Findings Of Fact Respondent grew up in Havana, Cuba and was a university student there when Castro came into power. As did most university students, Respondent initially supported Castro but later became disenchanted with the regime. Respondent became interested in photography as a boy and became proficient to the point he sold photographs to the news media and helped defray the expense of his medical training through photography. Following the Bay of Pigs Invasion, Respondent smuggled out of Cuba photographs of the Russian missiles that had been delivered to Cuba. Respondent acknowledged that he took all of the photographs and videotapes entered into evidence in these proceedings. At all times relevant hereto, Respondent was licensed as a physician by the Florida Board of Medical Examiners. He graduated from medical school in Madrid, Spain in 1964, completed his internship at Johnson Willis Hospital, Richmond, Virginia, in 1965, and his residency in psychiatry at the Menninger School of Psychiatry, Topeka, Kansas in 1968. Respondent came to Naples, Florida in 1969 as Director of Collier County Mental Health Clinic which post he held for several years before devoting all of his time to his private practice. Respondent was married in 1962, and divorced in 1978. He is the father of three children. His two older daughters are working on advanced degrees while the younger son is entering high school. Following his divorce Respondent concluded that by marrying at a young age, he had perhaps missed out on much of life and decided to try a more libidinous life-style. In 1980, Respondent became attracted to a 19-year old licensed practical nurse who was working at Naples Community Hospital. Although he saw her several times in the hospital, they did not engage in conversation but made eye contact in passing each other. In October 1980, another doctor referred a patient who had suffered head injuries in a motorcycle accident to Respondent for treatment. This patient, Joseph DiVito, was seen in the hospital several times by Respondent and again after DiVito was released from the hospital. At the first hospital visit with DiVito, Respondent was surprised to see Laura Hodge, the LPN at Naples Community Hospital, whose eyes had attracted Respondent. She was the woman with whom DeVito was living at the time of his accident. The charges in the Administrative Complaint involving Laura Hodge are sustained only if a doctor-patient relationship existed between Respondent and Hodge. The doctor patient relationship, if it existed, was related solely to the treatment provided DiVito. Hodge testified that she was counseled by Respondent jointly with DiVito and also alone; that Respondent gave her the drug Artine to give DiVito in the event he suffered a reaction from the drug Haldol, which was given DiVito to aid in his memory loss; that after his release from the hospital DiVito was like a baby who had to be taught to feed himself, to walk, and to get around; that she had lunch with Respondent twice, once at Keewaydin Island, where they went by Respondent's boat, and once at a restaurant in North Naples; that following the lunch she felt dizzy and does not remember removing her clothes at her apartment when returned there by Respondent and having pictures taken of her; that after being shown nude photographs of herself, she was afraid of Respondent and feared he would show the pictures to DiVito; that she Accompanied Respondent on an overnight trip to Miami where they shared a motel room; that they went to dinner at a caberet where she drank some wine and began feeling strange; that when they returned to the motel that night, she does not remember anything until the following morning when she awoke upset and began crying; and that Respondent then drove her back to Naples. Shortly thereafter, Hodge left Naples with DiVito and went to Panama City where DiVito operated a boat leasing business during the summer of 1981. She returned to Naples that fall but had no further contact with Respondent. Respondent testified that he was surprised to see Hodge the first time he went to DiVito's room in the hospital; that Hodge told him that she didn't want to stay with DiVito; that the principal person who took care of DiVito when he was released from the hospital was his brother, William DiVito; that DiVito had been a very active man and was anxious to leave the hospital before he was physically ready to do so; that he was ambulatory, could feed himself and his principal problem was loss of memory; that Hodge was never his patient; that they had lunch twice, once at Keewaydin Island and again at a restaurant in North Naples; that both of these times Respondent took numerous photographs of Hodge and gave them to her; that following the lunch and picture-taking at Vanderbilt Beach (North Naples) he drove her to the apartment she had just moved into; that he visited her at this apartment at a later date and while she changed clothes, he took pictures of her in various stages of undressing; that he showed her these pictures after they had been developed; that she accompanied him to Miami where they shared a motel room and went out to dinner; and that they returned to Naples the following day because Hodge was upset. Photographs of Hodge which were admitted into evidence are of a person who appears fully aware that she is being photographed and in many of the pictures appears to be posing. Haldol, the drug given DiVito, can cause an epileptic type reaction; however, the treatment for this reaction is by injection and not orally because of the time it takes oral ingestion to work. The testimony of Hodge respecting Respondent entrusting to her the Artine tablets to place in DiVito's cheek if he had a reaction to the Haldol is less credible than is the testimony of Respondent. Although Respondent saw Hodge when he was treating DiVito and talked to the two of them, he did not thereby make Hodge his patient. Furthermore, no credible evidence was presented that Respondent surreptitiously gave Hodge any drug which could cause her to not remember the taking of the nude photographs. Her coordination and awareness shown in those photographs belie the contention that she was drugged. Diane Beck, R.N., arrived in Naples in 1981 and worked as a nurse at Naples Community Hospital where she met Respondent. After declining several dates with Respondent, Ms. Beck accepted an offer to go scuba diving from Respondent's boat. This involved a weekend trip to the Florida Keys on the boat and they had sex over this weekend. Respondent also took some nude photographs of Ms. Beck with her consent. Evidence presented to establish a doctor-patient relationship between Respondent and Beck included one instance where, following a D & C on Beck, the gynecologist asked Respondent if he had Tylenol #3 which Beck could take if needed for pain. When Respondent replied in the affirmative, the gynecologist did not write a prescription for medication for Beck. Although Beck testified that while they were living together, Respondent gave her Darvocet, Motrin and Tylenol #3 for dismenorreah from which she chronically suffered, Respondent denied prescribing these medications for her. The most likely scenario in this regard is that Respondent had such medication available in his home and Beck took them in accordance with instructions previously received from her gynecologist. This did not create a doctor-patient relationship between Respondent and Beck. Respondent prescribed benzodiasepines to many of his patients as a tranquilizer and sleeping pill. During the period December 1981 and October 1982 the Upjohn representative (detailer) whose territory included Respondent's office, gave Respondent 465 Xanax tablets as samples. Xanax is a benzodiasepine and the Xanax tablets were .25 mg and .5 mg in strength. The Upjohn company detailer who serviced the Naples area between October 1982 and June 1984 did not testify and no record of benzodiasepines left as samples with Respondent during this period was available at the hearing. Records of those drugs are maintained by Upjohn for the current year and two preceding years only. At the time of this hearing, the earliest record Upjohn had of drugs dispensed to physicians was January 1, 1985. Around November 1982, Upjohn came out with a benzodiasepine called Halcion. This drug was left with Respondent by detailers as samples. Halcion is packaged in sleeves with two tablets in a sleeve. Generally when Halcion is left as a sample, the box contains five sleeves with two tables per sleeve. Halcion has advantages over some other benzodiasepines that it works quickly, the effects wear off quickly and it leaves no hangover effect. Furthermore, the patient may have a memory lapse for the time sedated with Halcion. Use of Halcion is contraindicated by a woman of childbearing age because the drug can adversely affect and cause deformities in a fetus in the early stages of development. Halcion (as well as other drugs) may be obtained by a physician in a stockbottle which generally consists of 100 tablets in a square bottle with a round top. To obtain a stockbottle the physician places his order with the detailer, signs the appropriate FDA forms, the detailer sends the order to his area office and the stockbottle is mailed directly to the physician. No credible evidence was presented that Respondent ever obtained a stockbottle of Halcion from Upjohn. When benzodiasepines are taken in conjunction with the ingestion of ethyl alcohol, the effects of both are enhanced. Hence, there is a danger in taking sedatives while drinking alcoholic beverages. Alcohol alone is a sedative and it is quickly absorbed in the soft tissue such as the brain. When a benzodiasepine is taken at the same time ethanol is being ingested, the alcohol provides a vehicle which allows the benzodiasepine to be more quickly absorbed into the body. While Diane Beck was dating and living with Respondent, several videotapes were made of her and Respondent engaged in various sexual activities. Ms. Beck acknowledged that she voluntarily participated in some of these videotapes but that she was unaware that others were taken. She has no recollection that some of the tapes were being made, nor did she subsequently (before the charges here considered first arose) learn of these videotapes. In those tapes, Beck had been administered Halcion by Respondent without her knowledge or consent. This finding is based upon the following facts: Respondent told Beck he had given her a lot of Halcion. When Beck became pregnant by Respondent in mid-1983, Respondent told her of potential dangers caused by the use of Halcion and suggested she have an abortion. An appointment was made by Respondent with Dr. McCree, a gynecologist, to perform the abortion and on July 11, 1983, Dr. McCree performed a D & C on Beck, aborting the fetus. On one or more occasions Beck observed what appeared to be residue in her after dinner drink, and on at least one occasion asked Respondent about it. Respondent told her it was sugar from the old brandy she was drinking. Respondent acknowledged that he often performed sexual acts on Beck while she was "passed out" and unaware of what he was doing. However, he contended she enjoyed it and had given him permission. The videotapes of a comatose female being shifted around by Respondent to improve the angle for the pictures being taken. This does not appear to be a person merely intoxicated, certainly not one intoxicated with ethanol. This person is as limp as a rag with all muscles appearing to be totally relaxed who is certainly oblivious to what is going on. It is not believed a person merely intoxicated (unless dead drunk) could be moved and manipulated the way Beck was without some reaction. Had Beck been dead drunk, she would perhaps still be intoxicated when she awoke and/or be hung over. Neither of these events occurred. Respondent's steady relationship with Beck terminated in April 1984 after the date for a wedding could not be agreed upon. She moved out of his house but they remained on friendly terms until the existence of the videotapes became known. The third complaining witness, Sandi Karppi, met Respondent in June 1984 on the beach in Naples. At the time Ms. Karppi was an LPN on private duty with a patient where she had one hour off in the late afternoon which she used to walk on the beach. One day while walking along the beach, she was followed by Respondent who was attracted to the energy with which she walked. Respondent overtook her and engaged her in conversation. During the conversation Respondent disclosed his name and that he was a psychiatrist. Ms. Karppi disclosed to him that she had a pap smear taken which was suspicious, that a second test had been done, and she was anxious to obtain the results but her doctor did not return her calls. Respondent volunteered to obtain the results of the later test and inform her. Karppi told Respondent that she walked the beach almost every afternoon and Respondent began visiting the beach to meet her during her hour off from her nursing duties. A short time after the first meeting Respondent called Karppi to tell her that he had the results of her lab test and offered to take her to dinner to give her the results. She consented. Thereafter he continued to meet her on the beach and engage her in conversation. Respondent's version of the timing of the initial events of their relationship is a little different from the version testified to by Karppi; however, these differences are not material to the issue here presented. Respondent testified that Karppi told him of her problems with the pap smear test several days after their first meeting and that he agreed to get the results of the tests. Dr. King advised Respondent obtaining the results of the pap smear and passing them to Karppi. During the meetings on the beach and on boat trips Karppi took on Respondent's boat, Respondent took numerous photographs of Karppi. On one occasion, they went on an overnight trip to Keewaydin Island with Respondent's son Eric and a friend of Eric. The two boys slept in a tent on the beach leaving Karppi and Respondent on the