12-003538 Agency For Health Care Administration vs. L And B Solutions Care, Inc., D/B/A L And B Solutions Care Ii, Inc. Status: Closed Recommended Order on Wednesday, February 6, 2013.

Summary: Administrative complaint dismissed because agency failed to comply with statutory preconditions to fining an assisted living facility by issuing a deficiency report and providing a corrective time frame for each cited deficiency.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

) Case No. 12 - 3538

vs. )

)

L & B SOLUTIONS CARE, INC. , )

d/b/a L & B SOLUTIONS CARE II, )

INC., )

)

Respondent . )

)

RECOMMENDED ORDER

On January 3, 2013, Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings, conducted the

final hearing by videoconference in Tallahassee and La uderdale

Lakes, Florida.

APPEARANCES

For Petitioner: Nelson E. Rodney

Assistant General Counsel

Agency for Health Care Administration

8333 Northwest 53rd Street, Suite 300

Miami, Florida 33166

Respondent: Julie Arrendell

Qualified Representative

13899 Biscayne Boulevard, Suite 101

North Miami Beach, Florida 3318 1

STATEMENT OF THE ISSUE S

The issues are whether Respondent , as the ow ner and

operator of an assisted living facility (ALF), is guilty of

failing to correct seven deficiencies by a followup survey

conducted on July 19, 2011, and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On May 26, 2011, Petitioner 's surve yor conducted a survey

of Respondent's ALF and cited several deficiencies . On July 19,

2011, Petitioner's surveyor conducted a followup survey and

found that Respondent had failed to correct eight of the

deficiencies cited in the initial survey .

By Admini strative Complaint dated January 27, 2012,

Petitioner alleged eight counts, which are all alleged to be

Class III violations , and seeks an administrative fine of $1,000

per count . Renumbering the counts to reflect Petitioner's

dismissal of Count 4 at the hearing, the counts are :

1. Respondent failed to maintain a written

record of any significant changes for

residents, in violation of Florida

Administrative Code Rule 58A - 5.0182(1)(e).

2. Respondent failed to have a doctor's

order and signed consent form for half bed

rails, in violation of Rule

58A - 5.0182(6)(h).

3. Respondent failed to maintain a daily

medication administration record for some

residents, in violation of Rule

58A - 5.0185(5)(b)

4. Respondent failed to ensure that

employees obtain at le ast four hours of

medication training prior to assuming

specific responsibilities, in violation of

sections 429.256 and 429.52(5), Florida

Statutes, and Rules 58A - 5.0191(5) and

58A - 5.024(2)(a)1.

5. Respondent failed to have a dated and

planned menu, in violation of Rule

58A - 5.020(2)(d).

6. Respondent failed to have an executed

contract for certain residents, in violation

of sections 429.24(1) and 429.24(5) and

Rule s 58A - 5.024 (3)(i) and 58A - 5.025(1).

7. Respondent failed to submit the written

compreh ensive management plan for review and

approval by the county emergency management

agency, in violation of section 429.41(1)(b)

and Rule 58A - 5.026(2).

T he Administrative Complaint alleges that Respondent

operates a six - bed ALF at 567 Northeast 137th Street in Miami.

The Administrative Complaint refers to an administrator; she is

Leonie Nelson.

For the initial survey, Count 1 alleges that Respondent

failed to maintain a written record of significant changes for

Resident #1 and Resident #3. (Although it i s not alleged in the

Administrative Complaint, exhibits reveal that Resident #1 is

L. M., and Resident #3 is M. A.) Count 1 alleges that Resident

#1's health assessment showed that she had a stage III pressure

ulcer on her buttock, but Respondent maintain ed no documentation

showing when the ulcer appeared, the ulcer's size or

progression, and care provided for the wound. Count 1 alleges

that Respondent's medication observation records (MORs)

disclosed that Resident #1 was hospitalized from May 2 - 5, 2011,

but Respondent maintained no documentation of the

hospitalization. Count 1 alleges that Resident #3 was

hospitalized on October 11, 2010, for vomiting, but Respondent

maintained no documentation of the hospitalization.

