00-003836 Agency For Health Care Administration vs. Rodriguez Loving Care Status: Closed Recommended Order on Wednesday, February 21, 2001.

Summary: Assisted living facility failed to timely correct Class III deficiencies pertaining to core training for administrator and medical records. Fine recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 00-3836

)

RODRIGUEZ LOVING CARE, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

on December 21, 2000, by video teleconference at locations in

Fort Lauderdale and Tallahassee, Florida, before Claude B.

Arrington, a duly-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, 1st Floor

Miami, Florida 33166

For Respondent: Gladys Rodriguez, Owner

Rodriguez Loving Care

4008 Southwest 23rd Street

Hollywood, Florida 33023

STATEMENT OF THE ISSUE

Whether Respondent, a licensed assisted living facility

(ALF), committed the offenses alleged in the Administrative

Complaint and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Gladys Rodriguez (Ms. Rodriguez) is an owner and

administrator of Respondent ALF. On August 24, 2000, Petitioner

filed an Administrative Complaint alleging certain facts based

on a survey conducted April 11, 2000, and on a follow-up survey

conducted June 27, 2000. Based on those factual allegations,

Petitioner alleged that Respondent failed to timely correct

certain deficiencies and proposed to assess an administrative

fine against Respondent in the amount of $1,000 for each

violation. Respondent timely requested a formal administrative

hearing, the matter was referred to the Division of

Administrative Hearings, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of

Ms. Rodriguez, Maryanne Clancey, Leonard Meerow, and George

Tokesky. Ms. Clancey and Mr. Meerow are the employees of

Petitioner who conducted the two surveys at issue in this

proceeding. Mr. Tokesky, an employee of the Department of Elder

Affairs, is responsible for the administration of the core

training program for ALF administrators in Broward County,

Florida. Petitioner offered four exhibits, each of which was

accepted into evidence.

Ms. Rodriguez testified on behalf of Respondent, but

presented no other testimony and no exhibits.

At the final hearing, the undersigned granted Petitioner's

motion to amend the Administrative Complaint for the following

purposes: to correct a typographical error, to delete an

erroneous Rule citation, and to correct a Rule citation that had

been renumbered. 1/

A Transcript of the proceedings was filed on January 29,

2001. Each party filed a Proposed Recommended Order, which has

been duly considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a licensing and regulatory agency of the

State of Florida charged with the responsibility and duty to

regulate ALFs licensed pursuant to Chapter 400, Florida

Statutes.

2. At all times pertinent to this proceeding Ms. Rodriguez

was an owner and administrator of Respondent, an ALF licensed by

Petitioner. Respondent operates in Broward County, Florida.

3. At all times pertinent to this proceeding, ALF

administrators were required to receive core training

administered by the Florida Department of Elder Affairs. At the

time she took the core training, Ms. Rodriguez was not required

to pass a final examination. Section 400.452(2), Florida

Statutes, provides, in part, that effective July 1, 1997, all

persons taking the core training must pass a competency

examination to be administered by the Department of Elderly

Affairs.

4. Effective April 20, 1998, Rule 58A-5.0191(1)(e),

Florida Administrative Code, provides that any ALF administrator

who did not attend mandatory periodic training updates must

retake core training and must pass the competency examination.

5. In 1998 and 1999, Ms. Rodriguez failed to attend

mandatory training updates.

6. On April 11, 2000, Maryanne Clancey conducted a survey

of Respondent's facility. Ms. Clancey cited two Class III

deficiencies that are pertinent to this proceeding. The first

deficiency was Ms. Rodriguez's failure to attend mandatory core

training updates. That failure justified the first Class III

deficiency cited by Ms. Clancey.

7. The second deficiency was the Respondent's failure to

maintain an accurate up-to-date Medication Observation Record

(MOR), which is required for each resident of an ALF.

Ms. Clancey's determination that Respondent's MOR was inaccurate

was based on the records for a resident of the ALF who will be

referred to as Resident 1. Resident 1's record reflected that

he had received certain prescribed medications at 9:00 a.m. on

the morning of April 11, 2000. There was a conflict in the

evidence as to whether Resident 1 was available to take his

medicine at 9:00 a.m. on April 11, 2000. Ms. Clancey testified

that she had been told by staff that Resident 1 was in the

hospital that morning. Ms. Rodriguez testified Resident 1 had

gone to the hospital during the early morning hours on April 11,

2000, but that Resident 1 had returned from the hospital by

9:00 a.m. that day. There was no other eviden ce as to whether

Resident 1 had or had not taken his prescribed medicine that

day. Based on the conflict between equally credible testimony,

it cannot be determined that Resident 1 was not at the facility

at 9:00 a.m. on April 11, 2000, as alleged by Petitioner, and it

cannot be concluded that Resident 1 did not take his or her

prescribed medicine that day. The alleged Class III deficiency

pertaining to medical records should not be sustained based on

the allegation that Resident 1 could not have taken his

prescribed medicine as reflected on the MOR.

