00-001066 Agency For Health Care Administration vs. H &Amp; C Retirement Center, Inc., D/B/A Retirement Life Center Status: Closed Recommended Order on Friday, September 29, 2000.

Summary: Failure to timely update emergency plan justifies imposition of administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 00-1066

)

H & C RETIREMENT CENTER, INC., )

d/b/a RETIREMENT LIFE CENTER, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

by video teleconference with the parties appearing from Fort

Lauderdale, Florida, on July 26, 2000, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Alba M. Rodriguez, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street

Miami, Florida 33166

For Respondent: Som Ramrup, Esquire

Law Offices of Ramrup & Chang, P.A.

5605 Northwest 27th Court

Lauderhill, Florida 33313

STATEMENT OF THE ISSUES

Whether the Respondent, H & C Retirement Center, Inc., d/b/a

Retirement Life Center, committed the violation as alleged and,

if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On May 10, 1999, the Petitioner, Agency for Health Care

Administration (Petitioner or AHCA), issued an Administrative

Complaint that alleged the Respondent violated provisions of

Chapter 400, Florida Statutes, and Chapter 58A-5, Florida

Administrative Code, in that it failed to timely correct a

deficiency cited during a review of September 4, 1998. The

Respondent disputed the allegation and requested a formal

administrative hearing. The matter was forwarded to the Division

of Administrative Hearings for formal proceedings on March 9,

2000.

At the hearing, the Petitioner presented testimony from

Hansram Ramrup, Annette Thomas, and John Gabel. Petitioner's

Exhibits numbered 1 through 6 were admitted into evidence. The

Respondent offered testimony from Hansram Ramrup and Marc

Celetti. The Respondent's Exhibits numbered 1 through 5 were

also received into evidence.

The Transcript of the proceeding and all the exhibits were

filed with the Division of Administrative Hearings on

September 5, 2000. The parties' proposed recommended orders were

timely filed and have been considered in the preparation of this

order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the

responsibility and authority to regulate facilities licensed

pursuant to Chapter 400, Florida Statutes.

2. At all times material to the allegations of this case,

the Respondent was a licensed assisted living facility (ALF)

doing business in Broward County, Florida. As such the

Respondent is charged with operating in accordance with Chapter

400, Florida Statutes, and Chapter 58A-5, Florida Administrative

Code.

3. Broward County's Emergency Management Division ( EMD) is

entrusted with reviewing the Emergency Management Plans for all

ALFs located in Broward County, Florida. The EMD filed a

complaint against the Respondent on or about September 4, 1998.

4. This complaint alleged that the Respondent had failed to

update its Emergency Management Plan, a requirement set forth in

the rules governing ALFs. The complaint was assigned to Annette

Thomas, a surveyor employed by the Petitioner, for investigation.

5. Ms. Thomas notified the Respondent of the alleged

violation and directed the Respondent to correct the deficiency.

Written notice of the deficiency was provided to the Respondent

on or about September 22, 1998.

6. Thereafter, Ms. Thomas waited for verification from

either the Respondent or the EMD that the deficiency had been

corrected. Ms. Thomas did not visit the facility, did not review

the sufficiency of the physical plant, and did not allege any

other deficiency with regard to the safety to residents.

7. As part of her investigation, Ms. Thomas waited thirty

days for the Respondent to correct the deficiency. It was not

corrected within that time frame.

8. On or about October 30, 1998, Ms. Thomas again drafted a

notice to the Respondent to advise that the deficiency had not

been corrected. This notice was provided to the Respondent on or

about November 10, 1998.

9. The Respondent did not correct the deficiency prior to

the issuance of a deficiency letter issued on December 22, 1998.

This notice advised the Respondent that the Petitioner would seek

an administrative penalty for the uncorrected deficiency.

10. Eventually, Ms. Thomas verified that the updated plan

was approved and the facility was cleared of the deficiency in

January of 1999.

11. As part of its responsibility, the EMD had notified the

Respondent of the requirement to file an updated Emergency

Management Plan on or about February 27, 1998. Thereafter, the

Respondent did not timely file the required documentation.

