of the new procedures required by the 1997 statutory amendments. The Memorandum of Understanding is an amendment to the labor contract between the Petitioner and the UTD. The Memorandum of Understanding reads as follows, in pertinent part: Performance Probation Period Upon identification of any deficiency, either through the observation/assessment process OR a Category VII infraction, the PRINCIPAL MUST, within 10 days, conduct a conference-for-the-record which addresses: results of the observation/assessment, or Category VII infraction, stipulations of the Performance Probation (90 calendar days excluding school holidays and vacations), which begins upon the employee's receipt of written plan of assistance (prescription), the plan of assistance and professional development opportunities to help correct documented deficiencies within a specified period of time, future required observations/assessments and possible employment actions. A minimum of two observations/assessments must be conducted subsequent to the completion of the initial prescriptive timelines and during the Performance Probation. The annual evaluation decision will be based upon the result of the last observation/assessment as illustrated in the chart titled, Examples of Assessments/ Observations and Annual Evaluation/Employment Contract Decisions for Employees on Performance Probation. In the event that an employee is absent on authorized leave in excess of 10 consecutive workdays, the Performance Probation is suspended until the employee returns to active duty, at which time it resumes. If the Performance Probation has not been completed during the current year of employment, the annual evaluation is withheld pending completion of the Performance Probation during the subsequent year of employment. Teachers who have not completed the requirements of the Performance Probation are ineligible for summer school employment. Within 14 calendar days after the close of the Performance Probation, the evaluator (principal) must assess whether the performance deficiencies have been corrected and forward a recommendation to the Superintendent. Within 14 calendar days after receiving the evaluator's recommendation, the Superintendent must notify the employee in writing whether the performance deficiencies have been satisfactorily corrected and whether the Superintendent will recommend that the School Board continue or terminate his or her employment contract. If the employee wishes to contest the Superintendent's recommendation, the employee must, within 15 calendar days after receipt of the Superintendent's recommendation, submit a written request for a hearing. On October 13, 1997, the Respondent was observed in his classroom by Assistant Principal Carrie Figueredo for one hour. The Respondent was found to be deficient in several categories and his performance was assessed as unsatisfactory. The observed deficiencies on this occasion included a failure to maintain appropriate classroom management. More than 90 percent of the students were "off task." Most of the students were either sleeping, filling out job applications, or otherwise inattentive. On October 20, 1997, Assistant principal Figueredo held a post-observation conference with the Respondent, discussed the Respondent's deficiencies with him, and provided the Respondent with a number of prescriptive activities, which it was hoped would help him improve his performance as a classroom teacher. On November 21, 1997, the Respondent was formally observed in his classroom by Principal Charles Hankerson. Principal Hankerson assessed the Respondent's performance as unsatisfactory. Among other things, Principal Hankerson observed that the Respondent continued to have serious deficiencies in the area of classroom management. On December 2, 1997, Principal Hankerson held a conference for the record with the Respondent to address his unsatisfactory performance. During that conference Principal Hankerson made recommendations as to how the Respondent might improve the specific areas of his unsatisfactory performance, and also discussed the Respondent's future employment status with Petitioner School Board. The Respondent was placed on a Performance Probation status in accordance with Section 231.29(3)(d), Florida Statutes, and he was provided with a plan of assistance to help him correct his deficiencies within the prescribed time frame. The Respondent's 90-day probation period began on December 8, 1997, which is the day on which he was furnished with a copy of the written plan of assistance. March 8, 1998. was the ninetieth day following December 8, 1997. During the Respondent's 90-day probation period there were at least 12 school holidays and school vacation days.3 Accordingly, the Respondent's probation period extended until at least March 20, 1998.4 On January 20, 1998, the Respondent was observed in his classroom by Assistant Principal William Henderson. Assistant Principal Henderson observed the Respondent for 60 minutes. During this observation, the Respondent was found deficient in techniques of instruction. Assistant Principal Henderson observed that the Respondent was not addressing the needs of the students, that there was confusion as to the assignment, and that the Respondent wasted too much time initiating the lesson. On January 27, 1998, Assistant Principal Henderson had a post-observation conference with the Respondent, during which he discussed the Respondent's deficiencies, and provided the Respondent with a number of prescriptive activities to assist the Respondent in correcting his deficiencies. Among those activities were, that the Respondent should meet with his department chairperson and review strategies which would be appropriate for the students assigned to the Respondent's classes. The Respondent was also directed to submit lesson plans to Assistant Principal Henderson. On February 27, 1998, the Respondent was observed in his classroom by Assistant Principal Figueredo for two hours. Assistant Principal Figueredo found the Respondent to be deficient in several areas, including classroom management.5 This was Assistant Principal Figueredo's second observation of the Respondent. While she noted some minimal improvement since her earlier observation, the Respondent's performance on February 27, 1998, was still not anywhere near an acceptable level. On March 5, 1998, Assistant Figueredo held a post- observation conference with the Respondent, discussed the Respondent's deficiencies with him, and provided the Respondent with a number of prescriptive activities in order to assist the Respondent in correcting his deficiencies. Among those prescriptive activities was a requirement that the Respondent develop lesson plans to be reviewed by Assistant Principal Figueredo's and by the Respondent's department chairperson. The Respondent was also directed to maintain a time log to determine when students arrived. Additionally, the Respondent was assigned several exercises in the Activities Manual to assist him in the area of teacher/student relationships. On March 27, 1998, Principal Charles Hankerson observed the Respondent in the classroom. On this occasion Principal Hankerson found the Respondent to be deficient in three categories: classroom management, techniques of instruction, and teacher/student relationships. This was the confirmatory observation, which did not require a prescription. The assistance provided to the Respondent through his prescriptions was appropriate assistance related to the Respondent's observed deficiencies. The Respondent completed all of the prescriptions. Nevertheless, the Respondent continued to fail to plan for lessons, continued to fail to manage his students, and continued to fail to interact appropriately with his students. These continued failures resulted in a failure of the Respondent to meet the instructional needs of his students. As a result of the Respondent's unsatisfactory performance during each of the last three observations described above, Principal Hankerson notified the Superintendent of Schools that the Respondent had not satisfactorily corrected his performance deficiencies during the probation period, and Principal Hankerson recommended that the Respondent's employment be terminated. On April 2, 1998, the Superintendent of Schools timely notified the Respondent that he was going to recommend that the School Board terminate his employment contract because he had failed to satisfactorily correct his performance deficiencies during his period of probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the action to terminate Respondent's annual contract. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. 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 5th day of April, 1999.
