The Issue Whether the Respondent, Shibor Group, Inc., d/b/a Abundant Life ALF (Respondent or Abundant Life), committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed. The Petitioner, Agency for Health Care Administration (Petitioner or AHCA) asserts an administrative fine in the amount of $1,313.00 ($1,000.00 fine and $313.00 survey fee) should be imposed in this matter.
Findings Of Fact The Petitioner is the state agency charged with the authority to regulate and administer laws regarding the operation of assisted living facilities (ALF) within the State of Florida. This authority extends to all matters governed by or complained of in this case. The Respondent operates a six-bed ALF located at 7040 Fillmore Street, Hollywood, Florida. Abundant Life is licensed and is subject to all laws governing the operation of ALFs within the State of Florida. In accordance with Florida law, the Respondent is required to maintain records at its facility so that duly authorized persons from the Petitioner can review the records to assure compliance with the various regulations and rules governing the operation of ALFs. An administrator of an ALF is charged with knowing the pertinent laws and with maintaining the appropriate records to show compliance with such rules and regulations. Sherifat Orukotan is the administrator of the Abundant Life facility in this case. Generally speaking there are two types of surveys performed at an ALF. “Survey” is another word for “inspection” or “investigation.” The first type of survey is a routine review of the facility and a verification of its records to assure compliance with law. These surveys are performed on a scheduled basis for purposes of licensure or relicensure. Typically, before a renewal of a license, the facility is “surveyed.” The Respondent pursues a second type of survey when it receives a complaint regarding the licensed facility. The complaint causes a health facility evaluator to be directed to the licensed facility to review the complaint in the context of the operation of the home. In this case, both of these types of surveys were involved. On February 23, 2004, Mr. Sanders conducted a complaint survey at the facility. This matter involved an 84- year-old resident at Abundant Life who had received a notice on February 12, 2004, that directed her to leave the facility. The notice to this resident provided, in pertinent part, “You are here by given 30days to leave the facility, Starting from 02-12-04.” (Errors in original.) The subject resident required the highest level of care in that she needed assistance with all activities of daily living. She also suffered from an altered mental status that meant supervision and assistance were required. At the time of the survey, Ms. Orukotan was advised that the pertinent provisions of Florida law require a minimum of 45 days' notice to a resident who is being requested to vacate. Ms. Orukotan did not acknowledge knowing the 45-day requirement. The contract forms used by Ms. Orukotan represented a resident would only be provided with 30 days' notice. As a result of the surveyor’s findings regarding this resident, the Respondent was given until March 24, 2004, to correct the violation found on February 23, 2004. When Mr. Sanders did the follow up survey, the Respondent had corrected the problem by extending another 15 days to the resident so that a total of 45 days notice was provided. On December 22, 2004, Mr. Sanders responded to the Respondent in connection with another complaint. This complaint dealt with another resident. The resident, a 62-year-old male stroke victim, was scheduled to leave the facility on December 19, 2004. The resident had paid for accommodations through that date. On December 14, 2004, however, Ms. Orukotan had locked the resident out of the facility. Due to a dispute with the resident over expenses that were claimed to be owed, the administrator did not want the resident to come back into the home. As it happened, the resident’s girlfriend had come to the facility on December 14, 2004, and picked him up. At that time, according to the chart notes for the resident, Ms. Orukotan told the girlfriend she would not let the man back in unless the facility received additional payment. Ms. Orukotan gave the girlfriend the man’s medications and refused to open the door for him when they returned to the home at around 7:15 p.m. Only after police came to the scene did Ms. Orukotan relent and let the resident back into the home. When Mr. Sanders met with Ms. Orukotan regarding the incident, she provided the chart notes that chronicled the events as outlined above. (See Petitioner’s Ex. 6) As a result, Mr. Sanders cited the Respondent for a repeat violation, as he deemed this situation the same as the February 23, 2004, incident. A 45-day notice had not been provided to the resident. This was the second time the Respondent had failed to provide a resident with sufficient notice to vacate. Both of the citations regarding the 45-day notice issue were given as Class III violations. The Petitioner maintains that failure to provide the requisite notice may put a resident at risk for physical or emotional injury. Generally speaking, residents of ALFs are there because they are frail or unable to meet all of their daily living needs without assistance. A discharged resident without appropriate accommodations cannot provide for him or herself. Many residents are elderly or, like the second resident in this case, require assistance while they recover from a medical event. Finding a proper place to reside under these circumstances can prove difficult. The 45-day requirement is to assure that sufficient time is given to the relocating resident. Persons who work in ALFs must be free from tuberculosis (TB). Tuberculosis is a highly communicable disease that is very serious, especially to frail or