00-001965 Caso, Inc., D/B/A Paradise Manor vs. Agency For Health Care Administration
 Status: Closed
Recommended Order on Friday, February 9, 2001.


View Dockets  
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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8AGENCY FOR HEALTH CARE )

13ADMINISTRATION, )

15)

16Petitioner, )

18)

19vs. ) Case Nos. 00-1963

24) 00-1964

26CASO, INC., d/b/a PARADISE MANOR, ) 00-1965

33)

34Respondent. )

36__________________________________)

37RECOMMENDED ORDER

39Upon due notice, this cause came on for formal

48administrative hearing on November 28, 2000, at 210 North

57Palmetto Avenue, Daytona Beach, Florida, before the Honorable

65Stephen F. Dean, duly-assigned Administrative Law Judge with

73the Division of Administrative Hearings.

78APPEARANCES

79For Petitioner: Michael O. Mathis, Esquire

85Agency for Health Care Administrative

902727 Mahan Drive

93Building 3, Suite 3431

97Tallahassee, Florida 32308

100For Respondent: Christal L. Cas o, Administrator

107Paradise Manor

1092949 Carriage Drive

112Daytona Beach, Florida 32119

116STATEMENT OF ISSUES

119This order addresses three cases consolidated for

126hearing. The first case chronologically is DOAH Case No. 00-

1361964, which arises from the pre-licensure inspection initiated

144as a result of Respondent's application for a certification to

154provide limited nursing services, and seeks to levy fines for

164repeated violations originally noted in the biennial

171inspection of September 10, 1999. The second case

179chronologically is DOAH Case No. 00-1963, which arises from

188the re-inspection of the pre-licensure inspection performed on

196February 21, 2000, and relates to fines for repeated

205violations of the rules. The third case chronologically is

214DOAH Case No. 00-1965, which is related to issuance of the

225Department’s denial of certification to provided limited

232nursing services; however, it is based upon the same factual

242predicate as Case No. 00-1963.

247The issues in each of the cases are as follows:

257Case No. 00-1964: Should fines be levied against the

266Respondent as the result of an inspection which (1) was

276conducted without notice contrary to the letter concerning the

285inspection from the Department, and (2) in the absence of

295specific proof that the specific violation was repeated.

303Case No. 00-1963: Should fines be levied against the

312Respondent for failure to correct violations identified in an

321inspection that was not noticed contrary to the information

330provided to the Respondent, and when the Respondent was not

340rendering any services to which the violation applied.

348Case No. 00-1965: Should Respondent be denied a

356certification to provide limited nursing services based upon

364the violations discovered in the inspections of January 18,

3732000 and February 21, 2000.

378PRELIMINARY STATEMENT

380These cases arose when Respondent applied for a license

389or certification to its existing adult living facility (ALF)

398license to provide limited nursing services at its ALF. The

408first case chronologically, as mentioned above, related to an

417unannounced pre-licensing inspection. The second case

423chronologically related to the re-inspection conducted

429approximately a month later. The third case relates to denial

439of the application to provide limited nursing services. The

448Respondent requested a formal hearing in each of the cases.

458The Department forwarded the requests to the Division of

467Administrative Hearings, where they were consolidated for

474hearing. The cases were set for hearing on August 1, 2000, by

486notice dated June 7, 2000; however, that hearing was continued

496upon the motion of the Petitioner until September 27, 2000.

506Thereafter, that hearing was continued upon the motion of the

516Respondent until November 28, 2000, when it was heard.

525At formal hearing, the Petitioner called Robert

532Cunningham, Eleanor McKinnon, and Richard Dickson to testify

540and introduced three bound volumes of exhibits each labeled

549with the case number to which the exhibits related. Some of

560the individual exhibits in these volumes are duplicated, but

569were retained for ease of reference. The owner and operator

579of the facility, Christal L. Caso testified and introduced two

589exhibits, Respondent’s Exhibits 1 and 7. A Transcript was

598filed of the formal hearing on December 20, 2000. Both

608parties submitted Proposed Findings that were read and

616considered.

