03-001658 Agency For Health Care Administration vs. Ralph Spicer And Rita Spicer, D/B/A Crescent Manor Status: Closed Recommended Order on Monday, September 8, 2003.

Summary: Repeated failure to maintain log of food menu substitutions warrants fine of $1,000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1658

)

RALPH SPICER and RITA SPICER, )

d/b/a CRESCENT MANOR, )

)

Respondents. )

)

RECOMMENDED ORDER

On June 11, 2003, a formal administrative hearing in this

case was held in St. Petersburg, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitione r: Katrina D. Lacy, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Suite 330G

St. Petersburg, Florida 33701

For Respondents: Ralph Spicer, pro se

835 20th Avenue, North

St. Petersburg, Florida 33704

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations set

forth in the Administrative Complaint are correct, and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated October 24, 2002, the

Agency for Health Care Administration (Petitioner) alleges that

Ralph and Rita Spicer, d/b/a Crescent Manor (Respondents) have

failed to comply with certain require ments set forth in the

Florida Administrative Code related to operation of a licensed

assisted living facility. Specifically, the Administrative

Complaint alleges that the Respondents failed to provide

residents with at least 30 days notice of a rate incr ease

(citing Rule 58A - 5.025(1)(d), Florida Administrative Code) and

failed to maintain for at least six months a log of menu

substitutions (citing Rule 58A - 5.020(2)(d), Florida

Administrative Code).

The Respondents disputed the allegations and requested a

formal hearing. The Petitioner forwarded the request for

hearing to the Division of Administrative Hearings, which

scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

one witness and had one exhibit admitted into evidence. The

Respondent, Ralph Spicer, testified on his own behalf, presented

the testimony of one witness, and had two exhibits admitted into

evidence. The one - volume Transcript of the hearing was filed on

June 27, 2003. Both parties filed Propo sed Recommended Orders.

All citations are to Florida Statutes (2002) unless

otherwise indicated.

FINDINGS OF FACT

1. At all times relevant to this case, the Respondents

owned and operated a licensed assisted living facility located

at 835 20th Avenu e, North in St. Petersburg, Florida.

2. On September 5, 2002, an employee of the Petitioner

conducted a survey of the Respondents' facility and determined

that the facility operation was deficient as to compliance with

two requirements. The deficiencie s are commonly identified on

the survey form as numbered "tags" and were communicated to the

Respondents at the time of the survey.

3. In Tag A313, the Petitioner alleges that the

Respondents failed to provide residents with at least 30 days

written notic e of a rate increase.

4. The administrative rule cited in support of the alleged

deficiency does not require that such written notice be

provided, but requires only that the contract between the

facility and the resident contain a provision requiring th at

such notice be provided. The Administrative Complaint does not

allege that the contracts failed to include such a provision.

The evidence offered at the hearing fails to establish that the

provisions in the Respondents' contracts are inadequate.

5. In Tag A811, the Petitioner alleges that the

Respondents failed to maintain for a period of six months a log

of menu substitutions in the facility.

6. During the September 5, 2002, survey, the Respondents

were unable to produce a log of any menu substi tutions.

7. The Respondents are required to prepare and post menus

complying with various nutritional requirements in advance of

meal service. During holidays and at other various times, the

Respondents have served to residents foods other than those

i dentified on the pre - planned menus. The Respondents do not

maintain a log of such substitutions.

8. The Respondents are aware that a log of menu

substitutions is required, having been cited for an identical

deficiency during a survey conducted on Septe mber 29, 2000. By

the time a follow - up survey was conducted on December 7, 2000,

the deficiency had been corrected. At some point after the

December 2000 follow - up survey, the Respondents discontinued

compliance with the requirement that menu substitutio ns be

logged and that the log be maintained for six months.

9. The Petitioner cited the failure to maintain the log as

a repeat "Class III" deficiency.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1).

11. The Petitioner has the burden of establishing by a

preponderance of the evidence, the facts alleged in the

Administrative Complaint. Florida Department of Transportation

v. JWC Company, Inc . , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino

v. Department of Health and Rehabilitative Services , 348 So. 2d

349 (Fla. 1st DCA 1977).

12. The Administrative Complaint alleges that the

Respondents violated Rule 58A - 5.020(2)(d), Florida

Administrative Co de, which provides as follows:

(2) DIETARY STANDARDS.

* * *

(d) Menus to be served shall be dated and

planned at least one week in advance for

both regular and therapeutic diets.

Residents shall be encouraged to participate

in menu planning. Plan ned menus shall be

conspicuously posted or easily available to

residents. Regular and therapeutic menus as

served, with substitutions noted before or

when the meal is served, shall be kept on

file in the facility for 6 months.

13. The Petitioner has met the burden in establishing that

food substitutions have occurred at the facility and that the

Respondents have failed to maintain a log of such menu

substitutions.

14. The Respondents assert that there is no definition of

"substitution" in the Rule and that, therefore, it is not

possible to comprehend what the rule requires. Absent a

statutory definition of "substitution," the word is defined

according to general usage and is given its plain and ordinary

meaning. Southeastern Fisheries Association, In c. v. Department

of Natural Resources , 453 So. 2d 1351 (Fla. 1984). The Merriam -

Webster dictionary defines a substitute to mean "to put or use

in the place of another." Apparently the Respondents understood

the meaning of the word sufficiently to acknowl edge during the

September 2000 survey that they did not keep the required log

and to comply with the requirement as of the December 2000

follow - up survey.

15. The Petitioner cited the Respondents' failure to

maintain the menu substitution log as a "Clas s III" violation.

Subsection 400.419(1)(c) provides as follows:

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 o r 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 $500

and not exceeding $1,000 for ea ch violation.

A citation for a class 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.

16 . In this case, the classification of the deficiency is

appropriate.

17. The Administrative Complaint further alleges that the

Respondents violated Rule 58A - 5.025(1)(d), Florida

Administrative Code, which provides as follows:

58A - 5.025 Resident Contra cts.

(1) Pursuant to Section 400.424, F.S., each

resident or the residents legal

representative, shall, prior to or at the

time of admission, execute a contract with

the facility which contains the following

provisions:

* * *

(d) A provision giving at least 30 days

written notice prior to any rate increase.

18. The Petitioner has failed to meet the burden in

establishing this allegation. In support of the allegation, the

Petitioner offered evidence that the Respondents' files failed

to contain ev idence that a written rate increase notice had been

provided to a resident. The Rule does not require that the

written notice be contained in the Respondents' files, but

requires only that the contract between the facility and the

resident contain a provi sion requiring that such notice be

provided. There is no evidence that the Respondents' contracts

do not contain a rate increase notice provision. In the

Petitioner's Proposed Recommended Order, the Petitioner

acknowledges that the allegation related to Rule 58A -

5.025(1)(d), Florida Administrative Code, had not been proven at

the hearing and further states that the Respondents should not

have been cited for this deficiency.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, i t is

RECOMMENDED that the Petitioner enter a Final Order finding

that the Respondents violated Rule 58A - 5.020(2)(d), Florida

Administrative Code, and imposing a fine of $1000.

DONE AND ENTERED this 8th day of September, 2003, in

Tallahassee, Leon County , Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850 ) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of September, 2003.

COPIES FURNISHED :

Katrina D. Lacy, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Suite 330G

S t. Petersburg, Florida 33701

Ralph Spicer

Rita Spicer

835 20th Avenue, North

St. Petersburg, Florida 33704

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Valda Clark C hristian, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

Rhonda M. Medows, M.D., Secretary

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, 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 agen cy that

will issue the Final Order in this case.