00-002973 Agency For Health Care Administration vs. Holly Hill Assisted Living, Inc., D/B/A Holly Hill Care Center
 Status: Closed
Recommended Order on Monday, June 11, 2001.


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Summary: Agency showed Assisted Living Facility (ALF) failed to correct faults revealed by inspection. ALF showed Agency did not prove ALF provided services beyond its license and was responsible for providing medication. No basis for consulting pharmacist.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8AGENCY FOR HEALTH CARE )

13ADMINISTRATION, )

15)

16Petitioner, )

18)

19vs. ) Case No. 00-2973

24)

25HOLLY HILL ASSISTED LIVING, )

30INC., d/b/a HOLLY HILL )

35CARE CENTER, )

38)

39Respondent. )

41)

42RECOMMENDED ORDER

44Pursuant to notice, this cause came on for formal

53administrative hearing before the Honorable Stephen F. Dean,

61duly-assigned Administrative Law Judge with the Division of

69Administrative Hearings on March 29, 2001, at the Daytona Beach

79Regional Service Center, Room 440, 210 North Palmetto Avenue,

88Daytona Beach, Florida.

91APPEARANCES

92For Petitioner : Michael O. Mathis, Esquire

99Agency for Health Care Administration

1042727 Mahan Drive, Building 3

109Ta llahassee, Florida 32308

113For Respondent : Harry S. Hartman, Owner

120Holly Hill Care Center

1241562 Garden Avenue

127Holly Hill, Florida 32117

131STATEMENT OF THE ISSUE

135The issue for consideration in Case No 00-2973, is whether

145the licensee, Holly Hill Care Center, Inc., should be subject to

156administrative fines for failure to timely correct four (4)

165Class III deficiencies; two (2) Class IV deficiencies, and

174one (1) unclassified deficiency at Holly Hill Care Center, an

184assisted living facility (hereinafter Respondent) and, if so,

192the amount.

194PRELIMINARY MATTERS

196The Respondent received an administrative complaint dated

203June 15, 2000, from the Agency for Health Care Administration

213(Agency). The Agency sought to impose administrative fines

221totaling $2,900.00, against the Respondent, the licensee of the

231assisted living facility (ALF), Holly Hill Care Center, 1562

240Garden Avenue, Holly Hill, Florida, for the failure to timely

250correct four (4) Class III deficiencies; two (2) Class IV

260deficiencies, and one (1) unclassified deficiency. The

267Respondent filed a petition for a formal administrative hearing

276to dispute the Agency's action, and this hearing ensued.

285At the hearing, the Agency presented the testimony of

294Robert A. Cunningham, health facilities evaluator for the

302Agency; Eleanor McKinnon, Registered Nursing Specialist for the

310Agency; and Robert Dickson, health facility evaluator supervisor

318for the Agency. The Agency offered one composite exhibit

327containing items 1 through 8, which was received into evidence.

337The Respondent offered one exhibit which was received into

346evidence. A Transcript of the formal hearing was filed on

356April 19, 2001. Both parties submitted Proposed Findings that

365were read and considered

369FINDINGS OF FACT

3721. The Agency is responsible for the licensing and

381regulation of assisted living facilities (ALF) in Florida. The

390Respondent is licensed to operate Holly Hill Care Center as an

401ALF in Holly Hill, Florida. Mr. Robert A. Cunningham, a health

412facility Evaluator II, was called as a witness for the Agency.

4232. Mr. Cunningham identified Item One of Composite Exhibit

4321 as a copy of a survey for the ALF bi-annual licensure survey

445conducted on February 23, 2000. Mr. Cunningham participated in

454conducting that survey.

4573. The Respondent was cited with Tag A-006 for providing

467services beyond the scope of its license, specifically, caring

476for eight mental health residents. The evidence presented that

485the residents in question were mental health residents was that

495they were being treated by ACT and had made application for

506Optional State Supplement.

5094. The Respondent was cited for Tag A-520 for failing to

520ensure that all staff persons who had been employed for more

531than 30 days had documentation for a health care provider

541stating they were free of the signs and symptoms of communicable

552disease. The evidence showed a physician at the local health

562department had examined the employees. The doctor had noted

571that the employees were in “good health” instead of certifying

581that the employees were free of signs and symptoms of

591communicable disease.

5935. The Respondent was cited with Tag A-608 for failing to

604ensure that medication records were accurate and up to date for

615each resident. This related to residents for whom medications

624had been ordered, but not administered.

6306. The facts revealed that ACT was providing their

639medication, but that ACT had failed to provide the medication.