8. The Class III deficiency pertaining to the medical

records did not depend alone on the allegation that Resident 1

could not have taken his prescribed medicine on April 11, 2000.

Ms. Clancey also observed that Resident 1's MOR for the month of

March 2000 reflected that Resident 1 had received

Cyprohepatadine three times a day for the entire month. There

was no indication that Resident 1 had been administered Prozac.

Ms. Clancey determined from Resident 1's pharmacist that

Resident 1's physician had discontinued Cyprohepatadine on

March 28 and had ordered Prozac on March 15. Ms. Rodriguez

admitted that Resident 1's medical records failed to reflect

those changes. The inaccuracies in Resident 1's MOR justified

the second Class III deficiency cited by Ms. Clancey.

9. Respondent was ordered to correct both Class III

deficiencies by May 10, 2000.

10. George Tokesky is the ALF Program Manager for the

Department of Elder Affairs in Broward County, Florida.

Ms. Rodriguez contacted Mr. Tokesky after Ms. Clancey's visit to

determine what she needed to do about the core training.

Mr. Tokesky explained to her that she would have to retake the

core training program and pass the competency examination.

11. Ms. Rodriguez took the core training program from

June 6 to June 13, 2000, but she failed the competency

examination. As of the final hearing, Ms. Rodriguez had not

passed the competency examination.

12. On June 27, 2000, Leonard Meerow conducted a follow-up

visit at Respondent's facility to determine whether the facility

had corrected the Class III deficiencies that Ms. Clancey had

cited.

13. The first Class III deficiency cited by Ms. Clancey

pertaining to Ms. Rodriguez's core training had not been

corrected.

14. Mr. Meerow observed continued Class III deficiencies

pertaining to medical records during the follow-up visit.

Specifically, MOR records for three residents reflected that

each resident had been administered his or her hour of sleep

medication. The entries had been made before 4:00 p.m.

Ms. Rodriguez admitted that these entries were incorrect. The

second Class III deficiency cited by Ms. Clancey pertaining to

medical records had not been corrected.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

16. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

Co. v. Department of Agriculture and Consumer Services , 550

So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge ,

645 So. 2d 398 (Fla. 1994).

17. Section 400.419, Florida Statutes, authorizes

Petitioner to impose administrative fines against an ALF if it

violates a statute or rule regulating its operation and

provides, in pertinent part, as follows:

(1) Each violation of this part and

adopted rules shall be classified according

to the nature of the violation and the

gravity of its probable effect on facility

residents. The agency shall indicate the

classification on the written notice of the

violation as follows:

* * *

(c) 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.

* * *

(3) In determining if a penalty is to be

imposed and in fixing the amount of the

fine, the agency shall consider the

following factors:

(a) The gravity of the violation,

including the probability that death or

serious physical or emotional harm to a

resident will result or has resulted, the

severity of the action or potential harm,

and the extent to which the provisions of

the applicable laws or rules were violated.

(b) Actions taken by the owner or

administrator to correct violations.

(c) Any previous violations.

(d) The financial benefit to the facility

of committing or continuing the violation.

(e) The licensed capacity of the

facility. . . .

18. Section 400.452, Florida Statutes, provides, in

pertinent part, the following core educational requirements and

continuing education requirements for administrators of ALFs:

(1) The department shall provide, or

cause to be provided, training and

educational programs for the administrators

and other assisted living facility staff to

better enable them to appropriately respond

to the needs of residents, to maintain

resident care and facility standards, and to

meet licensure requirements.

(2) The department shall also establish a

core educational requirement to be used in

these programs. Successful completion of

the core educational requirement must

include successful completion of a

competency test. Programs must be provided

by the department or by a provider approved

by the department at least quarterly. The

core educational requirement must cover at

least the following topics:

(a) State law and rules relating to

assisted living facilities.

(b) Resident rights and identifying and

reporting abuse, neglect, and exploitation.

(c) Special needs of elderly persons,

persons with mental illness, and persons

with developmental disabilities and how to

meet those needs.

(d) Nutrition and food service, including

acceptable sanitation practices for

preparing, storing, and serving food.

