00-002973
Agency For Health Care Administration vs.
Holly Hill Assisted Living, Inc., D/B/A Holly Hill Care Center
Status: Closed
Recommended Order on Monday, June 11, 2001.
Recommended Order on Monday, June 11, 2001.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8AGENCY FOR HEALTH CARE )
13ADMINISTRATION, )
15)
16Petitioner, )
18)
19vs. ) Case No. 00-2973
24)
25HOLLY HILL ASSISTED LIVING, )
30INC., d/b/a HOLLY HILL )
35CARE CENTER, )
38)
39Respondent. )
41)
42RECOMMENDED ORDER
44Pursuant to notice, this cause came on for formal
53administrative hearing before the Honorable Stephen F. Dean,
61duly-assigned Administrative Law Judge with the Division of
69Administrative Hearings on March 29, 2001, at the Daytona Beach
79Regional Service Center, Room 440, 210 North Palmetto Avenue,
88Daytona Beach, Florida.
91APPEARANCES
92For Petitioner : Michael O. Mathis, Esquire
99Agency for Health Care Administration
1042727 Mahan Drive, Building 3
109Ta llahassee, Florida 32308
113For Respondent : Harry S. Hartman, Owner
120Holly Hill Care Center
1241562 Garden Avenue
127Holly Hill, Florida 32117
131STATEMENT OF THE ISSUE
135The issue for consideration in Case No 00-2973, is whether
145the licensee, Holly Hill Care Center, Inc., should be subject to
156administrative fines for failure to timely correct four (4)
165Class III deficiencies; two (2) Class IV deficiencies, and
174one (1) unclassified deficiency at Holly Hill Care Center, an
184assisted living facility (hereinafter Respondent) and, if so,
192the amount.
194PRELIMINARY MATTERS
196The Respondent received an administrative complaint dated
203June 15, 2000, from the Agency for Health Care Administration
213(Agency). The Agency sought to impose administrative fines
221totaling $2,900.00, against the Respondent, the licensee of the
231assisted living facility (ALF), Holly Hill Care Center, 1562
240Garden Avenue, Holly Hill, Florida, for the failure to timely
250correct four (4) Class III deficiencies; two (2) Class IV
260deficiencies, and one (1) unclassified deficiency. The
267Respondent filed a petition for a formal administrative hearing
276to dispute the Agency's action, and this hearing ensued.
285At the hearing, the Agency presented the testimony of
294Robert A. Cunningham, health facilities evaluator for the
302Agency; Eleanor McKinnon, Registered Nursing Specialist for the
310Agency; and Robert Dickson, health facility evaluator supervisor
318for the Agency. The Agency offered one composite exhibit
327containing items 1 through 8, which was received into evidence.
337The Respondent offered one exhibit which was received into
346evidence. A Transcript of the formal hearing was filed on
356April 19, 2001. Both parties submitted Proposed Findings that
365were read and considered
369FINDINGS OF FACT
3721. The Agency is responsible for the licensing and
381regulation of assisted living facilities (ALF) in Florida. The
390Respondent is licensed to operate Holly Hill Care Center as an
401ALF in Holly Hill, Florida. Mr. Robert A. Cunningham, a health
412facility Evaluator II, was called as a witness for the Agency.
4232. Mr. Cunningham identified Item One of Composite Exhibit
4321 as a copy of a survey for the ALF bi-annual licensure survey
445conducted on February 23, 2000. Mr. Cunningham participated in
454conducting that survey.
4573. The Respondent was cited with Tag A-006 for providing
467services beyond the scope of its license, specifically, caring
476for eight mental health residents. The evidence presented that
485the residents in question were mental health residents was that
495they were being treated by ACT and had made application for
506Optional State Supplement.
5094. The Respondent was cited for Tag A-520 for failing to
520ensure that all staff persons who had been employed for more
531than 30 days had documentation for a health care provider
541stating they were free of the signs and symptoms of communicable
552disease. The evidence showed a physician at the local health
562department had examined the employees. The doctor had noted
571that the employees were in good health instead of certifying
581that the employees were free of signs and symptoms of
591communicable disease.