The Issue The issues in this case are: whether Respondent, Tallahassee Facility Operations, LLC, d/b/a Consulate Health Care of Tallahassee (“Consulate”), committed a Class III deficiency at the time of a complaint survey conducted on July 2, 2013; whether Consulate committed two further Class III deficiencies at a revisit survey on August 12, 2013; and, if Consulate did commit the alleged Class III deficiencies found during the surveys on July 2 and August 12, 2013, whether the latter deficiencies constituted “uncorrected deficiencies” meriting the imposition of a $1,000 fine and the issuance of a conditional license to Consulate for the period August 13, 2013 through September 30, 2014.
Findings Of Fact AHCA is the state agency charged with licensing of nursing homes in Florida under section 400.021(2), Florida Statutes, and the assignment of a licensure status pursuant to section 400.23(7), Florida Statutes.1/ AHCA is charged with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Pursuant to section 400.23(8), AHCA must classify deficiencies according to their nature and scope when the criteria established under section 400.23(2) are not met. The classification of the deficiencies determines whether the licensure status of a nursing home is "standard" or "conditional" and the amount of the administrative fine that may be imposed, if any. During the survey of a facility, if violations of regulations are found, the violations are noted on the prescribed form and referred to as "Tags." A tag identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, and sets forth specific factual allegations that the surveyors believe support the violation. Consulate operates a 120-bed nursing home at 1650 Phillips Road in Tallahassee and is licensed as a skilled nursing facility. July 2, 2013, complaint survey Having received c omplaints alleging Consulate’s failure to follow physician-ordered plans of care for residents, AHCA sent a survey team to conduct a survey of the facility on July 2, 2013. Registered nurse specialist surveyor Susan Page was specifically directed to examine the facility’s procedures regarding activities of daily living (“ADLs”) and its practices in following physicians’ plans of care. Ms. Page reviewed the records of Resident 1, a male resident who had suffered a fractured pelvis in a fall at his home. He had been fitted with an external fixation device to stabilize the fracture and was admitted to Consulate for rehabilitative care. The external fixation device was anchored by metal pins that were inserted through the skin and into the bone. When the fixator was removed, a small wound remained at the pin site on Resident 1’s hip. Resident 1 had been discharged on June 27, 2013. Ms. Page’s review was thus limited to the facility’s records. She looked at the generalized history of the resident, the physician orders, the grievance log, the ADL treatment record, care plan, and the Minimum Data Set information on Resident 1. Ms. Page discovered a written physician order dated June 1, 2013, that directed Consulate staff to clean the pin site with Betadine then wash off the Betadine and cover the wound with gauze twice a day for seven days, and afterwards to wash the wound with soap and cover it daily. The order directed a ten-day course of Zyvox, an antibiotic. Finally, the physician order stated, “Make sure [patient] showers daily.” Ms. Page testified that she reviewed other physician orders that showed changes in pain medications and indicated that Resident 1 was having issues with loose stool or diarrhea. He was tested for the bacterium Claustridium difficile (“C. diff”) in his stool. Ms. Page reviewed Consulate’s ADL Flow Record for Resident 1 and discovered that during the period from June 1 to June 27, the resident was given a shower on only seven days, despite the physician’s order that he receive a daily shower. On four days during that period, Resident 1 received no form of body cleansing. On the remaining days, he was given bed baths. Ms. Page and Debra Ball, a registered nurse specialist who was part of the survey team, each testified that a bed bath is not commensurate with a shower. A shower involves clean water running over the entire body, allowing the body to be cleansed with soap and rinsed with clean water. A bed bath involves a tub of soapy water and a tub of clean water. The resident remains in the bed and the staff person wipes the resident off as best she can. The resident is not immersed in clean water. Ms. Page explained the significance of Consulate’s failure to follow physician orders for Resident 1. The resident’s recent surgery provided a portal of entry for bacteria into the body, and the physician’s orders were designed to work in combination to minimize the possibility of infection. The daily shower was an essential part of the physician’s plan of care for Resident 1. A shower is invaluable in keeping low the bacteria count on the resident’s skin. The shower was especially important in this situation because of the pin site location on Resident 1’s hip and his noted problems with loose stools and possible C. diff infection. Ms. Page, opining as an expert in nursing, testified that the failure to follow the physician order in this case potentially compromised Resident 1’s ability to maintain or reach his highest practical mental, physical, or psychosocial well-being. Ms. Page specifically testified that due to the position of the wound site, the loose stools, and the fact that the portal of entry led directly to the bone, Resident 1 had a potential to contract cellulitis or osteomyelitis as a result of the deficiency. Ms. Page conceded the efficacy of cleansing with Betadine, but noted that the antibacterial cleansing was prescribed for only seven days and that the failure to give showers as prescribed occurred on consecutive days after the Betadine prescription had expired. As a result of the failure to provide showers or to note in the record any reason for that failure, the facility was cited for violating Florida Administrative Code rule 59A- 4.107(5), which provides: “All physician orders shall be followed as prescribed, and if not followed, the reason shall be recorded on the resident’s medical record during that shift.”2/ The deficiency tag correlating to this violation is Tag N054. Consulate was cited with a Class III deficiency for this violation. Ms. Page testified that the decision to classify the July 2, 2013, deficiency as Class III was reached by a consensus of the four-person survey team, all registered nurses, and was based on the facts of the case and the statutory definition set forth in section 400.23(8)(c): A class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident’s ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. Ms. Ball agreed that Consulate should be cited for violating rule 59A-4.107(5) and that the violation should be classified as Class III. Ms. Ball testified that in her experience it is not unusual for a physician to direct the manner in which the cleansing of a post-operative patient should occur. She noted that the pin site’s portal of entry went into the bone and that bone infections have high morbidity and mortality rates. Ms. Ball further noted the variety of infections that could occur in a case such as Resident 1’s: osteomyelitis, enterococcus, candida, methicillin-resistant staphylococcus aureus (“MRSA”), and the most common one, staphylococcus. Some of these infections could be life threatening. Ms. Ball, who was accepted as an expert in nursing, offered the opinion that the failure to follow the physician order for showers had the potential to cause a surgical site infection, which in turn had the potential to compromise Resident 1’s ability to maintain or achieve his highest practical physical well-being. Ms. Ball testified that an infection is never the sort of “minor impact” contemplated by the statutory definition of a Class IV deficiency. Ms. Ball testified that each of the four registered nurses on the survey team agreed that the failure to follow physician orders had the potential to compromise Resident 1’s health and that the violation should be classified as Class III. Patricia McIntire is a registered nurse consultant supervisor for AHCA. Her duties include reviewing cited deficiencies and ensuring that the evidence cited by the survey teams meets the requirements of the applicable statutes and regulations. Ms. McIntire was the supervisor who reviewed the July 2, 2013, survey file. She agreed that the cited deficiency should be classified as a Class III deficiency. AHCA’s citation gave Consulate until August 2, 2013, to correct the deficiencies noted in the survey. August 12, 2013 revisit survey Ms. Ball was sent to conduct a revisit survey of Consulate on August 12, 2013 in order to determine whether the previous deficiencies had been corrected. Ms. Ball was specifically looking for Consulate’s compliance with physician orders and the correction of the federal citation related to ADLs. Ms. Ball wanted to survey a sample of residents that would include both aspects of the corrections she sought. She knew that residents receiving pain medications would have physician orders for the medications. She therefore asked the facility to provide the records of residents who were receiving both pain medications and assistance with ADLs. Resident 1 and Resident 3 met those criteria. Resident 1, who was not the same person as the Resident 1 cited in the July 2 survey, had a physician order dated July 26, 2013, to change her peripheral inserted central catheter (“PICC”) dressing every seven days starting on August 1. When Ms. Ball checked the PICC dressing on Resident 1, she saw a notation on the dressing indicating that it had last been changed on August 3, nine days prior to the revisit. Ms. Ball testified as to her experience with PICC dressing changes as follows: I’ve done these dressing changes for years. A central line dressing change, we’re not talking about a piece of gauze and a piece of tape. You actually use an adherent Tegaderm dressing. It’s like Saran Wrap. Picture Saran Wrap and when you put it on something, it sticks. Picture Saran Wrap with a sticky surface, a sticky bottom. So you have this clear 4-by-4-inch, it’s a standard size, a clear sticky dressing of Tegaderm. Within your dressing kits— because these dressings have kits that you have to buy. It’s a very involved, long, tedious process to do a dressing change on a PICC. I’ve done several. When you do this dressing change, which isn’t just changing the dressing, it includes a cleaning to disinfect and reduce the number of microorganisms on your skin and then some of them have like a little biofilm. It’s a little patch that you put where the catheter’s going into the vessel. And that biofilm is designed to kind of provide a barrier for seven days. I think that’s probably one of the reasons it’s done every seven days. So you’ve got this clear dressing, this 4-by- 4-inch Saran-Wrap-appearing thing that has a sticky to it. And it’s not easy to peel off. Well, when you change a dressing, within your kit, you also have this little label. It measures about maybe 1-by-2 inches. It says “date” and “initials.” And what you do is when you change that dressing, within your kit, which has a lot of stuff in it, you take the little label after you’ve sealed it, and you put that other sticky label on top of that Saran Wrap type dressing. Well, picture taking a piece of adhesive tape off a piece of Saran Wrap. I challenge you. It can’t be done. It’s going to tear it. So there would be no reason for that dressing to still bear that date of August the 3rd if it had been changed since then. Ms. Ball testified that it is a basic standard-of-care, established by the Centers for Disease Control (“CDC”) and many other entities, that PICC-line dressings should be changed every seven days. Ms. Ball testified that the primary risk associated with failure to change PICC dressings as directed is CLABSI, which is the CDC’s acronym for a central line associated blood infection. She stated that 250 deaths a day are associated with central line associated blood infections. Ms. Ball testified that the potential harm is so great that the CDC has developed initiatives for surgical site infections and central line associated blood infections. Ms. Ball saw the date of August 9 scribbled on a white label stuck to the dressing but she disregarded it because it was not on the label provided in the PICC dressing kit. She spoke to Consulate’s unit manager, who stated that the note on the white label had been made by a Licensed Practical Nurse (“LPN”). The unit manager confirmed that LPNs do not perform PICC dressing changes but nonetheless told Ms. Ball that the dressing must have been changed on August 9. However, the nurse’s notes and other medical records indicated no dates other than August 3 for a PICC-dressing change for Resident 1. Ms. Ball asked Resident 1 when the PICC dressing was last changed but the Resident could not say. Consulate’s medication log confirmed that the dressing had not been changed since August 3. Ms. Ball testified that she looked at the medication record, nurse’s notes, and treatment record and could not find any evidence in any record kept by the facility that the PICC dressing had been changed since August 3. Ms. Ball was also unable to find any evidence that the PICC dressing had been changed from July 26 to August 3, 