11-004643 Agency For Health Care Administration vs. Senior Lifestyles, Llc D/B/A Kipling Manor Retirement Center Status: Closed Recommended Order on Tuesday, May 1, 2012.

Summary: AHCA proved two Class III deficiencies. Recommend fines. Evidence did not support revocation of ALF license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 11-4643

)

SENIOR LIFESTYLES, L.L.C., )

d/b/a KIPLING MANOR )

RETIREMENT CENTER, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on January 24 and 25,

2012, by Barbara J. Staros, assigned Administrative Law Judge of

the Division of Administrative Hearings, in Pensacola, Florida.

APPEARANCES

For Petitioner: D. Carlton Enfinger, II, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

For Respondent: John E. Terrel, Esquire

Law Office of John E. Terrel

1700 North Monroe Street, Suite 11-116

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Amended Administrative Complaint and, if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

In an Amended Administrative Complaint dated September 15,

2011, the Agency for Health Care Administration (AHCA) alleged

five class II deficiencies, seeking the imposition of an

administrative fine and survey fee for a total of $13,000, and

the revocation of Respondent's license to operate an assisted

living facility. Respondent, Senior Lifestyles, L.L.C., d/b/a

Kipling Manor Retirement Center, (Kipling Manor) requested a

formal administrative hearing to contest these allegations.

AHCA forwarded the case to the Division of Administrative

Hearings on or about September 15, 2011. A hearing was

scheduled for November 15 through 17, 2011, in Pensacola,

Florida.

On November 4, 2011, the parties filed a Joint Motion to

Continue. The motion was granted. The hearing was rescheduled

for January 24 and 25, 2012, and proceeded as scheduled.

Count I of the Amended Administrative Complaint alleges

that Kipling Manor failed to provide incontinent care for 1 out

of 9 sampled residents and failed to provide nail and facial

care for 1 out of 9 sampled residents in violation of Florida

Administrative Code Rule 59A-5.0182(1). Count II alleges that

Kipling Manor failed to honor the rights of residents by not

providing a safe and decent living environment to prevent the

spread of disease for all residents, in violation of section

429.28, Florida Statutes. Counts III and IV allege that Kipling

Manor failed to administer medications according to the

medication observation record for 1 out of 9 sampled residents

and failed to ensure that prescribed medications were available

in violation of Florida Administrative Code Rule 58A-5.0185.

Count V alleges that Kipling Manor failed to complete a criminal

background check as required by law; Count VI seeks to impose a

survey fee totaling of $500 pursuant to section 429.19(7); Count

VI seeks revocation of the facility's license to operate.

Counts I through IV categorize the violations as class II and

seek to impose fines totaling $12,500, in addition to the

revocation.

At hearing, Petitioner presented the testimony of

Norma Endress and Patricia McIntire. Petitioner's Exhibits

numbered 1 and 2 were admitted into evidence. Respondent

presented the testimony of five witnesses. Respondent’s

Exhibits 1 through 11, 15 and 23 were admitted into evidence.

A Transcript, consisting of three volumes, was filed on

February 21, 2012. Petitioner filed a Motion for Extension of

Time in which to file its proposed recommended order. The

motion was granted. The parties timely filed Proposed

Recommended Orders, which have been duly considered. All

references to Florida Statutes are to the 2011 version, unless

otherwise indicated.

FINDINGS OF FACT

1. AHCA is the agency responsible for the licensing and

regulation of assisted living facilities in Florida pursuant to

chapters 429 and 408, Part II, Florida Statutes.

2. At all times material hereto, Kipling Manor was

licensed by AHCA as an assisted living facility. Kipling Manor

is located in Pensacola, Florida, and operates a 65-bed

facility, license number 7285, and holds a specialty limited

health license.

3. Norma Endress is a registered nurse employed by AHCA.

She conducts surveys of nursing homes and assisted living

facilities for compliance.

4. Ms. Endress is supervised by Patricia McIntire, a nurse

consultant supervisor for AHCA. Ms. McIntyre has been with AHCA

for 13 years.

5. Belie Williams is the administrator of Kipling Manor.

He has been involved with health care services for approximately

35 years, and has been an administrator of ALFs for

approximately 15 years. He has been involved with the Florida

Assisted Living Association (FALA) and served on its board.

Mr. Williams helped implement training sessions for ALFs in

conjunction with FALA for the past eight years.

6. Kipling Manor has two nurses who visit the facility to

provide care to the residents. Elizabeth McCormick is an

advanced nurse practitioner (ARNP) in family, psychiatric and

mental health. She has been a nurse since 1983 and has

extensive experience dealing with inpatient and outpatient

psychiatric residents in long-term facilities. Nurse McCormick

works with a VA facility providing inpatient and outpatient care

on a high intensity psychiatric unit. She was also an assistant

professor at the University of West Florida in the Mental Health

Nursing Program.

7. Nurse McCormick provides medical and mental healthcare

for residents at several ALFs in Pensacola, including Kipling

Manor. She sees patients at Kipling Manor several times a

month. She manages the healthcare of residents, diagnoses

illnesses, and writes prescriptions as needed. She describes

Kipling Manor as not being a typical setting because her

patients there are seriously mentally ill, which presents huge

challenges.

