99-001761 Agency For Health Care Administration vs. Myrtle Grove, Inc., D/B/A Three Oak Manor Status: Closed Recommended Order on Thursday, October 5, 2000.

Summary: Agency proved violation of assisted living facility rules regarding diet, menus, and physical health of residents; $2,400 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 99-1760

) 99-1761

MYRTLE GROVE, INC., d/b/a )

THREE OAK MANOR, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing

on April 10, 2000, in Pensacola, Florida, before P. Michael

Ruff, duly-designated Administrative Law Judge of the Division

of Administrative Hearings. The appearances were as follows:

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Building 3, Suite 3408D

T allahassee, Florida 32308

For Respondent: M. H. Mikhchi, Owner/President

Myrtle Grove, Inc.

1012 North 72nd Street

Pensacola, Florida 32506

STATEMENT OF THE ISSUES

The issues to be resolved in these consolidated cases

concern whether the licenses of Myrtle Grove, Inc. and M.H.

Mikhchi should be subject to administrative fines for alleged

failure to timely correct seven class III deficiencies at Three

Oak Manor (hereinafter Respondent) and, if so, in what amount.

PRELIMINARY STATEMENT

The Respondent was notified by an Administrative Complaint

dated February 19, 1999, of the agency's intent to impose

administrative fines totaling $1,600.00 against the Respondent,

the licensee of an assisted living facility (ALF), Three Oak

Manor, located at 1012 North 72nd Street, Pensacola, Florida,

based on the failure to timely correct four class III

deficiencies cited during compliance surveys of August 11, 1998,

September 30, 1998, and October 1, 1998. The Respondent filed a

petition for a formal administrative hearing to dispute the

Administrative Complaint and this hearing ensued. The

Respondent was also notified, by an Administrative Complaint

dated March 15, 1999, of the Petitioner's intent to impose

administrative fines totaling $1,600.00 against the Respondent

for failure to timely correct three class III deficiencies cited

during the surveys of January 20 through 21, 1999, and March 8,

1999. The Respondent filed a Petition for a formal

administrative hearing, and the two proceedings were

consolidated. At the hearing, the agency presented the

testimony of two witnesses and two composite exhibits. The

Respondent presented the testimony of three witnesses and two

exhibits. All these exhibits were admitted into evidence. The

Petitioner submitted a Proposed Recommended Order which has been

considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency responsible for the

licensing and regulation of ALFs in Florida. The Respondent is

licensed to operate Three Oak Manor as an ALF in Pensacola,

Florida.

2. Ms. Jackie Klug was called as a witness for the

Petitioner. She is a public health nutrition consultant and a

registered dietitian. Her duties included surveying for both

state and federal regulation for ALF's, nursing homes,

hospitals, and any other health care facility licensed by the

state of Florida.

3. Ms. Klug has been in this position for three years.

She is familiar with the surveys at issue in these proceedings.

"Tag deficiencies" are an agency manual or policy means of

indexing rule violations. Ms. Klug participated in a survey of

August 11, 1998. She observed the Respondent to have failed to

have menus reviewed by a registered or licensed dietitian

annually. Ms. Klug testified she cited "Tag A-807" a rule

violation pertaining to the appropriate amounts of food being

served to the residents on a daily basis. Ms. Klug observed

that the Respondent did not provide the residents with the

required daily servings of food.

4. Ms . Klug cited "Tag A-810" for failure to record menu

substitutions before or at the time a meal is served. This was

based on her observations of what occurred on August 11, 1998.

Ms. Klug established that these rule violations are class III

deficiencies.

5. Ms. Klug observed deficiencies during the survey of

October 1, 1998, as follows: "Tag A-200" for non-compliance

with requirements for posting for public view the last Agency

for Health Care inspection. "Tag A-205" failure to maintain

records, including major incidents. "Tag A-208" failure to

report a fire in the facility. "Tag A-804" pertaining to the

provision of therapeutic diets according to a written order by

the health care provider, as ordered.

6. Ms. Klug observed other deficiencies duri ng the survey

of January 21, 1999, as follows: "Tag A-515" failure to

maintain minimum staffing levels. "Tag A-804" pertaining to the

provision of therapeutic diets according to a written order by

the health care provider, as ordered. "Tag A-810" failure to

record substitutions before or when the meal is served. These

deficiencies are repeat citations from the prior surveys of

August 11, 1998 and October 1, 1998.

