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 is whether Respondent should have a civil penalty in the amount of $1,600.00 imposed for allegedly failing to timely correct three violations of administrative regulations, as alleged in the Administrative Complaint filed by Petitioner on February 18, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Northpointe Retirement Community (Respondent), was licensed to operate an assisted living facility (ALF) at 5100 Northpointe Parkway, Pensacola, Florida. As an ALF, Respondent is subject to the regulatory jurisdiction of Petitioner, Agency for Health Care Administration (AHCA). One regulatory responsibility of AHCA is to conduct periodic licensure surveys of ALFs to ensure that they are complying with certain standards embodied in Chapter 58A-5, Florida Administrative Code. If standards are not being met, depending on their nature and severity, the deficiencies are classified as Class I, II, and III violations, with Class I being the most serious violation. After deficiencies are noted in a licensure survey, the facility is given a time certain in which to correct those violations. If no correction is made, AHCA normally imposes a civil penalty upon the erring facility. Respondent is charged with having failed to timely correct one Class II and two Class III violations. By law, a Class II deficiency is one which the agency determines to have a direct or immediate relationship to the health, safety, or security of nursing home residents. A Class III deficiency is a deficiency which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home residents. On October 5 through 7, 1998, an AHCA representative conducted a routine licensure survey of Respondent's facility. During the survey, the representative noted, among other things, that Respondent did not have a staff member within the facility at all times who was certified in first aid, including cardiopulmonary resuscitation (CPR). If true, this omission contravened the requirements of Rule 58A-5.019(5)(f), Florida Administrative Code, and constituted a Class III violation. On November 12, 1998, AHCA conducted a second licensure survey of Respondent's facility. During the survey, its consultant discovered two standards being contravened. First, Respondent failed to comply with good sanitary practices in its food preparation area in various respects, which constituted a violation of Rule 58A-5.020(1)(b), Florida Administrative Code. The specific deficiencies are described in detail in Petitioner's Exhibit 2, and collectively they constituted a Class II violation. The same survey also revealed that Respondent failed to maintain an adequate emergency supply of water for drinking and cooking purposes. While Respondent had a private well on its premises to meet these needs, the quality of the water had not yet been tested by the Escambia County Health Department. In the absence of such testing, or the presence of any other emergency supply of water, Respondent violated Rule 58A-5.020(1)(i), Florida Administrative Code, a Class III violation. After the foregoing inspections had occurred, Respondent was given a written report containing a list of all violations, and it was given until December 3, 1998, in which to make corrections. On February 5, 1999, AHCA conducted a follow-up survey of Respondent's facility and noted that Respondent had still failed to remediate the previously cited deficiencies. First, during the late evening shift (11 p.m.-7 a.m.) on January 29, 1999, there was no person on duty in Phase II of the complex who was certified in first aid, including CPR. Second, the well had still not been inspected and approved for human consumption, and there was an inadequate amount of water on hand for the residents in the event of an emergency. Finally, although the earlier sanitary violations had been corrected, the AHCA representatives discovered a new sanitary violation in the food preparation area involving the improper thawing of meat. Under AHCA policy, unless no sanitary violations are found in the follow-up inspection, a continuing violation of the rule has occurred. Except for the first-cited deficiency, which is discussed below, the foregoing deficiencies constituted an uncorrected Class II violation and an uncorrected Class III violation. While admitting that a person certified in first aid was not present in one of his buildings during the late shift on January 29, 1999, Respondent's owner contended that the AHCA rule was still satisfied. Under his interpretation, the rule only requires that he have one person trained in first aid, including CPR, within the entire facility, rather than in each building; AHCA, however, interprets the word "facility" as meaning each building within the facility, and because there was no person in Phase II of the facility, it maintains that the rule was violated. For the reasons given in the Conclusions of Law, this interpretation of the rule is found to be clearly erroneous. As to the second violation, which pertains to sanitary food practices, Respondent admits that the violation occurred, but suggested that it pertained to mildew which developed behind loose caulking in the kitchen, which was later corrected. At the hearing, however, the ACHA consultant pointed out that the violation occurred because of improper thawing of food, and not caulking, and thus there was a continuing sanitary violation in the food preparation area. As to the lack of an emergency water supply, Respondent's owner pointed out that he had made a good faith effort to comply with the regulation, but had difficulty in determining from the local disaster preparedness authority exactly how much water per resident was required in the event of an emergency. Shortly after the follow-up survey, he purchased adequate amounts of bottled water to meet the requirements of the rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order determining that Respondent has violated Rule 58A-5.020(1)(b) and (i), Florida Administrative Code, and that an $800.00 civil penalty be imposed. The remaining violation should be dismissed. DONE AND ENTERED this 10th day of February, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2000. COPIES FURNISHED: Sam Powers, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Michael O. Mathis, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Mohammad H. Mikhchi, President Northpointe Community Retirement 5100 Northpointe Retirement Pensacola, Florida 32514 Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact The agency hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
Conclusions This cause came on before me for the purposes of issuing a final agency order. The Administrative Law Judge (ALJ) assigned by the Division of Administrative Hearings (OOAH) in the above- styled case submitted a Recommended Order to the Agency for Health Care Administration (AHCA). The Recommended Order entered May 26, 1998, by Administrative Law Judge Charles C. Adams is incorporated by reference.
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 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.
Findings Of Fact The Respondent, Willia's Bahamas Home Care Center (Willia's), is an Assisted Living Facility (ALF) located at 125 W. Dixie Highway, Riviera Beach, Florida, with a standard license to operate an ALF for 24 residents. Petitioner, Agency for Health Care Administration (Agency), surveyed the facility on November 9, 1994 and cited deficiencies. A time frame was given to the facility for the correction of thirty deficiencies. As a result of the survey of November 9, 1994, the facility was issued a conditional license. On September 28, 1995, a fire inspector from the Riviera Beach Fire Department conducted an appraisal visit of the facility. Many deficiencies were cited and the facility was furnished with a letter dated September 29, 1995, listing the deficiencies and requesting that Willia's notify the Fire Department when the deficiencies were corrected so that the Fire Department could conduct a follow up inspection. During the September 28, 1995, visit, the fire inspector noticed that a lawn mower was in an inside room with a container of combustible liquid next to a gas water heater. This condition posed an immediate threat to the residents of the facility and the fire inspector had the facility move the lawn mower before he left the facility. The fire inspector also noted on the September 28 visit that the fire alarm system was not working. The fire alarm system had been out of service for some time and was not being monitored. There were no reports of testing or inspection of the fire alarm system. The lack of a working fire alarm system prevented immediate identification of a fire problem, the immediate alerting of the residents for escape, and the immediate notification to the fire department. On January 4, 1996, an employee of the Riviera Beach Fire Department, made a follow-up visit to Willia's. The fire alarm system was still non- functional and had been since July, 1995. The facility is a two-story building which does not have a sprinkler system. The lack of a functional fire alarm system posed a threat to the safety of the residents. On September 28, 1995, the Environmental Services' section of the Department of Health and Rehabilitative Services conducted an appraisal visit of the facility. Deficiencies were cited and the facility was furnished with an inspection report dated September 28, 1995, which listed the deficiencies. The following deficiencies were a threat to the health, safety, and welfare of the residents: 1) hot water at a temperature of 122 degrees Fahrenheit; 2) an extension cord that was too long which presented a trip hazard; and 3) protruding nails. On October 13, 1995, Environmental Services conducted a follow-up visit and found that the most serious of the deficiencies had been corrected. On September 28, 1995, the Agency conducted an appraisal visit of Willia's along with Nathan Wetiz, a member of the Ombudsman Council. Thirty one deficiencies were cited. Fifteen of these deficiencies had been previously cited during the November 9, 1994, visit by the Agency. The facility was given a statement of deficiencies along with a time frame for correcting the deficiencies. Some of the residents of the facility were entitled to receive personal funds from OSS/SSI. The records at the facility showed that the residents were being asked to sign for the funds two months before the funds were due to be disbursed. At the time of the September 28, 1995 appraisal visit both Mary Jane Battaglia, R.N. and Mr. Weitz found that residents' medications were being recorded in error. Medications were recorded as having been administered on the day after the survey. The records showed that residents were not being given their medications at the prescribed times. The nurse counted the medications of one resident and compared them with the medication record and found that there were medications which were not being given as prescribed. Such medications included Persantin which reduces blood clots and Verapamil which reduces the heart rate and prevents strokes. During the September 28 visit, Ms. Battaglia discovered that one resident was inappropriate for an ALF. This resident required the assistance of two people to help her stand. The resident was unable to propel herself in a wheel chair and had diminished vision. She had to be given her medications, which were being administered by unlicensed staff. The resident needed 24-hour nursing supervision. During the visit, Mrs. Mackey was observed being verbally abusive to the