8. Angela Lavigne is a registered nurse certified by

Medicare to provide psychiatric care to patients. She is

employed by a company called Senior Care. Among other things,

she works with assisted living facilities providing therapeutic

counseling, assisting doctors with adjusting medication, and

providing in-service training to staff of these facilities in

regard to psychiatric care.

9. Nurse Lavigne has been seeing patients at Kipling Manor

for almost three years. She visits Kipling Manor approximately

four times a week. At the time of the survey, she visited the

facility once or twice a week. She provides patient care as

well as in-service training to the staff regarding psychiatric

issues. She also runs group sessions with the residents to make

them feel more independent and feel more like they are in their

homes.

10. On July 12 through 14, 2011, Nurse Endress conducted

an unannounced complaint survey of Kipling Manor that gave rise

to the Amended Administrative Complaint and to this proceeding.

Count I--Resident 8

11. Count I alleges that Kipling Manor failed to provide

incontinent care for Resident 8 and failed to provide nail and

facial care for Resident 6. Ms. Endress observed Resident 8

walking with a "med tech" to the "med room" to receive her

medications. Ms. Endress observed wetness on Resident 8's

clothes, and noticed the smell of urine. The med tech gave

Resident 8 her medications, then assisted her to an open area

where Resident 8 sat down. Ms. Endress observed Resident 8 for

about two hours. Ms. Endress approached a personal care

assistant (PCA), who was a new employee, and inquired of the PCA

as to whether the resident was incontinent. As a result of this

inquiry, Ms. Endress believed that this resident was

incontinent. After approximately two hours had passed,

Ms. Endress called this to the attention of the PCA, who then

changed Resident 8 immediately.

12. Ms. Endress determined that Respondent was "not

providing care for this lady, incontinent care. They were not

monitoring her." This determination was based in large part on

her belief that Resident 8 was incontinent. However, Resident

8's health assessment indicates that Resident 8 needed

supervision while toileting, but did not carry a diagnosis of

incontinence. Ms. Endress acknowledged at hearing that

supervision with toileting is not the same thing as being

diagnosed with incontinence. Resident 8's health assessment

also reflects diagnoses of personality disorder, dementia, and

Alzheimer's among other conditions.

13. Ms. McCormick provided health care services to

Resident 8. She quite frequently is involved with residents who

have toileting issues. Had Resident 8 developed skin problems

because of toileting issues, she would have been aware of it.

Ms. McCormick noted that the records indicated that Resident 8

received a skin cream three times a day to prevent such skin

problems.

14. Both Ms. Endress and Ms. McCormick are of the opinion

that, while it is better to change a resident as soon as

possible, a two-hour check is appropriate for someone with

toileting issues.

15. According to Ms. McCormick, if she were looking to

determine whether there existed a direct physical threat to

Resident 8, there would be monitoring for skin breakdown,

redness or irritation, or a possible urinary tract infection

(UTI). Neither Ms. McCormick nor Ms. Lavigne were notified or

saw any signs of a skin infection, other skin problems, or a UTI

regarding Resident 8. There was no evidence presented that

Resident had any skin problems or UTI as a result of this

incident or her toileting issues.

16. Erica Crenshaw is a "med tech" and a supervisor

employed by Kipling Manor. She provided care for Resident 8 and

was on duty the days of the survey in question. Ms. Crenshaw

verified that Resident 8 was on a two-hour check at the time of

the survey. This involved checking to see if Resident 8 was wet

or dry. If she were found to be wet, staff would take off the

resident's brief, change and wipe the resident, put on a new

brief noting the date and time, as well as recording the staff

person's initials. When changing Resident 8, staff would apply

a barrier cream, and check to see if any bed sores developed.

17. Ms. Endress determined that this was a Class II

violation because of the potential for skin breakdown and

infection as well as potential for emotional harm, in that she

perceived this as a dignity issue for Resident 8. Ms. Endress

based this opinion in large part on her mistaken belief that

Resident 8 was incontinent.

18. Her supervisor, Ms. McIntyre, reviewed the

classification recommended by Ms. Endress and concurred that

Class II was appropriate because "[r]esidents, in particular

elderly residents, left sitting in urine, there is a great

potential for them to experience skin breakdowns, which would

certainly have a severe negative impact on their physical

health."

19. Mr. Williams saw Resident 8 while Ms. Endress was

conducting her inspection. He saw that she was wet from urine

on the back of her clothes. He did not detect any strong odor

of urine although he was close to her.

Count I--Resident 6

20. Count I also includes allegations regarding Resident

6. Ms. Endress observed Resident 6 with long facial hair

(Resident 6 is female) and long, dirty fingernails. Ms. Endress

interviewed Resident 6 regarding these observations. Based upon

this interview, Ms. Endress believed that staff did not cut her

facial hair or trim her nails, despite Resident 6 wanting them

to do so. Ms. Endress estimated Resident 6's nails to be

approximately one-quarter inch long but could not recall the

length of her facial hair. Resident 6's health assessment

reflects a diagnosis of dementia with poor short term memory,

and that she needs assistance bathing, dressing, and grooming.

21. Erica Crenshaw described Resident 6 as "a little

difficult to work with." Staff works on nails, hands and feet,

two days a week. If at first Resident 6 was resistant to having

her nails trimmed, they would "give her space" then approach her

again later. She described Resident 6's nails as "pretty

decent."