boat. On another occasion they went alone on the boat to Captiva Island where they spent the night on board. Karppi testified that she went to sleep fully clothed while at Keewaydin Island in a bunk bed on one side of the cabin with Respondent in another bed and when she awoke, she was naked. Nude photographs of Karppi in a comatose state are contained in Exhibit 1. Karppi never consented to having her picture taken in the nude. Respondent's version of the nude photographs is that he frequently talked to Karppi about taking nude photographs but she never consented, saying only that maybe she would allow the photographs if out of town or if she was tipsy. Respondent contends these photographs were taken while they were at Captiva Island with only the two of them on the boat and that Karppi drank a lot of wine and passed out. He then disrobed her and took the photographs. Respondent contends he gave Karppi no drugs before she passed out. However, it is concluded that Karppi was given some sedative along with the wine she drank. This conclusion is based upon the following facts: Respondent had access to Halcion, Xanax, Tylenol #3, and other drugs that could induce coma. Respondent had used such drugs on Diane Beck and was aware of the potential for use of these drugs. In order to take some of the photographs in Exhibit 1, Karppi had to be moved around enough to awaken one who was just sleeping or only sleeping off ethanol induced sleep. Some of the actions of Respondent as depicted in these photographs would have awakened or aroused one who was not fully comatose. Karppi has no recollection such photographs were ever taken, though she was sober and had no hangover the next morning. Subsequent to the boat trips Respondent took a vacation during most of the month of July during which he travelled to Europe and the Caribbean. Upon his return to Naples, he renewed his courtship with Karppi and she moved into his home August 26, 1984, the day after Respondent's oldest daughter returned to college. Respondent's testimony that they first had sex that night which Karppi spent in his bedroom is not disputed by Karppi. If they engaged in sex before that time, Karppi was unconscious and unaware of it. During part of the time Karppi stayed at Respondent's home and shared his bedroom, her mother also visited and slept in another bedroom at Respondent's home. This relationship terminated around September when Karppi moved into her own apartment. She and Respondent remained friendly and saw each other occasionally. One night in late December 1984, Karppi called Respondent from the hospital to tell him she had a headache and to ask him to prescribe some medication for her. After learning that Karppi had tried without success to get her doctor on the telephone and that her doctor had prescribed Cafergot for her headaches, Respondent called in a prescription to the hospital pharmacy to give 4 Cafergot tablets to Karppi. The label from the bottle dated December 29, 1984 was admitted as Exhibit 16. In early January 1985, Respondent went to Vail, Colorado, with another woman and Karppi offered to stay at his house with Respondent's elderly mother while he was gone. He agreed and Karppi moved in. While looking for a book in Respondent's bedroom closet, Karppi discovered the nude photographs of her which were admitted into evidence as Exhibit 1. Having no recollection these pictures had been taken, she was quite shocked and called Respondent at his hotel in Vail. He told her to be calm and they would discuss the matter when he returned. Following a more extensive search, Karppi found numerous other photographs of naked women as well as several videotapes. Karppi contacted her doctor for advice, and he referred her to an attorney who in turn referred her to the State Attorney's Office. At the State Attorney's Office, she produced the photographs of herself she had removed from Respondent's residence and her affidavit was taken. On the basis of Karppi's affidavit and the photographs, a search warrant was obtained and on January 11, 1985, a search of Respondent's home was conducted. During this search, Exhibits 1 - 16 were seized. Subsequent to the conclusion of the hearing, those exhibits unrelated to any individual involved in these charges which were objected to at the hearing were not admitted into evidence as having no relevance to these charges. Following the search of Respondent's residence, criminal charges were brought against Respondent in the Circuit Court in and for Collier County alleging sexual battery and administering drugs to Karppi without her knowledge or consent. Respondent was acquitted of those charges.
The Issue The issues are whether Respondent failed to document resident elopement drills for facility staff in violation of Subsection 429.41(1)(a)3., Florida Statutes (2008),1 and, if so, whether Petitioner should impose a civil penalty of $500.00.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating assisted living facilities (ALFs) in Florida. Respondent is a licensed ALF in Florida identified in the record as Wildspring Adult Care Center, Inc., doing business as Wildspring. A surveyor for Petitioner conducted a survey of Wildspring on October 5, 2007. The caregiver at Wildspring at the time of the survey was a person identified in the record as J. Westergaard. The caregiver, in relevant part, was unable to locate any record of facility staff drills concerning resident elopement. The caregiver contacted the administrator of Wildspring. The administrator came to the facility, but was not able to locate and was unable to produce any record of facility staff drills during 2007. The surveyor cited Wildspring for a Class III deficiency, explained the deficiency to the administrator, and scheduled a mandatory correction date of November 5, 2007. Petitioner did not conduct a follow-up survey until December 28, 2007. The Wildspring caregiver at the time of the second survey was Simon Brown. The caregiver at the time of the follow-up survey was unable to locate the Wildspring record of facility staff drills on resident elopement conducted during the year. The caregiver admitted to the surveyor that Wildspring had not conducted any resident elopement drill during the year. At the conclusion of the second survey, the surveyor cited Wildspring for a Class III deficiency and scheduled a mandatory correction date. At the time, Wildspring had eight residents at the facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent committed one State Class III violation and imposing an administrative fine of $500.00. DONE AND ENTERED this 23rd day of January, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of January, 2009.
The Issue Whether Petitioner’s application for change of ownership should be granted or denied on the basis of the allegations set forth in the Second Amended Notice of Intent to Deny (“Second Amended NOID”).
Findings Of Fact The following Findings of Fact are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts set forth in the prehearing stipulation. Parties The Agency is the regulatory authority responsible for licensure of assisted living facilities (“ALFs”) and enforcement of applicable state statutes and rules governing assisted living facilities pursuant to chapters 408, part II, and 429, part I, Florida Statutes, and chapters 58A-5 and 59A-35, Florida Administrative Code. In carrying out its responsibilities, AHCA conducts inspections (commonly referred to as surveys) of licensed ALFs to determine compliance with the regulatory requirements. The Agency’s evaluation, or survey, of an ALF may include review of resident records, direct observations of the residents, and interviews with facility staff persons. Surveys may be performed to investigate complaints or to determine compliance as part of a change of ownership process. While the purpose of the survey may vary, any noncompliance found is documented in a standard Agency form entitled “Statement of Deficiencies and Plan of Correction (“Statement of Deficiencies”).2/ The form is prepared by the surveyor(s) upon completing the survey. Deficiencies are noted on the form and classified by a numeric or alphanumeric identifier commonly called a “Tag.” The Tag identifies the applicable regulatory standard that the surveyors use to support the alleged deficiency or violation. Deficiencies must be categorized as Class I, Class II, Class III, Class IV, or unclassified deficiencies. § 408.813(2), Fla. Stat. In general, the class correlates to the nature and severity of the deficiency. Dixie Lodge submitted an application seeking to change ownership of its facility in July 2015 and was issued a provisional license to operate Dixie Lodge as an ALF. At all times material hereto, Dixie Lodge was an ALF under the licensing authority of AHCA. Dixie Lodge has been licensed under previous owners for approximately 30 years. To date, Dixie Lodge operates a 77-bed ALF with limited mental health specialty services. AHCA conducted surveys of Dixie Lodge as it related to Dixie Lodge’s CHOW application, commonly referred to as a CHOW survey. The Agency conducted two surveys of Dixie Lodge’s assisted living facility. The Agency conducted a CHOW survey on September 9, 2015. On November 6, 2015, the Agency conducted a follow-up survey to determine whether Dixie Lodge had corrected cited deficiencies. AHCA’s surveyors documented deficiencies and cited Dixie Lodge for violating statutory and rule requirements in several areas of operation. The deficiencies are incorporated in the Statement of Deficiencies, which were prepared after each survey. When a CHOW survey reveals deficiencies, the Agency can deny the upgrade from a provisional license to a standard license. If a provider has three or more Class II violations, such as alleged in this matter, the Agency may deny the upgrade to a standard license. A Class III violation warrants a follow- up visit to give the licensee or applicant an opportunity to fix the alleged deficiency. The Agency may also consider the severity of the violation. Allegations Regarding Class II Deficiencies The AHCA surveyor, Lesly Linder, who participated in the CHOW survey on September 9, 2015, found several deficiencies. As set forth in the Statement of Deficiencies for September 9, 2015, Dixie Lodge was cited for three Class II deficiencies in the following areas: (Tag A0025) resident care- supervision; (Tag A0032) resident care-elopement standards; and (Tag A0165) risk management and quality assurance. Tag A0032: Resident Care and Supervision Resident care and supervision is addressed in section 429.26(7) as follows: (7) The facility must notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment. The notification must occur within 30 days after the acknowledgment of such signs by facility staff. If an underlying condition is determined to exist, the facility shall arrange, with the appropriate health care provider, the necessary care and services to treat the condition. Resident care and supervision is also adressed in Florida Administrative Code Rule 58A-5.1082(1) as follows: An assisted living facility must provide care and services appropriate to the needs of residents accepted for admission to the facility. SUPERVISION. Facilities must offer personal supervision as appropriate for each resident, including the following: Monitoring of the quantity and quality of resident diets in accordance with Rule 58A-5.020, F.A.C. Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional well-being of the resident. Maintaining a general awareness of the resident’s whereabouts. The resident may travel independently in the community. Contacting the resident’s health care provider and other appropriate party such as the resident’s family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident’s family, guardian, health care surrogate, or case manager if the resident is discharged or moves out. Maintaining a written record, updated as needed, of any significant changes, any illnesses that resulted in medical attention, changes in the method of medication administration, or other changes that resulted in the provision of additional services. During the survey, the surveyor reviewed a sampling of 18 residents’ records, and interviewed several facility employees. The allegations regarding resident care supervision were related to Resident No. 16 and Resident No. 17. During the survey on September 9, 2015, Ms. Linder interviewed Employee A and documented in the Statement of Deficiencies that the employee stated that “Resident No. 16 had wandered from the facility about five months ago and the police returned him to the facility.” Based on Employee A’s statement, it was determined that Resident No. 16 engaged in elopement approximately five months prior to Petitioner assuming ownership of the facility. Ms. Lindner documented the elopement of Resident No. 16 as a deficiency, even though Petitioner was not the owner of the facility at that time. When asked whether AHCA is seeking to hold Petitioner responsible for the purported elopement of Resident No. 16, AHCA’s field office manager, Mr. Dickson, stated, “I don’t believe so.” The evidence presented at hearing demonstrates that Petitioner was not responsible for the facility at the time Resident No. 16 eloped from the facility and, thus, was not responsible for elopement of Resident No. 16. The surveyor also interviewed Employee F on September 9, 2015. During the interview, Employee F told the surveyor that Resident No. 17 had left the facility without notifying staff. Specifically, Dixie Lodge maintained a “Report Book,” which included documentation of incidents during each shift. In the book, the staff documented that on September 3, 2015, they had not seen Resident No. 17 on the property for the entire day. The staff then documented their efforts to locate Resident No. 17. Staff documented that they called the hospital and the local jail to determine the location of Resident No. 17. After these calls, the staff contacted law enforcement and law enforcement returned Resident No. 17 to the facility. Based on the evidence of record, there was sufficient evidence to demonstrate