02-002511 Agency For Health Care Administration vs. Creative Living Centers, Inc., D/B/A Cove Manor Retirement Status: Closed Recommended Order on Thursday, October 10, 2002.

Summary: The evidence is not clear and convincing that Respondent failed to maintain an accurate medication observation for each resident.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) C ase No. 02 - 2511

)

CREATIVE LIVING CENTERS, INC., )

d/b/a COVE MANOR RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on September 4,

2002, before Suzanne F. Hood, Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael O. Mathis, Esqu ire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308 - 5403

For Respondent: Alvin L. Peters, Esq uire

25 East Eighth Street

Panama City, Florida 32401

STATEMENT OF THE ISSUES

The issues are whether Respondent failed to maintain an

accurate medication record relating to narcotic medications in

violation o f Section 400.419(1)(b), Florida Statutes, and

Rule 58A - 5.0185(3)(b), Florida Administrative Code; and if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

On May 30, 2002, Petitioner Agency for Health Care

Administration (Petitioner) issued an Administrative Complaint

against Respondent Creative Living Centers, Inc., d/b/a Cove

Manor Retirement (Respondent). The Complaint alleged that

Respondent failed to maintain an accurate medication observation

record (MOR), relating to narcotic medicat ion for one of

Respondent's residents. On June 2, 2002, Respondent requested

an administrative hearing to contest the allegations in the

complaint.

A Notice of Hearing dated July 5, 2002, scheduled the

hearing for September 4, 2002. During the hearing, Petitioner

presented the testimony of one witness and offered 11 exhibits

which were accepted into evidence. Respondent did not present

any testimony or offer any exhibits for admission into evidence.

A Transcript of the proceeding was filed on September 23,

2002.

Petitioner filed a Proposed Recommended Order on

September 27, 2002. Respondent filed a Proposed Recommended

Order on October 2, 2002.

FINDINGS OF FACT

1. Petitioner has authority to license assisted living

facilities (ALFs) and the dut y to enforce all statutes and rules

governing such facilities.

2. Respondent is a licensed ALF with a total capacity for

35 residents. Respondent's License No. AL5888 is effective

March 20, 2002, through March 19, 2004.

3. On January 31, 2002, Petit ioner completed a biennial

survey of Respondent's facility. During the survey,

Petitioner's staff observed Respondent's staff administering

medication to six residents who needed medication assistance.

4. Resident No. 6 received a narcotic medication, in

tablet form, that she was supposed to take by mouth three times

daily, as needed, for pain. The medication is addictive and may

be obtained only by prescription.

5. The prescription bottle at issue here indicated that it

was filled on January 21, 20 02, with 100 tablets. There is no

other evidence regarding the number of tablets in the bottle

when it arrived at Respondent's facility. Respondent did not

count the tablets in the bottle upon receiving it from the

pharmacy.

6. Resident 6's MOR showed that she received the narcotic

tablet three times daily, everyday, with no missed doses during

the time period at issue here. According to the MOR, Resident 6

received a total of 32 doses of the medication beginning

January 21, 2002, at 7:00 a.m. throug h January 31, 2002, at

12:25 p.m. However, the bottle contained only 54 tablets as of

January 31, 2002, at 12.25 p.m. Respondent's staff could not

explain or account for the 14 missing narcotic tablets.

7. Under cover of a letter dated February 12, 20 02,

Petitioner advised Respondent that the biennial survey had

identified a Class II deficiency relative to Resident 6's

medication administration. The letter requested Respondent to

file a plan of correction within ten days.

8. Resident 6's narcotic med ication was refilled on

February 19, 2002, with 100 tablets. As of March 8, 2002,

Resident 6 had 51 pills remaining in the new prescription

bottle.

9. On March 8, 2002, Petitioner's staff conducted a

follow - up visit to Respondent's facility. The count of tablets

in Resident 6's narcotic medication prescription bottle, when

compared to the MOR, was correct at that time. Under cover of a

letter dated March 15, 2002, Petitioner advised Respondent that

the previously cited deficiency had been corrected.

C ONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

11. Petitioner has the burden of proving, by clear and

convincing evid ence, that Respondent was guilty of a Class II

deficiency as defined in Section 400.419(1)(b), Florida

Statutes, and Rule 59A - 5.0185(5)(b), Florida Administrative

Code. Department of Banking and Finance, Division of Securities

and Investor Protection v. O sborne Stern and Company , 670 So. 2d

932 (Fla. 1996); and Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987). Petitioner has met its burden.

12. Section 400.419(1), Florida Statutes, states as

follows in pertinent part:

(b) Class "II" violations are t hose

conditions or occurrences related to the

operation and maintenance of a facility or

to the personal care of residents which the

agency determines directly threaten the

physical or emotional health, safety, or

security of the facility residents, other

than class I violations. A class II

violation is subject to an administrative

fine in an amount not less than $1,000 and

not exceeding $5,000 for each violation. A

citation for a class II violation must

specify the time within which the violation

is requ ired to be corrected.

(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 physic al 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 $500

and not exceeding $1,000 for each violation.

A citation for a cl ass 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, no fine may be imposed, unless it

is a repeated offense.

13. Rule 58A - 5.0185(5)(b), Florida Administrative Code,

states as follows:

(b) For residents who receive assistance

with self - administration or medication

administration, the facility shall maintain

a daily up - to - date, medication observation

record (MOR) for each resident. 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 of each medication prescribed, its

strength, and directions for use; 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.

14. In this case, Re sident 6's MOR did not account for 14

of the narcotic medication tablets. However, there is no clear

and convincing evidence that Respondent violated

Rule 58A - 5.0185(5)(b), Florida Administrative Code, because the

MOR correctly recorded every time that Respondent administered

the medicine. Additionally, there is no evidence that

Resident 6 ever missed a dose or refused to take the medication

as prescribed. Under these circumstances, Respondent's

inability to account for the missing tablets does not provide

clear and convincing evidence that Respondent committed

medication errors, which were not accurately recorded on the

MOR.

15. Likewise, the record here shows that the missing

tablets resulted in a potential harm and not in a direct thr eat

to the physical or emotional health, safety, or security of any

facility resident. While the missing tablets potentially could

result in any number of dangerous situations, the only competent

evidence of immediate harm is that Resident 6 was short 14

tablets.

16. Under these facts, Respondent may have committed and

timely corrected a Class III violation for which it was not

charged. In any event, there is no clear and convincing

evidence that Respondent committed a Class II violation as

defined in Section 400.419(1)(b), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order dismissing the

Administrative Complaint.

DONE AND ENTERED this 10th day o f October, 2002, 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

(850) 488 - 96 75 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of October, 2002.

COPIES FURNISHED :

Michael O. Mathis, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308 - 5403

Alvin L. Peters, Esquire

25 East Eighth Street

Panama City, Florida 32401

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

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.