22. Resident 6 received health care from both Ms. Lavigne

and Ms. McCormick. Both nurses are of the opinion that staff

worked with Resident 6 to keep her nails in good shape. As a

resident of an ALF, Ms. McCormick noted that Resident 6 had the

right to refuse nail care and decide whether her nails needed to

be trimmed.

23. Ms. Lavigne informed staff that they needed to work

with Resident 6 at her own pace, and to be careful not to make

her combative. Ms. Lavigne treated Resident 6 for a wrist

problem in mid-summer of 2011, when Resident 6 was in a splint

for approximately six weeks, and received physical therapy. She

described Resident 6's nails as "nice, round, nothing broken,

nothing chipped. Every once in a while she's actually let staff

put nail polish on them but as far as cutting them down, it's

like an act of Congress to get her to sit down enough to trim

them." There is no evidence as to what could have been under

Resident 6's nails when Ms. Endress saw her. However, the

evidence establishes that Resident 6's nails were tended to by

staff on a regular basis, and that her treating nurse was not

aware of any problem with them.

24. Regarding facial hair, Ms. Lavigne never noticed any

facial hair on Resident 6 other than having "a couple little

whiskers here and there." Ms. Lavigne was Resident 6's treating

nurse in the general time-period around the survey in question,

and was never informed about any problems with Resident 6

regarding nails or facial hair, nor noticed any.

25. Ms. Endress classified the findings she made regarding

Resident 6's nails and hair as a Class II violation because she

perceived it as a "dignity issue because women do not like

facial hair on them." Ms. McIntyre confirmed the class

determined by Ms. Endress, although the record is not clear why.

Count II--cleanliness and maintenance

26. Count II of the Amended Administrative Complaint

alleges that Kipling Manor failed to honor the rights of

residents by not providing a safe and decent living environment

to prevent the spread of disease for all residents. The Amended

Administrative Complaint alleges in pertinent part as follows:

30. In an interview resident #3 on 7/12/11

at 9:00 am stated this place was not clean.

He stated the cook will have gloves on his

hands when he leaves the kitchen. The cook

continues rolling the food down the hallway

to the dining room while simultaneously

rolling the open garbage container which is

soiled. Without changing his gloves he will

serve the food to the residents. 1/

31. An observation of lunch on 7/12/11 at

12:00 pm revealed the cook serving turkey

with gloved hands not using a utensil.

Without changing his gloves he handled

silver ware, moved a gallon of milk and was

touching the dining room table. He was

using the same gloved hand to serve corn

bread.

32. While serving food he never changed his

gloves between clean and dirty.

33. Other staff wearing gloves were serving

lunch to residents and cleaning tables and

pouring beverages without changing gloves.

They were serving beverages touching the

rims of glasses without changing clothes

[sic].

34. During the survey, the following was

seen:

a) Bathroom floor for room 9 on wing 1 was

dirty with build-up of dirt in the corners.

b) Lounge area at the end of wing 1 had a

broken recliner that was being used by a

resident. The floor and furniture were

soiled.

c) Room and bathroom #3 on wing 1 had

dirty floors with build-up of dirt along

baseboards and the toilet lid was too small

for the tank. Vents were clogged with dust.

The door was too short for the opening; wood

was missing on door frame and the threshold

had broken tile.

d) Dining room bathroom at the end of wing

2 had dirty floors with build-up of dirt

along baseboards; around bottom of the

toilet was black and the seal was cracked.

e) Dining room floors were dirty and walls

had dried food on them.

f) Room 27 had filthy floors with build up

along baseboards; dried spills were noted

and the drywall had a hole in it.

g) Wing 2 had drywall that was pulling

away from ceiling and the ceiling had brown

water spots: soiled dirty walls; dirty

baseboards with build up of dust; spills on

walls and vents dusty.

h) Wing 2 had no baseboard near the

shower; the cabinet had mildew on the

outside surface; the wood was warped and

peeling. The sink was soiled with dried

brown substance. The door to the cabinet

would not close. The baseboard wood near

sink was split and the drywall had an

indentation of the door knob.

i) Room 21 floors were filthy and smelled

of urine. Soiled clothes laid on the floor

with soiled underwear which were observed

while medication technician was assisting

resident. No action was taken by the

medication technician.

j) Laundry room floors were filthy. There

was no division between clean clothes and

dirty clothes. Clothes were lying on the

floor.

2/

27. Based upon this complaint, Ms. Endress observed the

dining room during a meal and toured the building. At hearing,

Ms. Endress acknowledged that she did not see the cook touch the

garbage pail or garbage and then touch food. She maintained,

however, that she observed the cook while wearing gloves, touch

food then touch "dirty surfaces," then go back and touch food on

plates and touch the rims on glasses. Ms. Endress did not

specify at hearing what she meant by "dirty surfaces," but in

her report which was the basis for the Amended Administrative

Complaint, she noted that the cook would touch food and then

touch surfaces such as moving a gallon of milk, touching the

dining room table, and handling silver ware. She also testified

that she saw other staff wearing gloves who were serving

residents, cleaning tables, and serving beverages without

changing their gloves.

28. Deborah Jackson is a personal care assistant (PCA),

food server, and laundry worker at Kipling Manor. Ms. Jackson

and one other PCA serve meals for about 60 residents. She

received training in food service. She was working at Kipling

Manor the days Ms. Endress was there for the survey.