For the followup survey, Count 1 all eges that Respondent

maintained no documentation of one or more hospitalizations of

Resident #1 during June and July.

For the initial survey, Count 2 alleges that Respondent

failed to maintain a physician's order and signed consent for

Resident #1, who w as occupying a bed with one - half bed rails.

For the followup survey, Count 2 alleges that Respondent failed

to maintain signed consents for Resident #1 and Resident #3, who

were occupying beds with one - half bed rails; Count 2 also

alleges that Respondent failed to maintain a physician's order

for Resident #3.

For the initial survey, Count 3 alleges that Respondent

failed to maintain a daily MOR for Resident #1, Resident #2, and

Resident #3. (Resident #2 is M. G., also identified as

M. E. G.) As to Resi dent #1, Count 3 alleges that the MOR

states that, even though Resident #1 was in the hospital on

May 4, a staffperson initialed the self - administration of three

medications for that date: Labeta lol HCL 200 mg, Simvastati n 20

mg, and Metformin HCL 850 mg. Count 3 alleges that Resident #1

was prescribed Valacyclovir 500 mg, but the medication was not

documented on her MOR. As to Resident #2, Count 3 alleges that

her MOR did not have the correct times for the self -

administration of Lexapro 10 mg, ferrous s ulfate 325 mg,

Lorazepam .5 mg, Carve dilol 3/125 mg, and Simvastatin 20 mg, and

the MOR did not match the medication instructions on the bingo

card, which is a card bearing dates and attached pills. As to

Resident #3, Count 3 alleges that her MOR omitted the afternoon

self - administration of acetaminophen. A staffperson allegedly

initialed self - administrations of this medication on May 23 and

24, even though the pills were still in the bingo cards. A

staffperson also allegedly initialed the self - administr ation of

morphine 15 mg for May 1 - 26, but the morphine was not at the ALF

during that period of time.

For the followup survey, as to Resident #2, Count 3 alleges

that a staffperson failed to initial the MOR , by 11:00 a.m. on

July 19 for the morning self - administration of Carvedilol. As

to Resident #3, Count 3 alleges that a staffperson initialed

self - administrations of Risperidone and Tramadol -- both at noon

on July 13, even though both of these medications were still in

the bingo card for that date. Cou nt 3 alleges that no

staffperson initialed the self - administration of artificial

tears from July 1 - 19.

For the initial survey, Count 4 (the first of the

renumbered counts, so this appears as Count 5 in the

Administrative Complaint) alleges that Responden t failed to

ensure that Staff #3, Staff #4, and Staff #5 obtained a minimum

of four hours' medication training prior to assuming

responsibilities for which this training is required. (Although

it is not alleged in the Administrative Complaint, Petitioner

exhi bit page 54 reveal s that Staff #3 is M arie Dossons , Staff #4

is J ames F ils Aime, and Staff #5 is Pierre Bozor ; the name of

"James" is hardly legible on the exhibit, but Ms. Nelson

testified as to his first name at the hearing. (Tr. 77 ) ) Count

4 alleg es that Staff #3 is a caretaker hired on October 14,

2000, Staff #4 is the manager hired on August 10, 2009, and

Staff #5 is a caretaker whose date of hire is not alleged.

Count 4 alleges that each of these staffpersons had completed

only two h ours of med ication training. Count 4 alleges that

Respondent's records reveal that Staff #3 was assisting

res idents with self - administration, as she initialed the MOR ,

and alleges that Ms. Nelson admitted that all staffpersons

assist with the self - administration of medications .

For the followup survey, Count 4 alleges that Respondent

failed to ensure that Staff #5 and Staff #7 obtained a minimum

of four hours' medication training prior to assuming

responsibilities for which this training is required. (Staff #7

is Inel Callwood.) Count 4 alleges that Staff #5 had completed

only two hours of medication training and Staff #7 -- a manager

hired on June 21, 2011 -- had no documentation of any medication

training.