that the Dixie Lodge staff had a general awareness of the whereabouts of Resident No. 17. A review of the Report Book revealed that Resident No. 17 had also eloped from the facility on September 8, 2015, and had not been found at the time of the survey on September 9, 2015, at 3:30 p.m. At that time, the timeline for a one-day adverse incident had not expired. The surveyor interviewed the then administrator for Dixie Lodge and she disclosed that the facility does not have contact information for next of kin or a case manager for Resident No. 17. Even if the administrator had the contact information, Dixie Lodge would not be required to contact them (regarding the elopement), unless the resident was discharged or had moved out. Here, Resident No. 17 had eloped but returned to the facility. Tag A0032: Elopement Standards Elopement is when a resident leaves a facility without following facility policies and procedures and without the knowledge of facility staff. The elopement standards are described in rule 58A- 5.0182(8), which provides as follows: (8) ELOPEMENT STANDARDS Residents Assessed at Risk for Elopement. All residents assessed at risk for elopement or with any history of elopement must be identified so staff can be alerted to their needs for support and supervision. As part of its resident elopement response policies and procedures, the facility must make, at a minimum, a daily effort to determine that at risk residents have identification on their persons that includes their name and the facility’s name, address, and telephone number. Staff attention must be directed towards residents assessed at high risk for elopement, with special attention given to those with Alzheimer’s disease or related disorders assessed at high risk. At a minimum, the facility must have a photo identification of at risk residents on file that is accessible to all facility staff and law enforcement as necessary. The facility’s file must contain the resident’s photo identification within 10 days of admission or within 10 days of being assessed at risk for elopement subsequent to admission. The photo identification may be provided by the facility, the resident, or the resident’s representative. Facility Resident Elopement Response Policies and Procedures. The facility must develop detailed written policies and procedures for responding to a resident elopement. At a minimum, the policies and procedures must provide for: An immediate search of the facility and premises, The identification of staff responsible for implementing each part of the elopement response policies and procedures, including specific duties and responsibilities, The identification of staff responsible for contacting law enforcement, the resident’s family, guardian, health care surrogate, and case manager if the resident is not located pursuant to subparagraph (8)(b)1.; and, The continued care of all residents within the facility in the event of an elopement. AHCA alleged that Dixie Lodge failed to follow its elopement policies and procedures for Resident Nos. 16 and 17. The Statement of Deficiencies also alleged that Dixie Lodge failed to ensure that at least two elopement drills per year had been conducted with all staff at the facility. Regarding Resident No. 16, evidence of record demonstrates that Petitioner was not responsible for the facility at the time Resident No. 16 eloped from the facility and, thus, was not responsible for elopement of Resident No. 16. Although the elopement occurred before Petitioner assumed ownership of the facility, Resident No. 16 was designated as being at risk for elopement. As such, the facility was required to have photo identification (ID) on file for the Resident. Investigation by the AHCA surveyor revealed that there was a photo on file but that it was of such poor quality that the photo was not readily recognizable. The surveyor did not provide further description of the photo. Dixie Lodge’s owner, Jeff Yuzefpolsky, testified that because Resident No. 16 had been incarcerated, his picture would be immediately accessible, if needed, from the Department of Corrections’ inmate database, and that Mr. Yuzefpolsky was familiar with accessing such photographs. While there was testimony offered regarding the photo, the photo was not offered into evidence. Based on the evidence in the record, the undersigned finds there was not sufficient evidence to demonstrate that Dixie Lodge failed to maintain a photo ID for Resident No. 16. Regarding Resident No. 17, Dixie Lodge had an elopement policies and procedure manual and the staff followed their policies and procedures as it relates to Resident No. 17. Regarding the elopement drills, Ms. Walker discovered documentation of two elopement drills. While the drills did not include record of the staff who participated, there is not a requirement for such in the elopement standards. Dixie Lodge met the requirement by completing the drills and maintaining documentation of the drills. The undersigned finds that the citation for deficiency Tag A0032, a Class II deficiency, was not supported by the evidence in the record. Tag A0165: Risk Management-Adverse Incident Report AHCA also alleged that Dixie Lodge failed to prepare and file adverse incident reports. Each ALF is required to file adverse incident reports as set forth in section 429.23, which, in pertinent part, provides: Every facility licensed under this part may, as part of its administrative functions, voluntarily establish a risk management and quality assurance program, the purpose of which is to assess resident care practices, facility incident reports, deficiencies cited by the agency, adverse incident reports, and resident grievances and develop plans of action to correct and respond quickly to identify quality differences. Every facility licensed under this part is required to maintain adverse incident reports. For purposes of this section, the term, “adverse incident” means: An event over which facility personnel could exercise control rather than as a result of the resident’s condition and results in: Death; Brain or spinal damage; Permanent disfigurement; Fracture or dislocation of bones or joints; Any condition that required medical attention to which the resident has not given his or her consent, including failure to honor advanced directives; Any condition that requires the transfer of the resident from the facility to a unit providing more acute care due to the incident rather than the resident’s condition before the incident; or An event that is reported to law enforcement or its personnel for investigation; or Resident elopement, if the elopement places the resident at risk of harm or injury. Licensed facilities shall provide within 1 business day after the occurrence of an adverse incident, by electronic mail, facsimile, or United States mail, a preliminary report to the agency on all adverse incidents specified under this section. The report must include information regarding the identity of the affected resident, the type of adverse incident, and the status of the facility’s investigation of the incident. Licensed facilities shall provide within 15 days, by electronic mail, facsimile, or United States mail, a full report to the agency on all adverse incidents specified in this section. The report must include the results of the facility’s investigation into the adverse incident. Rule 58A-5.0241 identifies the requirements for filing adverse incident reports as follows: INITIAL ADVERSE INCIDENT REPORT. The preliminary adverse incident report required by Section 429.23(3), F.S., must be submitted within 1 business day after the incident pursuant to Rule 59A-35.110, F.A.C., which requires online reporting. FULL ADVERSE INCIDENT REPORT. For each adverse incident reported in subsection (1) above, the facility must submit a full report within 15 days of the incident. The full report must be submitted pursuant to Rule 59A-35.110, F.A.C., which requires online reporting. AHCA alleged that Dixie Lodge was required to file an adverse incident report for elopement incidents involving Resident Nos. 16 and 17 and an injury related to Resident No. 3. During the survey, the surveyor observed Resident No. 3 with a one-inch laceration above his left eye that was covered in dried blood. On September 9, 2015, at 12:14 p.m., the surveyor conducted an interview of Employee A. The surveyor asked the assistant administrator about the laceration on Resident No. 3’s eye. The assistant administrator responded that she learned of the injury at 10:30 a.m. AHCA took issue with the lack of an adverse incident report. However, the timeframe for preparing and filing a report had not expired. Thus, AHCA did not demonstrate by clear and convincing evidence the alleged deficiency for failure to file an adverse incident report regarding Resident No. 3. As referenced above, the adverse incident requirements related to Resident No. 16 should not be imputed to Petitioner, as Petitioner was not the owner of Dixie Lodge at the time of the incident that would trigger the compliance requirement. At the time of the survey, approximately five days after Resident No. 17 eloped, there was no documentation that a one-day adverse incident report had been filed. The elopement required a one-day adverse incident report because Resident No. 17 eloped and the incident involved law enforcement. Thus, a citation for failure to complete an adverse incident report for the September 3, 2015, elopement incident involving Resident No. 17, a Class II violation, is supported by clear and convincing evidence. A review of the Report Book also revealed that Resident No. 17 had eloped from the facility on September 8, 2015, and had not been found at the time of the survey on September 9, 2015, at 3:30 p.m. Although Resident No. 17 had eloped, the timeline for a one-day adverse incident report had not expired. Thus, the Class II citation for failing to file a one-day adverse incident report for the September 8, 2015, elopement incident involving Resident No. 17 incident was not supported by the evidence. Allegations Regarding Class III Deficiencies In addition to the Class II deficiencies, the surveyor cited 18 Class III deficiencies in the following areas: (A0008) admissions-health assessment; (A0026) resident care- social and leisure activities; (A0029) resident care-nursing services; (A0030) resident care-rights and facility procedures; (A0052) medication-assistance with self-administration; (A0054) medication-records; (A0056) medication-labeling and orders; (A0076) do not resuscitate orders; (A0077) staffing standards-administrators; (A0078) staffing standards-staff; (A0081) training-staff in-service; (A0082) training-HIV/AIDS; (A0083) training-first aid and CPR; (A0090) training-do not resuscitate orders; (A0093) food service-dietary standards; (A0160) records-facility; (A0161) records-staff; and (A0167) resident contracts. Section 400.23(8)(c) provides in part: “A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, a civil penalty may not be imposed.” Section 408.811(4) provides that a deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is required or approved by the agency. Section 408.811(5) provides: “The agency may require an applicant or licensee to submit a plan of correction for deficiencies. If required, the plan of correction must be filed with the agency within 10 calendar days after notification unless an alternative timeframe is required.” On September 17, 2015, AHCA sent Dixie Lodge a Directed Plan of Correction (“DPOC”). However, the DPOC was not offered at hearing. There was testimony regarding the content of the DPOC, but that testimony alone, without corroborating admissible evidence, is not sufficient to support a finding of fact regarding Petitioner’s failure to comply with the DPOC. The Findings of Fact below are made regarding the Class III deficiencies alleged in subsection 2, paragraph 1, of the Seconded Amended NOID. Tag A0008: Admission-Health Assessment AHCA alleged that Dixie Lodge failed to ensure that it obtained and maintained complete health assessments for Dixie Lodge residents. Specifically, the Amended NOID alleged that the files for two residents were missing health assessments. The first resident, Resident No. 16, allegedly had been re-admitted after a seven-month absence from the facility without an updated health assessment. While the readmission and the initial timeframe for updating the health assessment expired before Petitioner took possession of the property, the facility was responsible for updating the records so information is available for the facility to determine the appropriateness of the resident’s continuous stay in the facility. There is clear and convincing evidence to demonstrate that Dixie Lodge violated Tag A008 and that it indirectly or potentially poses a risk to patients. Tag A0026: Resident Care-Social and Leisure Activities AHCA alleged that Dixie Lodge failed to ensure that residents were provided a minimum weekly number of hours of leisure and social activities. The logbook reflected there were no activities offered during the month of September 2015. There is sufficient evidence to demonstrate that Dixie Lodge failed to provide a minimum weekly number of hours of leisure and social activities. Dixie Lodge’s failure to provide leisure and social activities constitutes an indirect or potential risk to residents. Tag A0029: Resident Care-Nursing Services AHCA alleged that Dixie Lodge failed to ensure that it provided nursing services as required for resident care by permitting a certified nursing assistant to change wound dressings instead of a nurse. The certified nursing assistant did not testify, nor did the administrator. Therefore, there was no admissible evidence to support the allegation. Tag A0030: Resident Care-Rights and Facility Procedures AHCA alleged Dixie Lodge failed to ensure residents’ rights were addressed. Specifically, it is alleged that residents had grievances regarding not being paid for gardening labor performed, and Dixie Lodge’s then administrator acknowledged those grievances. In addition, a resident reported a grievance regarding the resident’s roommate. The