00-001964 Agency For Health Care Administration vs. Caso, Inc., D/B/A Paradise Manor Status: Closed Recommended Order on Friday, February 9, 2001.

Summary: The Agency failed to show violations to support levying fines; however, the Agency showed a failure to provide a contract for nursing services which is grounds for denying a license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 00-1963

) 00-1964

CASO, INC., d/b/a PARADISE MANOR, ) 00-1965

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal

administrative hearing on November 28, 2000, at 210 North

Palmetto Avenue, Daytona Beach, Florida, before the Honorable

Stephen F. Dean, duly-assigned Administrative Law Judge with

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administrative

2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

For Respondent: Christal L. Cas o, Administrator

Paradise Manor

2949 Carriage Drive

Daytona Beach, Florida 32119

STATEMENT OF ISSUES

This order addresses three cases consolidated for

hearing. The first case chronologically is DOAH Case No. 00-

1964, which arises from the pre-licensure inspection initiated

as a result of Respondent's application for a certification to

provide limited nursing services, and seeks to levy fines for

repeated violations originally noted in the biennial

inspection of September 10, 1999. The second case

chronologically is DOAH Case No. 00-1963, which arises from

the re-inspection of the pre-licensure inspection performed on

February 21, 2000, and relates to fines for repeated

violations of the rules. The third case chronologically is

DOAH Case No. 00-1965, which is related to issuance of the

Department’s denial of certification to provided limited

nursing services; however, it is based upon the same factual

predicate as Case No. 00-1963.

The issues in each of the cases are as follows:

Case No. 00-1964: Should fines be levied against the

Respondent as the result of an inspection which (1) was

conducted without notice contrary to the letter concerning the

inspection from the Department, and (2) in the absence of

specific proof that the specific violation was repeated.

Case No. 00-1963: Should fines be levied against the

Respondent for failure to correct violations identified in an

inspection that was not noticed contrary to the information

provided to the Respondent, and when the Respondent was not

rendering any services to which the violation applied.

Case No. 00-1965: Should Respondent be denied a

certification to provide limited nursing services based upon

the violations discovered in the inspections of January 18,

2000 and February 21, 2000.

PRELIMINARY STATEMENT

These cases arose when Respondent applied for a license

or certification to its existing adult living facility (ALF)

license to provide limited nursing services at its ALF. The

first case chronologically, as mentioned above, related to an

unannounced pre-licensing inspection. The second case

chronologically related to the re-inspection conducted

approximately a month later. The third case relates to denial

of the application to provide limited nursing services. The

Respondent requested a formal hearing in each of the cases.

The Department forwarded the requests to the Division of

Administrative Hearings, where they were consolidated for

hearing. The cases were set for hearing on August 1, 2000, by

notice dated June 7, 2000; however, that hearing was continued

upon the motion of the Petitioner until September 27, 2000.

Thereafter, that hearing was continued upon the motion of the

Respondent until November 28, 2000, when it was heard.

At formal hearing, the Petitioner called Robert

Cunningham, Eleanor McKinnon, and Richard Dickson to testify

and introduced three bound volumes of exhibits each labeled

with the case number to which the exhibits related. Some of

the individual exhibits in these volumes are duplicated, but

were retained for ease of reference. The owner and operator

of the facility, Christal L. Caso testified and introduced two

exhibits, Respondent’s Exhibits 1 and 7. A Transcript was

filed of the formal hearing on December 20, 2000. Both

parties submitted Proposed Findings that were read and

considered.

To facilitate consideration of the three cases, this

order will discuss the facts applicable generally to the

inspections involved. Thereafter, the findings of fact and

conclusions of law specific to Case No. 00-1964 will be

presented, followed by the findings of facts and conclusions

of law in Case Nos. 00-1963 and 00-1965.

FINDINGS OF FACT

General Facts

1. The Department is the agency charged with the

inspection, regulation, and licensure of adult living

facilities.

2. The Respondent is an adult living facility owned and

operated by Christal L. Caso.

3. On November 11, 1999, Mr. Robert Cunningham conducted

a biennial inspection of Respondent’s adult living facility

(ALF). He identified a number of deficiencies that were

written up in a detailed inspection report. Mr. Cunningham

identified copies of his report which were a part of the

Petitioner's Bound Exhibits in Case Nos. 00-1964 and 00-1963.

A re-inspection was conducted in December of 1999, and all of

the deficiencies noted had been corrected.