at-risk populations. In order to diagnose whether or not someone has TB, a person must have some medical evaluation. The most common test for TB is a skin screening. This “TB skin test” is routinely administered and is considered a credible proof of whether a person should be considered a health risk. Unfortunately, the TB skin test does not work, or is inadequate, to provide a credible medical response if the person taking the skin test has ever received a BCG vaccine. The BCG vaccine causes a person to register a false positive on the TB skin test. Accordingly, only a chest X-ray or a sputum test (not relevant to the instant case) could rule out TB under that situation. In this case, because Ms. Orukotan had received a BCG vaccine at some point in her history, she was required to present evidence of a chest X-ray to establish that she was TB-free. In order for Ms. Orukotan’s doctor to document annually that she is free from TB, the administrator must have a chest X-ray every year. This requirement is known to Ms. Orukotan because she had been cited for (and had corrected) this deficiency prior to January 11, 2005. On January 11, 2005, Mr. Sanders requested the valid annual documentation showing that Ms. Orukotan was free from TB. At that time the only report provided to him was a statement from Dr. Siegel that stated Ms. Orukotan was free from “communicable disease.” Ms. Orukotan had not had a chest X-ray within a year of the January 11, 2005, survey date. On January 11, 2005, the administrator did not have any documentation that stated she was free from TB on any date within a year of that time. On January 14, 2005, Ms. Orukotan obtained a TB screening and chest X-ray from Dr. Siegel to document she was free from TB. This documentation was provided to AHCA on the follow-up survey date. Based upon her prompt response, the deficiency cited was deemed corrected. A chest X-ray is not valid for two years to rule out TB. On January 11, 2005, Ms. Orukotan had not had a chest X-ray within two years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order against the Respondent that imposes an administrative fine in the amount of $1000.00 for the repeated Class III violations and a survey fee that equals the lesser of one half of the facility's biennial license and bed fee or $500.00. S DONE AND ENTERED this 11th day of April, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2006. COPIES FURNISHED: Sherifat J. Orukotan Shibor Group, Inc. 6641 Southwest 8th Street Pembroke Pines, Florida 33023 Lourdes Naranjo, Esquire Agency for Health Care Administration Spokane Building, Suite 103 8350 Northwest 52nd Street Miami, Florida 33166 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Christa Calamas, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Did Respondent discriminate against Petitioner because of his alleged handicap of dyslexia?
Findings Of Fact Bruce A. Kress is a white male approximately 33 years of age. Wenco, Inc., is a Florida corporation operating several Wendy's fast food restaurants in Panama City, Florida. Petitioner was employed by Wenco, Inc., for several months during 1992, as a member of the restaurant staff or "crew." He voluntarily quit his job in or around October 1992. In December 1992, Petitioner spoke with Danny Strickland of Wenco, Inc., about becoming a manager trainee. In January of 1993, Petitioner was hired in their training store as a manager trainee. A manager trainee is assigned to perform all the duties in a crew to learn the procedures for running a store. Phillip Cady was the manager of the training store where Petitioner was employed as a manager trainee. When hired, Petitioner filled out an application and medical history statement or questionnaire. Neither the medical questionnaire nor application reveal Petitioner's alleged disability. Petitioner's supervisor denies knowledge of Petitioner's alleged disability. Petitioner's evidence in support of his alleged disability is a letter from David H. Winkle to Mrs. Allen Corless, Petitioner's parent or guardian, stating that Petitioner was obtaining educational help in a federally funded program. Neither the letter nor its attachment state a diagnosis, assuming the hearsay nature of the letter is overlooked. Phillip Cady testified. He was Petitioner's immediate supervisor while Petitioner was a manager trainee. Cady had cautioned Petitioner that he would have to rigidly adhere to the procedural manual for operating the store. Cady warned Petitioner that if Petitioner didn't follow the procedural manual that Petitioner would be terminated. After warning, Petitioner was discharged by Cady when Petitioner did not scoop ice into drink cups with the ice scoop and when Petitioner removed fries from the cooker before they were fully cooked. Petitioner introduced no evidence to show the reason offered by Respondent for discharging him was pretextual or discriminatory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the agency find that Respondent did not discriminate against Petitioner. DONE AND ENTERED this 28th day of February, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, 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 28th day of February, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-3310 On February 3, 1994 Respondent filed a post hearing brief. The following states which of the findings proposed by Respondent were adopted, and which were rejected and why: 1-2 Irrelevant. 3-4 Adopted. 5 Irrelevant COPIES FURNISHED: Bruce A. Kress 2601 West 19th Street Panama City, Florida 32405 Danny R. Strickland Wenco of Panama City 2110 West 23rd Street Suite C Panama City, FL 32405 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be accorded a "Conditional" or "Standard" rating as to its licensure and whether it should be subjected to an administrative fine and, if so, in what amount.