resident, telling her to shut up and calling her stupid. In addition to the deficiencies discussed in the preceding paragraphs, the following deficiencies were also cited. The weight records of the residents were being filled in without weighing the residents, thereby threatening the residents's health since there would be no way to track whether the residents were actually losing weight. One resident was being restrained by 3/4 bedside rails without a physician's order. Activities were not being provided for the residents. There was no documentation that the nutritional needs of the residents were being met. Menus were not being reviewed by a licensed dietitian. The posted menus were not being followed and the meals were not served on time. Two screw-in fuses were missing in the day room, which could lead to residents being shocked. On October 10, 1995, the Agency advised the facility that it was being placed under a moratorium. At that time Willia's had a census of nine residents. By letter dated October 17, 1995, the Agency gave written notification to the facility of the moratorium. A follow-up visit was conducted on November 29, 1995 by Joe Narkier and Nathan Weitz. Twenty deficiencies were cited including nineteen uncorrected deficiencies and a violation of the moratorium imposed on October 10, 1995. Eleven of these deficiencies were deficiencies which had been cited during the November 9, 1994 survey. At the time of the November 29 revisit, the following conditions still threatened the health, safety, and welfare of the residents. The fire alarm system still was not working. There was an inappropriate resident in the facility, who needed care beyond that which the facility was licensed or staffed to provide. Medication records were inaccurate. Semi-annual weights were still not being recorded for all residents. Menus were not being followed and meals were not being served on time. Another follow-up visit was conducted on January 10, 1996. The deficiencies which were noted in the November 29 visit had not been corrected. Administrative Complaint number 9-95-639 ACLF was issued against Willia's, fining the facility $2,400 as a result of twelve deficiencies which were found at the November 9, 1994 survey which were repeat violations found during the September 28, 1995 appraisal visit. No hearing was requested by the facility. A Final Order was issued by the Agency on December 1, 1995, imposing the fine against Willia's for the repeat deficiencies alleged in the administrative complaint. At the final hearing Mrs. Mackey, the administrator of Willia's stated that she was going to voluntarily surrender her license to the Agency. She tendered the license to the Agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the imposition of the moratorium. DONE AND ENTERED this 15th day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5676 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact: Paragraphs 1-9: Accepted in substance. Paragraph 10: Accepted to the extent that the resident were signing for funds before the funds were due to be disbursed. Rejected that the residents were not receiving funds as hearsay. Paragraphs 11-12: Accepted in substance. Paragraph 13: The tenth sentence is rejected as hearsay. The remainder is accepted in substance. Paragraph 14: Accepted in substance. Paragraph 15: The eighth sentence is rejected as hearsay. The tenth sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 16: Accepted in substance. Paragraph 17: Rejected as unnecessary. Paragraph 18: Accepted in substance. Paragraph 19: Accepted in substance to the extent that Mrs. Mackey intended to voluntarily surrender the license for the facility. Respondent's Proposed Findings of Fact: The Respondent did not file proposed findings of fact. COPIES FURNISHED: Linda L. Parkinson Senior Attorney Agency For Health Care Administration Division of Health Quality Assurance 400 West Robinson Street, Suite S-309 Orlando, Florida 32801-1976 Willia Mae Mackey Owner/Administrator Willa's Bahamas Home Care Center 125 Old Dixie Highway Riviera Beach, Florida 33404 R. S. Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue The issue in this case is whether Respondent violated provisions of Florida Statutes and Florida Administrative Code relating to the operation of a child care facility, and, if so, whether sanctions should be imposed.
Findings Of Fact The Department is the government agency responsible for licensing, inspecting, and monitoring child care facilities in Florida. At all times subject hereto, the Department was operating according to its statutory mandates. The Center is a child care facility located at 5034 18th Street, Zephyrhills, Florida. It operates under License No. C06PA0156 and is licensed for a maximum capacity of 67 students. The Center has been operating for approximately five years.1/ It is owned by Ms. Gollhardt and her daughter, Ms. Kirk. On July 22, 2011, the Department issued an Administrative Complaint against the Center. The Administrative Complaint contained allegations concerning four separate incidents over a four-month period, from September 2010 to January 2011. The incidents, as set forth in pertinent part from the Administrative Complaint, are as follows: On August 5, 2010, G.H., a staff member, was observed by another staff member to have slapped K.L., a three (3) year old child, across the face. Another staff member heard the incident and the child crying subsequent to the slapping. On October 6, 2010, a four (4) year old child, B.G., had been spitting on other children and had previously been disciplined for his inappropriate behavior. The child continued to spit and R.G., the owner/director, sprayed the child in the face with the liquid from a bottle that was being used to sanitize the tables. The liquid in the bottle was diluted bleach and water. R.G. stated the solution was 3 table spoons [sic] bleach to 5 gallons water. After conducting an investigation of an incident on November 29, 2010, it was determined that a staff member, T.C., used her hands to press down on a two (2) year old child's forearms to keep the child from getting up from the time out chair. On January 24, 2011, D.L., a five (5) year old child, had an accident and the owner/director needed to change his underwear. The child threw a fit because he wanted [sic] boxers and the facility did not have boxers to put on him. After conducting an investigation[,] it was determined that struggle [sic] the owner/director, R.G., had been observed dragging the child by the arms across the floor. A complaint form was drafted for each of the four incidents after the Department finished its investigation for each incident. The complaints were provided to the Center for review, and the Center signed an acknowledgement that it had received each of the complaints. After the first incident (the slapping of a child), the Department issued an Administrative Warning Notification dated September 22, 2010. The warning advised the Center that the incident was the first Class II violation against the Center within a two-year period. The Center was warned that another Class II violation within two years would result in a fine in the amount of $50.00. The warning did not include a process for the Center to appeal or contest the Department's findings. After the second incident (the spray bottle), the Department issued a Notice of Administrative Action dated October 13, 2010. The Notice advised the Center that the incident constituted the second Class II violation within a two-year period and of the Department's "intent to impose an administrative fine as a result of this repeat Class II violation." The Notice advised the Center that it would receive a formal administrative complaint imposing the fine and that upon receipt of the administrative complaint, the Center would have 21 days to either pay or appeal the fine. According to the Department's witness, the action taken by the staff member constituted a "physical form of discipline that could have caused the child to be harmed." Following the third incident (teacher holding child in a chair), the Department issued another Notice of Administrative Action, this one dated November 30, 2010. This Notice advised the Center that the Department intended to issue an Administrative Complaint imposing a fine commensurate with a third Class II violation within a two-year period. The Notice had the same language as the prior Notice concerning appeal rights. Finally, after the fourth incident (the soiled boy), the Department issued yet another Notice of Administrative Action dated January 25, 2011. This final Notice advised the Center that the Department intended to impose a fine and to change the Center's license to probationary status. The Notice also advised that another Class II violation "within [two] years from the date of this report" would result in the Center's license being suspended, denied, or revoked.2/ The Notice again stated that an Administrative Complaint would be issued from which an appeal could be taken within 21 days. On July 22, 2011, the Department issued its promised Administrative Complaint setting forth allegations as to each of the four incidents. The Administrative Complaint provided the Center its first opportunity to contest or challenge the allegations set forth in the four previous notices or warnings. The Center timely filed a request for formal administrative hearing to contest the Department's findings. The four incidents will be discussed more fully below, including the Department's basis for its findings and the Center's explanation, mitigation or other response. Incident No. 1--Slapping a child This incident occurred on Thursday, August 5, 2010, while Ms. Gollhardt and Ms. Kirk were both out of town on family matters. A teacher, Gayla, was observed by another teacher slapping a child's face. The second teacher immediately contacted the owners via cell phone to report what had happened. Ms. Gollhardt had the observing employee do a written statement and place it in Ms. Gollhardt's lock box for safe keeping. Then Ms. Gollhardt verified that Gayla had left the Center for the day. Ms. Gollhardt returned to the Center and looked into the matter. She directed Gayla not to report back to work and then called the Department's abuse hotline to self-report the incident. Ms. Gollhardt then contacted Ms. Richey, the Department's counselor assigned to the Center. Ms. Richey came to the Center on the following Tuesday and conducted her own investigation of the matter. When it became clear that the incident had indeed occurred as reported, Ms. Gollhardt terminated Gayla's employment at the Center. From the day of the incident until she was terminated, Gayla had not been allowed back into the Center. The Department found out about this incident in two ways: First, a Child Protection Investigator ("CPI") notified Ms. Richey after the initial hotline call made by Ms. Gollhardt, i.e., after the Center self-reported the incident. Second, when Ms. Gollhardt contacted Ms. Richey directly to report the incident. There was no testimony from the parents of the child or from the terminated employee. Incident No. 2--The Spray Bottle As set forth in the Administrative Complaint, the child at issue, B.G., had been disciplined previously for spitting on other students. Ms. Gollhardt had written reports about B.G.'s behavior and sent the reports home with B.G. However, B.G.'s parents never responded to the reports or made any effort to discuss his behavior with the Center. On October 6, 2010, B.G. was again spitting on other children. Ms. Gollhardt tried to prevent B.G. from