administrator acknowledged the grievances and admitted the grievances were not documented. As a result, Dixie failed to ensure residents’ rights were implemented. Tag A0052: Medication-Assistance/Self-Administration AHCA alleged that Dixie Lodge failed to ensure that it provided assistance with self-administration of medications for residents. Specifically, Dixie Lodge failed to assist a resident with self-administration of Depakene (an anti-seizure medication). The resident self-administered two doses of the medication without assistance. As a result, Dixie Lodge failed to meet the parameters for self-administration. Tag A0054: Medication-Records AHCA alleged that Dixie Lodge failed to maintain accurate and up-to-date medication observation records for residents receiving assistance with self-administration of medications by failing to properly document medication administration. The medication administration records were not offered at hearing. However, the surveyor testified about her observations while conducting the survey. Dixie Lodge did not dispute her testimony. Thus, the evidence was clear and convincing that Dixie Lodge failed to maintain accurate and up- to-date medication observation records related to administration of anti-psychotic medications. Tag A0056: Medication-Labeling and Orders AHCA alleged that Dixie Lodge failed to ensure that it complied with requirements to take reasonable steps to timely re-fill medication prescriptions for residents. It was further alleged that Dixie Lodge had not scheduled a face-to-face visit for a patient as required to obtain a prescription refill. However, there were no records offered at hearing to support the allegations. The surveyor’s testimony was based on an interview she conducted with a resident and her review of medical records, which was not corroborated by any admissible evidence. There is no clear and convincing admissible evidence in the record to support the violation. Tag A0076: Do Not Resuscitate Orders AHCA alleged that Dixie Lodge failed to develop and implement a policy and procedure related to “Do Not Resuscitate Orders (“DNRs).” The AHCA surveyor relied upon statements made during an interview by phone of Dixie Lodge employees. The employees interviewed did not testify at hearing. The testimony presented by the surveyor was based on uncorroborated hearsay, which could not be relied upon for a finding of fact. Tag A0077: Regarding Staffing Standards-Administrators The surveyor noted that the administrator of record failed to provide adequate supervision over the facility by failing to notify the Agency of an adverse incident report for three of the patients sampled (i.e., Resident Nos. 3, 16, and 17). The facts of the incidents are set forth above. Regarding Resident No. 3, the evidence offered at hearing was sufficient to demonstrate that the deficiency found was appropriate. Regarding Resident No. 16, Petitioner was not the owner of the facility at the time of the resident’s elopement and, thus, Petitioner is not responsible for the incident that occurred prior to it assuming ownership of the facility. Regarding Resident No. 17, the evidence offered at hearing was sufficient to demonstrate that the cited deficiency was appropriate. On November 6, 2015, the Agency conducted a follow-up survey wherein the surveyor cited an uncorrected deficiency regarding Tag A0077. No evidence was offered at hearing to refute the allegation that the deficiency was not corrected. Thus, the Class III uncorrected deficiency citation was appropriate. The evidence offered at hearing was sufficient to demonstrate that the cited deficiency was appropriate. Tag A0078: Staffing Standards-Staff AHCA alleged that Dixie Lodge failed to ensure within 30 days that it had obtained and maintained in the personnel file of each direct health care provider, verification that the staff member was free from communicable disease. The surveyor testified that she reviewed the records for two staff members and discovered there was no documentation in the personnel file of the staff members to demonstrate compliance with the communicable disease-testing requirement. The evidence presented at hearing supports a violation for the allegations related to Tag A0078, which is an indirect risk to residents. Tag A0081: Training-Staff In-Service AHCA alleged that Dixie Lodge failed to ensure that staff members completed required in-service training programs, including training related to HIV and AIDS. An employee’s file contained a roster of staff members who completed a training course in HIV and AIDS. Although the roster was not dated and did not include a certificate of completion, there was evidence to demonstrate that the employee had completed the training. Based on the evidence presented at hearing, there was no clear and convincing evidence that Petitioner failed to provide HIV and AIDS training to staff. Tag A0082: Training-HIV/AIDS AHCA alleged that Dixie Lodge failed to ensure that a staff member had completed a required HIV/AIDS course within 30 days of employment. Specifically, the personnel file for Employee B included a training roster which reflected that she received the training. The surveyor noted that there was no date on the roster and no certificate of completion. The evidence of record demonstrates that Employee B completed the training. Regarding maintaining documentation, the roster was not offered into evidence to determine whether the requisite information was included on the roster. In addition, Petitioner had not assumed ownership of the facility during the timeframe that the training was required and, thus, there was not sufficient evidence presented at hearing to demonstrate that Petitioner is responsible for the alleged deficiency. Tag A0083: Training-First Aid and CPR AHCA alleged that Dixie Lodge failed to ensure that a staff member who had completed courses in First Aid and Cardiopulmonary Resuscitation (“CPR”) was in the facility at all times. The allegation was supported by the record. The failure to ensure at least one staff member on each shift is trained in First Aid and CPR presents an indirect or potential risk to patients. Tag A0090: Training-Do Not Resuscitate Orders (DNRs) AHCA alleged that Dixie Lodge failed to ensure that staff members timely completed a required training course in DNRs. The surveyor’s review of the personnel files of employees A, B, and C revealed that the files did not include sufficient documentation to demonstrate that the three employees completed required training in DNRs. Employees A and C had certificates indicating that they completed the training, but the certificates did not include the duration of the course. Employee B’s file did not include a certificate indicating she completed the training within 30 days, as required. Based on the evidence offered at the final hearing, there is sufficient clear and convincing evidence to support the citation for Tag 0090. Tag A0093: Food Service-Dietary Standards AHCA alleged that Dixie Lodge failed to maintain a three-day supply of food in case of an emergency. Specifically, the surveyor observed that three proteins had expired. The failure to ensure sufficient resident nutrition is an indirect risk to residents. There was clear and convincing evidence to prove the cited deficiency. Tag A0160: Records-Facility AHCA alleged that Dixie Lodge failed to maintain facility records for admission and discharge. Specifically, a review of the facility’s admission and discharge log incorrectly reflected that 80 residents resided in the facility. It was discovered that the discharge log had not been updated to reflect that five residents no longer resided in the facility. The evidence supports the citation for a deficiency for failure to properly maintain the discharge log. Tag A0161: Records-Staff AHCA alleged that Dixie Lodge failed to maintain personnel records with required documentation. Specifically, the Statement of Deficiencies alleges that the personnel files of four Dixie Lodge employees did not include documentation of required trainings. The surveyor reviewed personnel files for the employees. Employees A, B, and C did not include documentation of first aid or CPR training. Employee D’s file did not include updated Level 2 eligibility records. Failure to maintain proper and complete personnel files for employees does not pose an indirect risk to residents so as to constitute a class III violation. Tag A0167: Resident Contracts AHCA alleged that Dixie Lodge failed to provide 30 days’ notice prior to an increase in resident rates for services. The surveyor reviewed the records of two residents and discovered that the two residents received notice of the rate increase less than 30 days before they were implemented. However, the rate increase occurred prior to Dixie Lodge assuming ownership of the facility. Thus, Petitioner was not responsible for the rate increase notice and therefore, there was not sufficient evidence to support the deficiency. Impact on Residents Petitioner seeks to maintain operation of the facility so as not to prevent a negative impact on residents. Marifrances Gullo, RN-C, MSN, FNP-BC, is the owner of Advanced Practical Nursing Services, a behavioral health and addictions management practice. She was accepted as an expert in the field of psychiatric mental health nursing, and testified about the lack of availability of appropriate placements for Dixie Lodge residents should Dixie Lodge be closed. Nurse Gullo provides mental health services to facilities such as Dixie Lodge. She testified that the dislocation of Dixie Lodge residents would likely lead to extremely detrimental effects on many residents. Edward Kornuszko, PsyD, was accepted as an expert in the provision of psychiatric and mental health services. Dr. Kornuszko has more than five years of experience seeking residential placements for patients similarly situated to those at Dixie Lodge. He testified that the task of placing up to 77 chronically ill Dixie Lodge residents at once would be “nearly impossible.” If placements were found for residents who had been at Dixie Lodge for at least 5 to 10 years, he would expect to see “considerable decompensation” in these residents. Ultimate Findings of Fact AHCA demonstrated by clear and convincing evidence that the cited deficiencies were appropriate for Tag A0165, a Class II deficiency. There was also clear and convincing evidence to demonstrate that the cited deficiencies were appropriate for the following Class III deficiencies: Tag A0008, Tag A0026, Tag A0030, Tag A0052, Tag A0054, Tag A0077, Tag A0078, Tag A0083, Tag A0090, and Tag A0093. Dixie Lodge demonstrated a potential negative impact on residents should Dixie Lodge close its doors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Administration, enter a final order rescinding its Amended Notice of Intent to Deny Change of Ownership Application. DONE AND ENTERED this 10th day of May, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 10th day of May, 2018.
The Issue The issues in DOAH Case No. 16-7558 are whether Rise and Shine Assisted Living Facility, LLC, d/b/a Rise and Shine Assisted Living Facility (Rise and Shine), committed the violations charged in the Administrative Complaint; and, if so, what the penal consequences should be. The issue in DOAH Case No. 17-2087 is whether Rise and Shine’s application for license renewal should be granted or denied on the basis of the grounds set forth in the Notice of Intent to Deny.
Findings Of Fact AHCA is the regulatory authority responsible for licensure of ALFs and enforcement of the state statutes governing ALFs, codified in chapter 429, part I, and chapter 408, part II, Florida Statutes, as well as the related rules in Florida Administrative Code Chapters 58A-5 and 59A-35.1/ In carrying out its responsibilities, AHCA conducts inspections (commonly referred to as surveys) of licensed ALFs to determine compliance with the regulatory requirements. Surveys may be performed to investigate complaints or to determine compliance as part of the biennial re-licensure process. Regardless of the impetus for a survey, any non- compliance found is written up in a Statement of Deficiencies prepared by the surveyor(s) upon completing the survey. Deficiencies are classified by a “tag,” which is a numeric or alpha-numeric identifier of the regulatory area found deficient. Deficiencies must be categorized as Class I, Class II, Class III, Class IV, or unclassified deficiencies. § 408.813(2), Fla. Stat. In general, the class correlates to the nature and gravity of the deficiency. Rise and Shine was, at all material times hereto, an ALF in New Port Richey under the licensing authority of AHCA, and was required to comply with all applicable statutes and rules. Rise and Shine was first licensed to operate as a six- bed ALF on January 30, 2015. Rise and Shine’s license authorizes limited nursing services (a higher level of services than under a standard ALF license), but the testimony was that Rise and Shine has never used its authority to provide limited nursing services. ALF licenses are valid for two years, so the expiration date for Rise and Shine’s first license was January 29, 2017. Prior to the license expiration date, Rise and Shine submitted an application to renew its ALF license with the limited nursing services authorization. (The renewal application was not offered into evidence; these facts are gleaned from AHCA’s Notice of Intent to Deny.) During the course of Rise and Shine’s first two years of operations, AHCA surveyors conducted the following surveys of Rise and Shine: complaint survey completed on June 10, 2015; complaint survey completed on November 13, 2015; complaint survey completed on February 2, 2016; survey of two complaints, follow-up survey to the November 2015 complaint survey, and follow-up survey to the February 2016 complaint survey, all completed on April 12, 2016; and the biennial re-licensure survey completed on January 11, 2017. As the parties stipulated, AHCA’s surveyors cited deficiencies at the time of each of the surveys, which are embodied in Statements of Deficiencies dated June 10, 