29. Ms. Jackson always wears gloves when serving the

residents. If she touches anything besides food she changes

gloves. For example, if she moves chairs, she changes gloves

before resuming food service. She has never seen the other PCA

touch other items then serve food. She was trained never to

touch the rims of the glasses but to pick up glasses and cups

from the side. She goes through "probably a whole box" of

gloves in a day.

30. According to Ms. Jackson, the cook stands behind the

area and puts the food on the plates, preparing two plates at a

time. She watches him prepare the plates of food. She and the

other PCA then serve the food to the residents. The garbage can

is kept in the back, not where food is being served. She has

never seen the cook touch the garbage can then prepare plates of

food. When he has finished, he takes all "his stuff" out on a

cart, while the PCAs clean up. If a resident spilled food, the

PCAs, not the cook, would clean it up.

31. L.N. was the cook at the time of the survey

inspection. L.N. was hired in April 2011 and received training

in infectious control and food service sanitation. L.N. no

longer works for Kipling Manor. 3/

32. Billie Williams, as administrator of Kipling Manor,

confirmed Ms. Jackson's description of the cook's role in

serving dinner. That is, that the cook prepared plates of food

and the PCAs then served the residents.

33. At hearing, Ms. Endress essentially reiterated her

findings regarding the other allegations in count II dealing

with the cleanliness and condition of the facility. No further

proof was offered regarding these or any other allegations in

the Amended Administrative Complaint.

34. Mr. Williams' testimony contradicted much of what

Ms. Endress described regarding the cleanliness and condition of

the facility. Specifically, Mr. Williams noted that on the day

of the survey inspection, maintenance men were repairing a

ceiling leak. The ceiling leak was the cause of the "drywall

pulling away from the ceiling" and the "brown water spots" on

the ceiling cited in the Amended Administrative Complaint.

These conditions were the result of the water leak and were in

the process of being repaired at the time of the survey. The

workers arrived early in the morning and cut drywall from the

ceiling where the water dripped down on it. They necessarily

used a ladder to do the ceiling repair work. A maintenance man

stood at the bottom of the ladder and, if a resident approached,

would escort the resident around the ladder.

35. Regarding the issues of cleanliness, Mr. Williams has

two housekeepers, a person who does the laundry, and two

maintenance men. Mr. Williams acknowledged that there may be a

small wax buildup along baseboards or on the inside corner of a

door. However, the two maintenance men wax, strip, and buff the

floors throughout the building. The floors are swept and buffed

every day. The baseboards (wall to floor) are dust mopped twice

a day.

36. Regarding the allegation that there was black around

the bottom of the toilet and the seal was cracked in the

bathroom off the dining room area, Mr. Williams went to that

room with the maintenance men to personally inspect it. He

observed some discoloration on the floor where the toilet may

have overflowed at some time and got underneath the tile. The

maintenance men cleaned this immediately and replaced the tile.

37. Regarding the allegation that there was mildew on a

bathroom cabinet, Mr. Williams inspected the black mark and

found it to be a tire mark from a wheelchair. He found no mold

or mildew. The black mark was removed.

38. There is a separate laundry room where washers and

dryers are located. Any clothes on the floor are for sorting or

separating by color or other reason prior to washing. Once

clothes are washed, they are taken back to the residents' rooms

immediately. Clean sheets, towels, and wash cloths are placed

on wooden shelves that were built for that purpose. There is no

evidence that establishes that clean and dirty clothes were

mixed on the floor.

39. Mr. Williams also inspected the recliner. The

recliner has snap-on armrests and one had been snapped off. The

maintenance men snapped the armrest back on the chair, and it

was easily repaired.

40. Regarding the allegation that the drywall in a

bathroom had an indentation of the door knob, Mr. Williams

inspected that and found that the doorstop on the bottom had

broken off. There was an indentation in the wall the size of a

doorknob where the door had been opened hard. This was repaired

by the maintenance men.

41. Regarding the allegation of vents being clogged with

dust in a room and bathroom, Mr. Williams found "a little" dust

on a vent which was cleaned immediately by staff. He then

instructed staff to check the vents daily for dust build-up.

42. Mr. Williams could not find a door that was too short

for the opening, and noted that this would be a fire code

violation. Kipling Manor is current on fire and health safety

inspections.

43. In general response to the allegations regarding

cleanliness and maintenance and to a question asking whether he

keeps a well-maintained building, Mr. Williams stated:

We try our best. I mean, I have--you know,

when you have incontinent residents who are

demented, who are bipolar or suffering from

depression, they will do things. And, yes,

they do. And like, I think in one of the

reports she wrote up, there was wet clothes

on the floor. Well, if a resident, some of

them are semi-independent, too. I mean,

they take care of their own needs. If they

had an incontinent issue that morning, and

they took their clothes off and left it

there on the floor, you know, they expect

the staff to pick it up and take it to a

laundry room when they come through. You

know, we do, I think, we do a darn good job

given the -- a lot of my residents have been

homeless, have never had any structured

living. Nobody else in town takes them, but

I have.

44. Ms. Endress classified the alleged violations in Count

II as Class II "because of the potential for harm to residents

which could occur from an unsafe environment and potential

spread of infection." Ms. McIntyre agreed with Ms. Endress that

"the totality of all the findings are what drove the deficiency

to be considered a Class II."

Count III--Resident 4 medications

45. Count III alleges that Kipling Manor failed to

administer medications according to the medication observation

record (MOR) for 1 out of 9 sampled residents (Resident 4).