649Although it was not documented in the records that the

659Respondent made an effort to obtain the medications, evidence to

669that effect was presented at the hearing. The Department

678acknowledged that ACT had suffered some cut backs that had

688prevented it from providing medications to some of ACT’s

697clients.

6987. An ALF’s duties regarding medication administration are

706defined by its contract with the resident. The Department did

716not introduce a contract; however, it was evident from the

726testimony of the witnesses that provision of medications was not

736included in the contract for care.

7428. The Respondent was cited with Tag A-615 for failing to

753engage a consulting pharmacist within the required time frame.

762This arose from the violation alleged above. The Respondent had

772difficulty engaging a pharmacist. When one was engaged, he was

782going on vacation and the contract could not be signed until his

794return.

7959. The Respondent was cited with Tag A-804 for failing to

806provide each resident with a therapeutic diet, as ordered by the

817resident’s health care provider and with Tag A-806 for failing

827to have standardized recipes available for food service staff to

837ensure that the nutritional needs of the residents were being

847met. The Respondent conceded it had violated these provisions.

856The Department levied fines of $500 and $150, respectively for

866these violations.

86810. The Respondent was cited with Tag A-814 for failing to

879engage a consulting dietician or nutritionist within the

887prescribed time in response to the Tags A-804 and A-806, above.

898The Respondent admitted that it had been late in engaging a

909nutritionist/dietician; nevertheless, it appeared that it had

916made a good faith effort in a difficult situation in which few

928qualified individuals were available.

932CONCLUSIONS OF LAW

93511. The Division of Administrative Hearings has

942jurisdiction over the parties and subject matter of this case.

952This order is entered pursuant to Section 120.57, Florida

961Statutes.

96212. The Department has the burden of proof.

97013. The Department alleges that the Respondent violated

978Section 58A-5.029, Florida Administrative Code (Tag A-006) by

986failing to obtain the appropriate endorsement to its ACLF

995license to provide services to “mental health residents.” The

1004term “mental health resident” is defined by Section 400.402(16),

1013Florida Statutes, as:

1016Any individual who receives social security

1022disability income due to a mental disorder

1029as determined by the Social Security

1035Administration or receives supplemental

1039security income due to a mental disorder as

1047determined by the Social Security

1052Administration and receives optional state

1057supplementation.

105814. The rules require an affirmative statement on the

1067Alternative Care Certification for Optional State

1073Supplementation form that the resident is receiving SSI/SSDI due

1082to a psychiatric disorder. Or, alternatively, a written

1090verification provided by the Social Security Administration that

1098the resident is receiving SSI or SSID for a mental disorder is

1110required by the rules. Or, finally, the rules require a written

1121statement from the resident’s case manager that the resident is

1131an adult with severe and persistent mental illness.

113915. In this case, the determination was made that the

1149Respondent was in violation of the licensing requirement because

1158the inspection revealed “a lot” of residents who were being

1168treated by ACT. The witness stated that ACT is an agency that

1180treats mental health patients.

118416. An effort was made by counsel for the Agency to

1195buttress the testimony of this witness by having her identify

1205patients from the drug records who were prescribed or receiving

1215psycho-tropic drugs. This was only partially successful because

1223of the witness’s inability to properly identify all the drugs;

1233however, even had this been successful, this is not the standard

1244for identifying a mental health resident described in the rules.

125417. Another effort was made to identify patients who had

1264made application for OSS benefits; however, it is this

1273application that must be approved before the resident receives

1282the benefit. No evidence was received that any of the residents

1293were receiving SSI, SSID, or OSS benefits by virtue of having a

1305mental disorder.

130718. In the absence of such a showing, the predicate for

1318establishing that the Respondent was serving mental health

1326residents was not established, and the violation was not shown.

133619. The Agency alleges that employees of the Respondent

1345did not have the proper documentation to show that they were

1356free of the signs and symptoms of communicable disease (Tag A-

1367520). Evidence was received that the Respondent had sent its

1377employees to the local public health department for examination

1386and the reports of those examinations were on file. The Agency

1397asserted that the examining physician’s entry, “Good Health,” on

1407the public health examination form regarding the employee’s

1415health history was insufficient to establish the employee was

1424“free of the signs and symptoms of communicable disease.”

143320. The evidence reveals that the examination form used by

1443the local public health department is one for student health

1453examination; however, the Agency has not adopted a specific form

1463for this purpose. The Agency is seeking to fine a licensee

1474because the public health physician who conducted the

1482examination of the employee did not use a specific verbal

1492formula. A physician’s statement that the person being examined

1501is in “good health” is sufficient to establish that the person

1512is “free of the signs or symptoms of communicable disease.” The

1523doctor’s statement the employee was in good health is more

1533specific and definite than a statement that the person “is free

1544from the signs and symptoms of communicable disease” because one

1554can be free of signs and symptoms and still have a communicable

1566disease.