4. The Administrative Complaint in Case No. 00-1964

alleges that on January 18, 2000, certain deficiencies found

during Mr. Cummingham’s inspection on November 11, 1999, were

repeated. His inspection report and its findings will be

referenced and discussed in conjunction with the consideration

of the report for January 18, 2000; however, there are no

issues involved directly with Mr. Cunningham’s inspection or

his report in any of the three pending cases.

5. The Respondent applied for an additional

certification to provide limited nursing services (LNS) at its

facility.

6. This application was duly processed and the

Respondent was notified by letter, dated January 13, 2000,

from the Department’s Tallahassee office that the facility

must notify the Department within 21 days that it was ready

for an operational survey (inspection), and that an announced

inspection would be scheduled within several weeks.

7. On January 18, 2000, Ms. Eleanor McKinnon, an

inspector with the Department, arrived unannounced at the

facility to conduct the pre-licensure inspection. Ms. Caso

was not present at the facility at the time Ms. McKinnon

arrived. When Ms. Caso arrived at the ALF, she advised Ms.

McKinnon that she was not prepared and her inspection was

inconsistent with the information Caso had received. Ms.

McKinnon continued the inspection citing a policy that their

inspections were unannounced.

8. The letter Ms. Caso received from the Department’s

Tallahassee office was termed, at hearing, inconsistent with

agency procedure by personnel attached to the local office.

It was clear Ms. Caso received and relied upon the information

contained in the letter, and she had no reason to believe that

it was not an accurate statement of how inspections would

proceed.

9. Ms. McKinnon prepared a detailed inspection report

that was identified as an exhibit in all of the bound volumes.

She did not have a clear recollection of the specific findings

at the time of the hearing.

10. The inspection reports identify specific areas of

operations by alphanumeric designators termed "Tags." These

tags relate to a specific area of concern in an inspection

such as storage of drugs, medical records, or safety. The

tags are listed in a separate column on the inspection

reports, and specific violations will be identified and

discussed in this order by reference to specific tags as they

were at hearing.

Licensure Inspection, January 18, 2000

Findings of Fact Specific to Case No. 00-1964

11. Although the Department's letter of January 13,

2000, said that the Respondent should notify the Department

when it was ready for inspection, the Department has the right

to inspect at any time for compliance with the rules.

12. Regarding Tag A401, the first violation alleged to

have been repeated, the inspection report for November states

that "Three of five residents did not have a Health Assessment

on file." The January inspection report states, "Review of

two resident records revealed that one of the two residents

had no health assessment on their medical record."

13. Ms. Caso testified regarding individual records.

These records she kept at her office at her house off the

ALF’s premises. She was willing to retrieve these records;

however, the inspector maintained that they were required to

be maintained on site.

14. Regarding the second alleged repeated violation, the

November inspection report states, "Medications for Resident

No. 3 which were discontinued in August were still in the

centrally stored medicine closet." The January inspection

report stated at Tag A612, "Tour of the medication room on the

day of the survey revealed that medications from residents who

the administrator said had been gone for over two years were

still in the medication closet." This is alleged in the

Administrative Complaint to have violated Rule 58A-

5.0182(6)(d), Florida Administrative Code. The Petitioner

included in its exhibit a copy of the cited rule.

15. Regarding the third alleged repeated violation, the

January report states that over-the-counter medication was

maintained in the medicine storage area without the name of

the individual for whom it was prescribed being on it. This

was alleged to be a violation of Rule 58A-5.0182(6)(f),

Florida Administrative Code.

16. A review of the current rules indicates that Rule

58A-5.0182(6)(d) and (f) do not address the substance of the

alleged violation, and that the last amendment to the rule

occurred in October 17, 1999. This provision had been

repealed before the first inspection.

Conclusions of Law for Case No. 00-1964

17. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties in this and

the other consolidated cases.

18. This case seeks to fine the Respondent for

violations allegedly violated in the original inspection of

November 11, 1999, and repeated on the inspection of January

18, 2000. The Department can conduct a compliance inspection

at any time. However, to consider such an inspection a pre-

licensing inspection is contrary to the letter regarding the

inspection procedures sent to the Respondent by the

Department’s Tallahassee office. I conclude that, although

findings may be considered for general enforcement purposes

and fines potentially levied for violations, they cannot be

considered a pre-licensing inspection. The practical effect

of this is that a general violation applicable to an ALF can

be cited and considered; however, fines cannot be levied for

those matters related to LNS because the Respondent was not

licensed or engaged in rendering LNS. In addition, the

Respondent is not subject for fines for violation of those

portions of the rules applicable only to providing LNS because

the Respondent was entitled to request an announced inspection

pursuant to the Department’s letter.