For the initial survey, Count 5 alleges that Respondent

fa iled to have a dated and planned menu posted at least one week

in advance. For the followup survey, Count 5 alleges that

Respondent failed to have a dated and planned menu posted at

least one week in advance.

For the initial survey, Count 6 alleges that R espondent

failed to maintain executed contracts for Resident #1 and

Resident #3. Count 6 alleges that Resident #1 was admitted on

September 15, 2010, and her contract was not dated or signed.

Count 6 alleges that Resident #3 was admitted on March 25, 201 0,

and her contract contained only the first page and thus was not

signed.

For the followup survey, Count 6 alleges that Respondent

failed to maintain an executed contract for Resident #3, whose

file allegedly continued to contain only the first page of he r

contract.

For the initial survey, Count 7 alleges that Respondent had

not submitted its written comprehensive management plan for

review and approval by the county emergency management agency.

For the followup survey, Count 7 alleges that Respondent had not

submitted its written comprehensive management plan for review

and approval by the county emergency management agency, although

Ms. Nelson alleged stated that she had sent it to the local

agency for approval.

At the start of the hearing, Petitioner re quested that the

Administrative Law Judge take official notice of a final order

in Agency for Health Care Administration v. L & B Solutions Care

II, Inc. , AHCA Case No. 2011010629 (Final Order). The Final

O rder adopted a recommended order that was issued after an

informal hearing on violations arising out of surveys conducted

on July 19, 2011, and September 7, 2011. As noted above,

July 19 was the date of the followup survey in the present case.

Petitioner asked for official notice to relieve itself o f the

burden of proving those violations that were proven to exist in

AHCA Case No. 2011010629. After explaining this to the

Qualified Representative, the Administrative Law Judge invited

argument. After hearing argument, the Administrative Law Judge

gra nted the request for official notice.

During the hearing, Petitioner called one witness and

offered into evidence six exhibits : Petitioner Exhibits 1 - 2 and

4 - 7 . Respondent called one witness and offered into evidence

three exhibits : Respondent Exhibits 1 - 3 . All e xhibits were

admitted . Following the hearing, the Administrative Law Judge

redacted the Social Security numbers of 13 residents disclosed

on Pe titioner exhibits , pages 70 - 71 , and the full names of

residents that were contained o n almost every p age of the

Qualified Representative's voluminous filing of exhibits on

December 18, 2012.

The court reporter filed the transcript on January 17,

2013. Petitioner filed a proposed recommended order on

January 28, 2013.

Following the hearing, the Administ rative Law Judge found a

reference to Petiti oner's Form 3020 in Petitioner exhibits pages

75 - 76. The Administrative Law Judge has taken official notice

of this form as it appears on Petitioner's website at:

http://ahca.myflorida.com/MCHQ/WebDmHelp/pdfs/Web_DM_3020_Form.p

df . This is a form "Statement of Deficiencies and Plan of

Corrections" for violations of state statutes and rules. The

form contains five columns: a "pre fix tag," a "summary

statement of deficiencies," another prefix tag, a "plan of

correction," and a "complete date." This R ecommended O rder

refers to this form , below, as a deficiency report.

FINDING S OF FACT

1. At all material times, Respondent has owned and

operated an ALF at 56 7 Northeast 137th Street . On May 26, 2011,

Petitioner's surveyor conducted a survey of the ALF in

connection with the renewal of Respondent's license . On

July 19, 2011, Petitioner's surveyor conducted a followup survey

of the AL F to determine whether Respondent had corrected the

deficiencies cited in the initial survey .

2 . At the conclusion of the May 26 survey, the surveyor

conducted an exit conference with Ms. Nelson. The surveyor

obtained Ms. Nelson's signature to a form exp lana tory letter

that states :

The purpose of this letter is to explain the

process now that the survey has been

completed.

During the exit conference, you . . . were

advised of the deficiencies and were

requested to write them down. At this time

we also e stablished time frames for the

correction of each deficiency.

You will receive a written report from o ur

office of this survey. The time to correct,

however, starts from today, the day of the

survey.

