00-005079 Agency For Health Care Administration vs. Marced, Inc., D/B/A Queen Of Angels Status: Closed Recommended Order on Thursday, March 29, 2001.

Summary: Assisted living facility failed to provide its staff with required in-service training and failed to document health status of staff.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Case No: 00-5079

)

MARCED, INC., d/b/a QUEEN OF )

ANGELS , )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

A formal hearing was conducted in this case on March 5,

2001, in Jacksonville, Florida, before the Division of

Administrative Hearings, by its designated Administrative Law

Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Healthcare Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308-5403

For Respondent: Marcela Perry, Administrator

Queen of Angels

Post Office Box 1430

Orange Park, Florida 32073

STATEMENT OF THE ISSUES

The issues are whether Respondent, an assisted living

facility, failed to timely correct eight class III deficiencies,

and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about November 17, 2000, Petitioner Agency for Health

Care Administration (Petitioner) issued an Administrative

Complaint against Respondent Marced, Inc., d/b/a Queen of Angels

(Respondent). Said complaint alleged that Respondent had

violated Sections 400.419, 400.4256, 400.4275, and 400.452,

Florida Statutes, and Rules 58A-5.023, 58A-5.024, 58A-5.181,

58A-5.019 and 58A-5.0191, Florida Administrative Code.

Specifically, the complaint alleged that Respondent was subject

to an administrative fine in the amount of $2,200, due to its

failure to timely correct eight class III deficiencies.

Respondent requested a formal hearing by letter dated

December 11, 2000. Petitioner referred the case to the Division

of Administrative Hearings on December 15, 2000.

A Notice of Hearing dated January 9, 2001, scheduled the

case for hearing on March 5, 2001. At the hearing, Petitioner

presented the testimony of two witnesses and offered nine

exhibits which were accepted as evidence. Respondent presented

the testimony of four witnesses and offered one exhibit, which

was accepted as evidence.

The court reporter filed the Transcript of the proceeding

on March 16, 2001. Petitioner filed its Proposed Recommended

Order on March 21, 2001. Respondent did not file proposed

findings of fact and conclusions of law.

FINDINGS OF FACT

1. Petitioner is the agency charged with the duty to

license and regulate assisted living facilities (ALFs).

2. Respondent is lice nsed to operate as an ALF in Orange

Park, Florida. At the time of the hearing, five residents lived

in Respondent's facility.

3. On September 6, 2000, Petitioner conducted a biennial

licensure survey at Respondent's place of business. During the

survey, Petitioner cited Respondent for five class IV

deficiencies and 18 class III deficiencies.

4. The class III deficiencies included the following:

(a) A-308, the residents' files did not contain a written

informed consent, concerning unlicensed staff who would be

assisting residents with the self-administration of medication;

(b) A-513, staff had not received a minimum of one hour in-

service training, relative to the reporting of major incidents

and facility emergency procedures, within 30 days of employment;

(c) A-514, staff members had not received a minimum of one hour

in-service training, relative to resident rights in an ALF and

recognizing and reporting resident abuse, neglect, and

exploitation, within 30 days of employment; (d) A-515, staff

members had not received three hours of in-service training,

relative to resident behavior and needs and providing assistance

with activities of daily living, within 30 days of employment;

(e) A-1002, the carpet in room No. 3 was stained; (f) A-1101,

not all staff members had documentation from a health care

provider stating they were free from the signs and symptoms of

communicable disease; (g) A-1103, facility staff did not have

documentation on file that they were free from tuberculosis on

an annual basis; (h) A-1106, unlicensed staff who were providing

assistance with self-administered medications had not received

the minimum four hours of training.

5. By letter dated September 15, 2000, Petitioner advised

Respondent that it was required to correct the above-referenced

deficiencies on or before October 6, 2000.

6. On October 5, 2000, a volunteer registered nurse

provided Respondent's staff with four hours of in-service

training relative to medication administration. The nurse was

not approved by Petitioner to provide the training. She did not

provide instruction from an approved curriculum. Respondent did

not document the training session as to date, names of employees

attending, or curriculum content.