12. After notice from the Petitioner, the Respondent

contacted Mr. Gabel, the Planning Manager for the EMD, on or

about December 7, 1998. Thereafter, Mr. Gabel received and

reviewed the updated information submitted by the Respondent.

Mr. Gabel requested additional information which he received on

December 31, 1998. The updated plan was approved by Mr. Gabel on

January 4, 1999.

13. The Respondent maintained that actions were taken

expeditiously to correct the cited deficiency but that it waited

for the local Fire Department to perform a required inspection.

This inspection was not completed until December 1998. Further,

the Respondent argued that it serves an indigent population and

that the imposition of a fine would not serve any purpose as the

residents were not in danger of harm. Additionally, Respondent

claimed such fine would be a financial hardship for it.

14. The Respondent has not offered a credible explanation

for why the documentation was not submitted in a timely manner.

15. The Respondent failed to timely submit an updated EMD

and the attendant documentation to the EMD. In this regard the

testimony of Mr. Gabel has been deemed persuasive.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding.

17. The Petitioner bears the burden of proof in this case

to establish the Respondent committed the violation as alleged.

18. Section 400.419, Florida Statutes, authorizes AHCA to

impose administrative fines for the violation of the rules

promulgated to regulate ALFs. Violations are identified by

classes according to the gravity and probable effect on facility

residents.

19. Rule 58A-5.026(2), Florida Administrative Code,

provides:

EMERGENCY PLAN APPROVAL. The plan shall be

submitted for review and approval to the

county emergency management agency.

(a) The county emergency management agency

has 60 days in which to review and approve

the plan or advise the facility of necessary

revisions. Any revisions must be made and

the plan resubmitted to the county office of

emergency management within 30 days of

receiving notification from the county agency

that the plan must be revised.

(b) Newly-licensed facility and facilities

whose ownership has been transferred, must

submit an emergency management plan within 30

days after obtaining a license.

(c) The facility shall review its

emergency management plan on an annual basis.

Any substantive changes must be submitted to

the county emergency agency for review and

approval.

1. Changes in the name, address, telephone

number, or position of staff listed in the

plan are not considered substantive revisions

for the purposes of this rule.

2. Changes in the identification of

specific staff must be submitted to the

county emergency management agency annually

as a signed and dated addendum that is not

subject to review and approval.

(d) The county emergency management agency

shall be the final administrative authority

for emergency management plans prepared by

assisted living facilities.

(e) Any plan approved by the county

emergency management agency shall be

considered to have met all the criteria and

conditions established in this rule.

20. In this case the Petitioner has established by clear

and convincing evidence that an annual review of the EMD is

required. In this regard the Respondent failed to keep the

substantive revisions of its plan current and the EMD correctly

requested information to update the plan. More troubling,

however, is the Respondent's failure to timely review the matter

and timely respond to the requirements of the law. The EMD gave

the Respondent notice of the due date of May 5, 1998, in February

of 1998. The EMD waited until July 21, 1998, before notifying

the Petitioner of the failure to timely submit the emergency

management plan. Ms. Thomas notified the Respondent of the

deficiency in September of 1998. It was not until late December

that the Respondent complied with the requirements of the rule.

One of the provisions required by the EMD was written

authorizations from the Respondent's employees. Such statements

were needed to assure that the Respondent could comply with

evacuation plans in the event of a disaster. This requirement

directly relates to the safety of the residents and the disaster

preparedness of this facility. As such, the Petitioner correctly

denoted this violation a class II deficiency.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Administration enter a Final Order imposing a fine in the amount

of $1000.00.

DONE AND ENTERED this 29th day of September, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. Parrish

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of September, 2000.

COPIES FURNISHED:

Alba M. Rodriguez, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street

Miami, Florida 33166

Som Ramrup, Esquire

Law Offices of Ramrup & Chang, P.A.

5605 Northwest 27th Court

Lauderhill, Florida 33313

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Julie Gallagher, General Counsel

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.