617To facilitate consideration of the three cases, this

625order will discuss the facts applicable generally to the

634inspections involved. Thereafter, the findings of fact and

642conclusions of law specific to Case No. 00-1964 will be

652presented, followed by the findings of facts and conclusions

661of law in Case Nos. 00-1963 and 00-1965.

669FINDINGS OF FACT

672General Facts

6741. The Department is the agency charged with the

683inspection, regulation, and licensure of adult living

690facilities.

6912. The Respondent is an adult living facility owned and

701operated by Christal L. Caso.

7063. On November 11, 1999, Mr. Robert Cunningham conducted

715a biennial inspection of Respondent’s adult living facility

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

732written up in a detailed inspection report. Mr. Cunningham

741identified copies of his report which were a part of the

752Petitioner's Bound Exhibits in Case Nos. 00-1964 and 00-1963.

761A re-inspection was conducted in December of 1999, and all of

772the deficiencies noted had been corrected.

7784. The Administrative Complaint in Case No. 00-1964

786alleges that on January 18, 2000, certain deficiencies found

795during Mr. Cummingham’s inspection on November 11, 1999, were

804repeated. His inspection report and its findings will be

813referenced and discussed in conjunction with the consideration

821of the report for January 18, 2000; however, there are no

832issues involved directly with Mr. Cunningham’s inspection or

840his report in any of the three pending cases.

8495. The Respondent applied for an additional

856certification to provide limited nursing services (LNS) at its

865facility.

8666. This application was duly processed and the

874Respondent was notified by letter, dated January 13, 2000,

883from the Department’s Tallahassee office that the facility

891must notify the Department within 21 days that it was ready

902for an operational survey (inspection), and that an announced

911inspection would be scheduled within several weeks.

9187. On January 18, 2000, Ms. Eleanor McKinnon, an

927inspector with the Department, arrived unannounced at the

935facility to conduct the pre-licensure inspection. Ms. Caso

943was not present at the facility at the time Ms. McKinnon

954arrived. When Ms. Caso arrived at the ALF, she advised Ms.

965McKinnon that she was not prepared and her inspection was

975inconsistent with the information Caso had received. Ms.

983McKinnon continued the inspection citing a policy that their

992inspections were unannounced.

9958. The letter Ms. Caso received from the Department’s

1004Tallahassee office was termed, at hearing, inconsistent with

1012agency procedure by personnel attached to the local office.

1021It was clear Ms. Caso received and relied upon the information

1032contained in the letter, and she had no reason to believe that

1044it was not an accurate statement of how inspections would

1054proceed.

10559. Ms. McKinnon prepared a detailed inspection report

1063that was identified as an exhibit in all of the bound volumes.

1075She did not have a clear recollection of the specific findings

1086at the time of the hearing.

109210. The inspection reports identify specific areas of

1100operations by alphanumeric designators termed "Tags." These

1107tags relate to a specific area of concern in an inspection

1118such as storage of drugs, medical records, or safety. The

1128tags are listed in a separate column on the inspection

1138reports, and specific violations will be identified and

1146discussed in this order by reference to specific tags as they

1157were at hearing.

1160Licensure Inspection, January 18, 2000

1165Findings of Fact Specific to Case No. 00-1964

117311. Although the Department's letter of January 13,

11812000, said that the Respondent should notify the Department

1190when it was ready for inspection, the Department has the right

1201to inspect at any time for compliance with the rules.

121112. Regarding Tag A401, the first violation alleged to

1220have been repeated, the inspection report for November states

1229that "Three of five residents did not have a Health Assessment

1240on file." The January inspection report states, "Review of

1249two resident records revealed that one of the two residents

1259had no health assessment on their medical record."

126713. Ms. Caso testified regarding individual records.

1274These records she kept at her office at her house off the

1286ALF’s premises. She was willing to retrieve these records;

1295however, the inspector maintained that they were required to

1304be maintained on site.