5935. The Respondent was cited with Tag A-608 for failing to
604ensure that medication records were accurate and up to date for
615each resident. This related to residents for whom medications
624had been ordered, but not administered.
6306. The facts revealed that ACT was providing their
639medication, but that ACT had failed to provide the medication.
649Although it was not documented in the records that the
659Respondent made an effort to obtain the medications, evidence to
669that effect was presented at the hearing. The Department
678acknowledged that ACT had suffered some cut backs that had
688prevented it from providing medications to some of ACTs
697clients.
6987. An ALFs duties regarding medication administration are
706defined by its contract with the resident. The Department did
716not introduce a contract; however, it was evident from the
726testimony of the witnesses that provision of medications was not
736included in the contract for care.
7428. The Respondent was cited with Tag A-615 for failing to
753engage a consulting pharmacist within the required time frame.
762This arose from the violation alleged above. The Respondent had
772difficulty engaging a pharmacist. When one was engaged, he was
782going on vacation and the contract could not be signed until his
794return.
7959. The Respondent was cited with Tag A-804 for failing to
806provide each resident with a therapeutic diet, as ordered by the
817residents health care provider and with Tag A-806 for failing
827to have standardized recipes available for food service staff to
837ensure that the nutritional needs of the residents were being
847met. The Respondent conceded it had violated these provisions.
856The Department levied fines of $500 and $150, respectively for
866these violations.
86810. The Respondent was cited with Tag A-814 for failing to
879engage a consulting dietician or nutritionist within the
887prescribed time in response to the Tags A-804 and A-806, above.
898The Respondent admitted that it had been late in engaging a
909nutritionist/dietician; nevertheless, it appeared that it had
916made a good faith effort in a difficult situation in which few
928qualified individuals were available.
932CONCLUSIONS OF LAW
93511. The Division of Administrative Hearings has
942jurisdiction over the parties and subject matter of this case.
952This order is entered pursuant to Section 120.57, Florida
961Statutes.
96212. The Department has the burden of proof.
97013. The Department alleges that the Respondent violated
978Section 58A-5.029, Florida Administrative Code (Tag A-006) by
986failing to obtain the appropriate endorsement to its ACLF
995license to provide services to mental health residents. The
1004term mental health resident is defined by Section 400.402(16),
1013Florida Statutes, as:
1016Any individual who receives social security
1022disability income due to a mental disorder
1029as determined by the Social Security
1035Administration or receives supplemental
1039security income due to a mental disorder as
1047determined by the Social Security
1052Administration and receives optional state
1057supplementation.
105814. The rules require an affirmative statement on the
1067Alternative Care Certification for Optional State
1073Supplementation form that the resident is receiving SSI/SSDI due
1082to a psychiatric disorder. Or, alternatively, a written
1090verification provided by the Social Security Administration that
1098the resident is receiving SSI or SSID for a mental disorder is
1110required by the rules. Or, finally, the rules require a written
1121statement from the residents case manager that the resident is
1131an adult with severe and persistent mental illness.
113915. In this case, the determination was made that the
1149Respondent was in violation of the licensing requirement because
1158the inspection revealed a lot of residents who were being
1168treated by ACT. The witness stated that ACT is an agency that
1180treats mental health patients.
118416. An effort was made by counsel for the Agency to
1195buttress the testimony of this witness by having her identify
1205patients from the drug records who were prescribed or receiving
1215psycho-tropic drugs. This was only partially successful because
1223of the witnesss inability to properly identify all the drugs;
1233however, even had this been successful, this is not the standard
1244for identifying a mental health resident described in the rules.
125417. Another effort was made to identify patients who had
1264made application for OSS benefits; however, it is this
1273application that must be approved before the resident receives
1282the benefit. No evidence was received that any of the residents
1293were receiving SSI, SSID, or OSS benefits by virtue of having a
1305mental disorder.
130718. In the absence of such a showing, the predicate for
1318establishing that the Respondent was serving mental health
1326residents was not established, and the violation was not shown.
133619. The Agency alleges that employees of the Respondent
1345did not have the proper documentation to show that they were
1356free of the signs and symptoms of communicable disease (Tag A-
1367520). Evidence was received that the Respondent had sent its
1377employees to the local public health department for examination
1386and the reports of those examinations were on file. The Agency
1397asserted that the examining physicians entry, Good Health, on
1407the public health examination form regarding the employees
1415health history was insufficient to establish the employee was
1424free of the signs and symptoms of communicable disease.