doing this by holding him in her lap as she sat and read a story to a group of students. This worked until the story was over and the students got up from the carpeted reading area. At that time, B.G. spat on another child. Ms. Gollhardt, who was standing nearby and holding a bottle in her hand, sprayed a mist towards B.G., who was three or four feet away, i.e., on the other side of a toy shelf from Ms. Gollhardt. Her intent was to get his attention and to show him that it was uncomfortable to have liquid of any kind involuntarily foisted upon you. The bottle was apparently set on a "mist" mode and there is insufficient evidence as to whether the liquid actually touched B.G. or not. The liquid was contained in a bottle that had been used to sanitize tables at the Center. The bottle contained water and bleach, but there is no competent evidence as to the ratio of the mixture. The Administrative Complaint alleges that Ms. Gollhardt said that the mixture was three tablespoons of bleach to five gallons of water, but that is the only evidence concerning the mixture. Nor was there any testimony provided as to the potential harm to a person that such a mixture might cause. If the mixture was as reported, there would seem to be a very minimal amount of bleach in the misted spray. Ms. Gollhardt prepared an incident report to show to B.G.'s parents, but she was not at the Center when they picked him up on the day of the incident. The next morning, when B.G.'s father dropped him off at school, Ms. Gollhardt told him what had happened and showed him the incident report. The father examined the contents of the spray bottle and indicated that no further action would be necessary. Later that day, Ms. Gollhardt advised the parents that if B.G. did not stop this behavior, they would have to find another place for him to go. The mother took great exception to this admonition, so she reported the incident to the Department. B.G.'s mother thereafter withdrew B.G. from the Center, and he has never returned. While spraying a water and bleach mixture at a child is never a good idea and is not condoned, it does not rise to the level of a punishment or discipline of the child. Incident No. 3--The Crying Chair The Center utilizes two different methods of dealing with children who are disruptive or act inappropriately. The Center uses the "time out" method, wherein they place a child in a designated place for a specified period of time so the child has an opportunity to think about their behavior. The Center also employ a "crying chair," which is a chair to which a crying child is directed to sit until they stop crying. The children apparently understand that they can get up from the chair as soon as they stop crying. The Center says the crying chair is a very effective tool. On November 29, 2010, a small, just-turned-two-year- old child (referred to as "Lisa"--not her real name) came to the Center late. She had been at a doctor's appointment with her grandmother and arrived at the Center at the time her class was playing on the playground. "Lisa" was upset that she could not stay with her grandmother and was crying and unruly when her grandmother left. After failing in her efforts to calm "Lisa" down, her teacher, Ms. Clemmer, placed "Lisa" in a crying chair on the covered porch adjacent to the playground. "Lisa" got up from the chair three or four times and continued to cry and act out. Ms. Clemmer placed "Lisa" back in the chair each time she got out and remembers that she "may have" placed her hands on "Lisa" when she directed her back to the chair. Ms. Clemmer does not remember any one return to the chair to be different from the others. Ultimately, "Lisa" calmed down, hugged Ms. Clemmer and went off to play with her classmates. Meanwhile, Ms. Dye was parked across the street from the Center waiting for her daughter's school bus to arrive. Ms. Dye said that children were not usually out on the playground when she picked up her daughter, but they were on this day. She was parked approximately 25 yards (75 feet) from the playground area. Ms. Dye does not remember any posts or other items obstructing her view. She does not remember a porch or covered area next to the playground. Upon hearing shouts or other noises, Ms. Dye turned to watch what was happening on the playground. Ms. Dye observed a little girl sitting in a chair and interacting with a teacher. The little girl got up from the chair three or four times, but each time a teacher would direct her back to the chair. The little girl seemed to be trying to go over to a plastic playhouse where other children were playing. This interaction went on for ten or 15 minutes. Ms. Dye remembers that the last time the teacher brought the girl back to the chair, she "may have" yelled at the girl. Then, the teacher grabbed the child's upper arm, pulled her across the playground, and placed her roughly into the chair. She could not tell exactly, but it looked to Ms. Dye like the teacher may have pulled the student's ponytail, jerking her head backwards. Ms. Dye does not believe that what she observed was a teacher attempting to keep an unruly child from hurting herself. Ms. Dye reported the incident to the Department. Ms. Richey, a CPI, and a police officer were dispatched to the Center to investigate the allegations. When they came to the Center, they identified the victim as a black child with a ponytail. Ms. Gollhardt said she had no children with ponytails and only one black child in the two-year-old age group. She offered to wake the child from her nap, but the investigators said not to do so. The investigators eventually talked with Ms. Clemmer and with the child's mother. Ms. Richey remembers Ms. Clemmer being very nervous and saying that she placed a child in time out for not behaving properly. Ms. Clemmer remembers the incident a little differently than reported by Ms. Dye. She says that when "Lisa" was dropped off by her grandmother, the child was having extreme separation anxiety. Ms. Clemmer tried to calm "Lisa" by holding her and walking out to the fence so "Lisa" could wave goodbye to her grandmother. That didn't work. After "Lisa" continued screaming and crying, Ms. Clemmer took her to the crying chair, with which "Lisa" was familiar. The chair was located on a covered patio adjacent to the playground area. "Lisa" kept "flopping out of the chair" and running across the playground. Each time, Ms. Clemmer would redirect her back to the chair and try to calm her down. She does not remember any one of the interactions with "Lisa" to be more forceful or different from any other. The last time she sat "Lisa" down, however, Ms. Clemmer remembers placing her hand in the chair between Lisa's legs to prevent "Lisa" from flopping out of the chair. Eventually, "Lisa" had had enough crying and stopped being upset. She went over and hugged Ms. Clemmer, then ran off to play with the other children. That was the end of the matter. "Lisa" is still a student at the Center. Incidentally, "Lisa" is a child of mixed races (African-American and Caucasian); she has very short hair and does not have a ponytail. Ms. Clemmer holds an early childhood associate certificate, obtained after a six-month course of study. Her testimony was credible, and she appears to have the interests of her students as a priority. Based on the foregoing facts, there is no evidence that Ms. Clemmer "used her hands to press down on a two (2) year old child's forearms to keep the child from getting up from the time out chair" as alleged in the Administrative Complaint. Incident No. 4--The Boy with Soiled Pants On January 24, 2011, D.L., a five-year-old boy, was playing on the playground when he announced an immediate need to go to the bathroom. His teacher, Susan, took him inside to use the toilet. However, before getting to the bathroom, D.L. had a small bowel movement and soiled his pants. Susan and D.L. remained in the bathroom for a while and then Susan came out to report that D.L. was "having issues." Ms. Gollhardt then went in to see if she could help. She found the little boy screaming and fussing, upset, and refusing to cooperate. Ms. Gollhardt began to try to calm the boy down. D.L. was upset because he had been wearing boxer shorts and wanted a new pair to replace the ones he had soiled. Unfortunately, his cubicle did not contain any clean boxers. Instead, Ms. Gollhardt offered D.L. a pair of his brother's underwear, but they were briefs, and D.L. wanted no part of them. She also offered D.L. his own soiled underwear, because they were only slightly soiled and gave him the option of wearing a pair of his sister's pull-ups. He wanted none of those. As Ms. Gollhardt continued to try to reason with D.L., he became more agitated and upset. He tried to crawl behind the toilet and began kicking and hitting at Ms. Gollhardt. Ms. Gollhardt was eventually able to dress D.L. (although it is unclear which pair of underwear was placed on him). Then Ms. Gollhardt picked up D.L., wrapping her arms around him as he faced away from her and carried him out of the bathroom. As they left the bathroom, D.L. reached up and knocked Ms. Gollhardt's glasses off her face. When she bent down to retrieve her glasses, D.L. began to kick her. At that point, D.L. dropped to the ground in a sitting posture and refused to move. Ms. Gollhardt gathered her glasses and reached down, grabbing D.L.'s arm. When D.L. refused to get up, Ms. Gollhardt slid him across the floor as she held him by his arm. They went into a classroom where D.L. could be watched by another teacher and closed the door. Then Ms. Gollhardt came out of the room and left the door open as she placed a call to D.L.'s parents. While this was going on, Ms. Conner, another child's parent, arrived at the Center to retrieve her infant child. She saw D.L. in the bathroom kicking and screaming as Ms. Gollhardt attempted to dress him. She saw Ms. Gollhardt dragging D.L. three or four feet across the floor by his arm as D.L. whimpered. She remembers them going into a classroom and Ms. Gollhardt closing the door. She does not remember the door being re-opened as Ms. Golldardt made the phone call. After placing D.L. in the classroom, Ms. Gollhardt called his mother to come and get him at the Center. D.L.'s mother arrived shortly and discussed the situation with Ms. Gollhardt. She then talked calmly with D.L. and had him apologize to Ms. Gollhardt for his bad behavior. D.L. apologized and then hugged Ms. Gollhardt. D.L. and his four siblings are still students at the Center. Ms. Conner's testimony is somewhat suspect. She had been admonished by Ms. Gollhardt just prior to this incident for being behind on her child's tuition payments. Despite the alleged incident, Ms. Conner kept her infant and one other child at the Center until August of this year (2011). Further, Ms. Conner appears to have initially told the Department's investigator a different story, i.e., that Ms. Gollhardt dragged D.L. across the floor all the way from the bathroom into another classroom. The Center's Discipline Policy The Center has a policy concerning how it will administer discipline to its students. Each teacher is expected to comply with the policy. Each student's parent(s) must acknowledge receipt and review of the policy. It is the intent of the Center that its discipline policy be consistent with the Department's Basic Guidance and Discipline protocols. The Department's protocols distinguish between discipline and punishment. Discipline includes tools and actions used to teach a child a lesson or to redirect their behavior. Punishment is "more of a consequence" of a