2013. Ms. Ball concluded that the PICC dressing for Resident 1 had not been changed from August 3 to the date of the revisit survey, August 12, 2013, a period of more than seven days. Ms. Ball also concluded that the PICC dressing had not been changed from July 26 to August 3, 2013, also a period of more than seven days. Consulate’s records gave no reason why the physician order to change the dressing every seven days had not been followed. The physician order required a PICC-dressing change on August 1, 2013. Ms. Ball found no documentation of a PICC- dressing change for Resident 1 on August 1, 2013. After she encountered problems with Resident 1’s treatment, Ms. Ball reviewed the record of Resident 3, who had a physician order dated July 23, 2013, to change her PICC dressing every seven days. Ms. Ball could find no documentation showing that a dressing change occurred from July 23 to August 2, 2013, a period of more than seven days. The facility’s records also gave no indication as to why the dressing change had not occurred. AHCA’s July 2, 2013, notice of deficiency required Consulate to complete all corrections by August 2, 2013. The failures to perform PICC-dressing changes for Residents 1 and 3 occurred on or after August 2, the date by which all corrections were to be completed. On August 12, 2013, Consulate was cited with an uncorrected deficiency for again violating rule 59A-4.107(5), by failing to follow physician orders or to document reasons why the orders were not followed. Ms. Ball testified as to the similarities between the deficient practices found in the July 2 survey and the August 12 revisit survey. In both cases, Residents had orders for specific types of treatment. Both cases involved residents with impaired skin integrity that substantially increased the risk of infection. In both cases, the facility failed to show it was following physician orders. Ms. Ball testified that the July 2 deficiency involved the potential for infection to the bone, a “very complex, very devastating” type of infection. She noted that the August 12 deficiencies involved central lines going directly to the residents’ hearts. She stated, “They both have potential for serious harm or a potential to keep you from getting well or increasing your stay or possibly killing you. Ultimately, you could die from either one.” Ms. Ball testified that in her opinion, Consulate’s failure to follow physician orders for Residents 1 and 3 potentially compromised their ability to maintain or reach their highest practical, mental, or psychological well-being. Ms. Ball testified that AHCA does not assign a specific classification for all deficiencies related to failure to follow physician orders. Each deficiency is assigned a classification based on an application of the statutory definitions to the facts of the specific case under consideration. In this case, Ms. Ball had no doubt that Consulate’s failure to follow physician orders constituted a Class III deficiency. Ms. McIntyre testified that she reviewed the facts related to the August 12, 2013, revisit survey. She agreed that Consulate failed to follow physician orders in accordance with rule 59A-4.107(5), that Consulate’s failures to follow physician orders were properly classified as Class III deficiencies, and that they constituted an uncorrected deficiency from the July 2, 2013, complaint survey. The plan of correction Section 400.23(8)(c) provides in part: “A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, a civil penalty may not be imposed.” Section 408.811(4) provides that a deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is required or approved by the agency. Section 408.811(5) provides: “The agency may require an applicant or licensee to submit a plan of correction for deficiencies. If required, the plan of correction must be filed with the agency within 10 calendar days after notification unless an alternative timeframe is required.” After the July 2, 2013, complaint survey, AHCA sent to Consulate a letter dated July 12, 2013, stating that “Deficiencies must be corrected no later than August 2, 2013,” and requiring Consulate to file a plan of correction within ten days. The letter provided that the plan must contain the following: What corrective action(s) will be accomplished for those residents found to have been affected by the deficient practice; How you will identify other residents having potential to be affected by the same deficient practice and what corrective action will be taken; What measures will be put into place or what systematic changes you will make to ensure that the deficient practice does not recur; and, How the corrective action(s) will be monitored to ensure the deficient practice will not recur, i.e., what quality assurance program will be put into place. On July 21, 2013, Consulate submitted a plan of correction that provided as follows as pertains to Tag N054, failure to follow physician orders: Resident #1 has been discharged from the facility on 6/27/2013. An audit has been conducted for current residents shower preferences and an audit has been conducted of current resident ADL sheets. Re-inservice staff on giving showers per shower schedule. Shower sheets will be reviewed 5 times weekly in the clinical meeting for completion. [CNAs] will complete shower sheets daily and the nurse will verify that a shower has been given. Findings will be reviewed at the monthly QA/PI committee meeting to ensure substantial compliance. On July 24, 2013, AHCA sent a fax to Consulate stating that its plan of correction had been approved on June 18, 2003. Barbara Stevens, Consulate’s vice president of clinical services, testified that Consulate completed the corrective work proposed in the plan of correction on or before August 2, 2013. Consulate contends that AHCA’s approval of its plan of correction, without requiring additional conditions or actions, effectively preempts AHCA from finding that the August 12 deficiencies are uncorrected deficiencies from the July 2 survey. AHCA accepted the proposed plan, Consulate performed the plan, and no deficiencies involving showers or other ADLs were a part of the August 12 deficiency findings. In other words, the failure to follow physician orders deficiencies found in the August 12 survey should not be considered “uncorrected” because they were unlike the failure to follow physician orders deficiency found in the July 2 survey. Ms. Ball testified that when AHCA conducts a revisit survey, it is not looking for compliance with a facility’s plan of correction; it is looking for compliance with statutes and regulations. She noted that Tag N054 specifically addresses failure to follow physician orders, not failure to shower a resident. Consulate’s