Findings Of Fact The Petitioner is an Agency of the State of Florida which conducts licensure surveys of nursing homes on an annual basis to ensure compliance with the state licensure requirements and federal certification requirements that the Petitioner Agency is statutorily charged with enforcing. A survey results in a report called a "Form 2567," which lists the deficiencies and their factual basis. A federal scope and severity classification, identified by the letters A-L, and a State classification scale or system identified by I-IV are assigned to any deficiency. The Respondent is a licensed, skilled nursing home facility located at 1001 Mar Drive, Fort Walton Beach, Florida 32548. The Respondent at all times pertinent hereto was a long- term Medicare provider and subject to Title 42, Code of Federal Regulation (CFR) Section 483. When a deficiency is determined to exist, changes in a facility licensure rating or status are determined by the level or scope and severity of such deficiencies, as determined under the state classification provided for in the statutory authority cited and discussed below. Fines are also based on the scope and severity and state classification of deficiencies. Between June 25-27, 2001, an annual re-certification survey (survey) was conducted of Westwood by the Petitioner Agency. Pursuant to that survey the Petitioner cited the Respondent for a "Class II " deficiency "FTag 324," as to which it was alleged that the Respondent had failed to provide adequate supervision and assistive devices to prevent resident number two from suffering falls. FTag 324 was cited under the federal scope and severity matrix or scale as a Level "G" deficiency. A level "G" deficiency equates to a Class II state deficiency severity level. The Agency cited Westwood under Section 400.23(8)(b), Florida Statutes (2001), for failure to provide the necessary care and services, thereby compromising Resident two's ability to attain or maintain her highest practicable physical, mental and psychosocial well-being, in accordance with a resident assessment and plan of care. The deficiency was originally cited by the four licensed surveyors on the survey team as being a Class III deficiency, but was later changed to a Class II deficiency (more severe) after the completion of an informal dispute resolution (IDR) process. In that dispute resolution process the Respondent was allowed to participate, but was not allowed to argue the scope and severity of the alleged deficiency and was not accorded the right to counsel. The Agency at hearing presented the testimony of Ms. Jackie Klug, a licensed surveyor who is trained and is registered as dietician. She was a surveyor responsible for the clinical record review, as to Resident two, and for interview of the staff at the Westwood facility, relating to the care provided to Resident two. She performed a limited clinical review of the records of Resident two. Ms. Klug is not a licensed nurse and does not have nursing training. The Agency also presented the testimony of Ms. Susan Acker, who is the Agency representative responsible for supervision of the long-term care, quality monitoring program and who is responsible for determining compliance of facilities receiving Medicare and Medicaid funding. She was qualified as an expert in nursing practice, surveying and survey practices. She was the Agency representative responsible for making the final determination as to the federal scope and severity of any potential deficiency and therefore the appropriate state classification of the deficiency. Ms. Acker performed a limited record review of portions of Resident two's records supplied by facility representatives after an informal dispute resolution hearing. Ms. Acker did not perform an independent clinical review of the resident, but relied upon the records gathered by Ms. Klug. After reviewing the documents provided to her after the IDR hearing, Ms. Acker determined that a federal scope and severity level of "G" existed, which equates to a state Class II deficiency or violation. State surveyors apply a Long-Term Care Facility Enforcement Grid to determine the scope and severity of a potential deficiency. After the scope and severity is determined under the federal scale, a corresponding state classification is assessed. There is not a separate state classification determination apart from the federal scope and severity determination. When a level "G" federal scope and severity is determined, a state classification of Class II deficiency is automatically applied. Under the Long-Term Care Facility Enforcement Grid and the state classification system, the alleged deficient practice must result in more than actual minimal harm and more than minimal discomfort in order to support a Class II designation. Resident two was admitted to the facility on November 10, 2000. She was admitted to the facility with the diagnoses of tardive dyskinesia, Alzheimer's disease and an unsteady gait. Within 11 days of being admitted to the facility, Resident two was assessed, which triggered a resident assessment plan or profile, and was determined to be at risk for falls. Resident two experienced approximately five falls starting on April 30, 2001, through June 23, 2001. Resident two suffered no physical injuries after any of the falls except for the fall on June 23, 2001. She suffered minor injuries in that fall, consisting of a bruised chin and abrasion in the area of her eye and a small skin tear to her right wrist. The injuries were minimal in nature and required only basic first aid normally associated with common minor skin abrasions. Resident two suffered no discomfort as a result of any fall other than the fall of June 23, 2001. Resident two was able to communicate pain or discomfort and had done so to the facility staff on a number of occasions. The records of Resident two contain no indication of any complaints of pain or discomfort resulting from any of the falls, and Resident two denied experiencing discomfort or pain as a result of any of the falls, including the fall of June 23, 2001. The facility documents and the testimony of the Respondent's witnesses established that Resident two exhibited no sign of decreased or limited functioning subsequent to any recorded fall incidents. Resident two continued her daily social, mental and physical activities in the same manner as prior to any fall, after each of the falls she experienced. Resident two experienced no falls from the time of her admission on November 10, 2001, through April 29, 2002. The Respondent was cited by the Petitioner in the Form 2567 for failure to provide adequate supervision and adequate assistive devices to prevent falls. Neither of the Agency witnesses at hearing was able to testify as to the exact level of supervision provided Resident two by the facility staff, nor could either witness testify as to the manner of the supervision of Resident two by the facility. Neither Agency witness provided any concrete evidence or recommendation as to what might constitute adequate supervision sufficient to ensure fall prevention of a resident in Resident two's physical and mental status and condition. Neither the facility personnel nor the Agency personnel testifying were able to determine a cause or pattern for the falls of Resident two. Agency