156721. The Agency presented evidence that the Respondent did

1576not administer certain medications to residents in accordance

1584with the physicians’ orders for these residents (Tag A-608).

1593The Respondent presented un-rebutted evidence that it did not

1602administer the medications because it did not have the

1611medications. The issue is not simply failing to administer

1620medications as prescribed, but failing to provide the

1628medications to be administered.

163222. The Respondent presented evidence that it had not

1641administered medications for ACT patients because ACT, which was

1650responsible for providing the medications, had not provided the

1659medications. The Respondent had made attempts to obtain the

1668medications from ACT, but these attempts had not been

1677documented. The Agency asserts that the Respondent was

1685ultimately responsible for the failure to administer the

1693medications.

169423. The law provides that the ALF will have a contract

1705with the resident for the services to be provided. Where the

1716family or sponsor is to provide a resident’s medication, the

1726licensee cannot be held responsible for failing to administer

1735medications not on hand. The licensee’s responsibility is to

1744notify the resident’s physician that it cannot follow the

1753physician’s orders because it does not have the medication. (It

1763was not alleged or proven that the Respondent failed to document

1774reporting a health care issue to a resident’s physician.) Upon

1784receiving a report that a patient is out of medication, the

1795doctor and licensee may be obligated to report the situation to

1806the appropriate authorities if the resident is a child,

1815handicapped, or elderly, once the doctor determines that the

1824failure to provide the medication endangers the health of the

1834resident.

183524. There is no requirement to provide the medications

1844unless the licensee agrees to provide medications in its service

1854contract. The Agency failed to establish a key element of the

1865alleged violation, i.e. , was the Respondent obligated to provide

1874the medications. The testimony generally establishes that ACT

1882was to provide medication for its clients. It appears that some

1893of the residents who did not have medication were ACT clients.

1904In this case, the Agency has the burden of proof, and it failed

1917to prove that the Respondent had a contractual obligation to

1927provide the medications and failed to do so.

193525. The foregoing alleged violation of medication

1942administration was the basis for the Agency's demanding that the

1952Respondent engage a consulting pharmacist (Tag A-615). Rule

196058A-5.033(4)(a), Florida Administrative Code, provides:

1965(a) Medication Deficiencies.

1968If a class I, class II, or uncorrected class

1977III deficiency directly relating to facility

1983medication practices as established in Rule

198958A-5.0185, is documented by agency

1994personnel pursuant to an inspection of the

2001facility, the agency shall notify the

2007facility in writing that the facility must

2014employ, on staff or by contract, the

2021services of a pharmacist licensed pursuant

2027to s. 465.0125, F.S., or registered nurse,

2034as determined by the agency.

203926. It is noted that the Respondent did engage a

2049consulting pharmacist, and the allegation is that it was not

2059timely. However, if there was no violation regarding medication

2068administration (Tag A-608), there was no basis for requiring the

2078hiring of a consultant pharmacist (Tag A-615).

208527. The Respondent stipulates that it did not ensure that

2095each resident received the diet prescribed by the resident’s

2104physician (Tag A-804) which is a Class III dietary deficiency.

2114The Respondent also did not have standardized recipes for meal

2124preparation by staff, which is a IV dietary deficiency (Tag A-

2135806). The Agency levied a fine of $500 for the first violation

2147and $150 for the second violation.

215328. If a Class I, Class II, or uncorrected Class III

2164deficiency directly related to dietary standards as established

2172in Rule 58A-5.020, Florida Administrative Code, is documented by

2181Agency personnel pursuant to an inspection of the facility, the

2191Agency shall notify the facility in writing that the facility

2201must employ, on staff or by contract, the services of a

2212registered dietitian or licensed dietitian/nutritionist.

221729. The record reflects that there was an uncorrected

2226Class III deficiency, and the Respondent was advised in writing

2236to engage a registered dietitian or licensed

2243dietitian/nutritionist. The Respondent failed to hire a

2250registered dietitian or licensed dietitian/nutritionist within

2256the required time (Tag A-814). At hearing, the Respondent’s

2265owner and the facility’s administrator stated that they actively

2274sought a qualified dietitian or nutritionist, but could not find

2284one who was available. There was one person who indicated that

2295they would be a consultant; however, this person wanted more

2305compensation that the consulting pharmacist to provide services.