plan entirely neglected to address what it intended to do going forward to assure that physician orders would be followed. She noted that virtually the same plan of correction was submitted for Tag F312, the federal ADL violation, and further noted that it should have been obvious that different actions would be required to correct a failure to provide ADLs and to correct a failure to follow physician orders. Ms. Ball testified that AHCA cannot lead a facility by the nose and tell it how to come into compliance. The facility is expected to know and follow the statutes and rules and to understand what it needs to do to come into compliance. She conceded that nothing in the plan of correction would have prevented the subsequent PICC-dressing violations, but opined that this was a flaw in the plan, not with AHCA’s determination that the PICC-dressing issue constituted an uncorrected deficiency. Consulate “missed the boat” by failing to address physician orders in its plan and paid the price during the August 12 revisit survey. Ms. McIntire testified that Consulate’s plan of correction touched on some of the subjects of its July 2 deficiencies, namely ADLs, but that AHCA expects the facility to correct everything cited in the notice of deficiency. AHCA expected Consulate to look holistically at all physician orders, not merely those related to ADLs. Ms. McIntire testified that when a facility is cited under the physician order tag, the facility will typically look at its entire resident population and establish a mechanism for determining whether staff is following physician orders. The facility is expected to implement whatever corrective actions are necessary to bring it back into compliance, not just for the few residents sampled in the survey but for all of them. It is up to the facility to decide what tool or mechanism it will use to correct the deficient practice. Ms. McIntire testified that AHCA cannot reject a plan of correction on the assumption that the facility did not intend to address physician orders. She stated that AHCA accepted Consulate’s plan because it did address some of the deficient practices that were identified, but that Consulate was nevertheless expected to correct every area in which it was found out of compliance. Ms. McIntire stated that following the plan of correction does not bring the facility into compliance because AHCA surveys for compliance with the regulations, not the plan of correction. Ms. McIntire stated that Consulate’s plan of correction included nothing that would have prevented the deficiency found on August 12 under Tag N054, but that the plan did correct Tag F312. Ms. McIntire testified that the plan of correction is a “jumping off point” for AHCA. The agency wants to see how comprehensively the facility is looking at deficient practices. AHCA proceeds on a good faith assumption that the facility is going to look at all of its residents who could have been affected by the deficient practice and make the proper corrections. Substantial compliance Consulate contended that it should not have been required to file a plan of correction at all because AHCA erred in finding the July 2, Tag N054, deficiency a Class III deficiency. Consulate argues that the deficiency should have been classified as Class IV because it had merely “the potential for causing no more than a minor negative impact on the resident.” Section 400.23(8)(d) provides that no plan of correction is required for an isolated Class IV deficiency. If the July 2 deficiency was Class IV, then the August 12 deficiencies cannot be considered “uncorrected.” Consulate’s argument rests essentially on the proposition that it substantially complied with the June 1, 2013, physician order for Resident 1. The pin site was cleaned with Betadine as prescribed. The wound was cleaned and gauzed as prescribed. The antibiotic was administered. The resident received a bath or shower on all but four days during the period from June 1 to June 27, and on some days he was washed more than once. Consulate argues that AHCA failed to establish how a failure to give Resident 1 a bath and/or shower on four days during the month of June presented a potential for physical, mental, or psychosocial discomfort to the resident or the potential to compromise the resident’s ability to maintain or reach his highest practical physical, mental, or psychosocial well-being.3/ Consulate’s argument is at odds with the evidence. The testimony of AHCA’s witnesses established the potential physical, mental, or psychosocial discomfort to the resident or the potential to compromise the resident’s ability to maintain or reach his highest practical physical, mental, or psychosocial well-being. The potential for infection was real, and the physician’s orders were fashioned to maximize Resident 1’s protection from any potential infection. Further, the deficiency for which Consulate was cited was not one with which it could “substantially” comply. Either the physician orders are followed or they are not. Ms. Page testified that facility staff may not pick and choose which physician orders to follow. The physician did not just pull the order out of the air and instruct Consulate to give the resident a daily shower.4/ It was a prescribed treatment, a preventive measure. Ms. Page observed that all of the prescribed measures were intended to work together to prevent infection. Ms. Ball stated that the order “was obviously infection control related. And he wouldn’t have written an order if he didn’t want it done. That’s why physicians write orders. If they write an order, they expect you to do that, hence, the word ‘order.’” Summary findings Based on the foregoing, it is found that AHCA properly cited Consulate on July 2, 2013 under Tag N054 for violating rule 59A-4.107(5) and properly classified the violation as Class III. Based on the foregoing, it is found that AHCA properly cited Consulate on August 12, 2013 under Tag N054 for two violations of rule 59A-4.107(5) and properly classified the violations as Class III. Further, it is found that AHCA properly cited Consulate for an uncorrected Class III violation for repeated failure to follow physician orders.
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 imposing a fine of $1,000 and further imposing conditional licensure on Respondent for the period from August 13, 2013 through September 30, 2014. DONE AND ENTERED this 31st day of December, 2014, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2014.
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 The issue in this case is whether the Petitioner, Hillsborough Community College (the College), should terminate the employment of the Respondent, Corine Dismuke (Dismuke).