witnesses were unable to determine what, if any, facility action or inaction might have caused the falls. There is some indication in the evidence that Resident two may have experienced fluctuations in blood pressure which under certain circumstances can cause dizziness and, potentially, falling. Additionally, as to one of the falls, there is indication in the evidence that the resident's shoes or type of shoes and the edge or corner of a carpet may have caused her to trip. If it has not already done so, the Respondent should take all possible steps to ensure that areas where Resident two, or any other resident, may walk are free of hazards which might contribute to falling, should closely monitor blood pressure and take appropriate clinical steps to ensure, if possible, the stability of blood pressure to try to prevent falls. Similar steps should be taken as to any other medical or clinical condition which may contribute to falling. Tardive dyskinesia is a condition resulting from the long-term use of psychotropic drugs. Although tardive dyskinesia may contribute to falls, if motor skills are affected, not all people affected by tardive dyskinesia have symptoms affecting their gait or ambulation. Resident two did not exhibit physical dysfunction to gross motor skills, but rather exhibited "tongue thrusting" and "spitting." Ms. Acker, the Agency nursing expert testifying, indicated that tardive dyskinesia could not be determined within reasonable medical certainty to be the cause of any of Resident two's falls. Although Resident two suffered from fluctuating blood pressure, which can contribute to falls if attendant dizzy spells occur, Resident two did not exhibit blood pressure symptoms or complications which actually caused physical dysfunction to her motor skills. Ms. Ackers indicated that blood pressure symptoms could not definitely be determined to be the cause of Resident two's falls. While such a fluctuation in blood pressure could not be determined to be the cause, based upon the evidence offered by Ms. Ackers or otherwise at the hearing, blood pressure fluctuation as a possible cause of the falling cannot be ruled out. Resident two was subject to the facility's general falls policy and a special fall prevention program known as "falling leaves." The facility's fall prevention policies were in conformance with generally accepted nursing home standards and customary policies utilized within the skilled nursing community or industry. The representatives of the Agency did not review the fall prevention policies of the facility when determining the existence of a deficiency and were unaware of the content of the facility policies for fall prevention at the time of the hearing. The fall prevention policies of the Respondent's facility were applied to Resident two. The Respondent supervised Resident two by placing her at a nurses station, within four feet of a charge nurse, so that she could be closely monitored. The Respondent also provided assistive devices in the form of a walker, to assist Resident two in safely ambulating. The walker is intended and designed to prevent falling which might result from the unsteady gait of Resident two. Resident two suffered from Alzheimer's disease. She was thus unable to remember simple instructions or to use assistive devices provided to her by the facility on a consistent basis. This behavior is consistent with certain stages of Alzheimer's disease, where patients or residents are unable to remember even simple instructions for any period of time. The Respondent did provide memory assistive devices, such as tethered alarms and visual aids, on her walker to assist Resident two in remembering to use her walker. She would sometimes impulsively arise and walk on her own, without the protection of using a walker. Physical therapy training to assist Resident two in ambulation was not appropriate. Resident two was unable to assimilate, incorporate and remember such training in her daily activities because of her Alzheimer's condition. Ms. Watson, a trained physical therapist, testified that physical therapy would have been unavailing in regard to Resident two, essentially because she was unable to remember physical therapy instructions or training modalities. In fact, Resident two was physically able to quickly rise from a sitting position and to ambulate without any real notice to staff members. Although staff members were positioned in close proximity to Resident two on a frequent basis, Resident two could still begin to ambulate quickly, without notice in time for the staff to act to protect her in all circumstances. As a result of her Alzheimer's condition, restraints were an inappropriate measure to prevent unexpected ambulation. Prior to using restraints, a treating physician must provide a physician's order for such restraints. The treating physician for Resident two was aware of her falls, but still did not provide an order for restraints.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore recommended that the Agency for Health Care Administration enter a Final Order according a standard license to Westwood and imposing a fine in the amount of $500.00 for a Class III violation. DONE AND ENTERED this 9th day of July, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 9th day of July, 2003. COPIES FURNISHED: Ursula Eikman, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Alex Finch, Esquire Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 Winter Park, Florida 32790 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue for consideration in this hearing is whether Respondent's license to operate an Adult Congregate Living Facility should be disciplined because of the deficiencies identified in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the matters alleged in the Administrative Complaint, the Agency for Health Care Administration, (Agency), was the state agency responsible for the licensure and regulation of Adult Congregate Living Facilities, (ACLF), in Florida. Respondent, Gem House, is licensed to operate an ACLF at 2809 Round About Lane in Orlando, Florida. On December 19, 1994, representatives of the Agency conducted an inspection visit of the Respondent's facility and discovered certain deficiencies. These included: The facility had not maintained a file of all previous reports for the past five (5) years. This deficiency, cited at the initial visit, was still uncorrected at the follow-up visit of March 28, 1995 and at the desk review conducted on April 21, 1995. The facility had not provided a handout to residents, family or guardians outlining its provisions for assisting residents to obtain health care. This deficiency, cited at the initial visit, was uncorrected at the March 28, and June 14, 1995 follow-up visits. The facility had not maintained complete personnel files on each staff as documentation they are competent and properly trained. This deficiency, cited at the initial visit, was uncorrected at the March 28 and June 14, 1995 follow-up visits and at the April 21, 1995 desk review. The facility continued to use staff who had no training in infection control procedures within ten (10) days of beginning employment. This deficiency, cited at the December 19, 1994 visit, was uncorrected at the March 28 and June 14, 1995 follow-up visit and at the April 21, 1995 desk review. No staff had participated in continuing education related to nutrition on an annual basis. The last course taken was in May, 1993. This deficiency, cited at the December 19, 1994 survey, was uncorrected at the March 28, 1995 follow-up visit. The facility did not execute contracts for each resident upon admission or prior thereto. This deficiency, cited at the December 19, 1994 survey, was uncorrected at the March 28 and June 14, 1995 follow-up visits, and at the April 21, 1995 desk review. The facility gave no admission packets to the residents' responsible parties or guardians. They had not received a copy of the resident contract, facility rules and regulation, a copy of the Resident Bill of Rights, the facility admission policies, retention and discharge policies, medication storage policies, refund policies or the fee schedule for additional services. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits and at the April 21, 1995 desk review. The facility had not completed demo- graphic data reports on file for each resi- dent. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28, 1995 follow-up visit and at the April 21, 1995 desk review. The health assessments were not complete in their entirety to give a full view of the residents' capabilities. This deficiency, cited at the December 19, 1995 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits. The administrator had not provided in- service training to her staff concerning ACLF core areas relevant to their job duties. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits. The facility did not provide staff with a current certification in an approved first aid course. This deficiency, cited at the December 19, 1994 survey, remained uncorrected on the March 28 and June 14, 1995 follow-up visits. The administrator had not designated in writing any staff person trained in first aid to act in her behalf during her absences from the ACLF. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits and at the April 21, 1995 desk review. The method of management for resident medications (self-administer, supervision of self-administration, or administration), was not identified on all resident health assess- ments. The administrator chose to supervise the self-administration of medication rather than contact the physician for clarification. This deficiency, cited at the December 19, 1994 survey, remained uncorrected on the March 28 and June 14, 1995 follow-up visits. No staff person had been designated in writing as properly trained and available at all times, with access to the supervised medications. The medication log was not accurately maintained with the timely recording of the dosages observed by staff as taken by the residents. Staff did not always observe residents take medications but recorded them as taken. Medications were not given to residents at the times indicated on the prescription labels. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits. Due to uncorrected deficiencies in medi- cations a pharmacist consultant's services were required within fourteen days of March 28, 1995. The time allowed for corrected was May 15, 1995, but no report was received until May 31, 1995. No further reports have been received. This deficiency, cited at the March 28, 1995 follow-up visit, remained uncorrected at the April 21, 1995 desk review and at the June 14, 1995 follow-up visit. No notations of changes in residents' conditions had been recorded in the resident files. This deficiency, cited in the December 19, 1994 survey, remained uncorrected at the March 28, 1995 follow-up visit. The facility had not documented procedures in effect at the ACLF for the receipt, resolution and documentation of complaints from any source. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits and at the April 21, 1995 desk review. The facility had no current diet manual nor evidence that a current diet manual was accessible as needed. This deficiency, cited in the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visit and at the April 21, 1995 desk survey. Menus were not dated. Substitutions were not recorded. Menus with recorded substitutions were not kept on file for six months. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits. Notice of the deficiencies was provided in writing to the Respondent at the time of the survey and a time frame was given for their correction. These deficiencies were alleged in an Administrative complaint filed in this matter on November 1, 1994. Respondent has admitted the allegations.
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 in this matter assessing an administrative fine against the Respondent, Gem House, in an amount determined to be appropriate under the statute and rules of the Agency. DONE and ENTERED this 15th day of February, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 15th day of February, 1996. COPIES FURNISHED: Linda L. Parkinson, Esquire Agency for Health Care Administration 400 W. Robinson Street, Suite S-309 Orlando, Florida 32801 Dean F. Mosley, Esquire McCrary & Mosley 47 E. Robinson Street, Suite 211 Orlando, Florida 32801 Sam Power Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32399
The Issue Whether Respondent, New Life Charities, Incorporated, Owner and Operator, Janae House Group Home (New Life or Janae House or Respondent), violated one or more of the group home licensure standards as alleged by the Agency for Persons with Disabilities (APD or Petitioner) in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Janae House is a group home owned by New Life located at 17130 Southwest 41st Court, Ocala, Florida 34473. It is licensed as a group home by APD. As a group home licensing agency, APD has multiple employees assigned to monitor group homes and their employees. In monitoring a group home's compliance with applicable licensing standards, APD also reviews findings of group home investigations conducted by the Department of Children and Families (DCF). The Complaint charges Janae House with two Class I violations of group home licensing standards from reported incidents allegedly occurring in 2013 and 2015. The Complaint further alleges that in 2014, Janae House was responsible for numerous other violations of group home licensing standards, including 10 alleged Class II violations and 25 alleged Class III violations. CLASS I VIOLATIONS Florida Administrative Code Rule 65G-2.0041(4)(a) includes as Class I violations "all instances where the Department of Children and Families has verified that the licensee is responsible for abuse, neglect, or abandonment of a child or abuse, neglect or exploitation of a vulnerable adult." The two alleged Class I violations against Respondent stem from 2014 DCF investigations of alleged incidents occurring in 2013 and 2014, respectively. According to Count I of the Complaint, Janae House's first alleged Class I violation occurred in 2013 and was verified in a February 2014 DCF investigative report prepared by Charles Bory. Mr. Bory conducted the investigation in person and testified at the final hearing regarding his investigation. At the time of the report, Mr. Bory was an adult protective investigator for the Department of Children and Families. Mr. Bory's investigation concerned an allegation that a New Life employee caused