(e) Medication management, recordkeeping,

and proper techniques for assisting

residents with self-administered medication.

(f) Firesafety requirements, including

fire evacuation drill procedures and other

emergency procedures.

(g) Care of persons with Alzheimer's

disease and related disorders.

(3) Such a program must be available at

least quarterly in each planning and service

area of the department. The competency test

must be developed by the department in

conjunction with the agency and providers.

A new facility administrator must complete

the core educational requirement including

the competency test within 3 months after

being employed as an administrator. Failure

to complete a core educational requirement

specified in this subsection is a violation

of this part and subjects the violator to an

administrative fine as prescribed in s.

400.419. Administrators licensed in

accordance with chapter 468, part II, are

exempt from this requirement. Other

licensed professionals may be exempted, as

determined by the department by rule.

(4) Administrators are required to

participate in continuing education for a

minimum of 12 contact hours every 2 years.

* * *

(9) The department shall adopt rules to

establish training programs, standards and

curriculum for training, staff training

requirements, procedures for approving

training programs, and training fees.

19. Rule 58A-5.0191, Florida Administrative Code,

pertains, in part, as follows to core training for

administrators of ALFs:

(1)(a) The assisted living facility core

training program established by the

department pursuant to s. 400.452, F.S.,

shall be a minimum of 26 hours plus a

competency examination.

(b) Administrators and managers, must

complete the assisted living facility core

training program within 3 months from the

date of becoming a facility administrator or

manager. Administrators who attended core

training prior to July 1, 1997, and managers

who attended core training program prior to

April 20, 1998, shall not be required to

take the competency test. Administrators

licensed as nursing home administrators in

accordance with Part II of Chapter 468,

F.S., are exempt from this requirement.

(c) Administrators and managers shall

participate in 12 hours of continuing

education in topics related to assisted

living every 2 years as provided under s.

400.452, F.S.

(d) Administrators and managers shall, in

addition, attend update training for any

portion of core training that has been

revised as a result of new legislation, rule

amendment, or updated materials. Update

training received under this paragraph can

count towards the 12 hours of continuing

education required by s. 400.452, F.S., and

this subsection.

(e) A newly hired administrator or

manager who previously completed core

training and has maintained update and

continuing education requirements, shall not

be required to retake core training. An

administrator or manager who previously

completed core training but has not

maintained the continuing education

requirements and attended update training

will be considered a new administrator and

must retake core training.

20. Petitioner established by clear and convincing

evidence that Ms. Rodriguez, an owner and administrator of the

Respondent ALF, was required by Rule 58A-5.0191(1)(e), Florida

Administrative Code, to retake the core training program and to

pass the competency examination due to her failure to attend

mandatory training updates. Ms. Rodriguez continued to serve as

an administrator of the Respondent ALF despite having failed to

pass the competency test, which established that Respondent

failed to timely correct a Class III deficiency.

21. Rule 58A-5.0185(5)(b), Florida Administrative Code,

requires an ALF to maintain medical records, in pertinent part,

as follows:

(b) 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.

22. Petitioner established by clear and convincing

evidence that Respondent's failure to accurately maintain

medical records is a Class III deficiency. Petitioner also

established that Respondent failed to timely correct this Class

III deficiency.

23. The failure of an ALF administrator to keep abreast of

developments that may have a direct impact on the operation of

the facility is properly viewed as being a serious violation

that justifies the imposition of the maximum administrative fine

permitted by statute.

24. Likewise, the failure of an ALF to maintain accurate,

up-to-date medical records is viewed as a serious violation that

justifies the imposition of the maximum administrative fine

permitted by statute.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

finding Respondent failed to timely correct two Class III

deficiencies. Petitioner should assess an administrative fine

against Respondent in the amount of $1,000 per violation.

DONE AND ENTERED this 21st day of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARR INGTON

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

t his 21st day of February, 2001.

ENDNOTE

1/ The Administrative Complaint was amended to reflect that

there were two class III deficiencies, not three; the citation

to Rule 58A-5.0191(2)(c), Florida Administrative Code, was

stricken; and the citation to Rule 58A-5.0182(6)(c), Florida

Administrative Code, was changed to Rule 58A-5.0185(5)(b),

Florida Administrative Code, due to its having been renumbered.

COPIES FURNISHED:

Alba M. Rodriguez, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street, 1st Floor

Miami, Florida 33166

Gladys Rodriguez, Owner

Rodriguez Loving Care

4008 Southwest 23rd Street

Hollywood, Florida 33023

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.