46. During lunch, Ms. Endress observed Resident 4 become

agitated, rub his face, and complain loudly in the dining room.

Following an observation of this resident and a conversation

with him, Ms. Endress reviewed Resident 4's medication

observation record (MOR) and health assessment.

47. Ms. Endress determined that Resident 4 had not been

given one of his medications, Interferon, when scheduled. The

MOR shows a time for administration as 8 a.m. According to

Ms. Endress, on the date this took place, July 12, 2011, the MOR

was blank in the box that should be initialed when the

medication was administered. The MOR in evidence, however,

reflects initials in that box (i.e., it is not blank). When a

drug is self-administered, the staff member initials the box for

that day. Erica Crenshaw recognized and identified the initials

in the box for that day as those of former unit manager

Tekara Levine, who trained Ms. Crenshaw. According to

Mr. Williams, Ms. Levine, was certified in the self-

administration of medications and was a trustworthy employee.

48. Ms. Endress observed Resident 4 wheel himself from the

dining room to the medication room and self-administer his

medication. This occurred around noon that day.

49. Ms. Endress determined this to be a Class II violation

as she believed it directly threatened the resident emotionally.

She based this in part on the resident's demeanor before the

medication and afterwards, and the comments the resident made to

her.

50. Resident 4 is one of Nurse Lavigne's patients.

Resident 4 has a diagnosis of MS, major depression, post

traumatic stress disorder, a paranoid psychosis, and anxiety and

affective disorder. He receives Interferon for his MS. It is

injectable and he self-administers it every other day.

51. According to Nurse Lavigne, there is no doctor's order

stating that the Interferon must be given at 8 a.m. or any other

particular time. The injection can be administered at any time

during the day. Resident 4 sometimes gets confused about his

medications. He gets extremely upset if he thinks he has not

gotten his medications. He will sometimes tell her (Nurse

Lavigne) that he did not receive a particular medication when

he, in fact, did receive it. Once he is shown the MOR

indicating that he has received his medication, he visibly calms

down. He does not like to leave his room because he thinks

somebody is changing stations on his TV. Regarding his once-a-

day medications, staff will wait until he is ready to come out

of his room because he can get agitated. He sometimes gets

upset if there are a lot of people around him, such as in the

dining room.

52. Nurse Lavigne does a full assessment when she sees

Resident 4. She was not aware of any problems with Resident 4

during that time period regarding his medications.

53. While the record is unclear as to why Resident 4's MOR

shows an administration time of 8 a.m., the evidence

established, through Nurse Levine, his treating nurse, that

there is no doctor's order requiring that the drug be

administered at that particular time. The evidence also

established that Resident 4 self-administered his medication at

noon on July 14, and that this was initialed by a staff member

on his MOR.

Count IV--Resident 1 medications

54. As a result of a complaint received, Ms. Endress

interviewed residents about their medications and spoke to a new

staff member. Based upon these interviews, Ms. Endress

determined that one of Resident 1's medications (Flexeril) had

not been available for one dose on July 13, 2011, and another of

this resident's medications (Visteril) had not been available

from June 23 until July 12, 2011). Ms. Endress classified this

alleged violation as a Class II because she determined that that

it directly affected the resident psychologically and

physically.

55. Resident 1 had a diagnosis of COPD and has an anxiety

disorder. She is alert and oriented. Resident 1 was prescribed

Flexeril to be administered every evening, and Vistaril and

Ativan for anxiety. She is to receive Ativan twice a day and

PRN (as needed) and Visteril before bed and PRN.

56. Each day a medication is administered, the residents'

MORs are initialed by staff in a box indicating each day of the

month. However, if the resident runs out of a drug, the staff

member will put a circle in the box representing that day and

makes a note on the back of the MOR. No circles or notes appear

on Resident 1's MOR indicating that either drug was not

available.

57. Resident 1 is a patient of Nurse McCormick. Resident

1 becomes anxious or agitated if she does not receive her

medication for her anxiety disorder. Nurse McCormick considered

Resident 1's anxiety disorder well controlled by the

medications.

58. Resident 1's MOR reflects that she received Visteral

from June 1 through 30 at night as ordered and received it PRN

several times prior to June 23, 2011, but did not receive it PRN

the rest of the month of June or July 1 through 14. She also

received Ativan twice a day routinely in June and July and five

times PRN during the period June 23 through 30, 2011, and four

times during the period July 1 through 14. According to Nurse

McCormick, either medication was appropriate for controlling

Resident 1's anxiety disorder.

59. Resident 1's MOR reflects that she received Flexeril

on June 30, 2011.

60. Nurse McCormick was not made aware at any time that

Resident 1 was not receiving any of her medications. As the

treating and prescribing nurse, missed or unavailable

medications would have come to Nurse McCormick's attention.

Resident 1 was not anxious, nervous or agitated when interviewed

by Ms. Endress on July 12, 2011.

61. There is no competent evidence that Resident 1

displayed any signs of anxiety, nervousness or agitation during

the survey or during the times that the Amended Administrative

Complaint alleges that she did not receive her medication.

62. Nurse McCormick found the staff of Kipling Manor to be

careful with all residents. She has been to the facility at

various times of the day from early in the morning to late into

the evening. Nurse McCormick is of the opinion that the staff

takes care of all its residents and provides them with dignity.