Findings Of Fact The Respondent, Corine Dismuke (Dismuke), was employed at Hillsborough Community College (the College) continuously from April 20, 1981. For eleven and a-half years, she worked in the Financial Aid office and was a good and valued employee. By 1994, however, Dismuke's relationship with a new supervisor had deteriorated, her morale was low, and she made her grievances known to the College. The College's ultimate resolution of Dismuke's grievances was to transfer Dismuke to the College's Financial Services office in 1994. For a time, Dismuke continued to experience difficulties at work despite the change. She thought that her new colleagues shunned and isolated her and that she was treated poorly and unfairly by her new supervisor, the Director of Financial Services, Barbara DeVries. Dismuke filed several grievances complaining about these things during her first year and a-half at Financial Services. Dismuke's supervisor thought Dismuke's attitude improved during Dismuke's second year in the Financial Services office. The evidence was clear that Dismuke was on good terms with some (but not all) of her colleagues. Dismuke's attitude changed when she began to get indications in the spring of 1997 that her position would be adversely affected if the College implemented the recommendations contained in the report of a study undertaken by the firm of Coopers and Lybrand on the College's personnel classification systems and pay scales. Under the Coopers and Lybrand recommendations, Dismuke's position would be reclassified, and her salary would be frozen, so that Dismuke would not even get cost-of-living adjustments, until her salary came in line with the report's recommended salary for the new position. Grounds for Termination and Termination Proceedings On Monday, June 30, 1997, Dismuke entered her office suite and told a co-worker, Pete Scaglione, with whom she had always gotten along with well, that he had better consider wearing a bullet-proof jacket because bullets could begin to fly soon. This upset Scaglione greatly because he perceived the comment as a direct threat to him. Scaglione assumed Dismuke's anger had something to do with the Coopers and Lybrand recommendations, which would have given Scaglione a modest salary increase. Scaglione went to another fellow employee, Beatriz Maseda, who also was greatly concerned. Both Scaglione and Maseda were concerned that Dismuke would act on her statement to Scaglione, come to work with a gun, and start shooting. Maseda advised Scaglione to report the incident to DeVries. Scaglione was afraid that DeVries would not do anything and did not want to report the incident. Maseda convinced Scaglione to report it. They discussed a personnel rule requiring him to do so. The College's Rule 6HX-10-1.017 provides: Purpose: The purpose of this administrative rule is to establish college policy that prohibits threats of violence by personnel, students, visitors or any other individual while at Hillsborough Community College. Rule: Threats to do bodily harm or property damage by College personnel, students, visitors or any other individual against another while at Hillsborough Community College is totally inappropriate. A threat of violence, either verbal or written, expressed or implied, will not, under any circumstances, be tolerated at Hillsborough Community College. Any other threat of a material and substantial disruption to the operation of the College is also prohibited. An employee making any threat prohibited by this rule will be disciplined in accordance with the appropriate administrative procedure, up to and including termination. A student making any threat prohibited by this rule will be disciplined in accordance with the appropriate administrative procedure, up to and including expulsion. Any other individual making any threat prohibited by this rule will be required to leave College property immediately. Notification will be made to the appropriate law enforcement agency where appropriate. The failure of any employee or student to report any threat prohibited by this rule that is made by students, employees, or any other person against any person or the operation of the College will also result in disciplinary action. It is stipulated that Dismuke received notice of Rule 6HX-10-1.017 as well as the College's other personnel rules. When DeVries was told of the incident the next day, she also was concerned that Dismuke would act on her statement to Scaglione. DeVries notified her supervisor, the College's Vice- President for Financial Affairs, Robert Wolf. Wolf was very concerned about DeVries' report to him and insisted on an immediate meeting with DeVries, Maseda, and Scaglione. Wolf ascertained that Dismuke actually made the comments in anger and that Scaglione and Maseda were genuinely afraid of Dismuke. Wolf also became concerned that Dismuke might act on her statement to Scaglione. He and DeVries discussed the incident and what action would be appropriate. DeVries thought that the seriousness of the threat warranted termination under the College's personnel rules, and Wolf agreed. Wolf told DeVries to monitor the situation and begin the process to terminate Dismuke. Although Wolf and DeVries were concerned for the safety of the College's personnel, and thought the matter was serious enough to warrant termination under the College's personnel rules, neither took any immediate security measures to prevent Dismuke from carrying out the threat implied in her statement. Thursday and Friday, July 3 and 4, 1997, were school holidays. On Monday, July 7, 1997, DeVries began an investigation consisting of interviews of some other employees in Financial Services. Her investigation ascertained that others also were afraid of Dismuke. One employee, Dana Livesay, reported to DeVries that on Monday, July 7, 1997, she overheard Dismuke on the telephone saying to someone, "You told me to call you if I started to lose it, before bullets started to fly, well, I'm about to lose it." After a pause, Dismuke added, "You tell me to be calm, well I don't want to be calm." Like Scaglione and Maseda, Livesay also was concerned for her safety and asked to have her work station moved farther away from Dismuke's. DeVries decided not to discuss the matter with Dismuke. For one thing, she and Wolf already had decided that termination was appropriate. For another, DeVries did not think it was appropriate for her to confront Dismuke and discuss the incident since prior discussions had been unsuccessful in addressing Dismuke's grievances, Dismuke now had made threats that DeVries felt were directed towards her. During the week of July 7, 1997, DeVries prepared an Employee Discipline Report notifying Dismuke that DeVries was recommending termination and suspending her with pay pending termination. Out of concern for her safety and the safety of others at the College, DeVries made arrangements to have two City of Tampa Police Department officers present when she met with Dismuke on Thursday, July 10, 1997, to present her with the Employee Discipline Report. For their own safety (as well as for the safety of DeVries and other College personnel), the officers searched Dismuke for weapons and found none. Dismuke refused to sign the Employee Discipline Report. DeVries and the police officers advised Dismuke that Dismuke was to leave the campus and not return, except to participate in an informal hearing to be held on Tuesday, July 15, 1997. The two police officers escorted Dismuke off campus. Dismuke remained calm and respectful and obeyed all instructions from the police officers without question. After Dismuke left, DeVries signed the Employee Discipline Report. The informal hearing on July 15, 1997, was referred to by different names (including discipline hearing, post-discipline hearing, and pretermination hearing), and Dismuke seemed