7. On October 18, 2000, Petitioner conducted a follow-up

survey to determine whether Respondent had corrected the

previously cited deficiencies. The eight class III deficiencies

listed above in paragraph four had not been corrected.

8. By letter dated October 25, 2000, Petitioner advised

Respondent that it might be subject to administrative fine for

failure to correct the deficiencies. The letter also requested

Respondent to file a correction plan.

9. Respondent could not remove the bleach stain in room

No. 3's carpet. Respondent attempted unsuccessfully to dye the

stained carpet an even color. Respondent bought tiles to

replace the carpet on or about November 25, 2000.

10. By the time that Petitioner conducted its second

follow-up survey, Respondent had corrected the eight remaining

class III deficiencies.

11. During the hearing, Respondent did not contest the

factual basis of the cited deficiencies. Instead, Respondent

attempted to present evidence in mitigation. According to

Respondent, it was experiencing a transition in management in

the fall of 2000; therefore, it could not meet the correction

deadline. Respondent's new manager/caregiver testified that she

did not have sufficient funds to timely secure the required

documentation relative to the status of her health. Finally,

Respondent presented testimony that it could not afford to pay

an administrative fine.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this case.

Sections 120.569 and 120.57(1), Florida Statutes.

13. Respondent admits that it had class III deficiencies,

which were not corrected in a timely manner. Petitioner based

these deficiencies and the proposed administrative fine on the

statutes and rules set forth below.

14. Section 400.419, Florida Statutes, provides as

follows, in pertinent part:

(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.

(4 ) Each day of continuing violation after

the date fixed for termination of the

violation, as ordered by the agency,

constitutes an additional, separate, and

distinct violation.

(5 ) Any action taken to correct a violation

shall be documented in writing by the owner

or administrator of the facility and

verified through followup [sic] visits by

agency personnel. The agency may impose a

fine and, in the case of an owner-operated

facility, revoke or deny a facility's

license when a facility administrator

fraudulently misrepresents action taken to

correct a violation.

(6 ) For fines that are upheld following

administrative or judicial review, the

violator shall pay the fine, plus interest

at the rate as specified in s. 55.03, for

each day beyond the date set by the agency

for payment of the fine.

15. Section 400.4256, Flori da Statutes, provides as

follows in relevant part:

(1 ) For the purposes of this section, the

term:

(a) "Informed consent" means advising the

resident, or the resident's surrogate,

guardian, or attorney in fact, that an

assisted living facility is not required to

have a licensed nurse on staff, that the

resident may be receiving assistance with

self-administration of medication from an

unlicensed person, and that such assistance,

if provided by an unlicensed person, will or

will not be overseen by a licensed nurse.

(b) "Unlicensed person" means an individual

not currently licensed to practice nursing

or medicine who is employed by or under

contract to an assisted living facility and

who has received training with respect to

assisting with the self-administration of

medication in an assisted living facility as

provided under s. 400.452 prior to providing

such assistance as described in this

section.

16. Section 400.4275, Florida Statutes, provides as

follows in relevant part:

(2 ) The administrator or owner of a

facility shall maintain personnel records

for each staff member which contain, at a

minimum . . . documentation of compliance

with all training requirements of this part

or applicable rule . . . .

* * *

(4 ) The department may by rule clarify

terms, establish requirements for . . .

personnel procedures . . . and specify

documentation as necessary to implement the

requirements of this section.

17. Section 400.452, Florida Statutes, states as follows

in pertinent part:

(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 education 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,

person with mental illness, and persons with

developmental disabilities and how to meet

those needs.

* * *

(e ) Medication management, recordkeeping,

and proper techniques for assisting

residents with self-administered medication.

* * *

(5 ) Staff involved with the management of

medications and assisting with the self-

administration of medications under s.

400.4256 must complete a minimum of 4 hours

of training pursuant to a curriculum

developed by the department and provided by

a registered nurse, licensed pharmacist, or

department staff.

(6 ) Other facility staff shall participate

in training relevant to their job duties as

specified by rule of the department.

* * *

(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.

18. Rule 58A-5.0181, Florida Administrative Code, provides

as follows in relevant part:

(1 ) ADMISSION CRITERIA. An individual must

meet the following minimum criteria in order

to be admitted to a facility holding a

standard, limited nursing or limited mental

health license.