Despite Kipling Manor's resident population of seriously

mentally ill residents, Nurse McCormick is of the opinion that

the facility manages its residents with dignity and care.

Count V--Background Check

63. The Amended Administrative Complaint alleges that one

staff member of Kipling Manor, the cook, had not been background

screened.

64. Based upon record review and staff interview,

Ms. Endress determined that the facility did not complete a

level 2 background check for 1 out of 8 sampled staff members.

A record review revealed that this employee had been hired in

April 2011.

65. On April 26, 2011, the employee in question signed an

Affidavit of Compliance with Background Screening Requirements,

using AHCA form #3100-0008. By signing this form, the employee

attested to never having been arrested for, pled nolo contendere

to, or convicted of certain disqualifying offenses.

66. Mr. Williams did not complete a background check on

the cook because he did not think the cook was covered under the

law. That is, he did not think the law applied to the cook

because of the lack of personal contact with the residents.

67. The cook is present during meal times serving plates

of food to the dining workers who then directly serve the

residents. The living areas are accessible to the cook.

68. This employee no longer works at Kipling Manor. The

record is not clear as to when he stopped working there.

69. Ms. Endress determined that this constituted a Class

II deficiency as she believed that it could potentially lead to

harm to residents of the facility. According to Ms. McIntyre,

AHCA always imposes a Level II deficiency for failure to have a

level 2 background screening for employees.

70. Both Ms. Endress and Ms. McIntyre testified at hearing

regarding what constitutes Class II and Class III deficiencies.

In several instances, Ms. Endress classified a violation or

deficiency that could potentially result in harm to a resident

as a Class II. Ms. McIntyre testified that "a potential harm to

a resident could be a class II deficiency." She described a

Class III as one that "indirectly threatens the physical,

emotional health or safety of a resident. . . . indirectly or

potentially."

71. The Agency provided a mandatory correction date of

August 1, 2011, for all five counts in the Administrative

Complaint.

CONCLUSIONS OF LAW

72. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

novo. § 120.57(1)(k), Fla. Stat.

73. The burden of proof in this proceeding is on the

agency. Because of the proposed penalties in the Amended

Administrative Complaint, the agency is required to prove the

allegations against Respondent by clear and convincing

evidence. Dep't of Banking & Fin. v. Osborne Stern & Co ., 670

So. 2d 932 (Fla. 1996).

73. The clear and convincing standard of proof has been

described by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting Slomowitz

v. Walker , 429 So. 2d 797,800 (Fla. 4th DCA 1983)).

74. "[W]here a statute provides for revocation of a

license the grounds must be strictly construed because the

statute is penal in nature. No conduct is to be regarded as

included within a penal statute that is not reasonably

proscribed by it; if there are any ambiguities included, they

must be construed in favor of the licensee." McClung v. Crim.

Just. Stds. & Training Comm'n , 458 So. 2d 887, 888 (Fla. 5th

DCA 1984).

75. Count I of the Amended Administrative Complaint

alleges a violation of Florida Administrative Code Rule 58A-

5.0182, which reads in pertinent part as follows:

58A-5.0182 Resident Care Standards

An assisted living facility shall provide

care and services appropriate to the needs

of residents accepted for admission to the

facility.

(1) SUPERVISION. Facilities shall offer

personal supervision, as appropriate for

each resident, including the following:

* * *

(b) Daily observation by designated staff of

the activities of the resident while on the

premises, and awareness of the general

health, safety, and physical and emotional

well-being of the individual.

76. Count II of the Amended Administrative Complaint

alleges a violation of section 429.28(1) (a) and (b), Florida

Statutes, which reads as follows:

429.28 Resident bill of rights.-

(1) No resident of a facility shall be

deprived of any civil or legal rights,

benefits, or privileges guaranteed by law,

the Constitution of the State of Florida, or

the Constitution of the United States as a

resident of a facility. Every resident of a

facility shall have the right to:

(a) Live in a safe and decent living

environment, free from abuse and neglect.

(b) Be treated with consideration and

respect and with due recognition of personal

dignity, individuality, and the need for

privacy.

77. Counts III and IV of the Amended Administrative

Complaint allege violations of Florida Administrative Code Rule

58A-5.0185, which reads in pertinent part as follows:

58A-5.0185 Medication Practices.

Pursuant to Sections 429.255 and 429.256,

F.S., and this rule, licensed facilities may

assist with the self-administration or

administration of medications to residents

in a facility. A resident may not be

compelled to take medications but may be

counseled in accordance with this rule.

(1) SELF ADMINISTERED MEDICATIONS

(a) Residents who are capable of self-

administering their medications without

assistance shall be encouraged and allowed

to do so.

* * *

(5) MEDICATION RECORDS.

* * *

(b) The facility shall maintain a daily

medication observation record (MOR) for each

resident who receives assistance with self-

administration of medications or medication

administration. 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,

strength and directions for each use of each

medication; 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.

* * *

(7) MEDICATION LABELING AND ORDERS

* * *

(f) The facility shall make every

reasonable effort to ensure that

prescriptions for residents who receive

assistance with self-administration of

medication or medication administration are

filled or refilled in a timely manner.

78. Count V alleges a violation of the background

screening statutes. Section 429.174, Florida Statutes, requires

level 2 background screening for personnel as required in

section 408.809(1)(e) and pursuant to chapter 435. Section

408.809(1)(e) requires level 2 background screening to the

following employees:

(e) Any person, as required by authorizing

statutes, seeking employment with a licensee

or provider who is expected to, or whose

responsibilities may require him or her to,

provide personal care or services directly

to clients or have access to client funds,

personal property, or living areas; . . .