2015; November 13, 2015; February 2, 2016; April 12, 2016; and January 11, 2017.2/ June 10, 2015, Complaint Survey The AHCA surveyor who conducted the June 10, 2015, complaint investigation found deficiencies in five different areas: tag 0025, resident care-supervision; tag 0032, resident care-elopement standards; tag 0079, staffing standards-levels; tag 0162, resident records; and tag 0165, risk management and quality assurance-adverse incident report. (At hearing, the surveyor said that a sixth cited deficiency for resident assessments was incorrect, and it has been disregarded.) The investigation was initiated because of a resident elopement on May 11, 2015. “Elopement,” according to ALF rules, is when a resident leaves a facility without following facility policies and procedures. At Rise and Shine, residents are required to sign out when they leave. In this instance, a resident who had left the ALF without signing out was attempting to find his/her way back to the facility, but instead, knocked on doors of other neighborhood homes. After the resident knocked on a neighbor’s door several times, the neighbor called the police. An officer was dispatched to escort the resident back to the ALF. The resident’s file was not at the ALF. Claudine Kammo, who identified herself as the Rise and Shine manager, told the surveyor the “administrator” had the file in her car. The manager identified the “administrator” as Kathy Azouki. The surveyor then called Kathy Azouki to conduct a telephone interview. Kathy Azouki confirmed that the resident who had left the facility was escorted back by a law enforcement officer. She admitted that the resident’s file was in her car. At hearing, Kathy Azouki was asked about the resident elopement investigated in June 2015. At first, she confused this incident with another resident elopement (whom she referred to as the “Burger King resident”). (Tr. 217). She had to review the June 2015 survey report to remember the elopement cited therein.3/ With regard to the May 2015 elopement, Kathy Azouki testified that this was not the first time this resident left the facility. She said the resident “always” went out because he/she liked to drink alcohol, and would leave to walk a block or two to a convenience store or shopping center so he/she could drink. She also acknowledged that it was “sometimes” normal for the resident to knock on the wrong doors (perhaps because of the ingested alcohol) when trying to find the way back to Rise and Shine. She said that this had not been a problem before, because other neighbors would just bring the resident back. She blamed the police involvement on the fact that this neighbor apparently did not know Rise and Shine was an ALF. But Rise and Shine--not its neighbors--was responsible for the care and supervision of its residents, including by being aware of its residents’ general whereabouts. The surveyor cited Rise and Shine for failing to maintain awareness of the general whereabouts of its residents. The citation was appropriately designated as a Class III deficiency (one that poses an indirect or potential threat to the physical or emotional health, safety, or security of a resident). In investigating the complaint at the facility, the surveyor asked to review staff schedules for May 2015, to ensure that the written work schedule demonstrated staffing coverage 24 hours a day, seven days a week, as required by ALF rules. The manager gave the surveyor blank copies of a staff scheduling form, admitting there were no completed staff schedules. As a result, Rise and Shine was cited with deficiency tag 0079, staffing standards-levels, designated a Class III deficiency. At hearing, Rise and Shine admitted to this violation. The surveyor also reviewed the facility’s elopement policies and procedures, and did not find any plan of action identifying what employees are to do if a resident is discovered missing. The manager acknowledged that there were no such provisions in Rise and Shine’s elopement policies and procedures. The surveyor cited this omission as deficiency tag 0032, elopement standards, based on the failure to develop proper resident elopement response policies and procedures, which he reasonably designated as a Class III deficiency. The surveyor determined from the facility’s admission and discharge log that the resident who had eloped was no longer at the facility, having been discharged because of elopement. The “manager” confirmed that the resident had been discharged, and at first thought the resident file was given to the facility to which the resident transferred, until she remembered that the file was in “the administrator’s” car. At hearing, Kathy Azouki confirmed that the resident was discharged because of leaving the facility on multiple occasions without signing out. Kathy Azouki offered no credible explanation for why she had the discharged resident’s file in her car. She said in general, she might have resident files with her to review notes from nurse practitioners or psychotherapists who see residents in the facility. That explanation would not apply to a file of a discharged resident, but it does suggest that the failure to maintain resident files was not an isolated occurrence. The surveyor included a citation for deficiency tag 0162 in the area of resident records, based on the failure to maintain resident records onsite, which is required for not only current residents but also discharged residents for a period of two years after discharge. Fla. Admin. Code R. 58A-5.024(3) and (3)(q). He designated it a Class III deficiency, which was appropriate. The surveyor asked Kathy Azouki whether a one-day adverse incident report and a 15-day incident report were filed with AHCA to report the resident elopement. She said that she did not file any adverse incident reports with AHCA. At hearing, she testified that she did not believe it was necessary to file an adverse incident report because she “didn’t see that the resident was in harm or danger.” (Tr. 220). The surveyor cited the facility with deficiency tag 0165, in the risk management/quality assurance area, for failure to file a report with AHCA concerning the adverse incident of the resident’s elopement that resulted in law enforcement involvement.4/ The complaint giving rise to the June 2015 survey was substantiated. The permissible survey fee is $385.70. The June 2015 surveyor testified at hearing that although Kathy Azouki was identified as the administrator, he learned from AHCA’s licensure records that she was not the administrator. The administrator of record was (and still is) Rania Azouki, Kathy’s sister. Rania Azouki was not at Rise and Shine supervising the ALF at the time of the survey, nor was she identified as the “administrator” with the discharged resident’s file in her car. Instead, Rise and Shine was being supervised by a “manager” in the absence of “administrator” Kathy Azouki. The surveyor interviewed “administrator” Kathy Azouki regarding the discharged resident who had eloped and the file in her car. The survey did not cite this anomalous practice regarding the ALF’s administrator, but this anomaly would surface again. Kathy Azouki was Rise and Shine’s designated representative at the hearing, and was present throughout the hearing, including when the June 2015 surveyor testified. She did not refute the surveyor’s testimony that on June 10, 2015, she was identified as Rise and Shine’s administrator, nor did she explain why she was identified as the administrator when AHCA’s records identify her sister Rania as the administrator. November 5-13, 2015, Complaint Survey Following a complaint investigation at Rise and Shine from November 5 to November 13, 2015, the resulting Statement of Deficiencies identified five deficiencies: one Class II deficiency in the area of staffing standards-administrators (tag 0077); two Class III deficiencies in the areas of resident elopement standards (tag 0032) and alteration of records (tag 0163); and two unclassified deficiencies in the areas of background screening (tag Z815) and background screening- compliance attestation (tag Z816). A Class II deficiency directly threatens the physical or emotional health, safety, or security of the residents. The basis for the Class II deficiency citation was that Kathy Azouki was in charge of the day-to-day operations of the ALF, but was not qualified to serve in that capacity because she had not taken the required core training or achieved a passing score on the required core competency exam. Rise and Shine admitted in response to a request for admissions that Kathy Azouki was “in charge” of Rise and Shine during the AHCA survey that began on November 5, 2015, and that Rania Azouki was not present at the facility. Rise and Shine also admitted that as of November 5, 2015, Kathy Azouki had not yet passed the core training competency exam. The statements made by Kathy Azouki and Rania Azouki to the surveyor, as reported in the Statement of Deficiencies dated November 13, 2015, are party admissions attributable to Rise and Shine; they also corroborate, supplement, and explain Rise and Shine’s admissions. Kathy Azouki was present and Rania was not. Kathy Azouki told the surveyor she was the administrator and owner. She told the surveyor that she was in charge of the facility, and that Rania Azouki was the “back up administrator” if Kathy Azouki was not available. The surveyor interviewed Rania Azouki by telephone while Rania was at home. Rania told the surveyor she could not recall the last time she had been to Rise and Shine. She could not answer questions about elopement policies, referring the surveyor to Kathy Azouki. Kathy Azouki’s testimony at hearing consistently made this same point: functionally, she (Kathy) is the one in charge of day-to-day operations at Rise and Shine. Staff is instructed to call her (Kathy) first to come to the facility when AHCA surveyors appear to conduct surveys (as happened fairly frequently during Rise and Shine’s two years in operation); only if Kathy is unavailable are they to call Rania. It is no wonder that before the Class II citation in November 2015, Kathy Azouki called herself and was referred to by others as the ALF’s administrator, since she functioned as such, while the administrator of record served a largely absentee, back-up role. In an attempt to address the problem of an unqualified person in charge, uncovered in the survey starting on November 5, 2015, Rania Azouki designated Kathy Azouki as the ALF’s manager with full responsibility to perform all tasks in Rania Azouki’s absence (which was described by both Rania and Kathy Azouki to the surveyor as most of the time). The written designation was: RISE AND SHINE ASSISTED LIVING FACILITY I RANIA AZOUKI GIVE FULL RESPONSIBILITY TO KATHY AZOUKI THE MANAGER AT RISE AND SHINE ASSISTED LIVING FACILITY TO PERFORM ALL TASTS [SIC: TASKS] UPON MY ABSENCE. RANIA AZOUKI, [Rania’s signature] NOVEMBER 9TH, 2015 727-488-1361 Although Kathy Azouki’s title was changed from the self-proclaimed administrator to manager, the functional roles were not described as changed. Whether called an administrator or a manager, Kathy Azouki was and is the main person in charge of Rise and Shine’s operations. She supervises the operations of the facility the majority of the time. At hearing, she admitted that she supervises the facility more than Rania. Rania Azouki comes in two or three times a week, to review office documents and sign paperwork. Kathy Azouki’s substantial role as the primary person in charge of Rise and Shine’s operations requires that she take the core training program whereby prospective ALF administrators and managers learn of the regulatory requirements on a wide array of subjects that must govern ALF operations, and then demonstrate their competency by achieving a passing score on the core competency exam. However, as admitted in response to requests for admissions, and as Kathy Azouki admitted at hearing, she has never received a passing score on the core competency exam. Rise and Shine’s failure to ensure that the primary person in charge of supervising the ALF be one with the core competence to do so directly threatens the physical or emotional health, safety, and security of the residents. That threat is heightened, not ameliorated, by the paper role of an absentee administrator who, at the time of the November 15, 2015, survey, met the qualifications to supervise the ALF, but did not actually function in that capacity to any significant extent, if at all. No evidence was offered at hearing to substantiate the Class III deficiency for altering records. According to the Statement of Deficiencies, the citation was based on the surveyor’s review of Kathy Azouki’s employee file, which the surveyor described as containing a card indicating successful completion of the core competency exam. No part of the employee file was offered in evidence, and the surveyor was not available to testify due to medical complications. There was no evidence substantiating the other cited Class III deficiency for inadequate elopement policies and procedures. As reported in the Statement of Deficiencies, the surveyor found that the elopement policies and procedures lacked a plan of action to direct employees in the event a resident elopes. An undated set of what appear to be form elopement policies and procedures (with Rise and Shine’s name handwritten above the typed title) is in evidence. While there are some problems with this document (such as leaving some things blank and appearing to be out of sequence from page to page), there is a plan of action directing employees when a resident elopes, such as to immediately search for the resident, call law enforcement if the resident is not found in 15 minutes, and file adverse incident reports with AHCA. Other testimony suggests that the elopement policies in evidence were not in effect until after February 2016, and no prior versions were offered. There is insufficient evidence to substantiate the unclassified deficiency for background screening violations. The surveyor found that four employees were not shown to be eligible, with two having undergone