7. Ms. Klug identified the Petitioner's Composite Exhibit

1, item 6 as a copy of the license for Myrtle Grove, Inc., d/b/a

Three Oak Manor with an effective date of August 5, 1998, and

with an expiration date of August 4, 2000. Myrtle Grove, Inc.,

d/b/a Three Oak Manor is the licensee.

8. Ms. Paula Faulkner was called as a witness for t he

Petitioner. She is a Health Facility Evaluator III. Her duties

included investigation of consumer complaints as well as routine

surveys.

9. Ms. Faulkner is familiar with the facility at issue.

She has had numerous opportunities to survey this facility.

Ms. Faulkner participated in the survey of October 1, 1998.

Based on her observations at this survey she found a failure to

meet minimum staffing requirements in the facility.

Ms. Faulkner established that Ms. Donna Danley of the agency

found this deficiency still uncorrected at the January 20

through 21, 2000 survey. Ms. Faulkner had no further

involvement in this case, other than her participation in the

team decision to cite these violations as a class III

deficiency.

10. Ms. Kl ug identified the Petitioner's Composite Exhibit

2, item 1 as a copy of the summary statement of deficiencies for

the re-visit survey of January 21, 1999. Based on her

observations, the Respondent was out of compliance with state

regulation "Tag A-006" pertaining to an un-stageable pressure

sore.

11. Ms. Klug identified the Petitioner's Composite Exhibit

2, item 2 as an accurate representation of deficiencies still

existing during a re-visit that was made on January 21, 1999,

and a re-visit of March 8, 1999. Ms. Klug participated in these

surveys. Based on her observations she found the Respondent was

still out of compliance due to the fact that "resident No. 7"

had a stage-two pressure ulcer which had been identified and was

being treated since February 16, 1999.

12. Ms. Klug observed other deficiencies during the re-

visit survey of March 8, 1999, which were previously cited on

January 21, 1999, as follows: Failure to have a completed

evaluation for residents; the nurse on duty failing to have a

current license in the state of Florida; failure to maintain

documentation on file with regard to the qualifications of

individuals performing limited nursing services. In fact, the

nurse had applied for Florida licensure but had not yet received

it. Ms. Klug identified the Petitioner's Composite Exhibit 2,

item 4 as a copy of the Respondent's limited nursing license for

Three Oak Manor. The license has an effective date of August 5,

1998, and an expiration date of August 4, 2000. Mr. M.H.

Mikhchi is the licensee.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

14. The Respondent operates an ALF. The mission of an ALF

is to serve its disabled and frail elderly residents in a home-

like setting, and the goal of state regulation is to promote the

dignity, privacy, health, and safety of the residents of such

homes. See Section 400.401(2), Florida Statutes (1997).

15. The services provided by an ALF are room, board, and

assistance as needed with walking, bathing, dressing, eating,

grooming, toileting, taking of medicines, and similar

activities. Section 400.402(1), (3), and (25), Florida Statutes

(1997).

16. When a licensed operator of an ALF challenges an

alleged violation of a regulatory requirement in a Section

120.57(1), Florida Statutes, proceeding, the burden of

establishing that the charged violation of law has occurred is

on the agency. The standard of proof required for the agency to

establish that the alleged violation has occurred is "clear and

convincing" evidence. Department of Banking and Finance,

Division of Securities and Investor Protection vs. Osborne Stern

and Company , 670 So. 2d 932, 935 (Fla. 1996).

17. Section 400.419(1)(c), Florida Statutes (1999),

provides that 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

$100.00 and not exceeding $1,000.00 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.

18. Section 58A-5.020(1)(h), Florida Administrative Code,

provides that planned menus shall be conspicuously posted or

easily available to residents.

19. Section 58A-5.0182(1), Florida Administrative Code,

provides an administrator shall provide staff and services

appropriate to the needs of the residents living in the

facility.

