00-002299 Agency For Health Care Administration vs. Erma Forbes, D/B/A The Islander Status: Closed Recommended Order on Wednesday, October 4, 2000.

Summary: Petitioner failed to prove that employee lacking background screening was not employed prior to October 1, 1998, or that the recording of administered medications was not immediate under the circumstances.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 00-2299

)

ERMA FORBES, d/b/a )

THE ISLANDER, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in Orlando,

Florida, on September 6, 2000.

APPEARANCES

For Petitioner: Michael O. Mathis

Senior Attorney

Office of General Counsel

Agency for Health Care Administration

2727 Mahon Drive, Building 3, Suite 3408-D

Tallahassee, Florida 32308

For Respondent: Larry H. Colleton

Larry H. Colleton, P.A.

2300 East Concord Street

Orlando, Florida 3280 3

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of failing to

complete background screening of all employees, in violation of

Sections 400.419(1)(c) and 400.4174(2), Florida Statutes, and

failing to record the administration of medications to three

residents, in violation of Sections 400.419(1)(c), Florida

Statutes, and Rule 58A-5.0182(6)(b), Florida Administrative Code.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 28, 2000, Petitioner

alleged that Respondent is licensed to operate an assisted living

facility at 2494 Marsh Road, DeLand, Florida. The Administrative

Complaint alleges that Respondent was guilty of failing to

correct two Class III deficiencies, which were first cited during

an inspection on February 9, 2000, by a follow-up inspection on

March 30, 2000.

The first alleged deficiency is Tag A214 for failing to

complete background screening on all employees hired on or after

October 1, 1998, in violation of Sections 400.419(1)(c) and

400.4174(2), Florida Statutes. The Administrative Complaint

seeks an administrative fine of $300 for this alleged violation.

The second alleged deficiency is Tag A605 for failing to

record the administration of medication for three residents, in

violation of Section 400.419(1)(c), Florida Statutes, and Rule

58A-5.0182(6)(b), Florida Administrative Code. The

Administrative Complaint seeks an administrative fine of $300 for

this alleged violation.

Respondent requested a formal hearing.

At the hearing, Petitioner called two witnes ses and offered

into evidence nine exhibits: Petitioner Exhibits 1-6 and 8-11.

Respondent called one witness and offered into evidence three

exhibits. All exhibits were admitted in their entirety except

that the Administrative Law Judge struck the portions of

Petitioner Exhibit 1 not pertaining to Tags A214 and A605.

FINDINGS OF FACT

1. Effective June 13, 1998, Petitioner issued a standard

license to Respondent to operate an assisted living facility to

be known as The Islander. The license expired June 12, 2000.

However, Respondent has maintained a license for the facility

through the date of the final hearing.

2. On February 9, 2000, Petitioner conducted a biennial

inspection of The Islander. The inspection report reveals two

relevant deficiencies, which are identified as "Tags."

3. As cited in the inspection report, Tag A214 states that

Respondent failed to complete background screening on all

employees hired on or after October 1, 1998. Tag A214 alleges

that Respondent hired one employee on September 10, 1999, but did

not have evidence that this employee had completed background

screening, even though the employee was on duty on the date of

the inspection.

4. As cited in the inspection report, Tag A605 states that

Respondent failed to record the observed dosage of medication

that residents administer to themselves. As relevant to the

present case, Tag A605 alleges that the medication record

documentation did not confirm the administration by Resident #3

of Artane, Dilantin, and Mellaril for specified periods of time

or the administration by Resident #4 of Synthroid or Respiridol

for specified periods of time.

5. The February 9 inspection report gave Respondent until

March 10, 2000, to correct the deficiency cited as Tag A204 and

required the immediate correction of the deficiencies cited as

Tags A605. The inspection report classified both of these tags

as Class III deficiencies.

6. On March 30, 2000, Petitioner conducted a follow-up

inspection of The Islander. The purpose of this inspection was

to determine if Respondent had timely corrected the deficiencies

cited in the February 9 inspection report.

7. The March 30 inspection report re-cites Tag A214. The

inspection report states that, although the person previously

cited as lacking documentation of background screening was no

longer employed by Respondent, the manager's personnel file

revealed that the manager lacked the required background

screening. The inspection report gave Respondent until April 30,

2000, to correct this alleged deficiency.

8. The manager to whom Tag A214 refers is Respondent's 22-

year-old daughter. She has been an employee of Respondent at The

Islander continuously since prior to October 1, 1998.

9. The March 30 inspection report re-cites Tag A605. The

inspection report states that, for three residents, Respondent

failed to record the administration of medications at the time of

administration.

10. Specifically, the March 30 inspection report alleges

that the last recorded administration by Resident #2 of

Haloperidol, which was prescribed to be taken three times daily,

was 5:00 PM on March 29, 2000; the last recorded administration

by Resident #3 of Dilantin EX and Mellaril, both of which were

prescribed to be taken twice daily, was at 5:00 PM on March 29,

2000; and the last recorded administration by Resident #4 of

Respiridol, which was prescribed to be taken three times daily,

was 5:00 PM on March 28, 2000.