130814. Regarding the second alleged repeated violation, the

1316November inspection report states, "Medications for Resident

1323No. 3 which were discontinued in August were still in the

1334centrally stored medicine closet." The January inspection

1341report stated at Tag A612, "Tour of the medication room on the

1353day of the survey revealed that medications from residents who

1363the administrator said had been gone for over two years were

1374still in the medication closet." This is alleged in the

1384Administrative Complaint to have violated Rule 58A-

13915.0182(6)(d), Florida Administrative Code. The Petitioner

1397included in its exhibit a copy of the cited rule.

140715. Regarding the third alleged repeated violation, the

1415January report states that over-the-counter medication was

1422maintained in the medicine storage area without the name of

1432the individual for whom it was prescribed being on it. This

1443was alleged to be a violation of Rule 58A-5.0182(6)(f),

1452Florida Administrative Code.

145516. A review of the current rules indicates that Rule

146558A-5.0182(6)(d) and (f) do not address the substance of the

1475alleged violation, and that the last amendment to the rule

1485occurred in October 17, 1999. This provision had been

1494repealed before the first inspection.

1499Conclusions of Law for Case No. 00-1964

150617. The Division of Administrative Hearings has

1513jurisdiction over the subject matter and parties in this and

1523the other consolidated cases.

152718. This case seeks to fine the Respondent for

1536violations allegedly violated in the original inspection of

1544November 11, 1999, and repeated on the inspection of January

155418, 2000. The Department can conduct a compliance inspection

1563at any time. However, to consider such an inspection a pre-

1574licensing inspection is contrary to the letter regarding the

1583inspection procedures sent to the Respondent by the

1591Department’s Tallahassee office. I conclude that, although

1598findings may be considered for general enforcement purposes

1606and fines potentially levied for violations, they cannot be

1615considered a pre-licensing inspection. The practical effect

1622of this is that a general violation applicable to an ALF can

1634be cited and considered; however, fines cannot be levied for

1644those matters related to LNS because the Respondent was not

1654licensed or engaged in rendering LNS. In addition, the

1663Respondent is not subject for fines for violation of those

1673portions of the rules applicable only to providing LNS because

1683the Respondent was entitled to request an announced inspection

1692pursuant to the Department’s letter.

169719. The Administrative Complaint of Case No. 00-1964

1705cites Rule 58A-5.0191(3)(a), Florida Administrative Code, as

1712having been violated presumably a reference to Tag A401

1721relating to admission standards. Specifically, the cited

1728fault related to health assessments. Rule 58A-5.0191(2)(a),

1735Florida Administrative Code, provides as follows:

1741(2) HEALTH ASSESSMENT.

1744(a) Within 60 days prior to the residents

1752admission to a facility but no later than

176030 days after admission, the individual

1766shall be examined by a physician or

1773advanced registered nurse practitioner who

1778shall provide the administrator with a

1784medical examination report, or a copy of

1791the report, which addresses the following:

17971. The physical and mental status of the

1805resident, including the identification of

1810any health-related problems and functional

1815limitations;

18162. An evaluation of whether the individual

1823will require supervision or assistance with

1829the activities of daily living;

18343. Any nursing or therapy services

1840required by the individual;

18444. Any special diet required by the

1851individual;

18525. A list of current medications

1858prescribed, and whether the individual will

1864require any assistance with the

1869administration of medication;

18726. Whether the individual has signs or

1879symptoms of a communicable disease which is

1886likely to be transmitted to other residents

1893or staff;

18957. A statement that in the opinion of the

1904examining physician or ARNP, on the day the

1912examination is conducted, the individual’s

1917needs can be met in an assisted living

1925facility; and

19278. The date of the examination, and the

1935name, signature, address, phone number, and

1941license number of the examining physician

1947or ARNP. The medical examination may be

1954conducted by a currently licensed physician

1960or ARNP from another state.