child's behavior and is used to control a child. Or, as stated by the Department's licensing supervisor, "punishment is an action that is taken by a caregiver in response to a bad choice. And it's a consequence of some kind of bad inappropriate behavior that a child is engaged in." There is no published definition of the distinction between discipline and punishment in the Department's rules, and its witnesses acknowledged there is a fine line between the two. According to the Center's policies, discipline is not to be associated with food, rest, or toileting. Nor should discipline be severe, humiliating, or frightening. Spanking or other forms of physical punishment are not to be used by a teacher. Enforcement of the Law The Department utilizes progressive enforcement when citing child care facilities for violations of statutes and rules. When looking at violations, there are three classes of violations to be considered: Class I violations are those which may endanger a child's life; they are the most severe. Class II violations address disciplinary actions, teacher-to-student ratios, and other practical aspects of operating a child care facility. Class III violations are those relating to paperwork or other less harmful matters. When looking at Class II violations, the Department will assign a progressively more serious sanction when multiple violations occur within a two-year period. For example, a single Class II violation may warrant only a warning; a second Class II within a two-year period will result in a fine. Four Class II violations within a two-year period will result in a license being placed under probationary status. Five violations during a two-year period can result in denial or suspension of the license. The effect of a probationary license is serious. A facility with a probationary license is required to post its violation citations on the wall of its facility. A facility is not allowed to advertise while it is on probation. Facilities under probation forfeit their connection to the Early Learning Coalition (the "Coalition"), the entity that provides payment or subsidies for low-income families to place their children in a licensed day care facility. Ms. Kirk cooperated with the Department concerning its investigation into the four alleged incidents. She provided names of witnesses and even offered written statements from eyewitnesses. The Department did not accept the written statements, saying their investigation was complete. No further explanation was provided by the Department as to why they would not review additional information that may have led them to a more informed conclusion. Instead, the Department warned Ms. Kirk that the Center had better "straighten up" or they would be facing more severe sanctions. Ms. Kirk says that a Department representative told her the Department had talked with the Coalition. According to the representative, the Coalition said it had received numerous complaints about the Center and that the Center was not cooperating with the Coalition. Ms. Kirk was concerned about those comments. About one half of the Center's students are receiving subsidies through the Coalition. Loss of connection to the Coalition would be an extreme hardship for the Center. Ms. Kirk contacted the Coalition to find out if there was indeed a problem of some kind. Neither Ms. Kay Williams, the voluntary pre-kindergarten representative at the Coalition, nor her supervisor, Kim Bergeau (phonetically spelled), could verify that any complaints had been received concerning the Center. The Center has not been contacted directly by the Coalition about any complaints. Each of the four incidents discussed above was investigated by the Department, by CPI, and by local law enforcement. No evidence as to the findings or conclusions by CPI or law enforcement was entered into evidence as support for the Department's position, so there is no independent corroboration that the incidents occurred as alleged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Children and Families, upholding the issuance of the letter of warning against Respondent, Lil' Stars Learning Center, Inc., d/b/a Lil' Stars Learning Center, but dismissing the other allegations in their entirety. DONE AND ENTERED this 30th day of December, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 30th day of December, 2011.
The Issue The issue in this case is whether Respondent is guilty of violating various provisions governing adult congregate living facilities and, if so, what penalty should be imposed.
Findings Of Fact Respondent is currently licensed to operate an adult congregate living facility at 1822 Nebraska Avenue, Palm Harbor, Florida. On May 25, 1993, Petitioner's surveyor conducted an annual survey of the facility. Petitioner's surveyor noted several deficiencies on the survey report and gave Respondent 30 days within which to correct the deficiencies. Upon resurvey on September 13, 1993, the Petitioner's surveyor found nine deficiencies uncorrected. In addition, Petitioner's surveyor found uncorrected one deficiency that had been cited during a survey on August 4, 1993. On May 25, 1993, Respondent had three employees. Two of them had been employed at the facility for over 30 days. Their files contained no documentation showing that they were trained in infection control procedures. The third employee was new and had no personnel file. At the September 13, 1993 resurvey, the three former employees had been replaced by three new employees. Two of the new employees had received the required infection control training, although their statements omitted a copy of the license of the registered nurse who did the training. The file of the other new employee lacked any statement concerning infection control training. However, Petitioner failed to show that the deficiencies cited in the May 25 survey were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. During both the May 25 and September 13, 1993 surveys, Respondent's sanitation inspection report was missing the second page, which would have listed violations and corrective actions regarding sanitation. On May 25, 1993, resident I. M. had been at the facility more than 30 days without a health assessment. On September 13, 1993, I. M. had been discharged, but four new residents had been at the facility more than 30 days without a health assessment. Petitioner failed to prove that the violation concerning I. M.'s health assessment was uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, Respondent failed to document that a person duly certified in first aid was on duty at all times. A staff member identified as being alone at the facility on weekends had no personnel file. On September 13, 1993, two staff members identified on the staffing chart as being alone at the facility had no documentation of first aid training. On September 13, 1993, a third staff member who was left alone at the facility claimed to be a certified nursing assistant and therefore exempt from the first aid certification requirement. Respondent and the employee had no documentation to indicate that the employee was a certified nursing assistant. As noted above, the former employees were no longer employed at the facility on September 13. Petitioner thus failed to prove that the May 25 deficiencies concerning first aid certification were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, three employees at the facility had no statement that they were free of signs and symptoms of communicable disease. On September 13, 1993, one of the new employees had no such statement. The other two employees had statements, but they were signed by a registered nurse rather than an advanced registered nurse practitioner. Due to the turnover of employees, Petitioner failed to prove that the May 25 deficiencies concerning communicable- disease certification were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, Respondent kept a supply of nonprescribed, over-the- counter drugs, such as aspirin and milk of magnesia, that were not labelled for use by a particular resident. However, Respondent remedied the violation during the May 25 visit. On September 13, 1993, the surveyor found approximately six bottles of unlabelled, nonprescription over- the-counter medication. These medications had been brought by the family of a newly admitted resident. Respondent corrected the labelling deficiencies during the May 25 survey. Petitioner thus failed to prove that the May 25 labelling deficiencies were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993 Petitioner's surveyor found no activities calendar and, based on resident interviews and her observations at the facility, no evidence of significant activities being provided. On September 13, 1993, Respondent had an activities calendar, but it did not specify the starting time or duration of resident activities. Petitioner proved that deficiencies concerning the activities calendar were uncorrected during the applicable timeframe. On August 4, 1993, Petitioner's surveyor found in a resident's room a full-bedside rail, which was not ordered by a physician. On May 25, 1993, Petitioner's surveyor found, evidently in a different resident's room, a half- bedside rail, which was not ordered by a physician. Respondent presented a physician's order for a hospital bed, but mechanical bedside rails were not addressed in the order. Due to the involvement of different residents, as well as different types of restraints, Petitioner failed to prove that the May 25 deficiency concerning the full-bedside rail was uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, the facility maintained a clearly inadequate supply of nonperishable food. During the September 13, 1993 resurvey, Respondent had significantly more nonperishable food on hand, consisting of 567.5 ounces of fruits and vegetables. The May 25 survey report informs Respondent only that he does not have on hand a one-week supply of nonperishable food. The survey does not calculate the amount of such food needed based on some formula. At the hearing, Petitioner's witness testified that the nonperishable food supply on September 13 was inadequate, based on a requirement of 16 ounces of fruits and vegetables per day for seven days for five residents. Based on the formula, Respondent needed a total of 560 ounces of nonperishable food on hand on May 25, 1993, when he had nowhere near an adequate amount. Under the formula, Respondent would have needed, on September 13, 1993, 784 ounces of nonperishable food because two more residents had been added to the facility. However, Petitioner failed to prove that 560 ounces of nonperishable food does not represent one week's supply for the seven residents at the facility on September 13, 1993. On May 25, 1993, Petitioner's surveyor found that one resident was residing at the facility without a signed contract. On September 13, 1993, at least one resident was without a signed contract.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of the violations set forth above and imposing a fine of $750. ENTERED on July 18, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on July 18, 1994. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 N. Dale Mabry Hwy. #100 Tampa, Florida 33614 James V. Vinson, Owner White House #1 1822 Nebraska Avenue Palm Harbor, Florida 34683 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308 Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303
The Issue Whether the Agency for Health Care Administration (AHCA) should deny Petitioner's application for renewal of a standard assisted living facility (ALF) license.