* * *

(e ) Be capable of taking his/her own

medication with assistance from staff if

necessary.

1. If the individual needs assistance with

self-administration the facility must inform

the resident of professional qualifications

of facility staff who will be providing this

assistance, and if unlicensed staff will be

providing such assistance, obtain the

resident's or the resident's surrogate,

guardian, or attorney-in-fact's written

informed consent to provide such assistance

as required under s. 400.4256, F.S.

2. The facility may accept a resident who

requires the administration of medication,

if the facility has a nurse to provide this

service, or the resident or the resident's

legal representative, designee, surrogate,

guardian, or attorney-in-fact contracts with

a licensed third party to provide this

service to the resident.

19. Rule 58A-5.019, Florida Administrative Code, states as

follows in relevant part:

(2 ) STAFF.

(a ) Newly hired staff shall have 30 days to

submit a statement from a health care

provider, based on an examination conducted

within the last six months, that the person

does not have any signs or symptoms of a

communicable disease including

tuberculosis. . . .

* * *

(c ) All staff must comply with the training

requirements of Rule 58A-5.0191.

20. Rule 58A-5.0191, Florida Administrative Code, provides

as follows in relevant part:

(2 ) STAFF IN-SERVICE TRAINING. Each

facility must provide the following in-

service training to facility staff.

* * *

(b ) Staff who provide direct care to

residents must receive a minimum of 1 hour

in-service training within 30 days of

employment that covers the following

subjects:

1. Reporting major accidents.

2. Facility emergency procedures including

chain-of command and staff roles relating to

emergency evacuation.

(c ) Staff who provide direct care to

residents, who have not taken the core

training program, shall receive a minimum of

1 hour in-service training within 30 days of

employment that covers the following

subjects:

1. Resident rights in an assisted living

facility.

2. Recognizing and reporting resident

abuse, neglect, and exploitation.

(d ) Staff who provide direct care to

residents, other than nurses, CNAs, or home

health aides trained in accordance with Rule

59A-8.0095, must receive 3 hours of in-

service training within 30 days of

employment that covers the following

subjects:

1. Resident behavior and needs.

2. Providing assistance with activities of

daily living.

* * *

(5 ) ASSISTANCE WITH SELF-ADMINISTERED

MEDICATION and MEDICATION MANAGEMENT.

Unlicensed persons who will be providing

assistance with self-administered medication

described in Rule 58A-5.0185 must receive a

minimum of 4 hours of training prior to

assuming this responsibility. Courses

provided in fulfillment of this requirement

must meet the following criteria:

(a ) Training must cover state law and rule

requirements with respect to the

supervision, assistance, administration, and

management of medications in assisted living

facilities; procedures and techniques for

assisting the resident with self-

administration of medication . . aining

shall include demonstrations of proper

techniques and provide opportunities for

hands-on learning through practice

exercises.

(b ) The training must be provided by a

registered nurse, licensed pharmacist, or

department staff who shall issue a training

certificate to a trainee who demonstrates an

ability to:

1. Understand a prescription label ;

2. Provide assistance with self-

administration in accordance with s.

400.4256, F.S., and Rule 58A-5.0185 . . . .

* * *

(10 ) TRAINING PROVIDER AND CURRICULUM

APPROVAL; TRAINING DOCUMENTATION.

(a ) All persons seeking to provide training

which must be approved by the department

under this rule shall submit their

qualification to provide training and

proposed course curriculums to the

department prior to training. Upon receipt

of approval from the department, the

training provider may identify the training

program as "approved by the Florida

Department of Elder Affairs for purposes of

meeting the training requirement of s.

400.4178 or 400.452, F.S. and Rule 58A-

5.0191." . . .

* * *

(e ) Except as otherwise noted, any training

required by this rule shall be documented in

the facility's personnel files which

documentation shall include the title of the

training program, course content, date of

attendance, the training provider's name and

the training provider's credential's, and

number of hours of training. . . .

21. Rule 58A-5.023, Florida Administrative Code, provides

as follows in pertinent part:

(1 ) GENERAL REQUIREMENTS.