196520. The Administrator testified that health assessments

1972were maintained for the residents, but were maintained at her

1982office in her home. The inspector took the position that

1992these assessments had to be maintained on-site; however, there

2001is nothing in the rule upon which to base that conclusion.

2012The rule provides that the physician or advanced registered

2021nurse practitioner will provide the administrator with a copy

2030of the assessment. The inspector did not permit the

2039administrator time to retrieve the assessment for her

2047inspection. In the absence of an inspection of the records,

2057it cannot be determined whether the 30 days' grace period was

2068applicable.

206921. I conclude that a health assessment does not have to

2080be kept on site pursuant to Rule 58A-5.0181(2)(b), Florida

2089Administrative Code. The Inspector should have given the

2097Respondent time to retrieve the records. Then a determination

2106could have been made whether the appropriate information was

2115contained in the records. There is no violation and no basis

2126for levying a fine.

213022. The alleged violations of Rule 58-5.182(6)(d) and

2138(f), Florida Administrative Code, cannot be a basis for fines

2148or denial of the license because the rule was repealed before

2159the biennial inspection, the pre-licensure inspection, or the

2167re-inspection.

2168Findings of Fact Case Nos. 00-1963 and 00-1965

217623. Ms. McKinnon conducted a re-inspection of the ALF on

2186February 21, 2000. This inspection was the basis for levying

2196fines for alleged repeated violations, and for denying

2204licensure. Therefore, these factual allegations will be

2211discussed together.

221324. Ms. McKinnon’s report of inspection is contained in

2222the bound volumes pertaining to Case Nos. 00-1963 and 00-1965.

223225. The first tag number is N201, and the Rule alleged

2243to have been violated is Rule 58A-5.031(2)(d), Florida

2251Administrative Code. In the inspection report of January 18,

22602000, the inspector made the following observation: "Review of

2269the facility records and interview with the administrator

2277revealed that no log had been prepared for the admission

2287residents to receive limited nursing services."

229326. At the time of the inspection, the facility was not

2304licensed to provide limited nursing services. Such services

2312were not being rendered.

231627. This log is nothing more than a piece of paper upon

2328which a chronological record of services is kept. This record

2338is not required to be kept until services are rendered under

2349the provisions of the rule.

235428. The next tag number of the next violation is N205 on

2366the inspection report of January 18, 2000. Tag N205 alleges

2376violation of Rule 58A-5.0131(2)(ff), Florida administrative

2382Code, because, "Review of the facility records and interview

2391with the administrator revealed that there was no documented

2400information on what services would be provided under limited

2409nursing or who would provide the services."

241629. The next tag at issue is N302. It cites a violation

2428of Rule 58A-5.031(2)(a), Florida Administrative Code, and

2435states,

2436Interview with the administrator and review

2442of facility documentation revealed that no

2448provision had been made to have currently

2455licensed nurse in the facility to perform

2462limited nursing services, nor was there a

2469contract with a RN or MD to supervise the

2478services provided.

2480Again, the rule cited in the complaint is wrong. Rule 58A-

24915.031(2)(d), provides that the facility must have a contract

2500for nursing services. It was explained at hearing that there

2510was no contract present for a nurse to supervise Ms. Caso, and

2522no contract with Ms. Caso during the first inspection.

253130. Ms. Caso testified regarding this. She did not

2540originally believe she was required to have a contract with

2550herself, and, at the time of the second inspection, had a

2561contract drawn with the nurse who was going to be the

2572supervisor; however, the woman was seriously ill and had not

2582been able to sign the contract. At the time of this

2593inspection, the facility was not providing services and could

2602not legally do so until licensed.

260831. Tag A401 of the February report cites a violation of

2619Rule 58A-5.0181(3)(a)1, Florida Administrative Code, and

2625states, "Resident No. 5 was admitted on January 31, 1999, and

2636there was no dated health assessment on his record."

2645Conclusions of Law for Case Numbers 00-1963 and 00-1965

265432. Again, the Division of Administrative Hearings has

2662jurisdiction over the parties and the subject matter of the

2672cases. The various tags will be discussed in reverse order.

