00-000725 Agency For Health Care Administration vs. Northpointe Retirement Community Status: Closed Recommended Order on Tuesday, May 2, 2000.

Summary: Respondent failed to maintain a record of major incident reports, on two occasions, documenting injury to residents which required treatment by a health care provider.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 00-0725

)

NORTHPOINTE RETIREMENT )

COMMUNITY, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A formal h earing was conducted in this case on March 17,

2000, by video teleconference in Pensacola and Tallahassee,

Florida, before the Division of Administrative Hearings, by its

designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3408D

Tallahassee, Florida 32308

For Respondent: Mohamad Mikhch i, pro se

Owner/President

Northpointe Retirement Community

5100 Northpointe Parkway

Pensacola, Florida 32514

STATEMENT OF THE ISSUES

The issues are whether Resp ondent failed to maintain a

record of major incidents on two occasions, and if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On January 3, 2000, Petitioner Agency for Health Care

Administration (Petitioner) filed an Administrative Complaint.

Said complaint alleged that Respondent Northpoint Retirement

Community (Respondent) had failed to maintain a record of major

incidents on two occasions in violation of Section

400.419(1)(c), Florida Statutes, and Rules 58A-5.0131(2)(hh) and

58A-5.024(1)(b), Florida Administrative Code. On January 24,

2000, Respondent requested a formal hearing to contest the

allegations. Petitioner referred this matter to the Division of

Administrative Hearings on February 14, 2000.

The parties filed a Joint Response to Initial Order on

February 24, 2000. A Notice of Hearing dated March 3, 2000,

scheduled the case for hearing on March 17, 2000.

During the hearing, Petitioner presented the testimony of

two witnesses and offered one composite exhibit which was

accepted into evidence. Respondent presented the testimony of

one witness. Respondent did not offer any exhibits.

A Transcript of the proceeding was filed on March 29, 2000.

Petitioner filed a Proposed Recommended Order on April 11, 2000.

Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner regulates assisted living facilities (ALFs)

pursuant to Chapter 400, Part III, Florida Statutes, and Rule

58A-5, Florida Administrative Code.

2. Respondent is licensed as an ALF pursuant to Chapter

400, Part III, Florida Statutes, and Rule 58A-5, Florida

Administrative Code.

3. On or about October 4, 1999, Petitioner received a

telephone call alleging that Respondent was operating contrary

to Rule 58A-5, Florida Administrative Code, in several respects.

In response to the telephone complaint, Petitioner performed an

unannounced inspection/survey at Respondent's facility on

October 6, 1999.

4. Petitioner performed record reviews, interviews, and

observations during its October 6, 1999, inspection of

Respondent's facility. The survey revealed that Respondent's

business was deficient in several respects that are not relevant

here. These deficiencies resulted in four citations.

5. On November 10, 1999, Petitioner completed a follow-up

appraisal/complaint investigation at Respondent's facility.

During the survey, Petitioner reviewed randomly selected medical

records of eight of Respondent's clients.

6. The November 10, 1999, revisit resulted in Respondent

being cited for several Class III deficiencies. The

deficiencies included one citation for failing to maintain a

record of a major incident involving an injury to a resident who

required treatment by a health care provider.

7. Specifically, Resident No. 5 fell on October 22, 1999,

and fractured a leg. She was transferred and admitted to the

hospital. At the time of the November 10, 1999, inspection,

Respondent could not produce documentation indicating that it

had completed a major incident report. Petitioner advised

Respondent that it had until November 24, 1999, to correct cited

deficiencies.

8. On December 20, 1999, Petitioner conducted a revisit

survey of Respondent's facility. The purpose of the inspection

was to determine whether Respondent had corrected deficiencies

cited during the November 10, 1999, inspection. This inspection

included a review of medical records for eight randomly chosen

residents.

9. The December 20, 1999, survey revealed a repeat

deficiency for failing to complete a major incident report of an

injury to a resident who required treatment by a health care

provider. Petitioner cited Respondent for failing to complete a

major incident report for Resident No. 7 who fell on or about

August 1, 1999.

10. Resident No. 7 fell in her room but refused initially

to go to the hospital. Two days later, Resident No. 7 was

admitted to the hospital for observation due to her complaints

of pelvic pain. She returned to Respondent's facility with a

new health assessment dated August 3, 1999. The new health

assessment revealed a decline in the resident's ability to

perform daily living activities and changed her status from

independent to requiring supervision in dressing, grooming,

toileting, and transferring. Respondent did not complete a

major incident report at the time of the resident's fall or upon

her admission to and return from the hospital.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

12. Section 400.402(6), Florida Statutes (1999), defines

an ALF as follows:

(6) "Assisted living facility" means any

building or buildings, section or distinct

part of a building, private home, boarding

home, home for the aged, or other

residential facility, whether operated for

profit or not, which undertakes through its

ownership or management to provide housing,

meals, and one or more personal services for

a period exceeding 24 hours to one or more

adults who are not relatives of the owner or

administrator.