143320. The evidence reveals that the examination form used by
1443the local public health department is one for student health
1453examination; however, the Agency has not adopted a specific form
1463for this purpose. The Agency is seeking to fine a licensee
1474because the public health physician who conducted the
1482examination of the employee did not use a specific verbal
1492formula. A physicians statement that the person being examined
1501is in good health is sufficient to establish that the person
1512is free of the signs or symptoms of communicable disease. The
1523doctors statement the employee was in good health is more
1533specific and definite than a statement that the person is free
1544from the signs and symptoms of communicable disease because one
1554can be free of signs and symptoms and still have a communicable
1566disease.
156721. The Agency presented evidence that the Respondent did
1576not administer certain medications to residents in accordance
1584with the physicians orders for these residents (Tag A-608).
1593The Respondent presented un-rebutted evidence that it did not
1602administer the medications because it did not have the
1611medications. The issue is not simply failing to administer
1620medications as prescribed, but failing to provide the
1628medications to be administered.
163222. The Respondent presented evidence that it had not
1641administered medications for ACT patients because ACT, which was
1650responsible for providing the medications, had not provided the
1659medications. The Respondent had made attempts to obtain the
1668medications from ACT, but these attempts had not been
1677documented. The Agency asserts that the Respondent was
1685ultimately responsible for the failure to administer the
1693medications.
169423. The law provides that the ALF will have a contract
1705with the resident for the services to be provided. Where the
1716family or sponsor is to provide a residents medication, the
1726licensee cannot be held responsible for failing to administer
1735medications not on hand. The licensees responsibility is to
1744notify the residents physician that it cannot follow the
1753physicians orders because it does not have the medication. (It
1763was not alleged or proven that the Respondent failed to document
1774reporting a health care issue to a residents physician.) Upon
1784receiving a report that a patient is out of medication, the
1795doctor and licensee may be obligated to report the situation to
1806the appropriate authorities if the resident is a child,
1815handicapped, or elderly, once the doctor determines that the
1824failure to provide the medication endangers the health of the
1834resident.
183524. There is no requirement to provide the medications
1844unless the licensee agrees to provide medications in its service
1854contract. The Agency failed to establish a key element of the
1865alleged violation, i.e. , was the Respondent obligated to provide
1874the medications. The testimony generally establishes that ACT
1882was to provide medication for its clients. It appears that some
1893of the residents who did not have medication were ACT clients.
1904In this case, the Agency has the burden of proof, and it failed
1917to prove that the Respondent had a contractual obligation to
1927provide the medications and failed to do so.
193525. The foregoing alleged violation of medication
1942administration was the basis for the Agency's demanding that the
1952Respondent engage a consulting pharmacist (Tag A-615). Rule
196058A-5.033(4)(a), Florida Administrative Code, provides:
1965(a) Medication Deficiencies.
1968If a class I, class II, or uncorrected class
1977III deficiency directly relating to facility
1983medication practices as established in Rule
198958A-5.0185, is documented by agency
1994personnel pursuant to an inspection of the
2001facility, the agency shall notify the
2007facility in writing that the facility must
2014employ, on staff or by contract, the
2021services of a pharmacist licensed pursuant
2027to s. 465.0125, F.S., or registered nurse,
2034as determined by the agency.
203926. It is noted that the Respondent did engage a
2049consulting pharmacist, and the allegation is that it was not
2059timely. However, if there was no violation regarding medication
2068administration (Tag A-608), there was no basis for requiring the
2078hiring of a consultant pharmacist (Tag A-615).
208527. The Respondent stipulates that it did not ensure that
2095each resident received the diet prescribed by the residents
2104physician (Tag A-804) which is a Class III dietary deficiency.
2114The Respondent also did not have standardized recipes for meal
2124preparation by staff, which is a IV dietary deficiency (Tag A-
2135806). The Agency levied a fine of $500 for the first violation
2147and $150 for the second violation.