Janae House resident RB to fall and injure his shoulder. During the investigation, Mr. Bory spoke with the owner of New Life, Kevin Rivers, who denied the allegation, stating that the allegation was "crazy," that resident RB had tried to escape, fallen while doing so, and hurt his shoulder in the fall. Mr. Bory later interviewed the alleged perpetrator, a former staff member of New Life, who admitted that he and resident RB fell to the ground while he was holding resident RB and trying to stop resident RB from leaving. Given the staff member's admission, Mr. Bory found that the allegation was verified. Mr. Bory's testimony and the investigative report support the allegation, which is found to have occurred. The other alleged Class I violation is from a 2014 incident alleged in Count III of the Complaint. As to this second alleged Class I violation, although APD submitted DCF's investigative report, the investigator who conducted that investigation did not testify. Rather, APD called the investigator's supervisor, who advised that the investigator was no longer employed by DCF and was unavailable. The investigator's supervisor further testified that he did not know if any of the information in the investigative report was true. Under the circumstances, it is found that the investigative report for the 2014 alleged incident is hearsay and prepared in anticipation of litigation. Further, that 2014 investigative report is not corroborative of other evidence and the evidence is otherwise insufficient to find a Class I violation stemming from the 2014 incident.2/ CLASS II VIOLATIONS Rule 65G-2.0041(4)(b) classifies Class II violations as violations that "do not pose an immediate threat to the health, safety or welfare of a resident, but could reasonably be expected to cause harm if not corrected." In October 2014, APD Investigator Michael McKenna found a broken window at the Janae House that had been improperly repaired, with glass still lying in the yard and in the window frame. Given the fact that the Janae House is a behavioral home, a broken window with exposed broken glass presents a direct risk that a resident may hurt themselves or another. Mr. McKenna advised owner Kevin Rivers about the window and its danger during the October 2014 visit. On a return visit in November 2014, Mr. McKenna noted that the window was broken again, and that, for a second time, jagged glass was left in the window. When Mr. McKenna spoke to Mr. Rivers again, Mr. Rivers' response was that the investigator was intentionally looking for items to note. During her visit to Janae House on August 8, 2014, APD licensing supervisor Joyce Leonard observed that there was no carbon monoxide detector in the home and that the smoke detector needed a battery. Ms. Leonard also observed that the pantry door in the kitchen was broken. Mr. Rivers was advised of these deficiencies. Two months later, during a monitoring visit to Janae House on October 29 and 30, 2014, Investigator McKenna observed that there was still no carbon monoxide detector in the home and that the smoke detector lacked a battery. During that same visit, Mr. McKenna also observed broken doors and holes in the wall. In cases where a behavioral analyst is not available for residents needing behavioral services, APD regulations require a short one- or two-page sheet of procedures from the residents' health care provider for group home employees to follow in case of problematic behaviors. While monitoring Janae House on February 24, 2014, APD Senior Behavior Analyst Scott Traynor noted that, although Janae House resident JR had the need, no behavior analyst was available for resident JR. There was also no behavior procedure sheet specific to resident JR. CLASS III VIOLATIONS Rule 65G-2.0041(4)(c) classifies Class III violations as "statutory or rule violations related to the operation and maintenance of the facility or to the personal care of residents, other than Class I or Class II violations." When Joyce Leonard visited Janae House on August 8, 2014, Ms. Leonard observed that there was garbage strewn throughout the front yard. On his October 29 and 30, 2014, visit, Michael McKenna discovered that there was no physical exam on file for resident JR, there were no financial records of residents’ personal funds available for review, a Janae House staff member was administering medication to residents even though there were no current medication administration training credentials on file, and there was no communication log for Janae House staff. During that same visit, Mr. McKenna observed exposed light bulbs in their fixtures, filthy rugs throughout the home, a dryer was full of lint, numerous wasps nests on the outside of the building, and various debris littered throughout the grounds. New Life owner, Mr. Rivers, was made aware of these deficiencies at the time and advised that he would correct them. Corrections, however, were not made. Upon Mr. McKenna’s return to Janae House on November 20, 2014, there were no financial records available for review for resident KJ’s personal funds, no documentation of an annual dental visit for resident KJ, no weekly schedule for staff, and light bulbs were still exposed. During Scott Traynor’s visit to Janae House on February 24, 2014, he found that a board-certified behavior analyst was not monitoring at least 50 percent of Janae House staff each month as required, and that Janae House did not have site-specific reactive strategy procedures for staff to implement, if needed. He also discovered that, despite ADP’s request, the behavior analyst for Janae House resident DJ did not present resident DJ's behavior plan to the local review committee for review, and that Janae House staff was not conducting quarterly or semi-annual quality assurance meetings to review reactive strategies and develop strategies for behavioral incident reduction. APD also alleged that, during her review and investigation, former APD Medical Case Manager Victoria McKenna discovered that Janae House had violated a number of medical regulations. Ms. McKenna, however, did not testify. Rather, APD attempted to prove the alleged medical violations by submitting reports and notices of violations allegedly observed by Ms. McKenna and by offering the testimony of Michelle Young, a current APD medical case manager, who testified that notices of noncompliance are the same regardless of who does them. However, as in the alleged Class I violation that was only supported by an investigative report, it is found that the notices of violations prepared by Ms. McKenna, without more, are hearsay, prepared in anticipation of litigation, and insufficient to prove the alleged medical violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order finding that Respondent violated the group home licensing standards as concluded above and revoking Respondent’s group home license. DONE AND ENTERED this 14th day of July, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2016.
The Issue The issue in this case is whether the license to provide assisted living facility services and operate an assisted living facility of Respondent, Gloria Ann Raulerson, d/b/a Country Sunshine Retirement Home, should be revoked based upon the allegations of an Administrative Complaint entered by Petitioner on or about October 2, 1998.