Findings Of Fact Although evidence was presented concerning all factual and legal issues, including mitigation, a recitation of all of that evidence is not necessary to a resolution of this case. Survey allegations and defense theories which were not proven will not be discussed, except as necessary, and only findings of fact which are dispositive will be made. AHCA is the state agency for quality control and licensing of ALFs. In order to ensure quality control of such facilities, AHCA conducts annual, biennial, and follow-up surveys. It also conducts complaint investigations as needed. Peggy Watkins and Timothy G. Watkins, Sr., hold a standard ALF license to operate Watkins Health Center, which they own. They held such a license and operated that facility throughout the 1996-1998 biennial licensure period. This case arises upon the denial of Watkins' renewal application for a standard ALF license. The renewal application was denied on the basis of deficiencies found by AHCA surveyors during the biennial licensure period. The reasons for denial are set out in the April 15, 1999, amended denial of renewal application letter which states the reasons for denial as: . . . It has been determined by the Agency for Health Care Administration that your application does not meet or comply with the standards as an ALF pursuant to Chapter 400, Part III, Florida Statutes (F.S.), and Chapter 58A-5, Florida Administrative Code (F.A.C.) Further, the licensee has committed an intentional or negligent act which materially affects the health and safety and walfare [sic] of the residents of your facility. See 400.414(1)(a), Florida Statutes Suppelment [sic] (1998). This specific basis for this determination is: The administrator failed to adequately supervise residents and endangered the lives of the residents at your facility. The facility failed to meet minimum licensure standards pursuant to Section 400.414(1)(e) and (i), F.S., as evidenced by two repeated class II deficiencies, eight repeated class III deficiencies cited by the Agency between June 11, 1996 and October 9, 1998, during biennial and follow-up surveys, and complaint investigations. Petitioner contends that all or some of the cited deficiencies did not exist, were merely record-keeping flaws, or otherwise were not so serious as to require denial of the renewal application. Petitioner also asserts that all deficiencies were corrected by the respective follow-up surveys; that if a follow-up survey had been conducted after the October 1998 biennial survey, those deficiencies also would have been found to have been corrected; and that since a final follow-up survey was not conducted, the October 1998 survey results should not be used against Petitioner for purposes of denying the standard license renewal. In making surveys and investigations, AHCA follows a team approach. Surveyors on a team individually observe and note flaws and tentatively assign "tag" numbers to them, based on categories of deficiencies. Under each tag, all flaws in that category which are observed on that date are described with specificity. Members of the survey team write-up their individual observations and then meet together to discuss the flaws before the team finalizes the tagging and classing of all observations, with Class I being the most severe type of defect and Class IV being the least severe type of defect. See Section 400.419(1)(b), Florida Statutes, as set out more fully in the following Conclusions of Law. Complaint investigations may be done by a team or by only one surveyor. Although it is axiomatic that some subjectivity will be inherent in tagging and classing of violations, it is found, upon the evidence as a whole, that all surveyors who testified herein were adequately trained and professionally motivated within statutory and rule standards for surveying. Having different surveyors participate on different complaint investigations and surveys contributed to a fair assessment and diminished the possibility of unfairness through any individual surveyor's improper motive or subjectivity. It is further found that the surveyors herein appropriately followed survey protocols by using samples and stating percentages instead of tracking each specific resident or bedroom or bathroom from survey to survey. The utilization of sampling and percentage methodology is fairer to a facility than the tracking method proposed by Petitioner because the sampling and percentage methodology does not factor-in either a facility's consistent failures or consistent successes in any single location within the facility and because it provides a better overview of whole-facility compliance. In making these following Findings of Fact, I have not considered a survey tag or violation severity classification to have been proven without direct testimony by at least one surveyor who observed the deficiency on the date specified. The mere fact that a survey report contained a specific tag and class and that the same survey then became a business record of the Agency is not sufficient to establish that the deficiency actually existed. In addition to surveyors who evaluated Watkins during the biennial licensure period, AHCA presented the testimony of John Morton as an expert in regulation and operation of ALFs. His testimony sometimes differed from the on-site surveyors in ranking of various deficiencies, but overall his classifications were substantially the same. In considering Mr. Morton's testimony with regard to tags and classifications of deficiency, I have considered that he has been employed as a surveyor by the Agency for 20 years as a health facility evaluator, that he is a State-certified ALF administrator, and that he is a federally-certified quality control supervisor. While his opinions have been considered in determining the reasonableness or unreasonableness of the on-site surveyors' tags or classifications for specific deficiencies, Mr. Morton's opinions have not been applied to raise or lower the classifications assigned by the surveyors because Mr. Morton did not actually participate in any survey of Watkins. Watkins housed mentally ill residents throughout the 1996-1998 biennial licensure period. It was stipulated that these residents sometimes behave in bizarre ways, often require psychotropic medications, and are unpredictable, scatological, and unsuccessful at using restrooms. 3/ In 1995, AHCA began to create a licensing process for "limited mental health" resident facilities, pursuant to Section 400.4075, Florida Statutes (1995). The Agency acknowledged that Petitioner applied for such a license in April 1997. Its licensing officer, Ms. Huff, testified that the Agency "put a hold on such licenses." No legal authority for this "hold" was cited. The Agency contends that it sent Petitioner a request for further applicant information in October 1997 and never received the information. Petitioner contends that Mr. and Mrs. Watkins never received the Agency's request. The Agency failed to demonstrate the contents of its request for further information, and clearly, if sent, the October 1997 request was not sent to Petitioner's owners within 90 days of receipt of Petitioner's April 1997 application. Surveys, complaint investigations, and follow-up surveys of Watkins, pursuant to its 1996-1998 biennial standard license, were conducted by the Agency on June 11, 1996; July 31-August 1, 1996; September 5, 1996; October 18- 20, 1996; October 27, 1997; November 10, 1997; January 27, 1998; May 4, 1998; June 15-16, 1998; and July 6, 1998. On October 8-9, 1998, a biennial survey was conducted. It was not established that the Agency targeted Watkins for more investigations and surveys than other ALFs. Agency personnel had no control over when complaints were made against Watkins, which complaints required Agency investigation, and once the Agency had cited Watkins for a deficiency(ies), surveyors were required to return timely for compliance follow-ups until the biennial survey. On June 11, 1996, the Agency conducted a survey of Watkins. In the course of that survey, surveyor Sandra Holbert observed five residents taking food and drink off discarded dining trays and consuming it themselves. A staff member was present and did not intervene. Ms. Holbert observed the five residents return to the kitchen door and receive additional portions. She interviewed residents and found that they knew they were free to get second portions if they desired. The survey team correctly recorded this deficiency as a Class II, Tag A700, Resident Care Standard violation. The other tags cited for the June 11, 1996, survey on the June 18, 1996, survey report were not proven. On July 31-August 1, 1996, the Agency conducted a complaint investigation of Watkins. Surveyor Richard G. Glover reviewed Watkins' staffing and found it to be deficient. The minimum full-time equivalent staff (FTE) hours per week required for Watkins' resident census were 288, and the actual hours posted were 260. Despite explanations then, and at hearing, by Administrator Peggy Watkins that her time when working as a staff person was overlooked or ignored by Mr. Glover, I find more credible Mr. Glover's testimony that on July 31-August 1, 1996, Mrs. Watkins was unable to explain when the current work schedule had changed and that even if he added in the hours Mrs. Watkins had told him she worked, the total hours would not match the FTE requirements. Mr. Glover concluded that there were no time sheets nor payroll cards present in the facility on the date of his visit to support Ms. Watkins' contention. This deficiency was recorded as a Class II, Tag A505 (later re-numbered A507) Staffing Standards violation on the August 15, 1996, survey report, and proven at the hearing. The August 15, 1996, report also recorded that two resident bedrooms had broken windows: in one broken window, the shards of glass had been taped with gray tape, and in the second broken window, the shards of glass remained in the pane. This situation was classified on the report as a deficiency under Tag A705, Resident Care Standards, but it is unclear from Mr. Glover's testimony whether he personally saw the broken windows on July 31-August 1, 1996. On September 5, 1996, the Agency conducted a follow- up investigation/survey of Watkins. In the course of that survey, Mr. Glover again reviewed Watkins' staffing and found that it was deficient. The minimum hours, per week, required for the resident census at that time were 288, and upon the same type of review as noted in Finding of Fact 19, above, it was verified that the actual hours worked were 279. Weighing the credibility of Petitioner's several witnesses against the surveyors' contemporaneous request for, and the contemporaneous absence of, actual timesheets, I find that this deficiency was fully established as a repeat Class II Tag A505 deficiency on September 5, 1996. Also on September 5, 1996, Mr. Glover personally observed that two resident bedrooms had broken windows. In one broken window, the shards of glass had been taped with gray tape. In the second broken window, the