19. The Administrative Complaint of Case No. 00-1964

cites Rule 58A-5.0191(3)(a), Florida Administrative Code, as

having been violated presumably a reference to Tag A401

relating to admission standards. Specifically, the cited

fault related to health assessments. Rule 58A-5.0191(2)(a),

Florida Administrative Code, provides as follows:

(2) HEALTH ASSESSMENT.

(a) Within 60 days prior to the residents

admission to a facility but no later than

30 days after admission, the individual

shall be examined by a physician or

advanced registered nurse practitioner who

shall provide the administrator with a

medical examination report, or a copy of

the report, which addresses the following:

1. The physical and mental status of the

resident, including the identification of

any health-related problems and functional

limitations;

2. An evaluation of whether the individual

will require supervision or assistance with

the activities of daily living;

3. Any nursing or therapy services

required by the individual;

4. Any special diet required by the

individual;

5. A list of current medications

prescribed, and whether the individual will

require any assistance with the

administration of medication;

6. Whether the individual has signs or

symptoms of a communicable disease which is

likely to be transmitted to other residents

or staff;

7. A statement that in the opinion of the

examining physician or ARNP, on the day the

examination is conducted, the individual’s

needs can be met in an assisted living

facility; and

8. The date of the examination, and the

name, signature, address, phone number, and

license number of the examining physician

or ARNP. The medical examination may be

conducted by a currently licensed physician

or ARNP from another state.

20. The Administrator testified that health assessments

were maintained for the residents, but were maintained at her

office in her home. The inspector took the position that

these assessments had to be maintained on-site; however, there

is nothing in the rule upon which to base that conclusion.

The rule provides that the physician or advanced registered

nurse practitioner will provide the administrator with a copy

of the assessment. The inspector did not permit the

administrator time to retrieve the assessment for her

inspection. In the absence of an inspection of the records,

it cannot be determined whether the 30 days' grace period was

applicable.

21. I conclude that a health assessment does not have to

be kept on site pursuant to Rule 58A-5.0181(2)(b), Florida

Administrative Code. The Inspector should have given the

Respondent time to retrieve the records. Then a determination

could have been made whether the appropriate information was

contained in the records. There is no violation and no basis

for levying a fine.

22. The alleged violations of Rule 58-5.182(6)(d) and

(f), Florida Administrative Code, cannot be a basis for fines

or denial of the license because the rule was repealed before

the biennial inspection, the pre-licensure inspection, or the

re-inspection.

Findings of Fact Case Nos. 00-1963 and 00-1965

23. Ms. McKinnon conducted a re-inspection of the ALF on

February 21, 2000. This inspection was the basis for levying

fines for alleged repeated violations, and for denying

licensure. Therefore, these factual allegations will be

discussed together.

24. Ms. McKinnon’s report of inspection is contained in

the bound volumes pertaining to Case Nos. 00-1963 and 00-1965.

25. The first tag number is N201, and the Rule alleged

to have been violated is Rule 58A-5.031(2)(d), Florida

Administrative Code. In the inspection report of January 18,

2000, the inspector made the following observation: "Review of

the facility records and interview with the administrator

revealed that no log had been prepared for the admission

residents to receive limited nursing services."

26. At the time of the inspection, the facility was not

licensed to provide limited nursing services. Such services

were not being rendered.

27. This log is nothing more than a piece of paper upon

which a chronological record of services is kept. This record

is not required to be kept until services are rendered under

the provisions of the rule.

28. The next tag number of the next violation is N205 on

the inspection report of January 18, 2000. Tag N205 alleges

violation of Rule 58A-5.0131(2)(ff), Florida administrative

Code, because, "Review of the facility records and interview

with the administrator revealed that there was no documented

information on what services would be provided under limited

nursing or who would provide the services."

29. The next tag at issue is N302. It cites a violation

of Rule 58A-5.031(2)(a), Florida Administrative Code, and

states,

Interview with the administrator and review

of facility documentation revealed that no

provision had been made to have currently

licensed nurse in the facility to perform

limited nursing services, nor was there a

contract with a RN or MD to supervise the

services provided.

Again, the rule cited in the complaint is wrong. Rule 58A-

5.031(2)(d), provides that the facility must have a contract

for nursing services. It was explained at hearing that there

was no contract present for a nurse to supervise Ms. Caso, and

no contract with Ms. Caso during the first inspection.