* * *

(b ) The facility's physical structure,

including the . . . floors . . . shall be

structurally sound and in good repair.

Peeling paint or wallpaper, missing ceiling

or floor tiles, or torn carpeting shall be

repaired or replaced. . . .

22. Rule 58A-5.024, Florida Administrative Code, provides

as follows in pertinent part:

(2 ) STAFF RECORDS.

(a ) Personnel for each staff member shall

contain, at a minimum, a copy of the

original employment application with

references furnished and verification of

freedom from communicable disease including

tuberculosis. . . .

(3 ) RESIDENT RECORDS. Resident records

shall be maintained on the premises and

include:

* * *

(g ) For facilities which will have

unlicensed staff assisting the resident with

the self-administration of medication, a

copy of the written informed consent

described in Rule 58A-5.0181 if such consent

is not included in the resident's contract.

23. Petitioner gave Respondent two citations for violating

Rules 58A-5.019 and 58A-5.024(2)(a), Florida Administrative

Code. The first citation involved Respondent's failure to

document that its staff was free of communicable diseases (A-

1101). The second citation involved Respondent's failure to

document that its staff was free of tuberculosis, as a specific

communicable disease (A-1103). Petitioner needs separate

citations in some cases because an ALF might provide

documentation that a staff member was free of communicable

diseases without including tuberculosis as one of those

communicable diseases. However, in the instant case, Respondent

provided no documentation regarding the staff member's health

status. Therefore, only one citation for violation of Rules

58A-5.019 and 58A-5.024(2)(a), Florida Administrative Code, is

appropriate.

24. Respondent's correction of the deficiencies before the

second follow-up survey is the only mitigating factor worthy of

consideration here. See Section 400.419(3), Florida Statutes.

Even then, the corrections were untimely.

25. Some of the cited deficiencies could have resulted in

serious physical or emotional harm to Respondent's residents.

See Section 400.419(3), Florida Statutes. Accordingly, an

administrative fine in the amount of $300 for each of the

following six deficiencies is appropriate: (a) failure to

document the informed consent of residents in violation of Rules

58A-5.0181 and 58A-5.024(3)(g), Florida Administrative Code;

(b) failure to provide documentation that staff was free of

communicable diseases, including tuberculosis, in violation of

Rules 58A-5.019 and 58A-5.024(2)(a), Florida Administrative

Code; (c) failure to provide and/or document staff training

relative to major incidents and facility emergency procedures in

violation of Rule 58A-5.0191, Florida Administrative Code;

(d) failure to provide and/or document staff training relative

to resident rights, including recognizing and reporting abuse,

neglect, and exploitation in violation of Rule 58A-5.0191,

Florida Administrative Code; (e) failure to provide and/or

document staff training relative to resident behavior and

providing assistance with the activities of daily living in

violation of Rule 58A-5.0191, Florida Administrative Code; and

(f) failure to provide and/or document staff training relative

to providing assistance with self-administration of medication

in violation of Rule 58A-5.0191, Florida Administrative Code.

26. There is no evidence that the bleach stain on the

carpet of room No. 3 created a potential harm to Respondent's

residents. However, Rule 58A-5.023, Florida Administrative

Code, requires an ALF facility to be maintained in good repair.

That rule specifically references missing floor tiles and torn

carpeting. It is reasonable to conclude that the rule also

requires repair or replacement of carpet that has been

irreparably damaged by bleach in the cleaning process.

Accordingly, an administrative fine in the amount of $100 is

appropriate here where Respondent failed to replace the stained

carpet in a timely manner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order fining Respondent

$1,900 for seven class III violations of Chapter 58A-5, Florida

Administrative Code, plus interest as specified in Section

400.419(6), Florida Statutes.

DONE AND ENTERED this 29th day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of March, 2001.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health

Care Administration

2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308

Marcela Perry, Administrator

Queen of Angels

Post Office Box 1430

Orange Park, Florida 32073

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

Ruben J. King-Shaw, Jr., Director

Agency for Health

Care Administration

2727 Mahan Drive

Fort Knox 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.