Findings Of Fact The Parties. Petitioner, the Agency for Health Care Administration (hereinafter referred to as "AHCA"), is an agency of the State of Florida. AHCA is charged with the responsibility for, among other things, evaluating assisted living facilities in the State of Florida. Part III of Chapter 400, Florida Statutes (1997). Respondent, Gloria Raulerson, d/b/a Country Sunshine Retirement Home, is licensed to operate an assisted living facility. Country Sunshine Retirement Home (hereinafter referred to as the "Country Sunshine"), is located at 6119 Peeples Lane, Jacksonville, Florida. Ms. Raulerson's current license was effective for the period January 25, 1997, through January 24, 1999. No application for renewal of the license has been filed by Ms. Raulerson. AHCA's Initial Survey. On April 21, 1998, AHCA staff conducted an appraisal visit of Country Sunshine (hereinafter referred to as the "Initial Survey"). Following the conclusion of the Initial Survey, AHCA issued a survey report (hereinafter referred to as the "Initial Report") in which it concluded that Country Sunshine had committed a number of violations of regulatory standards. A copy of the Initial Report was provided to Ms. Raulerson on or about April 19, 1998. During the Initial Survey AHCA found 12 class II violations, approximately 56 class III violations, and two unclassified violations. The exact number of class III violations was not proved. The Administrative Complaint alleges a total of 77 violations. The testimony at hearing was that there were 69 violations. Based upon Exhibit 1, there was a total of 70 violations, 12 of which were class II violations and two of which were unclassified; but the exhibit is missing pages 88 and 89. The violations found by AHCA during the Initial Visit "range from general licensure standards, from things having to do with paperwork; to lack of staff training; to lack of financial stability; to nutrition/dietary standards; to violations with medication standards; violations of resident care standards; violations of housekeeping, maintenance, and physical plant standards; and then resident and staff records." Page 9, lines 6-12, Transcript. The specific nature of the class III violations found during the Initial Survey is reported in the Initial Report, Petitioner's Exhibit 1. The specific nature of the class III violations described in Petitioner's Exhibit 1 is hereby incorporated into this Recommended Order by reference. AHCA's Moratorium. By letter dated April 22, 1998, AHCA informed Ms. Raulerson that a moratorium was being imposed on the admission of any new residents to Country Sunshine. Ms. Raulerson complied with the moratorium imposed on Country Sunshine. AHCA's Second Survey. AHCA staff returned to Country Sunshine on June 4, 1998, to determine if the violations found during the Initial Survey had been corrected (hereinafter referred to as the "Second Survey"). It was determined during the Second Survey that Country Sunshine had 29 of the same class III violations found during the Initial Survey. Country Sunshine also had 4 repeat class II violations, a repeat of the same 2 unclassified violations found during the Initial Survey, and 2 new class III violations. The violations found by AHCA during the Second Survey were described more particularly in a survey report (hereinafter referred to as the "Second Report"). A copy of the Second Report was provided to Ms. Raulerson on or about June 19, 1998. The cover letter that accompanied the Second Report informed Ms. Raulerson that further administrative action against her license, including revocation of her license, would be considered by AHCA. The specific nature of the class III violations found during the Second Survey are reported in the Second Report, Petitioner's Exhibit 3. The specific nature of the class III violations described in Petitioner's Exhibit 3 are hereby incorporated into this Recommended Order by reference. The evidence proved that the violations affected the health, safety, or welfare of residents of Country Sunshine. The Administrative Complaint. On October 2, 1998, AHCA issued an Administrative Complaint against Ms. Raulerson. The Administrative Complaint alleged that Ms. Raulerson's license should be revoked pursuant to Sections 400.414(2)(b), (e), (h), and (5), Florida Statutes (1997), the law in effect at the time the violations were committed. In particular, AHCA alleged in the Administrative Complaint that Country Sunshine had "committed five or more repeated or recurring or similar Class III violations which were identified by the Agency during the last biennial inspection, monitoring visit or complaint investigation, which, on the aggregate, affect the health, safety or welfare of facility residents." AHCA did not specifically allege in the Administrative Complaint that Ms. Raulerson's license should be revoked or disciplined due to any repeated or recurring class II or unclassified violations. AHCA alleged in the Administrative Complaint there were 34 repeated or recurring violations but actually listed 36 specific repeat or recurring violations. The evidence, however, failed to prove that one of those alleged violations, A-811, was a repeat or recurring violation. Two of the specific violations, A-612 and A-814, are unclassified violations and not class III violations. Finally, four of the violations, A-101, A-705, A- 807, and A-1001, are class II violations and not class III violations. AHCA did not rely in the Administrative Complaint upon the unclassified violations and/or the repeated class II violations, in addition to the repeated class III violations, to support its determination that Country Sunshine had violated Sections 400.414(2)(b) and (h), Florida Statutes (1997).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Health Care Administration revoking the license of Gloria Ann Raulerson, d/b/a Country Sunshine Retirement Home, to own and operate an assisted living facility in the State of Florida. DONE AND ENTERED this 19th day of April, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 COPIES FURNISHED: Gloria Raulerson 6119 Peeple Lane Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1999. Jacksonville, Florida 32219 Michael O. Mathis, Senior Attorney Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive Tallahassee, Florida 32308 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