215328. If a Class I, Class II, or uncorrected Class III
2164deficiency directly related to dietary standards as established
2172in Rule 58A-5.020, Florida Administrative Code, is documented by
2181Agency personnel pursuant to an inspection of the facility, the
2191Agency shall notify the facility in writing that the facility
2201must employ, on staff or by contract, the services of a
2212registered dietitian or licensed dietitian/nutritionist.
221729. The record reflects that there was an uncorrected
2226Class III deficiency, and the Respondent was advised in writing
2236to engage a registered dietitian or licensed
2243dietitian/nutritionist. The Respondent failed to hire a
2250registered dietitian or licensed dietitian/nutritionist within
2256the required time (Tag A-814). At hearing, the Respondents
2265owner and the facilitys administrator stated that they actively
2274sought a qualified dietitian or nutritionist, but could not find
2284one who was available. There was one person who indicated that
2295they would be a consultant; however, this person wanted more
2305compensation that the consulting pharmacist to provide services.
2313It is concluded that this person really was not interested in
2324the engagement. The Respondent was eventually able to obtain a
2334nutritionist or dietician; in any case, it did not do so within
2346the applicable time frames. The Department levied a fine of
2356$300 for failing to engage a dietician or nutritionist in time.
2367RECOMMENDATION
2368Based upon the violations proven and admitted above, the
2377Respondent violated Tags A-804, A-806 and A-814 for which the
2387Department levied respectively fines of $500, $150, and $300.
2396The Department should enter its final order assessing those
2405fines for those tags. The other violations alleged were not
2415proven or the predicate for the requirement alleged to have been
2426violated was not established. No action should be taken on the
2437Tags A-006, A-520, A-608 and A-615.
2443DONE AND ENTERED this 11th day of June, 2001, in
2453Tallahassee, Leon County, Florida.
2457___________________________________
2458STEPHEN F. DEAN
2461Administrative Law Judge
2464Division of Administrative Hearings
2468The DeSoto Building
24711230 Apalachee Parkway
2474Tallahassee, Florida 32399-3060
2477(850) 488- 9675 SUNCOM 278-9675
2482Fax Filing (850) 921-6847
2486www.doah.state.fl.us
2487Filed with the Clerk of the
2493Division of Administrative Hearings
2497this 11th day of June, 2001.
2503COPIES FURNISHED :
2506Harry S. Hartman, Owner
2510Holly Hill Care Center
25141562 Garden Avenue
2517Holly Hill, Florida 32117-2145
2521Michael O. Mathis, Esquire
2525Agency for Health Care Administration
25302727 Mahan Drive
2533Fort Knox Building Three, Suite 3431
2539Tallahassee, Florida 32308-5403
2542Sam Power, Agency Clerk
2546Agency for Health Care Administration
25512727 Mahan Drive
2554Building 3, Suite 3431
2558Tallahassee, Florida 32308
2561Julie Gallagher, General Counsel
2565Agency for Health Care Administration
25702727 Mahan Drive
2573Building 3, Suite 3431
2577Tallahassee, Florida 32308
2580NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2586All parties have the right to submit written exceptions within
259615 days from the date of this Recommended Order. Any exceptions
2607to this Recommended Order should be filed with the agency that
2618will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 06/11/2001
- Proceedings: Recommended Order issued (hearing held March 29, 2001) CASE CLOSED.
- PDF:
- Date: 04/30/2001
- Proceedings: Proposed Recommended Final Order (filed by Respondent via facsimile).
- Date: 04/19/2001
- Proceedings: Transcript of Proceedings filed.
- Date: 03/29/2001
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 02/07/2001
- Proceedings: Notice of Hearing issued (hearing set for March 29 and 30, 2001; 10:15 a.m.; Daytona Beach, FL).
- PDF:
- Date: 10/23/2000
- Proceedings: Order Granting Continuance issued (parties to advise status by November 6, 2000).
- PDF:
- Date: 08/21/2000
- Proceedings: Notice of Hearing sent out. (hearing set for October 25 and 26, 2000; 10:00 a.m.; Daytona Beach, FL)
- Date: 07/26/2000
- Proceedings: Initial Order issued.
- Date: 07/20/2000
- Proceedings: Request for Administrative Hearing filed.