background screening but whose results were “awaiting policy review”; and two others apparently not having undergone background screening. The employees were not named in the survey report, nor did the surveyor testify. No evidence was offered at hearing to prove who the four employees were or whether the alleged deficiency was correct. No evidence was offered to substantiate the unclassified deficiency based on the lack of new background screenings for two employees, allegedly necessitated because of 90-day breaks between jobs requiring Level II background screening. The allegations of 90-day breaks were based on information about past employment in the employees’ files. That evidence was not offered at hearing; there is no evidence to support a finding that two employees had 90-day breaks so as to trigger the requirement for new Level II background screenings. The complaint that gave rise to the November 2015 survey was substantiated. The permissible survey fee is $385.70. February 2, 2016, Complaint Survey Two AHCA surveyors conducted another complaint investigation on February 2, 2016. They were joined at some point by the supervisor of the specialized unit handling ALF complaints (who is now the regional assisted living supervisor), all three of whom testified at hearing. As set forth in the Statement of Deficiencies for the February 2, 2016, survey, Rise and Shine was cited for one Class II deficiency in the area of resident supervision (tag 0025), and eight Class III deficiencies in the following areas: assistance with self-administering medication (tag 0052); staffing standards (tag 0078); staffing levels (tag 0079); staff in-service training (tag 0081); training-HIV/AIDs (tag 0082); training in medication management and self-administration assistance (tag 0084); training in do-not-resuscitate orders (tag 0090); and risk management/quality assurance (QA)-adverse incident reports (0165). (An unclassified background screening deficiency, tag Z815, was administratively deleted in May 2016.) The impetus for the complaint investigation was another resident elopement incident that again resulted in law enforcement involvement, and again did not result in adverse incident reporting to AHCA. The details regarding this incident were somewhat conflicting. The most credible version was provided by the deputy sheriff who testified at hearing, with details set forth in the incident/investigation report that he prepared. The undisputed portions of the story are that the deputy was dispatched on January 23, 2016, at 9:55 p.m., to respond to a welfare check, based on a call received that someone at a Burger King restaurant on the corner of U.S. Highway 19 and Moog Road needed to be checked. The deputy arrived and spoke with someone who self-identified as a resident of Rise and Shine, who had left the facility because of issues going on there. The deputy said he would take the resident back to the facility and he would look into what was going on there. Shortly after 10:00 p.m., the deputy transported the resident back to Rise and Shine in his patrol car, and had the resident wait in the back seat while he sought to make contact with a staff person. The deputy went to knock on the door, and found that the door was not only unlocked but also slightly ajar. After knocking multiple times, he pushed the door open, announcing he was with the sheriff’s office. As he described it at hearing, it was “pitch black” inside. (Tr. 116). No one responded, but he could hear someone snoring in one of the rooms. The deputy looked around for an employee, but found none. He made his way into the kitchen, and observed an emergency contact list on the wall. He started calling numbers, starting at the top and working his way down. At the top of the list was Kathy Azouki, identified as the owner. He called her six times between 10:13 p.m. and 10:28 p.m., but there was no answer. He then tried the next number, which was answered by Madeline Azouki, Kathy’s mother, who was, at the time, employed by Rise and Shine as a resident caregiver.5/ Madeline told the deputy that she was with Kathy in Tampa for a family party. The deputy informed Madeline that he was at Rise and Shine to return the missing resident, but no staff was there and three residents had been left alone. Madeline said that normally she would be there, but they had recently hired two employees who were supposed to be working that evening. Madeline promised to call one of the employees and tell them to return to the ALF. Rania Azouki, the administrator of record, was obviously not at Rise and Shine at the time, nor did Madeline indicate that was to be expected. No mention was made of Rania Azouki being on the emergency contact list, or high enough on that list so as to have been called by the deputy. Madeline did not suggest that the deputy call Rania to come in to address this employee problem or the unattended resident care issues. At 11:12 p.m., the deputy observed a car drive up to the ALF, with two occupants who later identified themselves as the missing staff persons, Christina Everett and Rahyna Chery. When they got out of the car, the deputy saw that Christina was carrying a To-Go bag from Red Lobster. The deputy noted at hearing that the nearest Red Lobster was two towns to the north. For over an hour, the resident who had eloped sat in the back seat of the deputy’s patrol car while the deputy attempted to get a Rise and Shine employee back to the facility. The deputy questioned the two Rise and Shine employees regarding the resident elopement. Christina Everett reported to the deputy that she worked that day, and knew the resident left the facility at around 11:30 a.m. Christina said that she went out to look for the resident for several hours, but was unable to find the resident and returned to the ALF at around 4:00 p.m. Rahyna Chery arrived for work at 6:00 p.m. Christina said that she and Rahyna left Rise and Shine together at 8:45 p.m. to look for the missing resident. She said they drove around and stopped at the Red Lobster to get To-Go food. Christina said Madeline called to tell her the resident was back at Rise and Shine with a deputy, and that is when (and why) Christina and Rahyna returned. Rahyna Chery’s report to the deputy was similar: she arrived at Rise and Shine at 6:00 p.m. Later, Christina told her about the missing resident, and they went out together to search. Rahyna confirmed that while they were out looking “everywhere” for the resident, they picked up some food for themselves. Rahyna told the deputy that since the other ALF residents would be asleep, she thought it was all right to leave the facility. The deputy concluded his report with this observation: After conducting my interviews, I concluded that the house was unsupervised from [8:45 p.m.] until Christina arrived back on scene at [11:15 p.m.] During that time, there was no one in the residence to care for the other patients who could have needed assistance or had a medical emergency. (AHCA Exh. 8 at 5). The deputy’s observation was apt. That there was no emergency was fortuitous, thanks, in part, to the deputy’s intervention, which put an end to the nights on the town by Rise and Shine’s employees and manager. At hearing, Kathy Azouki attempted to portray the resident elopement incident as a commonplace occurrence, stating that the resident always wanted staff attention and when the resident would not get one-on-one attention, like on this occasion, the resident would leave without signing out. According to Kathy Azouki, the resident would “just go, like, across the street for a couple hours and just come back. Or [the resident] would go, like, around the block and come back. [The resident] would do that often.” (Tr. 224). During the complaint investigation, Kathy Azouki told the surveyors that she was not aware that the resident had gone missing until she and Madeline received a call from the deputy who reported that he was at the ALF with the resident. At hearing, Kathy Azouki contradicted the version of events reported by the two employees to the deputy at the time of the incident, and also contradicted her own statements given to the surveyors on February 2, 2016. She testified that both she and Madeline were at the facility that day, and served dinner at 5:30 p.m. After dinner, at or close to 6:00 p.m., Kathy and Madeline were getting ready to leave. The resident asked to go with them, but was told no because they were going to a family event. The resident was unhappy and walked out, refusing to sign out. Kathy Azouki said she went outside to try to get the resident to come back, and then to watch where the resident was going, “just to make sure that I knew that [the resident] was going to where [the resident] was going.” (Tr. 225). Kathy Azouki also testified that at the same time (right after dinner), she and Madeline left for Tampa. Kathy Azouki did not testify that she observed the resident walk to the Burger King, which, although only a quarter-mile away, was on the corner of U.S. Highway 19 (a major north-south thoroughfare) and a different road than where the ALF is located. The incident was in January; it would have been dusky to dark at 5:30 to 6:00 p.m. Kathy Azouki testified that only one staff person was scheduled to work that night, Rahyna. Kathy Azouki reported to the surveyor that Rahyna had last worked at an adult family day care home, and that since residents could be left alone there, Rahyna thought it would be okay to leave the ALF residents alone. As the assisted living supervisor clarified at hearing, however, even for adult family day care homes, a resident may only be left alone for up to two hours, and only if a health care provider authorizes it for that resident. The abandonment of Rise and Shine residents was for more than two hours, and would not have been permissible even in an adult family day care home. More importantly, the attempt to excuse the incident this way is not defensible. Instead, it underscores the lack of adequate knowledge of ALF regulatory requirements, and lack of adequate training of employees who will be caring for residents, at times (such as on January 23, 2016) without supervision. Kathy Azouki testified that after the incident, Rahyna was fired; Christina apparently was not, although she was the one who knew the resident had gone missing at 11:30 a.m., and apparently did nothing to alert authorities. It is possible that Rise and Shine’s elopement policies and procedures were adopted after this incident, but other than noting that the facility now has alarms on the doors so that staff will know when residents leave, Kathy Azouki did not seem to know much about the facility’s own policies and procedures, such as a requirement to call law enforcement within 15 minutes if a missing resident is not found. If Kathy Azouki’s testimony that she knew the resident had eloped at around 6:00 p.m. (at nightfall) were to be credited, that would make matters worse in several ways. It would mean that she and Madeline left knowing that a resident had eloped at nightfall without doing anything about that problem, and without reinforcing to the one or two employees left in charge that at least one of them needed to remain at the facility with the three other residents. If there was only one employee on duty, as Kathy Azouki stated, then that employee would be limited in what could be done to address the elopement because the employee would have to remain onsite while Kathy and Madeline Azouki were headed to Tampa for their party. Once again, apparently no consideration was given to calling in the administrator of record, Rania Azouki, to supervise the facility, or to look for the missing resident after dark. A single Class II deficiency was cited to encompass both the resident elopement (not knowing the resident’s general whereabouts, apparently for over ten hours) and the abandonment for two and a half hours of the ALF’s other three residents who were left entirely alone in a “pitch black” facility. Arguably, the occurrences on January 23, 2016, warranted two separate, but related, Class II deficiencies: one for the elopement, and another for a flagrant violation of the requirement that an ALF be staffed 24 hours a day, seven days a week by someone who holds a current, valid card documenting course completion in First Aid and Cardiopulmonary Resuscitation (CPR). Without question, the single Class II deficiency citation was warranted. The large number of staff training violations cited as Class III deficiencies were admitted by Kathy Azouki at hearing. She attempted to brush off all of these deficiencies with a comment that sometimes staff had things come up and could not do their training within the required 30-day window. However, a review of the Statement of Deficiencies (AHCA Exh. 3 at 5-8) reveals a wide array of training violations, including by Kathy Azouki. As of February 2, 2016, she had not completed the training in infection control or in HIV/AIDs since her employment in 2014, which was a bit more than 30 days ago, nor had she completed the required two hours of continuing education in assisting residents to self-administer medication. Kathy Azouki was also cited for violating the requirement to submit a written statement from a health care provider within 30 days of her hire, documenting that she has no signs or symptoms of communicable diseases. As part of the same citation, Kathy Azouki was also found to have violated the requirement to document a negative tuberculosis (TB) examination annually. This single citation was reasonably classified as a Class III deficiency. At hearing, Kathy Azouki responded to only part of this citation, regarding the required annual negative TB exam. She said she had a chest x-ray, which she asserted (with no supporting evidence) was good for five years to prove she was free of TB. Even if she was right, that is not what the rule requires. She also claimed the chest x-ray was in her employee file, but that is not what she told the surveyor. A single Class III deficiency was found for two separate violations of the rule requirements for staffing levels. One requirement is that a