Findings Of Fact Following an April, 1985 inspection of the ACLF known as Family Affairs, Respondent timely obtained certificates for its two employees viz. Elinore Kolligs and Kathy Cisterna showing them free from communicable diseases and presented these certificates at the follow up inspection to satisfy the cited deficiency. Those two employees were employed during the April, 1986 annual inspection which resulted in a repeat citation for the same alleged violation, i.e. no certification that the employees were free from communicable disease. There is no requirement that employees of an ACLF obtain certificates annually that they are free from communicable diseases. The fact that documentation had been provided to DHRS following the April, 1985 inspection that these same employees cited in 1986 were free from communicable diseases should have carried over to the 1986 inspection. Exhibit 3 lists three employees under ACLF 26, the third being Virginia Sumter who worked as a volunteer at the facility. Ms. Sumter was a former resident at the facility who had provided a certificate that she was free of communicable diseases when she entered as a resident. In this connection during the proceedings Respondent inquired of Petitioner's witness if non-paid volunteers required certificates showing them free from communicable diseases and the response was in the affirmative. When asked if this also applied to Boy or Girl Scouts who worked at the ACLF as volunteers no satisfactory answer was forthcoming. One of the two uncorrected violations listed in the Administrative Complaint dated March 19, 1987 is that Respondent had six residents when the facility was licensed for only five (ACLF 2). This violation was noted at the April 14 inspection and also at a follow up inspection on July 14, 1986. The house in which this facility is located is large and on a minimum square feet per resident basis can accommodate nine residents. On March 18, 1986, before the April, 1986 inspection, Respondent obtained zoning approval from the City of Clearwater to increase the capacity of the ACLF to seven persons (Exhibit 15). Respondent had also communicated with the ACLF Program Manager in Petitioner's Jacksonville office and had been assured that her application to increase the licensed capacity to six residents would be approved. By letter dated May 14, 1986, (Exhibit 10) Respondent was advised by Petitioner that at the time of the April 14, 1986 survey an appraisal for the application to increase licensed capacity from five to six was conducted and the facility met all standards related to the increase. By letter dated May 29, 1986, Petitioner acknowledged that notice of approval of the application to increase the licensed capacity had been received and a recommendation approving the increase had been forwarded to the Office of Licensure and Certification in Jacksonville, Florida (Exhibit 16). By letter dated July 21, 1986, Respondent was issued a new license authorizing six residents at the facility. During the survey conducted on April 14, 1986 the facility did not have a week's supply of non-perishable food on hand as required (ACLF 67) and this deficiency remained uncorrected at the follow up inspection on July 14, 1986. Respondent acknowledged that during that period Mrs. Kolligs' daughter was injured in an accident, that Mrs. Kolligs devoted much time to her daughter and authorized the cook to use the emergency supplies if necessary due to the curtailment of Mrs. Kolligs' shopping time. Subsequent to the July, 1986 re-inspection Mrs. Kolligs sold the facility and no longer operates this ACLF.
The Issue Whether Respondent discriminated against Petitioner on the basis of his age as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2010).
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Respondent is a mental health facility and employs more than 15 persons. Petitioner was hired as an Assessment Specialist II on February 18, 2008. At the time he was discharged, he was 51 years old. An Assessment Specialist II performs mental health assessments of individuals brought to Respondent's facility by law enforcement, hospital transfers, or walk-ins. As part of his job duties, Petitioner also provided crisis intervention, diagnostic impression, and referral information as part of an initial assessment to clients who sought services at Respondent's facility. Completion of the assessments are important, because the doctors review them to assist them in determining the direction to take for treatment. Respondent observed that Petitioner’s monthly average productivity, measured in assessments performed per shift, was well below that of the other assessment specialists who worked the same shift as Petitioner and that his assessments were of poor quality. In response, Petitioner’s supervisors counseled him, provided Petitioner with written warnings, and, eventually, placed Petitioner on a 30-day Performance Improvement Plan. Petitioner was informed that he had to increase his productivity to a goal of an average of three assessments per shift. Other assessment specialists were also disciplined and/or terminated for low productivity and poor quality of assessments. These employees were also told to average three assessments per shift during their performance evaluations, and while they sometimes did not achieve that goal, their performance showed significant improvement, as compared with Petitioner. At the conclusion of the 30 days provided under the Performance Improvement Plan, Petitioner’s productivity had only slightly improved and not to the goal of three assessments per shift. As a result, Respondent terminated Petitioner’s employment on February 17, 2009. The consensus among the witnesses was that the quality of Petitioner's mental health assessments was poor and his productivity was unacceptably low. This consensus is accepted as credible and was the basis for Petitioner's discharge. Petitioner was disciplined for selling personal items while at work and claims disparate treatment. The basis for his discharge is poor performance, not selling personal items while at work. Evidence was presented by both parties regarding the fact that Petitioner was not promoted within Respondent's organization; the Petition for Relief is silent regarding this issue. The evidence on this subject indicated that Petitioner submitted his application three days after the period for applications closed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Lakeside Behavioral Health Care, did not discriminate against Petitioner, Kenneth D. Craven, and dismissing the Petition for Relief. DONE AND ENTERED this 15th day of December, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 15th day of December, 2010. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Deborah L. La Fleur, Esquire Matthew A. Klein, Esquire GrayRobinson, P.A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802-3068 Kenneth D. Cravey 1201 Lavanham Court Apopka, Florida 32712