confused as to its purpose. The July 15, 1997, hearing was conducted by a College administrator named Charles M. Sackett. Sackett questioned several witnesses, including Wolf, DeVries, Scaglione, Maseda, and Livesay. He gave Dismuke an opportunity to question the witnesses and to testify on her own behalf, but she declined. Dismuke thought it better to just listen to the evidence against her because she did not feel prepared to cross-examine witnesses and present a case in her behalf and because she understood that the informal hearing would be followed by a formal hearing at which she would be better prepared. Sackett accepted written material from Dismuke but declined Dismuke's request that he obtain the witnesses' sworn answers to written questions Dismuke had drafted; however, he advised her how to obtain a tape recording and verbatim transcript of the informal proceeding. After the informal proceeding, Sackett prepared a report which recommended to interim College President, Dr. Jeff Hockaday, that the "termination of Ms. Dismuke's employment with the College be affirmed." Wolf and Executive Vice-President Dr. Diana Ferreira signed the Employee Discipline Report on July 15, 1997; Hockaday signed the next day and required that Dismuke's suspension with pay continue, pending action by the College's Board of Trustees on the termination recommendation. The position of Human Resources Vice-President was vacant during the summer of 1997, and the Employee Discipline Report was not signed by anyone from the College's Human Resources Department. Jerry Inman, Human Resources Compensation and Employee Records Manager, initiated a Personnel Action Notice (PAN) to place the termination recommendation on the agenda for the meeting of the College's Board of Trustees scheduled for the September 17, 1997. On August 1, 1997, Dr. Gwendolyn Stephenson became the President of the College. She satisfied herself that the pending proceedings for Dismuke's termination were appropriate and proceeded with them. (She also proceeded with action to terminate another employee for threatening violence.) Dismuke thought the Board meeting on September 17, 1997, was her formal termination hearing, and she came prepared to defend herself. Instead, she was informed: that she already had had her "pretermination hearing"; that she could make a presentation to the Board prior to its decision on the termination recommendation but only would have an opportunity for a full-blown, formal hearing if the Board of Trustees approved the recommendation for her termination; and that one option would be to request hearing before the Division of Administrative Hearings (DOAH) under Chapter 120, Florida Statutes (1997). The Board voted to terminate Dismuke. (The Board member who seconded the motion to terminate Dismuke commented that it was "the only way to get to a post-termination hearing.") Dismuke's Defenses Denial. Dismuke's first defense was that she never made the statements attributed to her. As part of this defense, Dismuke suggested that the witnesses (including Scaglione, whom Dismuke considered to be her one good friend in Financial Services until June 30, 1997), conspired with Barbara DeVries to fabricate grounds to terminate her. This defense is rejected as being untrue. First, it is clear that Dismuke was very angry as a result of what she viewed to be the unfair impact of the results of the Coopers and Lybrand study on her personally. This perceived injustice had the effect of reviving all of her earlier grievances and animosities against the College and her supervisor. The statements attributed to Dismuke are consistent with her past behavior under similar circumstances. Dismuke has a history of using threats of violence to get attention and to get her way. Dismuke herself insisted on calling Carolyn Speed- Green, the Assistant to the President for Institutional Equity, to testify and sponsor a report Speed-Green wrote during the College's efforts to resolve Dismuke's acrimonious dispute with her former supervisor in Financial Aid in 1994. The report included a copy of a letter Dismuke wrote to the President of the College stating that Dismuke drove to work one day with a gun and the intention of shooting her supervisor before she "returned to reality," but changed her mind because she could go to jail for that and decided to call in sick. Speed-Green's report also referenced evidence that Dismuke had made a similar statement (that she "started to shoot" the supervisor) in a meeting with the supervisor three years earlier. Dismuke claimed that the incident related in the letter to the President in 1994 and in the earlier statement to her supervisor were fabricated to get attention and the response she desired from the College. Another witness called by Dismuke, Sandra Rodriguez (f/k/a Sandra Castro) testified that, within a few weeks after Dismuke began work in Financial Services, Dismuke told the witness that Dismuke actually came to work with a gun and with the intention of shooting her supervisor. But the apparent admission could have been another fabrication for effect. Even in her own testimony at the final hearing in this case, Dismuke made a veiled threat of violence. After describing how desperate she would be if she did not get her job back with back pay, she made a plea that it was "time that someone took the initiative to stop all this madness. Once I'm out on the street, I don't know how I'm going to act. They're all saying that I'm violent. They're all saying that I'm crazy. When I'm out on the street homeless and hungry with my two grandchildren, who's to say if I won't become violent." "Threat Against Another." As previously mentioned, the College's Rule 6HX-10- 1.017 prohibits "[t]hreats to do bodily harm . . . against another while at Hillsborough Community College." Dismuke's next, alternative defense was that, if found to have uttered the statements attributed to her, her threats were not "against another" and did not violate Rule 6HX-10-1.017. It does seem that Scaglione misunderstood Dismuke's intent in thinking that Dismuke was threatening to shoot him. Rather, it seems that her statement was meant to imply that she would be shooting someone else but that Scaglione should wear a bullet-proof vest to avoid being injured by a stray bullet. But regardless which was Dismuke's intent, her statement threatened not only Scaglione but also all of the employees in her work area. Dismuke does not seem to appreciate the seriousness of the threats embodied in the words she uttered. Clearly, several of her co-workers, including DeVries, felt threatened by Dismuke's statements, and their feelings were not unwarranted. Alleged Selective Enforcement. Dismuke also argues that the College treated her unfairly because another employee, Sladen McLaughlin, was not terminated for threatening a co-worker, Mattie Brown. According to Brown, Brown went to McLaughlin's work-station to get information she needed to trouble-shoot a telephone problem, and McLaughlin told her to leave because he did not want to talk to her about it. When she persisted, McLaughlin "viciously" rose from his chair and told her to get her "uppity ass" out of his office. According to McLaughlin, he just got angry at the manner of Brown's persistence and told her not to act like a "smart ass." Either way, it was not clear from the evidence that McLaughlin threatened Brown with violence or bodily harm. He certainly did not threaten to shoot her. There is no comparison to Dismuke's threats. In addition, contrary to Dismuke's defense, she was not the only employee terminated at the Board's September 17, 1997, meeting for violating Rule 6HX-10-1.017. See Finding 18, supra. Alleged Violation of Progressive Discipline. Dismuke also argued that the College should not be permitted to terminate her because it did not follow its