79. Section 435.04(1)(a), Florida Statutes, requires all

employees required by law to be screened pursuant to this

section must undergo security background checks as a condition

of employment. The mandatory background screening prior to

employment became effective on August 1, 2010, the effective

date of significant amendments to the background screening

statutes pursuant to chapter 2010-114, Laws of Florida.

80. AHCA has alleged that the violations more fully

described above all fall under the classification of "Class II."

"The entire statutory scheme is based on a classification of

deficiencies, with the deficiencies being classified according

to the level of harm that might or did result from the

deficiency. . . . Accordingly, the Agency has the burden to

prove harm or the potential for harm upon a resident in order to

substantiate its classification of any deficiency." Beverly

Healthcare of Kissimmee v. Ag. For Health Care Admin. , 870 So.

2d 208, 212 (Fla. 5th DCA 2004).

81. Section 408.813(2), Florida Statutes, sets forth the

four classifications of deficiencies in pertinent part as

follows:

(2) Violations of this part, authorizing

statutes, or applicable rules shall be

classified according to the nature of the

violation and the gravity of its probable

effect on clients. . . .

(b) Class "II" violations are those

conditions or occurrences related to the

operation and maintenance of a provider or

to the care of clients which the agency

determines directly threaten the physical or

emotional health, safety, or security of the

clients, other than class I violations . The

agency shall impose an administrative fine

as provided by law for a cited class II

violation. A fine shall be levied

notwithstanding the correction of the

violation.

(c) Class "III" violations are those

conditions or occurrences related to the

operation and maintenance of a provider or

to the care which the agency determines

indirectly or potentially threaten the

physical or emotional health, safety, or

security of clients, other than class I or

class II violations . The agency shall

impose an administrative fine as provided in

this section for a cited class III

violation. A citation for a class III

violation must specify the time within which

the violation is required to be corrected.

If a class III violation is corrected within

the time specified, a fine may not be

imposed.

(emphasis added)

82. The Amended Administrative Complaint seeks to impose

fines in the total amount of $12,500. Part I of chapter 429,

Florida Statutes, is entitled The Assisted Living Facilities

Act. Section 429.19 imposes fines for violations according to

its classification and reads in pertinent part as follows:

(2) 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:

(b) Class "II" violations are defined in s.

408.813. The agency shall impose an

administrative fine for a cited class II

violation in an amount of $1,000 and not

exceeding $5,000 for each violation.

(c) Class "III" violations are defined in

s. 408.813. The agency shall impose an

administrative fine for a cited class III

violation in an amount not less than $500

and not exceeding $1,000 for each violation;

83. Count I of the Amended Administrative Complaint

alleged that the facility failed to provide incontinent care

for 1 of 9 sampled residents (Resident 8) which resulted in

harm. Count I also contains allegations regarding Resident 6

having long facial hair and long, dirty fingernails. AHCA

failed to prove the allegations in Count I. The evidence

established that Resident 8 did not have a diagnosis of

incontinence, but was on a 2-hour toileting schedule.

84. The evidence further established that her treating

nurses were not aware of any skin breakdown or infection.

While certainly sitting in urine for that period of time is not

desirable, at most it constitutes a potential for harm.

Resident 8 was checked for toileting every two hours,

approximately the amount of time the resident was observed by

the surveyor. As for Resident 6's facial hair and fingernails,

both of her treating nurses were of the opinion that staff

worked with Resident 6 to keep her nails in good shape, and

that it was like "an act of Congress" to get Resident 6 to sit

down and allow someone to trim her nails. Regarding the chin

hair, Ms. Lavigne, did not observe anything extreme. There is

no evidence that Resident 6's nails or chin hair resulted in

harm to Resident 6. The record is silent as to what could have

been under Resident 6's nails when Ms. Endress saw her.

Significantly, neither Ms. Lavigne nor Ms. McIntyre, who

provided health care to each of these residents, did not see

any evidence of harm. The evidence does not support a

violation of rule 58A-5.0182, as the Respondent did "offer

personal supervision as appropriate" including "daily

observation" and awareness of "the general health, safety, and

physical and emotional well-being of the individual."

85. Count II of the Amended Administrative Complaint

charges Respondent with a violation of section 429.28, in that

Respondent failed to honor the rights of its residents by not

providing a safe and decent living environment to prevent the

spread of disease for all residents. Count II alleges, among

other things, that the cook wears gloves on his hands when he

leaves the kitchen; that he then rolls the food cart down the

hallway to the dining room, while simultaneously rolling the

open garbage container which is soiled, without changing

gloves. The evidence simply does not support this allegation.

86. Count II contains other allegations concerning gloves

and food service. While Ms. Endress' testimony regarding her

dining room observations is accepted as credible, so is the

testimony of Ms. Jackson who established that staff members are

trained to change gloves when doing anything besides touching

food; that she was trained never to touch the rims of glasses;

that if a resident spills food, the PCAs clean it up, not the

cook. Moreover, the cook observed by Ms. Endress no longer

works there.