shards of glass remained in the pane. He recorded this deficiency under Tag A705, Resident Care Standards. He noted the broken windows as a repeat of the same Class II deficiency found on the July 31- August 1, 1996, complaint investigation. Also included under Tag A705, were the September 5, 1996, observations by Mr. Glover of bedroom lights being out and exposed overhead lights. During the same survey, Mr. Glover identified the need for a preventive maintenance program to prevent grease build-up contamination in the vent over the kitchen range from falling into the food on the range. Without direct proof of broken windows on July 31-August 1, 1996 (see Finding of Fact 20, above), it is not possible to label the broken window on September 5, 1996, as a "repeat" deficiency. However, it is specifically found, pursuant to Mr. Glover's direct testimony, that the broken windows, defective lights, and greasy stove existed on September 5, 1996, constituting a Class II, Tag A705, Resident Care Standards deficiency at that time. On October 18-20, 1996, during a follow-up investigation, Mr. Glover noted that both the A505 staff deficiency and A705 grease build-up situation had been corrected. On October 27, 1997, the Agency conducted a complaint investigation of Watkins. Surveyors Ana Lopez- Edwards and Mr. Glover tagged and classified three deficiencies. The ALF license was not posted or located. This was Tag A003, Class III, a Facility Record Standards deficiency. Advocacy information, including the Resident Bill of Rights, was not posted, and this was tagged as A201, Class III. They found no documentation that residents were receiving, at admission, packets of rules and regulations, as required by law. This was classified as Tag A308, Class III, because, by inference, it was a denial of the rights of the residents, or the residents' representatives, to be aware of, and to function in, their surroundings. These deficiencies certainly presented an impediment to residents lodging complaints or seeking third party intervention. Surveyors also cited and directly testified to the following specific observations on October 27, 1997: twenty percent of resident bedrooms contained non-operational overhead lights, which were frequently uncovered. One fixture had a broken bulb with an exposed lighting element. The concern with the light fixtures was that a resident could stick his hand into the exposed lighting element. Two bedrooms and three bathrooms had a strong urine odor. Thirty percent of the bedrooms had no window covering. Other bedrooms had curtains only partially covering the windows. One bathroom had a stained window which partially exposed any resident in the bathroom. Fifty percent of the bathrooms were not adequately cleaned. Seventy-five percent of the bathrooms contained no soap or towels. Two bathroom commodes were non-functional. Surveyors also found that the hot water temperature in one resident bathroom was 96 degrees Fahrenheit, when the hot water temperature is required to be between 105 degrees and 115 degrees Fahrenheit. Many of the foregoing specific flaws had been raised on previous survey reports, but only the lighting deficiencies and window problems were observed previously and on October 27, 1997, by testifying surveyors, so as to prove- up repeated specific flaws. Nonetheless, since all the foregoing flaws which were observed on October 27, 1997, fit within the specifications for Tag A705, Resident Care Standards, I am satisfied that a "repeat" Class III, A705 deficiency has been proven for October 27, 1997. On October 27, 1997, a Class III, A902 Tag, Maintenance and Housekeeping Standards, was correctly assigned to the absence of drawer pulls and other furniture deficiencies in many bedrooms. Additionally, on October 27, 1997, Tag A1010 was validly assigned a Class III, Physical Plant Standards deficiency, in that 50 percent of the bedrooms were without reading lamps. On this same survey, surveyors found that one resident bathtub was not equipped with a required safety handrail. The Agency validly cited this deficiency under Tag 1018, Physical Plant Standards, as a Class III deficiency. On November 10, 1997, a complaint investigation was performed. Minimal testimony was presented, and no deficiencies were proven for this date. On January 27, 1998, a follow-up survey of Watkins occurred. At that time, surveyors cited Watkins under Tags A003, A201, A705, A902, A1001, A1018 and A1022 as uncorrected from the October 27, 1997 date, and cited additional deficiencies as being out of compliance with State Standards under Tags A200, A700, A702, A703, A706, A1002, and A1016, all of which were cited as either Class II or Class III deficiencies, some of which were allegedly repeat deficiencies. The only direct evidence as to the validity of these January 27, 1998, citations was introduced through the testimony of surveyor Ana Lopez-Edwards. Ms. Lopez-Edwards testified to the presence of strong urine odors on January 27, 1998, and to a "musty" smell about the entire facility on that date. This direct evidence only proves-up a very small portion of the several flaws listed to make up the citation of a repeat Tag A705, Resident Care Standards. Without more, that entire tag assigned on January 27, 1998, is not proven and it cannot legitimately be classified as a repeat Class III deficiency for that date. Ms. Lopez-Edwards also verified that during the January 27, 1998, survey, she had observed a Watkins resident kneeling in a public road that abuts the property. This is a paved road with numerous speed bumps designed to slow down vehicular traffic. Ms. Lopez-Edwards alerted one of Watkins' staff members to the resident's peril. The staff person told Ms. Lopez-Edwards, "That's Mr. ---, he does that all the time." The staff person then walked away without intervening to remove the resident from the road. On January 27, 1998, surveyors classified this incident under Tag A700 as a Class III deficiency. At hearing, Ms. Watkins admitted that the resident was at risk while in the road, but contended that he was actually to the side of the road when observed by Ms. Lopez- Edwards. Ms. Watkins testified that, "Now you ask was that health, a risk for him per se, being in the road I would say, yes, but this is what he does constantly." Apparently, this particular resident constitutes both a "wanderer" and a religious devotee. While ALF residents are entitled to visit outside the facility and to practice their freedom of religion, the ALF has an obligation to protect them from inadvertent self-injury. The evidence is clear that although rural, the paved road passing Watkins represents a danger to this potentially self-injurious resident, and the ALF was deficient in not intervening to protect him. The citation of this incident under Tag A700 as a Class III, Resident Care Standard deficiency was appropriate. Although the specific incident was not a "repeat," the Tag was a "repeat" of June 11, 1996. On May 4, 1998, a follow-up survey and new complaint investigation was conducted. At that time, Watkins' logbook stated that a resident had disappeared at some time after 8:00 p.m. on April 20, 1998. The logbook did not mention any notification to the administrator, neighbors, or police. The logbook further stated that at 3:30 or 4:00 a.m., April 21, 1998, the resident returned and was at Southwestern State Hospital in Thomasville. It apparently was unclear from the log book whether this patient was picked up at Southwestern State Hospital in Thomasville, Georgia, or was taken there by Administrator Peggy Watkins after his return, but Ms. Watkins' testimony concerning the incident was as follows: Q: With regard to the resident named M.T. having disappeared back in 4/98, are you familiar with that incident? A: Yes. Q: One it was - was the resident in fact - were his whereabouts in fact unknown? A: At that particular time, yes. Q. All right. And once that determination was made, what action was taken: What action was taken, if any? A: Well it wasn't on my shift, but it was told to me that she called, she reported him missing. Q: To whom? A: To the sheriff's department. Q: By calling 911? A. Yes, by calling 911 she reported him missing. . . And probably that morning about 4:00 that morning, they called and stated his whereabouts. And I went after him probably around 7:00 that morning. Clearly, Ms Watkins admitted leaving the patient in police custody an additional three hours. The Agency validly tagged this as a Class III, Tag A700, Resident Care Standards, deficiency. The A700 classification makes it a repeated tag. Also in the course of the May 4, 1998, survey, Mr. Glover observed, and correctly assigned, a Tag A705 Resident Care Standards Class III deficiency because an east bathroom light was inoperable; a second floor bedroom did not have a light bulb cover for the overhead fan light; and the second floor bedroom had no window covering, thus exposing the resident within. Some of the tag components are repeats; the tag itself is a repeat. Mr. Glover also assigned yet another Tag A705, Class III repeat deficiency for findings that included 20 percent of the resident bedrooms observed having non-operational overhead lights or uncovered overhead lights and one fixture with a broken bulb and an exposed lighting element; two bedrooms and three bathrooms with strong urine odor; and 30 percent of the bedrooms observed having no window covering while others had curtains that only partially covered the windows. So as to be fair to the facility, Mr. Glover and other surveyors tested the bedroom lights during the survey, both from the wall switches and the pull cords in each of the rooms they observed. It is immaterial that the defective bedrooms and bathrooms observed for the repeat deficiency ratings on May 4, 1998, may not have been the same bedrooms and bathrooms as were found defective when this problem was cited previously. Sampling is within survey protocols, and facilities have the obligation of the whole physical plant meeting standards. A complaint was initiated by the Jefferson County Health Department, and on June 15-16, 1998, the Agency conducted an investigation. By observations and interviews on that date, Mr. Glover concluded that a repeat Tag A705, Class II, Resident Care Standards citation was appropriate because the facility was not being maintained in a safe, sanitary manner ensuring the safety of residents and their physical well-being. This was proven by direct evidence as follows. Temperatures were measured at 6:40 p.m. on June 15, 1998, and bedrooms were found to be between 88 degrees and 92 degrees Fahrenheit. Agency standards provide that residents' rooms may not exceed 90 degrees Fahrenheit. Two bedrooms were missing ceiling tiles and had damaged screens. The air conditioner compressor was non-operational. Ms. Watkins advised Mr. Glover that the facility's air conditioning had been off since June 11, 1996, and that she was having difficulty getting a repairman to come. In Mr. Glover's opinion, Watkins had an obligation to remove residents to a cooler environment