. . . It is required that each deficiency

be correct ed by the date established.

If a deficiency is not corrected within the

required time frame, the facility may be

assessed an Administrative Fine by the

Central Office in Tallahassee. . . .

Additional time may be granted to correct

specific deficiencies if a written request

is received prior to the original date of

correction. This written request must

identify the deficiency, by tag number

(refer to the deficiency report), to be

extended . . ..

When the written result of this visit is

received, your co py of the report must be

made available to the public and residents

or participants according to the specific

program requirements. . . .

3. Petitioner's surveyor did not mention a deficiency

report in her testimony, nor do any of the exhibits refer to or

include a deficiency report. Petitioner did not refer to a

deficiency report in its proposed recommended order or

Administrative Complaint. The surveyor's handwritten notes for

the initial survey do not include tag numbers, but her notes for

the follo wup survey supply what appear to be tag numbers for the

deficiencies. (Petitioner exhibits , pages 44 - 46 and 52 - 53.)

Perhaps Petitioner generated a deficiency report after the

initial survey, but there is absolutely no indication in the

record that it did so or, even if it did, that it provided the

deficiency report to Respondent. Interestingly, Petitioner

exhibits pages 75 - 76 are fax cover sheets, both dated August 2,

2011, referencing an attached Form 3020, which is a deficiency

report, but Petitioner e xhibits omit similar cover sheets for

the initial survey.

4. Although the Administrative Complaint identifies the

deficiencies for which Petitioner's surveyor cited Respondent,

this pleading obviously was not available to Respondent prior to

expiration of the time frame s for corrections. A lso, a bsent a

copy of the deficiency report, Respondent could not obtain an

extension of time to make corrections, as this request had to

include the tag numbers that are included in the deficiency

report, nor could Resp ondent c omply with the directive to post

the report at the facility.

5. But the most serious problems arising from Petitioner's

failure to provide Respondent with a deficiency report are that

Ms. Nelson would not have know n exactly what to correct (unle ss

she is a very good notetaker) and would not have know n the

deadline s for correcting the deficiencies . Given the number and

level of detail of the allegedly uncorrected deficiencies, it is

impossible to favor Petitioner with the inference that, at the

e nd of the initial survey, its surveyor accurately communicated

all of the cited deficiencies and all of the corrective time

frames, and Ms. Nelson accurately captured all of this

information.

6 . As noted in the Conclusions of Law, section 408.811(4),

Flor ida Statutes, provides for a corrective time frame of 30

days, unless Petitioner provides a longer or shorter time frame.

The only mention at the hearing of any time frame for correction

was the testimony of Petitioner's surveyor, who stated that she

gave Respondent 30 days to apply fo r approval of an emergency

management plan . The surveyor did not testify that a 30 - day

time frame applied to all deficiencies, as she easily might have

done, if she had set the same time frame for all of the

deficiencies ; sh e testified that a 30 - day time frame applied

specifically to the requirement of submitting an emergency

management plan.

7. Even if the surveyor had testified that she had given

Respondent 30 days to correct all of the cited deficiencies,

this deadline could not reasonably have expired before

Petitioner provided Respondent the deficiency report. The form

letter warns that the corrective time frame begins from the date

of the completion of the initial survey, but the form letter

assumes that Petitioner w ill issue the deficiency report a few

days later. Here, though, the corrective time frames expired

before Respondent received the deficiency report, without which ,

as noted above, she could not even have applied for an extension

of any of the corrective t ime frames.

8. As discussed in the Conclusions of Law, the failure of

Petitioner to prove that it provided Respondent with a

deficiency report , including a detailed citation of individual

deficiencies and a clear time frame for their correction,

necessi tates the dismissal of the Administrative Complaint. The

following findings are provided in case these Conclusions of Law

are ultimately not sustained.

9. By May 26, 2011, Resident #1 had undergone a

significant change while at the ALF because she had de veloped a

stage 3 pressure wound or ulcer , her activities of daily living

(ADLs) had declined, and she had been hospitalized earlier in

May. However, Respondent failed to keep written records

detailing any changes in the pressure wound, discussing any

dec line in ADLs, or explaining the reason for the recent

hospitalization.