30. Ms. Caso testified regarding this. She did not

originally believe she was required to have a contract with

herself, and, at the time of the second inspection, had a

contract drawn with the nurse who was going to be the

supervisor; however, the woman was seriously ill and had not

been able to sign the contract. At the time of this

inspection, the facility was not providing services and could

not legally do so until licensed.

31. Tag A401 of the February report cites a violation of

Rule 58A-5.0181(3)(a)1, Florida Administrative Code, and

states, "Resident No. 5 was admitted on January 31, 1999, and

there was no dated health assessment on his record."

Conclusions of Law for Case Numbers 00-1963 and 00-1965

32. Again, the Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of the

cases. The various tags will be discussed in reverse order.

33. Regarding Tag A401 of the February report citing

Respondent for failing to have a dated health assessment for a

resident, the proper citation of the rule alleged to have been

violated is 58A-5.0181(2), Florida Administrative Code. As

stated above, subparagraph (a) of paragraph (2) provides that

the physician or advanced registered nurse practitioner shall

provide the administrator with a medical examination report no

later than 30 days after admission. In this instance, the

reports were on-site and were inspected. However, this is not

a repeat violation because there is no rule that requires

these reports to be maintained on-site (the previously cited

violation), and the records were not inspected on the previous

visit. Therefore, this was the first time this violation was

discovered.

34. Regarding the violation regarding the absence of a

signed contract by the supervising nurse (Tag 302), the

facility was not licensed to provide LNS, and there were no

services being rendered at the time. Therefore, there is no

basis for a fine. In so far as this violation relates to the

denial of licensure, Rule 58A-5.031(2), Florida Administrative

Code, provides:

(b) In accordance with rule 58A-5.019, the

facility must employ sufficient and

qualified staff to meet the needs of

residents requiring limited nursing

services based on the number of such

residents and the type of nursing service

to be provided.

* * *

(d) Facilities licensed to provide limited

nursing services must employ or contract

with a nurse(s) who shall be available to

provide such services as needed by

residents. The facility shall maintain

documentation of the qualifications of

nurses providing limited nursing services

in the facility’s personnel files.

35. While the absence of the contract is a reason not to

issue a license, under the circumstances in this case, it

would have been more appropriate for the inspectors to note

the discrepancy, and permit the Respondent to send them a copy

of the contract when it was signed. It is not a basis for

levying a fine.

36. Regarding the alleged violation for failing to

maintain a policy for how services will be rendered (Tag

N205), first, there is no Rule 58A-5.0131(2)(ff), Florida

Administrative Code, as cited by the Agency. Rule 58A-5.0131,

Florida Administrative Code, contains various definitions,

none of which relate to the alleged violation cited in the

inspection report. A review of Rule 58A-5.031, Florida

Administrative Code, which deals with the providing of limited

nursing services, starts off by stating that a facility must

be licensed before it can provide these services. From the

description of the violation cited and the testimony of the

witnesses, this apparently relates to the absence of a policy

setting forth what services will be provided. There is no

requirement in Rule 58A-5.031, Florida Administrative Code,

for such a policy. The only provision of this rule remotely

related to a requirement for some policy and procedure

provides:

(e) The facility must ensure that nursing

services are conducted and supervised in

accordance with Chapter 464, F.S., and the

prevailing standard of practice in the

nursing community.

The rule does not mandate how the facility will ensure this.

In sum, there is no rule that requires such a policy be on

site.

37. Regarding the alleged violation of Rule 58A-

5.031(2)(d), Florida Administrative Code, by failing to

maintain a log of nursing services rendered (Tag N201), there

was no requirement to maintain the log in the absence of

performing the services.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED:

That the Department dismiss the complaints in Case

Nos. 00-1963 and 00-1964.

That the Department not license the Respondent with

regard to Case No. 00-1965, but permit the Respondent to re-

file for the subject license without jeopardy due to any of

the inspections which have been the subject of Case Nos. 00-

1963 and 00-1964.

DONE AND ENTERED this 9th day of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrati ve 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 Administrati ve Hearings

this 9th day of February , 2001.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Christal L. Caso, Administrator

Paradise Manor

2949 Carriage Drive

Daytona Beach, Florida 32119

Sam Power, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Julie Gallagher, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Ruben J. King-Shaw, Jr., Director

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3116

Tallahassee, Florida 32308

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.