once the temperature hit 90 degrees Fahrenheit. On June 16, 1998, the second story reception room light was flickering on and off, indicating a possible short circuit. There also were at least six residents in the common area, smoking cigarettes, with no sprinkler system in place. Watkins has a "no smoking" policy, which clearly was not being enforced by its staff. Mr. Glover was particularly concerned about the electrical system. On July 6, 1998, the Agency conducted a second follow-up to its June 15-16, 1998, complaint investigation. In the course of that survey, Mr. Glover observed that 50 percent of the bathrooms in the facility needed cleaning between the hours of 9:00 and 10:30 a.m.; a rear bathroom located in the single-story building had no hot water accessible to the residents; one bathroom commode was found to be non-functioning at 9:30 a.m.; hot water in the bathroom located on the first floor of the two-story building recorded a water temperature of 80 degrees Fahrenheit; and approximately twenty-five percent of the resident bedrooms had a musty odor. These combined defects were validly assigned a repeat Tag A705, Class III deficiency. On July 6, 1998, and referring back to the May 4, 1998, survey, the team found that the east bathroom light remained inoperable; the second floor bedroom still did not have a light bulb cover for the overhead fan light; and a second floor bedroom still had no window covering. These deficiencies were also validly classified as a repeat Tag A705 Class III deficiency. On October 8-9, 1998, when four surveyors conducted the biennial/renewal survey of Watkins, the facility had a census of 34 residents, 25 of whom were limited mental health residents. Under Tag A006, the Agency cited this as a Class III, absence of license deficiency. However, due to the confusion regarding the status of Watkins' limited mental health resident ALF license application, this citation is found to be without validity. In October 1998, under Tag A100, the Agency cited Watkins with a Class III deficiency for not having its fiscal records on the premises. However, since it was shown that the fiscal records could have been made available at the time of the survey from another location, I find that this citation also lacks validity. In October 1998, under Tag A203, Watkins was cited with a Class III deficiency for failure to maintain adequate written admission and discharge records. This deficiency was substantiated through Nurse Huff's observations, interviews, and testimony. However, this information was made available and conformed in the course of the survey, and therefore should not count against Watkins in this proceeding. In October 1998, under Tag A206, surveyors cited Watkins for having a total of 28 facility incident reports between January 1, 1998 and September 15, 1998, without having documented any prevention or intervention measures to prevent reoccurrences. In fact, 16 out of the 28 reports constituted reoccurrences. All of this information was transcribed from facility records. Therefore, I find this deficiency cited as a Tag A206, Class III deficiency to be accurate and proven. In October 1998, under Tag A208, Watkins was cited for failure to develop a management plan approved by the Office of Emergency Management for Evacuations and Disasters. At formal hearing, however, Watkins demonstrated through Alternative Approaches to Life Safety Worksheets and Fire Drill Reports that it had consistently held regular fire drills. Although regular fire drills do not satisfy all parts of the required standard, they somewhat mitigate the situation, so that a Class III citation would not be in order. In October 1998, under Tag A213, Nurse Huff noted that Watkins' personnel records for its staff were inadequate and not current. Two staff members, among the facility's eight employees on that date had no personnel files at all, and six out of the eight staff members did not have various types of required training documented in their personnel files. One staff member had previously been diagnosed with tuberculosis, and no negative test update was available in her personnel file. At hearing, Watkins produced all missing personnel records, including tuberculosis, HIV/AIDS training, training in self-administration of medicines, First Aid/CPR certifications, and ALF training, but with very few exceptions, none of the required training or medical clearances were obtained by staff members prior to the October 1998 biennial survey. Most such records were obtained by the employees after the October 1998 survey. Some were even earned after the October 1998 survey. Watkins asserts that securing these certifications within the 60 days' correction period provided for on the survey form was sufficient compliance with State standards so as to preclude using this deficiency against Watkins in this proceeding. I find otherwise. Not only was Watkins unable to demonstrate record compliance on the date of the survey, but many of its staff were uncertified in important categories on the date of survey, thus exposing residents to inferior care and safety up to the date those staff members finally became certified. Assigning a Tag A213, Class III to this deficiency was appropriate and valid. Under Tags A301 (rated Class III), A302 (rated Class III), and A305 (rated Class III), Ana Lopez-Edwards observed and described deficiencies concerning residents' admission height and weight recordation, contracts not signed by residents upon entry into the facility, and absence of required demographic data, respectively. Only the A301 deficiency, failure to record initial heights and weights in a reasonably accessible manner were proven to present even a potential or indirect threat to residents, which defines a Class III offense. The other flaws were paperwork problems, worthy of a Class IV citation at the worst. In October 1998, under Tags A401 and A404, the Agency cited Watkins for two Class III deficiencies arising out of the failure to have six out of eight resident health assessments performed and on file within the time frame established by statute and rule. This citation appears to be a duplicate citation, and at hearing, mitigation was demonstrated due to the refusal of health care professionals to perform any health assessments until such time as a resident qualifies for Medicare. At worst, this citation should constitute a single Class III violation. In October 1998, under Tag A406, the Agency cited Watkins with a Class III deficiency in that out of a sample of eight residents, there was no documentation on those residents' capacity to "self preserve." However, at hearing, Petitioner demonstrated through Alternative Approaches to Life Safety Worksheets and Fire Drill Reports, a consistent history of regular fire drills and recording of residents' ability to evacuate timely. The issue then became whether Watkins' failure to maintain this information in an accessible place clearly related to each respective patient so that it could be effectively used in case of emergency should be cited as a Class III deficiency. I view this as a Class IV or "paperwork" offense at worst. Although the Agency cited Watkins in October 1998, under Tag A409, for two inappropriate resident placements, it was demonstrated at hearing that there was only one inappropriate placement and that was a paperwork error corrected immediately by the physician who had made it. Therefore, this citation was invalid. The minimum staff hours for the resident census in October 1998, were 288 hours per week. The actual hours staff worked in that week was 279. Surveyors found that Watkins was under-staffed by nine hours for the week. Watkins knew from long experience that its necessary FTE hours were 288. Surveyors validly cited this as a repeat deficiency under Tag A507, Class II, Staffing Safeguards. Considering the content, weight, and credibility of Watkins' several witnesses against the Agency's witnesses' testimony and its surveyors' contemporaneous request for, and the absence of, actual timesheets on the date of survey, I find that this repeat deficiency was fully proven. In October 1998, under Tag A511, Watkins was cited with a Class II deficiency, based on staff interviews and a record review, for frequently operating without any staff on duty who are certified in First Aid, including CPR. I find this survey citation to be valid for the reasons given in Findings of Fact 50-53 and 58, above. In October 1998, under Tag A512, a Class III deficiency was cited, the core of which was that various staff members, particularly food staff personnel, did not have documentation of freedom from tuberculosis on an annual basis on file with the facility administrator on the date of the survey. At hearing, some staff were able to demonstrate prior tuberculosis screenings, while others were not. I find this survey citation to be valid for the same reasons given in Findings of Fact 50-53, above. In October 1998, under Tag A513, Watkins was cited for a Class II deficiency due to its failure to appoint in writing a staff member trained in First Aid and CPR to act in the absence of the administrator. This citation was made upon direct observations by qualified surveyors, who saw an undated appointment for a person without CPR certification documentation. At hearing, Watkins was able to demonstrate that Etta Brinson had been timely appointed, in writing, but had been certified in CPR on November 13, 1998, after the survey. Although there was some evidence that certification is good for three years, it was not sufficient to show that Ms. Brinson's November 13, 1998, certification renewed one from 1995. I find this citation to be valid for the same reasons given in Findings of Fact 50-53, above. On the same date, Watkins was cited under Tag A804, Class III, for failure to maintain nutrition and dietary standards and under Tag A1024, Physical Plant Standards, relating to fire safety reports within the last year. However, neither of these tags was proven. Insufficient evidence with regard to the absence of fire safety reports was presented by the Agency, and Watkins affirmatively demonstrated the existence of dietary menus and food substitution lists which had been prepared by a registered dietitian and were available within the facility on the date of survey. In October 1998, under Tag A901, upon surveyors' observations, Watkins was sited for a Class III deficiency based on peeling wallpaper in the dining room; missing ceiling tiles exposing the building's superstructure in two locations; unclean dining room chairs; and flies and spiders present elsewhere. Ms. Watkins confirmed that the ceiling tiles are light and that one had blown off the morning of October 9, 1999, and that she had been unable to replace it prior to the survey. This citation was adequately proven. In October 1998, under Tag A902, Watkins was validly cited for a Class III deficiency based on direct testimony of mildew on the main icemaker; 20 percent of the chests of drawers in the resident bedrooms missing handles; an expired health department sanitation