20. The agency has proved that the Respondent violated

Rule 58A-5.020(1)(h), Florida Administrative Code, in that

planned menus were not conspicuously posted or easily available

to residents. On or about September 30, 1998, the Petitioner

conducted a re-visit survey of Three Oak Manor. During the

survey, the Petitioner determined that the Respondent again

failed to comply with Rule 58A-5.020(1)(h), Florida

Administrative Code, in that food substitutions were not

recorded in the menu substitution log. On or about January 21,

1999, upon the second re-visit survey the Respondent had failed

to comply with Rule 58A-5.020(1)(h), Florida Administrative

Code. This violation is properly classified as a class III

deficiency. A fine of $300.00 should be imposed for this

deficiency.

21. The Petitioner has proved that the Respondent violated

Rules 58A-5.020(1)(f) and 58A-5.052(2)(c), Florida

Administrative Code, in that on or about October 1, 1998, it

failed to provide a therapeutic diet as ordered for one of the

residents. The Respondent still was out of compliance with

Rules 58A-5.020(1)(f) and 58A-5.024(2)(c), Florida

Administrative Code, upon the re-visit survey of January 21,

1999. The violation is properly classified as a class III

deficiency. A fine of $300.00 should be imposed for this

violation.

22. The Petitioner has proved that the Respondent has

violated Rules 58A-5.0182(1) and 58A-5.019(5), Florida

Administrative Code, in that it failed to provide sufficient

staff for proper care of and services for residents in Three Oak

Manor. The Respondent was still out of compliance with Rules

58A-5.0182(1) and 58A-5.019(5), Florida Administrative Code,

upon the re-visit survey of January 21, 1999. This violation is

properly classified as a class III violation. A fine of $300.00

should be imposed for this violation.

23. The Petitioner has proved that on or about January 20

through 21, 1999, the Respondent violated Rule 58A-5.031,

Florida Administrative Code, in that:

a. The Respondent's nurse, hired on

October 10, 1998, was not currently licensed

in Florida, and there was no documentation

to indicate that she had submitted an

application for Florida licensure. In fact

she had submitted an application. The

violation is properly classified as a class

III deficiency. A fine of $100.00 should be

imposed for this violation.

b. The Respondent did not have a nurse

currently licensed in Florida on the

premises to provide limited nursing

services. This violation separate from a.

above, is properly classified as a class III

deficiency. A fine of $200.00 should be

imposed for this violation.

c. The Respondent did not maintain

documentation of the qualifications of

individuals performing limited nursing

services. The violation is properly

classified as a class III deficiency. A

fine of $200.00 should be imposed for this

violation.

24. The Petitioner has established that on or about

March 8, 1999, the three violations previously cited in the

January 20 through 21, 1999, survey or re-visit were still

outstanding. This constituted three uncorrected class III

violations within the intent and meaning of Section 400.419,

Florida Statutes.

25. Dur ing the aforesaid survey of January 20 through 21,

1999, the Petitioner further determined that the Respondent

failed to comply with Section 400.407, Florida Statutes, in that

a resident was observed with an un-stageable pressure sore on

the left trochanter. An ALF is not authorized by law to serve a

resident with a pressure sore greater than a "stage I" pressure

sore. A resident with a pressure sore greater than "stage I" is

not appropriately placed in an ALF.

26. The Petitioner has proved that the Respondent was

still out of compliance with said Section 400.407, Florida

Statutes, upon the re-visit survey of March 8, 1999, in that a

resident had a "stage II" pressure sore which had been

identified and treated since at least February 16, 1999. This

constituted an uncorrected violation within the intent and

meaning of Section 400.419, Florida Statutes. The violation is

properly classified as a class III deficiency. A fine of

$1,000.00 should be imposed for this violation.

RECOMMENDATION

Having con sidered the foregoing Finding of Facts,

Conclusions of Law, the evidence of record and the candor and

demeanor of the witnesses, it is

RECOMMENDED:

That the Petitioner, Agency for Health Care Administration,

enter a final order imposing fines totaling $2,400.00 against

the Respondent, in the aggregate, for failure to timely correct

seven class III deficiencies found during the above-referenced

surveys, related to both administrative complaints.

DONE AND ENTERED this 5th day of October, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of October , 2000.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Building 3, Suite 3408D

Tallahassee, Florida 32308

M. H. Mikhchi, Owner/President

Myrtle Grove, Inc.,

1012 North 72nd Street

Pensacola, Florida 32506

Sam Power, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Julie Gallagher, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Ruben J. King-Shaw, Jr., Director

Agency for Health Care Administration

2727 Mahan Drive

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.