staff member who is alone with residents must have a current, valid card showing completion of training in first aid and CPR. The staff person who was scheduled to work alone on the night of January 23, 2016, according to Kathy Azouki, did not complete training in first aid or CPR. Of course, even if she had such training, it would not have done the other residents any good when she abandoned them for two and a half hours to look for the eloped resident and travel two towns north to get Red Lobster take-out food. But this certainly does not excuse the violation; instead, it paints a picture of a systemic failure by the person in charge of Rise and Shine to understand and implement the regulatory requirements. It also underscores the lack of concern by the unqualified person in charge for the well-being of residents left alone with other unqualified persons. The other part of the staffing level citation repeated a previous deficiency for failure to maintain written staffing schedules so as to demonstrate 24-hour staffing coverage. This time, Kathy Azouki gave the surveyor a copy of what purported to be a February 2016 schedule, but it had 30 days and started on the wrong day of the week. The actual staff working on February 2, 2016, was not the staff shown on the schedule. Kathy Azouki admitted to the surveyor that the written staff schedule purporting to be for February 2016 was not correct. A single Class III deficiency for these two separate violations of the staffing level rule was lenient under the circumstances. A Class III deficiency was cited in the area of assisting residents with self-administration of medication. The survey report found two problems with the staff person’s practices in this regard. For two residents, the staff person failed to read the prescription label aloud to the resident before dispensing the medication. In addition, for one of the two residents, the staff person failed to dispense the medication in the resident’s presence. Instead, while the resident was out of sight in the bathroom, the staff person took the resident’s medication out of the labeled container, put it in a paper cup, and left it for the resident at the dining table. The Class III violation was warranted, at least with respect to the second practice, and arguably for both practices, as discussed below. At the time of the survey (eight days after the resident elopement), Kathy Azouki told the surveyors that she did not file a one-day adverse incident report because she did not consider it an elopement. At hearing, Kathy Azouki said that she thought she had filed a one-day adverse incident report, but did not file the required 15-day incident report until after Rise and Shine was cited for an uncorrected deficiency in the follow-up survey in April 2016. AHCA Exhibit 10 shows a “one-day” report signed by Kathy Azouki as manager and dated April 14, 2016, and both a handwritten and typed version of a “15-day report,” with the latter indicating it was electronically filed with AHCA on April 18, 2016. These reports, prepared by Kathy Azouki, correctly conclude that there was an elopement requiring adverse incident reports, not only because of the elopement but also because the incident resulted in law enforcement involvement. A Class III citation on February 2, 2016, for failing to file a one-day adverse incident report, was appropriate. The complaint being investigated in the February 2, 2016, survey was substantiated. April 12, 2016, Follow-Up Surveys and Two-Complaint Survey AHCA conducted a follow-up survey to the November 2015 survey, as reported in a Statement of Deficiencies issued on April 12, 2016. In the follow-up survey, a Rise and Shine staff member admitted to the surveyor that Kathy Azouki had taken the core competency test “again” and received a failing score, but despite failing the test, Kathy Azouki continued to manage the facility on a day-to-day basis. Kathy Azouki confirmed to the surveyor that she provided daily oversight of the facility, and that she had taken the core competency exam and failed. The surveyor was provided, and considered, the written statement by Rania Azouki designating Kathy Azouki as manager, with full responsibility to perform all tasks in Rania’s absence. Rania Azouki was absent again during the April 12, 2016, survey; as before, staff called Kathy, not Rania, to come in when the surveyor arrived. Rise and Shine was properly cited for an uncorrected Class II deficiency, because the significant violation cited in the November 13, 2015, survey report, continued unabated five months later. The only difference was that by April 12, 2016, Kathy Azouki had actually taken the core competency exam, when it is not clear that she had even attempted to do so previously, but she failed the exam. Yet, undeterred, she continued as the primary person in charge of the ALF. An uncorrected unclassified violation of background screening requirements was cited with regard to one staff person, identified as Employee D. At hearing, the surveyor who conducted this follow-up survey could not name Employee D. Just as the original citation in November 2015 was unsubstantiated with evidence at hearing, there is no evidence to substantiate an uncorrected background screening violation on April 12, 2016. Rise and Shine was cited for an unclassified, uncorrected violation by failing to ensure that four employees had signed an attestation of compliance (tag Z816). This time, the predicate for the violation was not that employees had a 90-day break in employment, but rather that all employees were required to sign a completed attestation form. This allegation was substantiated. In fact, Kathy Azouki admitted to the surveyor that she had not obtained signed compliance attestation forms, and that she was unaware of the requirement. Kathy Azouki testified that she asked the nurse who runs the Rise and Shine training programs, and was told this is a new requirement. To the contrary, the requirement has been in the background screening laws since before Rise and Shine was licensed. See §§ 408.809(2)(c) and 435.05(2), Fla. Stat. (2014). The citation was proper. Also on April 12, 2016, AHCA conducted a follow-up to the February 2, 2016, survey, and found uncorrected deficiencies. The Class III citation for medication assistance was found uncorrected, because an employee just handed residents their medication without reading the medication label aloud or even telling the residents what medication she was handing them. She said that she does not tell residents what medication they are taking; they just take whatever she gives them. Section 429.256, Florida Statutes, requires staff to take the medication in its properly labeled container to the resident, and, “[i]n the presence of the resident,” read the label, open the container, remove a prescribed amount of medication, and close the container. AHCA’s position is that this statute requires staff to read the label aloud to the resident. That is the only meaning that makes sense of the requirement that the prescription label be read in the resident’s presence. If the statute was intended to require only that the staff persons read the label silently to themselves, the requirement to do so in the residents’ presence would be unnecessary. AHCA’s position is consistent with its discoverable precedent.6/ And Rise and Shine knew AHCA’s position because it was set forth in the February 2, 2016, survey report. Not reading the prescription label to the resident, and not even telling the resident what medication the resident is being given to take, are practices contrary to the notion that these unlicensed staff persons have authority only to assist the residents to self-administer their medications. The statutory procedure, read in that light, must require the staff person to inform the resident (by reading the label aloud in the resident’s presence) of what medication the resident is self-administering. Otherwise, the action of the unlicensed staff person would exceed the authorized role of assisting the resident; the staff person would be administering the medication to the resident, without a license to do so. In the context in which this survey finding is raised in this proceeding--not as the basis for imposing sanctions, but rather, as one piece of evidence regarding Rise and Shine’s overall compliance with licensure requirements--the finding of an uncorrected Class III deficiency was appropriate. An uncorrected Class III deficiency was found in the staff training area. More than one year after an individual became employed at Rise and Shine (in January 2015), the employee had still not received in-service training for meeting the needs of ALF residents in two important areas: assistance with activities of daily living; and recognizing and reporting abuse, neglect, and exploitation. This longstanding, continuing training deficiency was appropriately cited. Rise and Shine was also appropriately cited for an uncorrected Class III deficiency by failing to file the one-day and 15-day adverse incident reports for the resident elopement incident that occurred on January 23, 2016. Kathy Azouki told the surveyor that she did not realize she could electronically file one-day and 15-day reports for the January 23, 2016, incident nearly three months later. She was informed that she could, and this time she prepared and submitted the reports shortly after the April 12, 2016, survey. Her claim at hearing that she timely filed a one-day adverse incident report is rejected as not credible and as contrary to the evidence. If she did prepare such a report, there was no evidence that it was filed with AHCA, and she offered no such evidence. A separate investigation was conducted on April 12, 2016, based on two complaints. A separate deficiency was found and cited, but the complaints were not substantiated. An unclassified deficiency was cited based on the failure of Rise and Shine to register its employees with the background screening clearinghouse within 10 days of their initial employment. Kathy Azouki admitted to the surveyor that she had not done so, and repeated her oft-used response that she was unaware of the requirement. Once again, this requirement has been in statute (§ 408.812, Fla. Stat.) and AHCA’s implementing rule (Fla. Admin. Code R. 59A-35.090) since before Rise and Shine was licensed. The citation was appropriate. January 11, 2017, Biennial Re-licensure Survey AHCA conducted the first standard (non-complaint) survey since Rise and Shine was licensed to begin operations, as the biennial re-licensure survey to determine compliance with licensure standards in connection with Rise and Shine’s pending application to renew its ALF license with limited nursing services. At the time of the survey, there were two residents. A Statement of Deficiencies prepared by the surveyor found 12 areas of non-compliance, 11 of which were classified as Class III deficiencies, with one unclassified deficiency. The surveyor found non-compliance, at the Class III level, with requirements for resident health assessments. For both ALF residents--one admitted November 11, 2016, and the other admitted September 14, 2016--the required health assessment did not document the residents’ height and weight at admission. While the residents’ files had weight entries at subsequent times, there was no base weight at admission for either resident, which would be important to discern and track changes that could indicate problems. In addition, for one resident, there was no documentation of allergies, only a note stating, “FU H+P.” Kathy Azouki noted, in defense, that health care providers are required to fill out the health assessment forms for residents at admission. However, the ALF is required to verify the form’s completeness, and, if incomplete, to obtain the missing information from the provider and note it in the resident’s file. Fla. Admin. Code R. 58A-5.0181(2)(b)1. and 2. That was not done. The finding of non-compliance at the Class III level was appropriate. Another finding of non-compliance at the Class III deficiency level was in the area of resident social and leisure activities. On the day of the survey, the activity calendar scheduled the following: grocery store and mall, 10:00 a.m. to 1:00 p.m. The activity was cancelled. The calendar also did not schedule any activity for the following day. Instead, the activity scheduled for all Thursdays was: “use freely” (that is, there were no scheduled activities). The surveyor found in the resident contracts (one of which is in evidence) that Rise and Shine committed to provide two hours of activity daily. At hearing, Kathy Azouki testified that the planned activity was cancelled because of the survey, although she did take one resident out to a store for 40 minutes. She admitted there was another staff person working that day, and she did not explain why the other staff person could not carry out the scheduled activity, even if Kathy Azouki wanted to stay at the facility with the surveyor. Moreover, Kathy Azouki never asked the surveyor if she could leave and come back after the scheduled activity, nor did she ask the surveyor if she wanted to join them for the activity. AHCA witnesses confirmed that both options were standard practice. The non-compliance at a Class III deficiency level was substantiated. Beyond just a contractual obligation, social and leisure activities, including planned outings, are required by rule 58A-5.0182(2). Activities are important to the emotional well-being of ALF residents due to their needs for assistance to live somewhat independently. Another finding of non-compliance cited at the Class III level was the failure to provide a decent living environment free from pests. The surveyor observed dirt and numerous ants crawling on the wall behind the pedestal sink in a bathroom. The ants were seen crawling in and out of a hole in the wall behind the sink. Dead ants were also observed in the corner of the bathroom floor near the toilet. When the surveyor showed Kathy Azouki the ants, she said that it looked like they were coming from outside, but she had not noticed them before. She told the