10 . By July 19, 2011, Resident #1 had been rehospitalized ,

but Respondent's records did not disclose why.

11 . On May 26, the bed rails were halfway up on

Re sident #1's bed. However , Respondent did not have a n

authorizing order from a physician or consent signed by the

resident or her representative.

12 . On July 19, the bed rails were halfway up on the bed

of Resident #3. However, Respondent did not have an authorizing

order from a physician or consent signed by the resident or her

representative. This finding is consistent with Count Two of

the Final Order.

13 . On May 26, the surveyor examined the MOR for

Resident #1. The allegations concerning Resident #1's MOR for

the initia l survey are impossible to assess because the MOR that

Petitioner introduced into evidence is illegible as to critical

entries. The allegations concerning Resident #2's MOR for the

initial survey are unproved except for the misadministration of

Simvastati n, which was to be administered once at bedtime; the

initialed MOR reveals that staff observed the self -

administration of this medication once in the morning and once

in the evening for the entire month of May. Petitioner's

failure to produce the bingo ca rd instructions, in order to

prove some conflict between them and the reprinted prescription

shown for each drug on the MOR, precludes a finding of a

conflict, or a finding that observing the self - administration of

drugs in accordance with the reprinted pr escriptions shown on

the MOR was in any way incorrect. The allegations concerning

Resident #3 for the initial survey are impossible to assess

because Petitioner neglected to produce a copy of her MOR.

14. On July 19, the initialed MOR for Resident #2 r eveals

that, by 11:35 a.m. on July 19, no staffperson had initialed the

morning self - administration of Carvedilol ; the morning self -

administration, which was due at 8:00 a.m., should have been

completed and initialed well before 11:35 a.m . As for Resident

#3, Petitioner failed to prove that a staffperson initialed for

observing the self - administration of Risperidone and Tramadol

for noon on July 13; the indication on the MOR was that Resident

#3 was not present at that time. Two staffpersons had different

ways of indicating the absence of the resident, and the surveyor

did not understand the manner by which one staffperson indicated

absence -- i.e., by initialing and then circling the initial.

(Additionally, the surveyor's marks on the exhibit sometimes

obs cures the marking on the MOR placed by staffpersons.)

However, Resident #3's MOR discloses no administrations of

artificial tears in July, even though her medication was

available at the ALF. These two findings are consistent with

Count One of the Final Order.

15. On May 26, Staff #3, Staff #4, and Staff #5 did not

have the four hours of training required to qualify to observe

the self - administration of medications. Petitioner proved that

Staff #3 was hired on October 14, 2000, and Staff #4 was hired

on August 10, 2009. Petitioner proved only that Staff #3

observed the self - administration of medication. The MORs for

the initial survey cover nearly the entire month of May, and

they bear only the initials "K" and "M"; "K" appears to be Staff

#2, whose na me is Kermite Jerome, and "M" appears to be Staff

#3.

16. On July 19, Staff #5 and Staff # 7 did not have the

four hours of training required to qualify to observe the self -

administration of medications. Petitioner did not prove a hire

date for Staff #7 , who was newly hired. Petitioner did not

prove that either Staff #5 or Staff #7 observed the self -

administration of medication. The MOR's for the followup survey

cover nearly three weeks of July, and they bear only the

initials "K" and "L"; the "L" is M s. Nelson.

17. On May 26, Respondent did not have a dated and planned

menu posted at least one week in advance. On July 19,

Respondent did not have a dated and planned menu posted at least

one week in advance.

18. On May 26, Respondent did not maintain a dated, signed

contract for Resident #1, nor a signed contract for Resident #3.

On July 19, Respondent did not maintain a signed contract for

Resident #3.