268233. Regarding Tag A401 of the February report citing

2691Respondent for failing to have a dated health assessment for a

2702resident, the proper citation of the rule alleged to have been

2713violated is 58A-5.0181(2), Florida Administrative Code. As

2720stated above, subparagraph (a) of paragraph (2) provides that

2729the physician or advanced registered nurse practitioner shall

2737provide the administrator with a medical examination report no

2746later than 30 days after admission. In this instance, the

2756reports were on-site and were inspected. However, this is not

2766a repeat violation because there is no rule that requires

2776these reports to be maintained on-site (the previously cited

2785violation), and the records were not inspected on the previous

2795visit. Therefore, this was the first time this violation was

2805discovered.

280634. Regarding the violation regarding the absence of a

2815signed contract by the supervising nurse (Tag 302), the

2824facility was not licensed to provide LNS, and there were no

2835services being rendered at the time. Therefore, there is no

2845basis for a fine. In so far as this violation relates to the

2858denial of licensure, Rule 58A-5.031(2), Florida Administrative

2865Code, provides:

2867(b) In accordance with rule 58A-5.019, the

2874facility must employ sufficient and

2879qualified staff to meet the needs of

2886residents requiring limited nursing

2890services based on the number of such

2897residents and the type of nursing service

2904to be provided.

2907* * *

2910(d) Facilities licensed to provide limited

2916nursing services must employ or contract

2922with a nurse(s) who shall be available to

2930provide such services as needed by

2936residents. The facility shall maintain

2941documentation of the qualifications of

2946nurses providing limited nursing services

2951in the facility’s personnel files.

295635. While the absence of the contract is a reason not to

2968issue a license, under the circumstances in this case, it

2978would have been more appropriate for the inspectors to note

2988the discrepancy, and permit the Respondent to send them a copy

2999of the contract when it was signed. It is not a basis for

3012levying a fine.

301536. Regarding the alleged violation for failing to

3023maintain a policy for how services will be rendered (Tag

3033N205), first, there is no Rule 58A-5.0131(2)(ff), Florida

3041Administrative Code, as cited by the Agency. Rule 58A-5.0131,

3050Florida Administrative Code, contains various definitions,

3056none of which relate to the alleged violation cited in the

3067inspection report. A review of Rule 58A-5.031, Florida

3075Administrative Code, which deals with the providing of limited

3084nursing services, starts off by stating that a facility must

3094be licensed before it can provide these services. From the

3104description of the violation cited and the testimony of the

3114witnesses, this apparently relates to the absence of a policy

3124setting forth what services will be provided. There is no

3134requirement in Rule 58A-5.031, Florida Administrative Code,

3141for such a policy. The only provision of this rule remotely

3152related to a requirement for some policy and procedure

3161provides:

3162(e) The facility must ensure that nursing

3169services are conducted and supervised in

3175accordance with Chapter 464, F.S., and the

3182prevailing standard of practice in the

3188nursing community.

3190The rule does not mandate how the facility will ensure this.

3201In sum, there is no rule that requires such a policy be on

3214site.

321537. Regarding the alleged violation of Rule 58A-

32235.031(2)(d), Florida Administrative Code, by failing to

3230maintain a log of nursing services rendered (Tag N201), there

3240was no requirement to maintain the log in the absence of

3251performing the services.

3254RECOMMENDATION

3255Based upon the Findings of Fact and Conclusions of Law,

3265it is

3267RECOMMENDED:

3268That the Department dismiss the complaints in Case

3276Nos. 00-1963 and 00-1964.

3280That the Department not license the Respondent with

3288regard to Case No. 00-1965, but permit the Respondent to re-

3299file for the subject license without jeopardy due to any of

3310the inspections which have been the subject of Case Nos. 00-

33211963 and 00-1964.

3324DONE AND ENTERED this 9th day of February, 2001, in

3334Tallahassee, Leon County, Florida.