13. A license is required to operate an ALF in this state.

Section 400.407(1), Florida Statutes (1999). This licensure is

a public trust and not an entitlement. Section 400.401(3),

Florida Statutes (1999).

14. Section 400.419, Florida Statutes (1999), provides as

follows, in pertinent part:

(1) Each violation of this part and adopted

rules shall be classified according to the

nature of the violation and the gravity of

its probable effect on facility residents.

The agency shall indicate the classification

on the written notice of the violation as

follows:

* * *

(c) Class "III" violations are those

conditions or occurrences related to the

operation and maintenance of a facility or

to the personal care of residents which the

agency determines indirectly or potentially

threaten the physical or emotional health,

safety, or security of facility residents,

other than class I or class II violations.

A class III violation is subject to an

administrative fine of not less than $100

and not exceeding $1,000 for each violation.

A citation for a class III violation shall

specify the time within which the violation

is required to be corrected. If a class III

violation is corrected within the time

specified, no fine may be imposed, unless it

is a repeated offense.

* * *

(3) In determining if a penalty is to be

imposed and in fixing the amount of the

fine, the agency shall consider the

following factors:

(a) The gravity of the violation, including

the probability that death or serious

physical or emotional harm to a resident

will result or has resulted, the severity of

the action or potential harm, and the extent

to which the provisions of the applicable

laws or rules were violated.

(b) Actions taken by the owner or

administrator to correct violations.

(c) Any previous violations.

(d) The financial benefit to the facility

of committing or continuing the violation.

(e) The licensed capacity of the facility.

(4) Each day of continuing violation after

the date fixed for termination of the

violation, as ordered by the agency,

constitutes an additional, separate, and

distinct violation.

(5) Any action taken to correct a violation

shall be documented in writing by the owner

or administrator of the facility and

verified through followup [sic] visits by

agency personnel. The agency may impose a

fine and, in the case of an owner-operated

facility, revoke or deny a facility's

license when a facility administrator

fraudulently misrepresents action taken to

correct a violation.

(6) For fines that are upheld following

administrative or judicial review, the

violator shall pay the fine, plus interest

at the rate as specified in s. 55.03 , for

each day beyond the date set by the agency

for payment of the fine.

15. Rule 58A-5.024(1)(b), Florida Administrative Code,

states as follows in relevant part:

(b) Owners or administrators are

responsible for maintaining records of major

incidents as defined in Rule 58A-0131,

F.A.C., containing a clear description of

each accident or other incident involving

dangerous behavior of a resident or a staff

member with the time, place, names of

individuals involved, witnesses if injuries

were sustained, nature of injuries, cause of

accident if known, a description of medical

or other services provided, by whom such

services were provided and any steps taken

to prevent recurrence. These reports shall

be made by the individuals having first hand

knowledge of the incidents, including paid

staff, volunteer staff, emergency and

temporary staff, and student interns.

16. The definition of a major incident that is relevant

here is "an injury to a resident which requires treatment by a

health care provider." Rule 58A-5.0131(2)(hh)4., Florida

Administrative Code.

17. In this case, Respondent failed to maintain a major

incident report to document the fall of Resident No. 5 on

October 2, 1999. Petitioner discovered this deficiency during

the November 10, 1999, investigation and cited Respondent for

operating in violation of Rules 58A-5.0131 and 58A-5.024,

Florida Administrative Code.

18. During the revisit survey on December 20, 1999,

Petitioner discovered that Respondent failed to maintain a major

incident report to document the fall of Resident No. 7 on

August 1, 1999. This deficiency involved a repeated citation

for violation of Rules 58A-5.0131 and 58A-5.024, Florida

Administrative Code.

19. Respondent should have documented the fall of Resident

No. 7 at the time of its occurrence, and having failed that

requirement, could have documented the fall upon her admittance

and/or return from the hospital.

20. After receiving the November 10, 1999, citation for

violating Rules 58A-5.0131 and 58A-5.024, Florida Administrative

Code, Respondent had an opportunity to review the medical

records of its residents to ensure that it was in compliance

with the rule requiring maintenance of major incident reports.

If Respondent had done so, it may have discovered the new health

care assessment indicating that Resident No. 7 fell on

August 1, 1999, received medical treatment in the hospital for

the resulting injury, and returned to the facility on August 3,

1999, with a need for increase supervision in daily living

activities.

21. Under the circumstances of this case, Respondent could

have avoided a repeat citation by searching the medical records

of its residents between November 10, 1999 and December 20,

1999, creating a major incident report documenting the fall of

resident no. 7, and noting the report as untimely. Respondent

did not take advantage of that opportunity.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order fining Respondent $300

for repeated violations of Rules 58A-5.0131 and 58A-5.024,

Florida Administrative Code, plus interest as specified in

Section 400.419(6), Florida Statutes.

DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee,

Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of May, 2000.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health

Care Administration

2727 Mahan Drive

Building 3, Suite 3408D

Tallahassee, Florida 32308

Mohamad Mikhchi

Owner/President

Northpointe Retirement Community

5100 Northpointe Parkway

Pensacola, Florida 32514

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, 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.