surveyor that the ALF uses a pest control company, but then contradicted herself and said that the ALF had no pest control contract and no pest control services had ever been provided. At hearing, Kathy Azouki did not dispute the presence of ants or an anthill/dirt pile in the bathroom, but said that the infested bathroom was for employees, and was not used by residents. Contrary to her hearing testimony, she told the surveyor that residents use that bathroom. Kathy Azouki’s changed story at hearing was neither credible, nor consistent with her prior statement. The finding of non-compliance at the Class III level was appropriate. Notably, no proof was offered to show that the infestation and hole in the wall has been fixed. Another licensure requirement found not met, at the Class III deficiency level, was in the area of standards for administrators. The administrator of record, Rania Azouki, had no documented continuing education after having passed the core competency exam in June 2013. At hearing, Kathy Azouki did not dispute this finding. Administrators and managers must complete 12 hours of continuing education every two years after passing the core competency exam. Fla. Admin. Code R. 58A-5.0191(1)(c). Rania Azouki has not been in compliance since June 2015. This non-compliance finding is more significant than found by the surveyor because of the consequences dictated by rule. Another ALF rule provides that an administrator must: Satisfy the continuing education requirements pursuant to Rule 58A-5.0191, F.A.C. Administrators who are not in compliance with these requirements must retake the core training and core competency test requirements in effect on the date the non- compliance is discovered by [AHCA]. Fla. Admin. Code R. 58A-5.019(1)(a)5. The consequence of the survey’s discovery of Rania Azouki’s non-compliance is that neither Rania nor Kathy Azouki is currently qualified to supervise the ALF as administrator or manager. An unqualified person (Kathy Azouki) has been supervising the facility; now there is not even an absentee administrator qualified, on paper, to supervise the ALF. Another finding of non-compliance was directed to the administrator of record, whose employee file failed to document an annual negative TB examination. This finding was not disputed by Kathy Azouki and was appropriately cited at a Class III deficiency level. As before, Rise and Shine was found non-compliant with staff training requirements. A single Class III deficiency was found based on two separate training violations. One employee, hired on January 2, 2017, had not completed one hour of training in infection control before providing direct care to residents. Kathy Azouki did not dispute these facts; she told the surveyor that she was under the wrong impression that 30 days were allowed to complete the training. Another employee’s file had a training certificate for 90 minutes of training in activities of daily living and resident needs and behaviors, but three hours of training was required. Kathy Azouki acknowledged to the surveyor that the employee had only completed 90 minutes of training, and said she was not aware that more than 90 minutes was required. At hearing, Kathy Azouki addressed the second part of this two-part deficiency. Contrary to what she told the surveyor, she testified that the problem was with the training certificate, which incorrectly put 90 minutes when it should have shown three hours. Her revised explanation was not credible. Notably, Rise and Shine did not offer a corrected certificate in evidence at hearing. This Class III deficiency was appropriate. Another finding on non-compliance at the Class III deficiency level was in the area of staff training in assisting residents to self-administer medicine and medication management. Here, too, an employee had been allowed to assist residents with their self-administration of medication before the employee completed the required training. Kathy Azouki told the surveyor that the employee was scheduled for training the next week. No proof was offered at hearing that the training was completed. The finding of non-compliance was appropriate. Rise and Shine was found non-compliant at a Class III deficiency level in the area of food service-dietary standards. The surveyor found that the facility was not following the planned menu, nor was it documenting substitutions when the menu was not followed. The significance is that planned menus must be reviewed annually by a qualified dietician or nutritionist to ensure that the planned meals meet certain nutritional standards. Substitutions must be of comparable nutritional value, and must be documented to allow for oversight as to whether nutritional standards are met. Fla. Admin. Code R. 58A-5.020(2)(c) and (d). For example, a planned lunch menu called for spaghetti with meatballs and tomato sauce, and mixed vegetables. No mixed vegetables were served. A staff person contended that there were beans in the spaghetti, which were substitutes for vegetables, but the claimed substitution was not documented. The finding on non-compliance at a Class III level was appropriate, and was not disputed by Rise and Shine. Rise and Shine was also found non-compliant with regard to employee standards, cited at the Class III level. An employee file contained the employment application, but no prior employment was listed and no references were provided, as required by rule 58A-5.024(2)(a). This finding was not disputed. In questions to the surveyor at hearing, Rise and Shine seemed to imply that this rule did not apply to ALFs with less than 14 beds, but that is wrong. Rise and Shine was also found not in compliance with the requirements for resident contracts, and the non-compliance was designated a Class III deficiency. One resident contract, in evidence, had been signed on November 11, 2016, but the space for the rate to be charged was left blank, contrary to rule 58A-5.025(1)(b). Kathy Azouki explained that the reason for the violation was that--two months after the contract was signed and the resident admitted--they were in the process of finding out how much money the resident gets. She said that although the resident would be charged, he had not been billed yet. Her explanation does not excuse the violation. For the protection of residents, signed resident contracts must contain the daily, weekly, or monthly rate, and the specified rate cannot be increased without first giving 30 days’ notice. The finding of non-compliance was appropriate. The final finding of non-compliance at the Class III deficiency level was in the area of limited nursing service standards. The employee identified as the registered nurse (RN) who would provide limited nursing services had a license on file that was only valid until April 30, 2015. If this had been an interim survey, instead of the biennial licensure survey, the undersigned would not find this to be a deficiency of more than paper proportions (i.e., Class IV), because there was no evidence that Rise and Shine has ever provided limited nursing services. Its license status would not require that it directly provide limited nursing services; it may, as it has done, make arrangements with home health agencies to visit the facility and provide any needed nursing services to residents. However, the licensure standards with which Rise and Shine must be in compliance for renewal of its ALF license with limited nursing services require that Rise and Shine prove that it has a qualified nurse in its employ or under contract. Thus, the finding in this biennial re-licensure survey is appropriate. Once again, no evidence was offered at hearing to prove that Rise and Shine does, indeed, have a nurse on staff or under contract, with a current, valid license. Another point of concern raised by this survey finding is that at hearing, Kathy Azouki testified that this same employee (identified as the RN) provides the staff training at Rise and Shine. To be qualified to provide certain training, she would have to hold a valid RN license, not a license that expired in 2015. Thus, Rise and Shine has not demonstrated that its staff training that must be provided by a RN is being conducted by a qualified person. The final finding of non-compliance was in the area of the background screening clearinghouse requirements. Once again, despite having been educated during the April 2016 survey regarding the obligation to register new employees in the background screening clearinghouse so that a complete employee roster is maintained with employment status of all employees shown, Kathy Azouki admitted to the reporter that an employee hired more than one month earlier, on November 30, 2016, was not listed on the background screening clearinghouse employee roster. Rise and Shine did not dispute this finding, which was designated as an unclassified deficiency. Evidence of Compliance With Licensure Requirements Rise and Shine presented no evidence to prove that it meets licensure requirements for renewal of its ALF license with limited nursing services, for which it apparently applied (according to AHCA’s Notice of Intent to Deny). The renewal application is not in evidence. AHCA did not identify any application deficiencies in its Notice of Denial, except to the extent that the biennial re-licensure survey may demonstrate application deficiencies. However, as found above, the biennial re-licensure survey demonstrates numerous areas in which Rise and Shine was found to not meet licensure standards. In general, a licensee would be given 30 days to correct Class III deficiencies cited in a survey. At some point thereafter, AHCA would conduct a follow-up survey, and only if the deficiencies are found uncorrected could the deficiencies be cited in an administrative complaint as the basis for imposition of fines. The Administrative Complaint here does not include any charges or seek any fines based on Class III deficiencies, even as to those uncorrected Class III deficiencies found in the April 2016 follow-up surveys. Separate from the disciplinary context, with Rise and Shine’s renewal application pending, the findings in the biennial re-licensure survey, substantiated in this proceeding and largely undisputed by Rise and Shine, stand as strong evidence that Rise and Shine is not in compliance with the statutory and rule licensure standards required to renew its ALF license with limited nursing services. The hearing testimony of Kathy Azouki was compelling evidence that Rise and Shine continues to be supervised by her, despite the fact that she remains unqualified. The facility must be under the supervision of an administrator who is responsible for the operation and maintenance of the facility, including the management of all staff and the provision of appropriate care to all residents. Fla. Admin. Code R. 58A-5.019(1). Functionally, that person was shown to be Kathy Azouki. Kathy Azouki admitted that she supervises the facility more than Rania. Since an ALF operates 24 hours a day, seven days a week, that means that Kathy Azouki supervises the facility at least 183 days a year (barely a majority of the time). The impression given is that Kathy Azouki supervises the facility much more than Rania. Kathy Azouki remains the person in charge, with day-to-day oversight of the facility operations. She spoke of training (or not training) her employees; she is the one on call, not Rania, to come in when surveyors show up; and indeed, when the surveyors were digging into their inspection work during the February 2016 complaint survey, Kathy Azouki took great offense when she found the surveyors in her office, with her resident files, employee files, and financial files all over her personal desk. Meanwhile, Rania Azouki remained absent from Rise and Shine for all surveys except for a brief appearance on January 11, 2017; even then, Rania was not made available to the surveyor, who dealt with Kathy Azouki. Rania Azouki has only made cameo appearances on paper--as the one who signs paperwork, and as the administrator of record on paper. In fact, it appears that her initial paper qualifications may have been lost, as she has not followed up her initial steps taken in 2013 and 2014 by meeting the subsequent requirements to maintain qualification. Fittingly, Rania Azouki was named on Rise and Shine’s witness list, but she did not appear at hearing to testify; Kathy Azouki took responsibility as Rise and Shine’s hearing representative and sole witness. Ultimate Findings of Fact The clear and convincing evidence establishes that currently, and throughout the two-year span of operations at Rise and Shine, the ALF was not supervised by a qualified person. The lack of a qualified person in charge of the ALF has had a demonstrable ripple effect through the ALF operations, causing a demonstrated pattern of deficiencies that trace back to the fact that the person in charge never demonstrated the core competency to be in charge of an ALF. Although none of the matters charged in the Administrative Complaint resulted in death or serious injury to any resident, the fact that no tragedy occurred was a mere fortuity for which Rise and Shine can be thankful. Residents were plainly endangered by the facility’s negligence when the residents were left alone for at least two and a half hours, with the front door unlocked and ajar. Rise and Shine has failed to meet its ultimate burden of proof that it meets the licensure requirements so as to be entitled to renewal of its license. Instead, the clear and convincing evidence establishes that Rise and Shine does not meet the requirements in statute and rule for renewal of its ALF license with limited nursing services.
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: (1) denying the application for license renewal filed by Rise and Shine Assisted Living Facility, LLC, d/b/a Rise and Shine Assisted Living Facility; (2) imposing administrative fines in the total amount of $17,500.00; and (3) assessing survey fees in the total amount of $771.40. DONE AND ENTERED this 9th day of November, 2017 in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 9th day of November, 2017.