certificate; and a cabinet in the dining room missing a door. In October 1998, Watkins also was cited for four Class III deficiencies under Tags A1016 for 15 percent of its water faucets not being labeled for hot and cold water; under Tag A1018 for an insufficient quantity of non-slip surface in the tubs and showers; under Tag A1021 for absence of a written infection control policy; and under Tag A1022 for using torn and threadbare linens. However, upon considering the evidence as a whole, I find that the criteria applied by the surveyors to these quantities and samples was so subjective as to have not proven any of these violations. Also, insufficient direct evidence was presented to prove-up a citation for Tag A1024 concerning fire inspection deficiency as a Class III deficiency in October 1998. In October 1998, Medical Standards Tags A600, A605, A606, and A610 were cited against Watkins for the following reasons established by observation. The A600 Tag was assigned because six out of eight sampled resident records offered by the facility did not have documentation of the method of management of medication administration. Staff was interviewed and was unable to provide further information regarding the appropriateness of the manner of medication, supervision, and assistance as required by State standards. A Class III deficiency was validly assigned. Also, in October 1998, surveyor Linda Huff, who was accepted as an expert on nursing, cited Watkins for multiple problems in the administration of medication. Watkins' medication administration record (MAR) or medicine log which Nurse Huff reviewed on that date, did not match the prescription bottle labels from which patient medications were being dispensed by facility staff. While she was not able to opine whether the bottle labels or the MAR were correct, Nurse Huff believed that the very fact that the prescription labels and the MAR were not identical exposed residents to dangerous drug mix-ups, dangerous drug interactions, and incorrect over- and-under medication by facility staff, who have only limited knowledge of medicine. On October 9, 1998, Nurse Huff had found, in Watkins' dispensary, a bottle labeled for Resident P.H. as Loperamide, two milligrams up to four times a day as necessary for diarrhea. However, this drug was not reflected in the MAR which Nurse Huff reviewed that day. Etta Brinson regularly assisted with medications at Watkins. She testified at hearing and identified Petitioner's Exhibit No. 4 as Watkins' MAR or medical log for October 1998. Ms. Brinson admitted that P.H. had been prescribed Loperamide and that she had not noted that drug on Petitioner's Exhibit No 4 because the drug had been prescribed "as needed." Nurse Huff considered this a safety issue. Nurse Huff had found a prescription bottle for Thorazine, made out to Resident W.C., during the course of the October 1998 survey. However, on the day of the survey, this prescription was not recorded in the MAR provided her by Watkins. On Exhibit P-4, identified by Ms. Brinson at hearing as Watkins' MAR, Chlorpromazine was indicated for W.C. Ms. Brinson admitted that she kept two different MARs for Resident W.C. Ms. Brinson stated that she kept one MAR in a separate folder, which she had not shown to Nurse Huff in October 1998. Ms. Brinson testified that she had made a second MAR for Resident W.C. and kept it in a separate folder because he had a prescription "as needed" for hiccups. Ms. Brinson understood that the drug Chlorpromazine was a medication for hiccups. Nurse Huff stated that "Thorazine" and "Chlorpromazine" are different names for the same drug and that it is a serious problem to refer to the same drug by two different names because only a doctor, pharmacist, or registered nurse would know that they are the same drug. In October 1998, Nurse Huff had found that Resident G.M. had in Watkins' dispensary a prescription bottle marked "Clozaril, 25 milligrams, take one i.p.o. twice daily." Exhibit P-4 and the MAR which Nurse Huff saw in October 1998, showed that Watkins' staff were giving Clozaril, 100 milligrams, one tablet twice-a-day and two tablets at bed for a total of 300 milligrams. It also stated "Clozaril 25 milligrams, take two tablets twice-a-day," which is another 100 milligrams. There was no bottle of Clozaril, 100 milligrams, in Watkins' dispensary in October 1998. Nurse Huff testified that Clozaril is a central nervous system anti- psychotic drug which must be administered in slowly increased doses over time. The MAR indicated that G.M. was receiving ten times the dose of Clozaril as was indicated on his prescription bottle. Nurse Huff found this to be a health hazard. Ms. Brinson admitted that she would be concerned if the prescription bottle for G.M.'s Clozaril did not match the MAR. In October 1998, Nurse Huff also considered the situation of Resident W.I. She found in Watkins' dispensary a prescription bottle for W.I. labeled for Glucophage, "500 milligrams, two tablets in the morning and one tablet at night." She also reviewed an Insulin vial labeled for W.I. for Insulin to be administered in the morning and at night. The MAR she reviewed in October 1998, showed W.I. receiving Glucophage only in the morning and Insulin in the morning and at night. Generally speaking, when Glucophage is prescribed, it is prescribed instead of Insulin. Nurse Huff interviewed staff to see if there were a problem and even interviewed W.I. because the administration of both Insulin and Glucophage together could have such an impact on W.I.'s health. During these survey interviews, Nurse Huff determined that W.I. was on a 1500-calorie diabetic diet and took Insulin and Glucophage only in the mornings. However, at hearing, Exhibit P-4 showed W.I. getting one 500 milligram Glucophage tablet morning and night and no Insulin at all. Ms. Brinson testified that W.I. was not administered Insulin in October 1998. Ms. Brinson also stated that Watkins had a policy of taking discontinued prescription medications to the pharmacy for disposal. If W.I. was not being administered Insulin as of October 1998, Watkins' policy of disposing of discontinued medications clearly had not been followed because W.I.'s Insulin vial was still there. Moreover, based on any construction of the discrepancies in the records, Watkins did not meet medical standards. With regard to the preceding medical record problems, related in Findings of Fact 68 through 74, the Agency recorded a Class II deficiency under Tag A605, Medication Standards, on the October 1998 survey. Upon all the evidence, this deficiency assignment was proven valid. In October 1998, under Tag A606, Watkins was cited with a Class II deficiency for, among other things, keeping improperly labeled samples of prescription medicines. Evidence showed that certain samples were being dispensed to a resident without that resident's name and the dosage being placed on the sample box as required by law. Therefore, a Tag A606, Class II deficiency was proven. Tag A610, citing a Class III deficiency for improper labeling or absence of labeling of over-the-counter drugs was insufficiently proven by direct evidence. Considerable time was expended in the course of the hearing directed to issues of a pervading urine smell, the existence or absence of regularly-scheduled recreational activities for the residents, and the general cleanliness of Watkins' facility, particularly the stove hood, which problems were cited on several surveys. From the credible evidence as a whole, I find that despite constant cleaning by at least one Watkins' staff member, one or more parts of the facility contained pervasive urine odors at all times. It was also established that although Watkins addressed stove hood cleanliness through an independent contractor cleaning it every six months, the stove hood frequently was less than sanitary. However, due to the methods of presentation of evidence herein and the necessity of categorizing multiple defective components by tags and classes, Finding of Fact 78 does not comprise a single tag or class of deficiency so as to establish "repeat" deficiencies, except where specifically noted in other Findings of Fact, above. The Agency's repeated citations of Watkins for failure to provide structured recreational activities to its residents was refuted by direct evidence. Satisfactory recreational activities were provided by Watkins' contract with Apalachee Mental Health for at least four hours every week day within Watkins' facility and for optional field trips of approximately four hours, one day per week. Watkins also affirmatively established through testimony and its Policy and Procedure Manual that it had an infection control policy with regard to urine, feces, and laundry in place, contrary to citations by the Agency. The Agency did not establish that the infection control policy had to be in writing. Watkins also affirmatively established that it regularly employed a handyman to repair damage caused by residents, and that on at least one occasion when Watkins was cited for having a hole in the drywall, on-going repairs were actually in progress on a bathroom. This situation, however, does not account for all of the times that disrepair of the facility was cited. Moreover, there being some discrepancy between the testimony of Peggy Watkins and Mr. Clark, the handyman, as to when this particular bathroom repair occurred, this bathroom repair "in progress" cannot form a basis to refute all citations for damage to the walls of the facility. Due to the November 17, 1998, date of the original intent to deny the license renewal application, the Agency conducted no follow-up survey after the biennial survey of October 1998. An Ombudsmen Report done within 32 days of the Agency's October 1998 survey, found that Watkins "appeared satisfactory" under its criteria, which are not the same as the State's criteria. Representatives of the County Fire Department and County Health Department testified that they believed that Watkins had the best interest of its residents in mind and did the best job it could of providing a reasonably satisfactory facility. Laura Harris, who is employed with Apalachee Center for Human Services as its Program Supervisor for the Jefferson County Outpatient Program, and who trains its surveyors, testified as an expert witness in the areas of staff training, administration training, and quality of care. In her opinion, the overall quality of care at Watkins ranks eight and one- half on a scale of one-to-ten, and the facility itself ranks seven on a scale of one-to-ten.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for renewal of its standard assisted living facility standard license be denied and that the provisional assisted living facility license currently in use by Petitioner be revoked. DONE AND ENTERED this 17th day of February, 2000, in Tallahassee, Leon County, Florida. Hearings Hearings ___________________________________ ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative 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 this 17th day of February, 2000.