87. Count II also alleged many items concerning lack of

cleanliness and maintenance. In many instances as more fully

detailed in the Findings of Fact, the matters were minor

maintenance matters which were either in the process of being

repaired at the time of the inspection (i.e., the ceiling leak)

or immediately repaired (i.e., the recliner arm and tile around

the toilet stained from a water leak.)

88. Applying the language in section 408.813(2), and

considering the "nature of the violation and the gravity of its

probable effect on clients," it is determined that any

violation cited in Count II was minor and isolated in nature,

and only indirectly or potentially threatened the health of the

residents. Therefore, it is concluded that this deficiency is

in the nature of a Class III.

89. Count III alleges a violation of rule 58A-5.0185(5),

alleging that Respondent failed to administer medications

according to Resident 4's MOR. The evidence established that

while the MOR stated "8 a.m." as the time of administration,

Ms. Lavigne, his treating nurse, explained that there is no

doctor's order that Resident 4 must be given at 8 a.m. or at

any other specific time of day. The medicine can be

administered at any time of day. Resident 4 can receive the

medication in question anytime of the day, every other day.

Further, the evidence established that this Resident often

complained of not receiving his medication, when he, indeed,

had. Accordingly, it is determined that there is no violation

of rule 58A-5.0185(5) as alleged in Count III.

90. Count IV alleges that Respondent failed to have

medication available for administration for Resident 1 in

violation of rule 58A-0185(7). AHCA did not prove this alleged

violation. The Resident's MOR reflects that she did indeed

receive Flexeril on June 30 as ordered, and received Vistaril

every night as ordered for anxiety (as well as Ativan for the

same condition.) Resident 1's treating and prescribing nurse

considered Resident 1's condition well controlled and observed

no indications of anxiety during the days in question. The

lack of documentation of PRN administration of Visteril, which

she received every day as ordered, does not clearly and

convincingly establish that the drug was unavailable. While

Ms. Endress relied on representations made by a new staff

member and the resident, the evidence does not support these

allegations.

91. Count V of the Amended Administrative Complaint

alleges that Respondent failed to conduct a background

screening check on one of 8 sampled staff members "which could

potentially lead to harm for residents in the facility."

92. The evidence established that one employee, the cook,

had not been background screened. Respondent, in good faith,

interpreted the law to not include the cook, because of the

limited nature of contact with residents. Notwithstanding

Respondent's interpretation of the applicable law, the cook had

access to client living areas as referenced in section

408.908(1)(e). Accordingly, the cook, who was hired after the

substantial amendments to the background screening statutes in

2010, should have been background screened.

93. AHCA asserts that this is a Class II violation.

Despite Ms. McIntyre's testimony that AHCA always classifies

this as a Class II deficiency, no rule has been cited as

authority for this purported agency policy. § 120.57(1)(e),

Fla. Stat. Moreover, its own allegations in paragraph 90 of

the Amended Administrative Complaint state that this "could

potentially lead to harm for residents in the facility." This

fits within the definition of a Class III violation, and is

more appropriately classified as such. 4/

94. AHCA proved two Class III deficiencies. Applying

section 429.19, each deficiency warrants a fine of a maximum of

$1,000 for a total of $2,000.

95. AHCA seeks to impose a survey fee of $500. Section

429.19(7), Florida Statutes authorizes AHCA to assess a survey

fee equal to the lesser of one half of the facility's biennial

license and bed fee or $500 to cover the cost of conducting

initial complaint investigations that result in the finding of a

violation that was the subject of the complaint. The

violation(s) found herein are the result of a complaint

investigation. Accordingly, the $500 survey fee sought by AHCA

to be imposed pursuant to section 429.19(7) is appropriate.

96. Finally, AHCA seeks to revoke Respondent's license.

Section 429.14(1)(e), Florida Statutes, authorizes AHCA to deny,

revoke, or suspend the license of a facility having three or

more class II deficiencies. No Class II deficiencies were

proven. Revocation is not supported by the evidence nor

required by law.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Agency for Health Care Administration enter a

final order imposing a fine of $2,000, imposing a survey fee of

$500, and dismissing the remaining allegations of the Amended

Administrative Complaint against Respondent, Kipling Manor.

DONE AND ENTERED this 1st day of May, 2012, in Tallahassee,

Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of May, 2012.

ENDNOTES

1/ The allegations of Resident 3 have not been considered as they

are hearsay and there is insufficient proof that they meet the

requirements of section 90.803(24), Florida Statutes, as an

exception to the hearsay rule. This allegation, however, is a

component of the Amended Administrative Complaint and will be

addressed as such.

2/ All allegations in Count II of the Amended Administrative

Complaint regarding Resident 2 were withdrawn at hearing by AHCA.

3/ The cook's initials are being used because a family member by

the same last name was a resident at Kipling Manor.

4/ It is noted that AHCA has on at least one occasion classified

this as a Class III violation. See Ag. for Health Care Admin. v.

Delta Health Group, Inc. , Case No. 03-1655 (Fla. DOAH Nov. 25,

2003) (AHCA May 19, 2003) (Administrative Complaint charged

facility with Class III deficiency for failure to perform

background screening on two staff members).

COPIES FURNISHED:

D. Carlton Enfinger, II, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

John E. Terrel, Esquire

Law Office of John E. Terrel

1700 North Monroe Street, Suite 11-116

Tallahassee, Florida 32303

William H. Roberts, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building 3, Suite 3116

Tallahassee, Florida 32308-5403

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

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.