11. The administration times for the above-described

medications prescribed three times daily are 8:00 AM, 1:00 PM,

and 5:00 PM. The administration times for the above-described

medications prescribed twice daily are 9:00 AM and 5:00 PM. The

reinspection on March 30 took place between 10:10 AM and

11:45 AM.

12. Thus, if the medications had been administered as

prescribed, the medical observation records were deficient as

follows: Resident #2's records were missing the 8:00 AM

administration on March 30; Resident #3's records were missing

the 9:00 AM administrations on March 30; and Resident #4's

records were missing the three administrations on March 29 and

the 8:00 AM administration on March 30.

13. Except for the missing documentation for Resident #4 on

March 29, the failures were of documentation, rather than of the

actual administration of the prescribed medications. For

Resident #4 on March 29, the omission from the records of any

administration was because Resident #4 had run out of medication.

Although Respondent had requested a renewal of the prescription

one week in advance of its expiration, as is Respondent's

customary practice, there had been some delay at the pharmacy in

resupplying the medication. However, Petitioner has not charged

Respondent with any failure in re-ordering medication. Thus, the

March 29 record is accurate as for Resident #4.

14. The accuracy of the medication observation record for

Resident #4 on March 29 underscores Respondent's commitment to

accurate recordkeeping.

15. On the morning of March 30, the three residents in

question received their medications, but the administrations were

not promptly recorded in the medication observation records,

despite Respondent's commitment to accurate recordkeeping.

Unfortunately, normal routine at this six-resident assisted

living facility was disrupted on the morning of March 30 when one

resident woke up with diarrhea.

16. The employee in charge of observing the administration

of medications was able to observe each resident take his or her

medication, but lacked time to record the administrations

immediately. Instead, the employee had to clean the floor, give

the ill resident a bath, and change the clothes of the ill

resident. Making the morning more chaotic was the requirement

that the employee ensure that the residents had their breakfast

prior to taking their medications, as the medications were not to

be taken on an empty stomach.

17. Unfortunately, before the employee was able to record

the administrations after tending to the more pressing concerns,

Petitioner's inspector happened to arrive at The Islander and

find the omissions from the medication observation records.

However, under the unusual circumstances of the morning of March

30, the failure of the employee to record the administrations at

8:00 and 9:00 AM on March 30 did not constitute a failure to

record administrations immediately.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1), Florida

Statutes. (All references to Sections are to Florida Statutes.

All references to Rules are to the Florida Administrative Code.)

19. Section 400.4174(2) provides, in part: "The owner or

administrator of an assisted living facility must conduct level 1

background screening, as set forth in chapter 435, on all

employees hired on or after October 1, 1998, who perform personal

services as defined in s. 400.402(17)."

20. Rule 58A-5.0185(5)(b) (not, as cited, Rule 58A-5.0182)

provides:

For residents who receive assistance with

self-administration or medication

administration, the facility shall maintain a

daily up-to-date, medication observation

record (MOR) for each resident. A MOR must

include the name of the resident and any

known allergies the resident may have; the

name of the resident's health care provider,

the health care provider's telephone number;

the name of each medication prescribed, its

strength, and directions for use; and a chart

for recording each time the medication is

taken, any missed dosages, refusals to take

medication as prescribed, or medication

errors. The MOR must be immediately updated

each time the medication is offered or

administered.

21. Section 400.419(1)(c) defines Class III violations as

follows:

Class "III" violations are those conditions

or occurrences related to the operation and

maintenance of a facility or to the personal

care of residents which the agency determines

indirectly or potentially threaten the

physical or emotional health, safety, or

security of facility residents, other than

class I or class II violations. A class III

violation is subject to an administrative

fine of not less than $100 and not exceeding

$1,000 for each violation. A citation for a

class III violation shall specify the time

within which the violation is required to be

corrected. If a class III violation is

corrected within the time specified, no fine

may be imposed, unless it is a repeated

offense.

22. Petitioner has failed to prove either of the alleged

deficiencies.

23. Due to the finding that Petitioner has failed to prove

either of the alleged deficiencies, it is unnecessary to consider

any issues that may arise out of the conflict between the minimum

fine, as set by statute, of $100 and the minimum fine, as set by

Petitioner's nonrule policy, as described by Health Facility

Evaluators Supervisor Robert Dickson, of $300.

RECOMMENDATION

It is

RECOMMENDED that the Agency for Health Care Administration

enter a final order dismissing the Administrative Complaint

against Respondent.

DONE AND ENTERED this 4th day of October, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 4th day of October, 2000.

COPIES FURNISHED:

Sam Power, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308

Julie Gallagher, General Counsel

Agency for Health Care administration

2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308

Michael O. Mathis

Senior Attorney

Office of General Counsel

Agency for Health Care Administration

2727 Mahan Drive,

Fort Knox Building 3, Suite 3408-D

Tallahassee, Florida 32308

Larry H. Colleton

Larry H. Colleton, P.A.

2300 East Concord Street

Orlando, Florida 32803

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 must be filed with the agency that will

issue the final order in this case.