progressive discipline procedure. It is clear that while the College's Administrative Procedure 2.043 provides for progressive discipline, the procedure also affords supervisors discretion to skip one or more steps in the procedure. Specifically, immediate termination is authorized "if an employee's performance . . . is serious enough to warrant such actions." Termination for Dismuke's threatening statements was not an abuse of discretion. Alleged Procedural Violations. Dismuke also argued that, under Administrative Procedure 2.049, she was entitled to receipt of a Personnel Action Notification (PAN) from the President via the Associate Vice-President of Personnel Services but that she only received an unsigned copy of the Employee Discipline Report from DeVries. Administrative Procedure 2.049 was not introduced in evidence. Administrative Procedure 2.043, which was introduced in evidence, provides in pertinent part: A recommendation for termination must be included on an Employee Discipline Report form for review and approval by the unit administrator, the Campus/District-level Vice President, and the Executive Vice President (where applicable) and the President. . . . The Associate Vice President for Human Resources will notify the employee that the President is recommending his/her termination by certified mail, return receipt requested, with a copy of the Employee Discipline Report form. It was not clear from the evidence that Dismuke did not receive a PAN; the evidence was that Jerry Inman, Human Resources Compensation and Employee Records Manager, initiated the PAN for Dismuke's termination during a vacancy in the position of Associate Vice President for Human Resources. The purpose of the PAN was to place the termination recommendation on the agenda for the meeting of the College's Board of Trustees scheduled for the September 17, 1997. It was not clear from the evidence that Dismuke did not receive her copy of the PAN. It also was not clear from the evidence that Dismuke did not receive a copy of the signed Employee Discipline Report. The copy she received from DeVries on July 10, 1997, was not signed, but the original was signed by several College officials after Dismuke refused to sign it. Dismuke also complained that several College administrators other than the College President recommended her termination. Dismuke argued that only the College President was authorized to do so. Clearly, the ultimate recommendation for termination placed before the College Board of Trustees normal comes from the president (or acting president), as occurred in this case. However, just as clearly, the College President is entitled to obtain recommendations from other administrators as part of the president's decision-making process. In this case, Acting President Hockaday initially recommended termination based on the recommendations of other College administrators, and President Stephenson did the same. There was no procedural infirmity in either termination recommendation. Alleged Double Jeopardy. Dismuke also argued that it was unfair "double jeopardy" to suspend her and terminate her for the same offense. To the contrary, the evidence was clear that Dismuke was suspended with pay pending the Board's decision on the College President's recommendation of termination. This was in accordance with the College's Administrative Procedure 2.043. The suspension with pay and the termination were both part of the imposition of a single discipline. There was no "double jeopardy." No Rules on Termination Hearings. There was no evidence of any rules providing for or governing either the July 15, 1997, hearing or the hearing before the Board of Trustees on September 17, 1997.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Hillborough Community College enter a final order terminating the employment of the Respondent, Corine Dismuke. DONE AND ENTERED this 13th day of July, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 13th day of July, 1998. COPIES FURNISHED: Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Corine Dismuke, pro se 10312 Penny Tree Place Tampa, Florida 33624 Dr. Gwendolyn H. Stephenson, President Hillsborough Community College Post Office Box 31127 Tampa, Florida 33631
The Issue The issues are whether Respondent failed to maintain a record of major incidents on two occasions, and if so, what penalty should be imposed.
Findings Of Fact Petitioner regulates assisted living facilities (ALFs) pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. Respondent is licensed as an ALF pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. On or about October 4, 1999, Petitioner received a telephone call alleging that Respondent was operating contrary to Rule 58A-5, Florida Administrative Code, in several respects. In response to the telephone complaint, Petitioner performed an unannounced inspection/survey at Respondent's facility on October 6, 1999. Petitioner performed record reviews, interviews, and observations during its October 6, 1999, inspection of Respondent's facility. The survey revealed that Respondent's business was deficient in several respects that are not relevant here. These deficiencies resulted in four citations. On November 10, 1999, Petitioner completed a follow-up appraisal/complaint investigation at Respondent's facility. During the survey, Petitioner reviewed randomly selected medical records of eight of Respondent's clients. The November 10, 1999, revisit resulted in Respondent being cited for several Class III deficiencies. The deficiencies included one citation for failing to maintain a record of a major incident involving an injury to a resident who required treatment by a health care provider. Specifically, Resident No. 5 fell on October 22, 1999, and fractured a leg. She was transferred and admitted to the hospital. At the time of the November 10, 1999, inspection, Respondent could not produce documentation indicating that it had completed a major incident report. Petitioner advised Respondent that it had until November 24, 1999, to correct cited deficiencies. On December 20, 1999, Petitioner conducted a revisit survey of Respondent's facility. The purpose of the inspection was to determine whether Respondent had corrected deficiencies cited during the November 10, 1999, inspection. This inspection included a review of medical records for eight randomly chosen residents. The December 20, 1999, survey revealed a repeat deficiency for failing to complete a major incident report of an injury to a resident who required treatment by a health care provider. Petitioner cited Respondent for failing to complete a major incident report for Resident No. 7 who fell on or about August 1, 1999. Resident No. 7 fell in her room but refused initially to go to the hospital. Two days later, Resident No. 7 was admitted to the hospital for observation due to her complaints of pelvic pain. She returned to Respondent's facility with a new health assessment dated August 3, 1999. The new health assessment revealed a decline in the resident's ability to perform daily living activities and changed her status from independent to requiring supervision in dressing, grooming, toileting, and transferring. Respondent did not complete a major incident report at the time of the resident's fall or upon her admission to and return from the hospital.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $300 for repeated violations of Rules 58A-5.0131 and 58A-5.024, Florida Administrative Code, plus interest as specified in Section 400.419(6), Florida Statutes. DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 2nd day of May, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Tallahassee, Florida 32308 Mohamad Mikhchi Owner/President Northpointe Retirement Community 5100 Northpointe Parkway Pensacola, Florida 32514 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