19. On May 26, Respondent had not submitted a written

comprehensive management plan for review an d approval by the

county emergency management agency. On July 19, Respondent had

not submitted a written comprehensive management plan for review

and approval by the county emergency management agency. This

finding as to July 19 is consistent with Count 3 of the Final

Order.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction. §§ 120.569 and 120.57(1), Fla. Stat.

21. Section 429.14(1)(e) provides for discipline of a

licensee, including by the imposition of an administrative fine,

for five or more Class III deficiencies cited in a single survey

that have not been corrected within the times specified.

Section 408.811(4) provides that a deficiency must be corrected

within 30 days of when the provider is notified of the

inspecti on results, "unless an alternative time frame is

required or approved by the agency." Section 429.19(2)(c)

authorizes the imposition of a fine of $500 - $1000 per offense

for every Class III deficiency.

22. Florida Administrative Code Rule 58A - 5.033(1)

aut horizes the inspection of ALFs. Rule 58A - 5.033(3)(a)

requires Respondent, within ten days of an inspection, to issue

a deficiency statement setting forth, for each deficiency, a

description of the deficiency, a citation to the statute or rule

violated, a time frame for the correction of the deficiency, a

request for a plan of correction, and a disclosure of the

administrative penalty if the deficiency is not corrected within

the applicable time frame.

23. For Count 1, r ule 58A - 5.0182(1)(e) requires an ALF to

maintain:

A written record, updated as needed, of any

significant changes as defined in subsection

58A - 5.0131(33), F.A.C., any illnesses which

resulted in medical attention, major

incidents, changes in the method of

medication administration, or other changes

which resulted in the provision of

additional services.

24 . For Count 2, r ule 58A - 5.0182(6)(h) provides:

Pursuant to Section 429.41, F.S., the use of

physical restraints shall be limited to

half - bed rails, and only upon the written

order of the residentÓs physician, who shall

review the order biannually, and the consent

of the resident or the residentÓs

representative. . . .

25. For Count 3, r ule 58A - 5.0185(5)(b) states:

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, strength, and directions for use of

each medication; and a chart for recording

each time the medication is t aken, 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.

26. For Count 4, s ection 429.52(5) requires:

Staff involved with the mana gement of

medications and assisting with the self -

administration of medications under

s. 429.256 must complete a minimum of 4

additional hours of training provided by a

registered nurse, licensed pharmacist, or

department staff. . . .

27. For Count 5, r ule 58A - 5.020(2)(d) states:

Menus to be served shall be dated and

planned at least one week in advance for

both regular and therapeutic diets. . . .

Planned menus shall be conspicuously posted

or easily available to residents. . . .

28. For Count 6, section 429.24(1) requires an executed

contract for each resident.

29. For Count 7, r ule 58A - 5.026(2) requires an ALF to

submit its written comprehensive emergency management plan to

the county emergency management agency for review and approval.

30. Pet itioner must prove the material allegations by

clear and convincing evidence. Dep't of Banking & Fin. v.

Osborne Stern & Co. , 679 So. 2d 932 (Fla. 1996).

31. Although Petitioner would otherwise have proved all of

the alleged deficiencies except those in Count 4, Petitioner has

failed to prove that it has satisfied the conditions precedent

to the occurrence of these deficiencies: i.e., the issuance of

a deficiency report and establishment of time frames within

which Respondent was required to correct the deficiencies cited

in the initial survey.

RECOMMENDATION

It is

RECOMMENDED that the Agency for Health Care Administration

enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 6th day of February, 2013, in

Tallahassee, Leon C ounty, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah. state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of February, 2013.

COPIES FURNISHED :

Leonie Nelson

L and B Solution s Care, Inc.

567 Northeast 137th Street

Miami, Florida 33161

Nelson E. Rodney, Esquire

Agency for Health Care Administration

Suite 300

8333 Northwest 53rd Street

Miami, Florida 33166

Julie Arrendell

Qualified Representative

13899 Biscayne Boulevard, Suite 101

North Miami Beach, Florida 33181

Elizabeth Dudek, Secretary

Agency for Health Care Ad ministration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

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 Recomme nded Order should be filed with the agency that

will issue the Final Order in this case.