3338___________________________________

3339STEPHEN F. DEAN

3342Administrative Law Judge

3345Division of Administrati ve Hearings

3350The DeSoto Building

33531230 Apalachee Parkway

3356Tallahassee, Florida 32399-3060

3359(850) 488-9675 SUNCOM 278-9675

3363Fax Filing (850) 921-6847

3367www.doah.state.fl.us

3368Filed with the Clerk of the

3374Division of Administrati ve Hearings

3379this 9th day of February , 2001.

3385COPIES FURNISHED:

3387Michael O. Mathis, Esquire

3391Agency for Health Care Administration

33962727 Mahan Drive

3399Building 3, Suite 3431

3403Tallahassee, Florida 32308

3406Christal L. Caso, Administrator

3410Paradise Manor

34122949 Carriage Drive

3415Daytona Beach, Florida 32119

3419Sam Power, Agency Clerk

3423Agency for Health Care Administration

34282727 Mahan Drive

3431Building 3, Suite 3431

3435Tallahassee, Florida 32308

3438Julie Gallagher, General Counsel

3442Agency for Health Care Administration

34472727 Mahan Drive

3450Building 3, Suite 3431

3454Tallahassee, Florida 32308

3457Ruben J. King-Shaw, Jr., Director

3462Agency for Health Care Administration

34672727 Mahan Drive

3470Building 3, Suite 3116

3474Tallahassee, Florida 32308

3477NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3483All parties have the right to submit written exceptions within

349315 days from the date of this Recommended Order. Any

3503exceptions to this Recommended Order should be filed with the

3513agency that will issue the Final Order in this case.

Select the PDF icon to view the document.
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Date
Proceedings
PDF:
Date: 04/23/2001
Proceedings: Final Order filed.
PDF:
Date: 04/20/2001
Proceedings: Agency Final Order
PDF:
Date: 02/09/2001
Proceedings: Recommended Order
PDF:
Date: 02/09/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 02/09/2001
Proceedings: Recommended Order issued (hearing held November 28, 2000) CASE CLOSED.
Date: 01/04/2001
Proceedings: Findings of Fact filed by Respondent.
PDF:
Date: 12/29/2000
Proceedings: Agency`s Proposed Recommended Order filed.
Date: 12/20/2000
Proceedings: Transcript of Proceedings filed.
PDF:
Date: 09/20/2000
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for November 28, 2000; 10:15 a.m.; Daytona Beach, FL).
PDF:
Date: 08/21/2000
Proceedings: Ltr. to M. Mathis from C. Caso In re: continuance filed.
PDF:
Date: 07/31/2000
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued. (hearing set for September 27, 2000; 10:15 a.m.; Daytona Beach, FL)
PDF:
Date: 07/28/2000
Proceedings: Motion for Continuance and Reschedule Hearing filed.
PDF:
Date: 07/18/2000
Proceedings: Motion for Continuance and Reschedule Hearing filed.
PDF:
Date: 06/07/2000
Proceedings: Order of Consolidation (cases to be consolidated are: 00-001963, 00-001964) sent out.
PDF:
Date: 06/07/2000
Proceedings: Notice of Hearing sent out. (hearing set for August 1, 2000; 10:00 a.m.; Daytona Beach, FL)
PDF:
Date: 05/26/2000
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 05/26/2000
Proceedings: Motion for Consolidation (Petitioner) filed.
Date: 05/17/2000
Proceedings: Initial Order issued.
PDF:
Date: 05/11/2000
Proceedings: Agency Action filed.
PDF:
Date: 05/11/2000
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 05/11/2000
Proceedings: Notice filed.
PDF:
Date: 05/11/2000
Proceedings: Notice of Related Petitions filed.

Case Information

Judge:
STEPHEN F. DEAN
Date Filed:
05/11/2000
Date Assignment:
05/17/2000
Last Docket Entry:
04/23/2001
Location:
Daytona Beach, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Related DOAH Cases(s) (3):

Related Florida Rule(s) (6):