2313It is concluded that this person really was not interested in

2324the engagement. The Respondent was eventually able to obtain a

2334nutritionist or dietician; in any case, it did not do so within

2346the applicable time frames. The Department levied a fine of

2356$300 for failing to engage a dietician or nutritionist in time.

2367RECOMMENDATION

2368Based upon the violations proven and admitted above, the

2377Respondent violated Tags A-804, A-806 and A-814 for which the

2387Department levied respectively fines of $500, $150, and $300.

2396The Department should enter its final order assessing those

2405fines for those tags. The other violations alleged were not

2415proven or the predicate for the requirement alleged to have been

2426violated was not established. No action should be taken on the

2437Tags A-006, A-520, A-608 and A-615.

2443DONE AND ENTERED this 11th day of June, 2001, in

2453Tallahassee, Leon County, Florida.

2457___________________________________

2458STEPHEN F. DEAN

2461Administrative Law Judge

2464Division of Administrative Hearings

2468The DeSoto Building

24711230 Apalachee Parkway

2474Tallahassee, Florida 32399-3060

2477(850) 488- 9675 SUNCOM 278-9675

2482Fax Filing (850) 921-6847

2486www.doah.state.fl.us

2487Filed with the Clerk of the

2493Division of Administrative Hearings

2497this 11th day of June, 2001.

2503COPIES FURNISHED :

2506Harry S. Hartman, Owner

2510Holly Hill Care Center

25141562 Garden Avenue

2517Holly Hill, Florida 32117-2145

2521Michael O. Mathis, Esquire

2525Agency for Health Care Administration

25302727 Mahan Drive

2533Fort Knox Building Three, Suite 3431

2539Tallahassee, Florida 32308-5403

2542Sam Power, Agency Clerk

2546Agency for Health Care Administration

25512727 Mahan Drive

2554Building 3, Suite 3431

2558Tallahassee, Florida 32308

2561Julie Gallagher, General Counsel

2565Agency for Health Care Administration

25702727 Mahan Drive

2573Building 3, Suite 3431

2577Tallahassee, Florida 32308

2580NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2586All parties have the right to submit written exceptions within

259615 days from the date of this Recommended Order. Any exceptions

2607to this Recommended Order should be filed with the agency that

2618will issue the Final Order in this case.

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PDF
Date
Proceedings
PDF:
Date: 09/27/2001
Proceedings: Final Order filed.
PDF:
Date: 09/26/2001
Proceedings: Agency Final Order
PDF:
Date: 06/11/2001
Proceedings: Recommended Order
PDF:
Date: 06/11/2001
Proceedings: Recommended Order issued (hearing held March 29, 2001) CASE CLOSED.
PDF:
Date: 04/30/2001
Proceedings: Proposed Recommended Final Order (filed by Respondent via facsimile).
PDF:
Date: 04/25/2001
Proceedings: Agency`s Proposed Recommended Order filed.
Date: 04/19/2001
Proceedings: Transcript of Proceedings filed.
Date: 03/29/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 02/07/2001
Proceedings: Notice of Hearing issued (hearing set for March 29 and 30, 2001; 10:15 a.m.; Daytona Beach, FL).
PDF:
Date: 11/07/2000
Proceedings: Motion to Re-Schedule Hearing filed by Petitioner.
PDF:
Date: 10/23/2000
Proceedings: Order Granting Continuance issued (parties to advise status by November 6, 2000).
PDF:
Date: 10/23/2000
Proceedings: Request for Continuance (filed by Respondent via facsimile).
PDF:
Date: 08/25/2000
Proceedings: Agency Response to Pre-Hearing Instructions filed.
PDF:
Date: 08/21/2000
Proceedings: Order of Pre-hearing Instructions sent out.
PDF:
Date: 08/21/2000
Proceedings: Notice of Hearing sent out. (hearing set for October 25 and 26, 2000; 10:00 a.m.; Daytona Beach, FL)
PDF:
Date: 08/08/2000
Proceedings: Joint Response to Initial Order filed.
Date: 07/26/2000
Proceedings: Initial Order issued.
PDF:
Date: 07/20/2000
Proceedings: Administrative Complaint filed.
PDF:
Date: 07/20/2000
Proceedings: Answer and Petition for Formal Administrative Hearing filed.
Date: 07/20/2000
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 07/20/2000
Proceedings: Notice filed.

Case Information

Judge:
STEPHEN F. DEAN
Date Filed:
07/20/2000
Date Assignment:
07/26/2000
Last Docket Entry:
09/27/2001
Location:
Daytona Beach, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

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