03-000165 Agency For Health Care Administration vs. Tampa Health Care Associates, Llc., D/B/A Habana Health Care Center Status: Closed Recommended Order on Friday, May 30, 2003.

Summary: Evidence establishes minor Class III deficiency; warrants imposition of fine, but not conditional rating.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 03-0165

)

TAMPA HEALTH CARE ASSOCIATES, )

LLC., d/b/a HABANA HEALTH CARE )

CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 13, 2003, a formal administrative hearing in this

case was held in Tampa, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Sebring Building, Suite 310H

St. Petersburg, Florida 33701

For Respondent: Donna H. Stinson, Esquire

Broad & Cassell

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations of the

Administrative Complaint filed by the Petitioner against the

Respondent are correct, and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated December 5, 2002, the

Agency for Health Care Administration (Petitioner) alleged that

Tampa Health Care Associates, LLC, d/b/a Habana Health Care

Center (Respondent) failed to correct three deficiencies

identified during an earlier facility survey. The Petitioner

asserted that the alleged failure warranted rating the facility

as "conditional" and imposing an administrative fine. By

Petition for Formal Administrative Proceeding dated December 20,

2002, the Respondent challenged the allegations and requested a

formal hearing. The Petitioner forwarded the request 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 Exhibits numbered 1 through 5 admitted into

evidence. The Respondent presented the testimony of two

witnesses and had Exhibits numbered 1 through 3 admitted into

evidence.

The one-volume Transcript of the hearing was filed on

March 28, 2003. Both parties filed Proposed Recommended Orders

that were considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. The Petitioner is the state agency responsible for

licensure and regulation of nursing homes operating in the State

of Florida.

2. The Respondent operates a licensed nursing home at 2916

Habana Way, Tampa, Florida 33614. The facility is approximately

30 years old. It is not built to current standards.

3. On March 13, 2002, the Petitioner inspected the

Respondent facility. Based on the inspection, the Petitioner

determined that there were life safety code deficiencies at the

facility and cited the deficiencies as "tag numbers K 020,

K 067, and K 130." The deficiencies were identified as Class

III deficiencies.

4. The Respondent did not dispute the inspection findings

and submitted a Plan of Correction (POC) to the Petitioner,

which approved the POC.

5. The Petitioner conducted a follow-up inspection on

April 25, 2002, and cited the facility for the same three tag

numbers.

TAG K 020

6. The Petitioner alleged in Tag K 020 that the Respondent

failed to meet a standard that requires vertical openings

between floors be enclosed with construction so as to provide

fire-resistance of at least one hour. The purpose of the

standard is to prevent fire from spreading through the floors of

the facility via the laundry chute.

7. The approved POC required that the specifically

identified broken hardware and improper closing doors be

repaired, that the doors be inspected on a monthly basis, and

that the staff be trained to notify the facility's maintenance

man if any additional hardware malfunctioned.

8. During the March 13, 2002, inspection, the "fourth

floor laundry chute corridor door" failed to function properly.

(Emphasis supplied.)

9. During the April reinspection, the "fourth floor

laundry chute door . . . did not close to a positive latch, in

that part of the latching hardware was missing to insure

closure."

10. The laundry chutes are contained within a small

closeted area. There is a door from the corridor into the

closet and another door inside the closet that opens to the

laundry chute.

11. The malfunctioning fourth floor doors identified in

the March inspection and the April reinspection are different

doors.

12. The evidence establishes that the fourth floor

corridor door cited in the March inspection was repaired

according to the POC and was functioning properly at the time of

the April reinspection.

13. During the March inspection, the "first floor west

stairwell exit door" did not "consistently" latch into its

frame. This door was not cited in the April reinspection and it

is reasonable to infer from the lack of re-citation that the

door was apparently functioning properly at that time.

14. During the March inspection, the hardware on the

second floor "laundry chute access door" was broken and did not

close automatically. During the April reinspection, the same

door was again malfunctioning.

15. The age of the facility apparently makes maintenance

of laundry chute locks difficult. The chute doors were not

built to current standards and some malfunctioning lock parts

are difficult to replace.

16. The problem on the second floor laundry chute access

door was due to a broken spring. The Respondent's administrator

and maintenance supervisor testified that the door had been

repaired and had broken again. Their testimony was persuasive

and is credited.

17. During the April reinspection, the Petitioner found

other doors that were not functioning properly. The additional

doors include a third floor laundry chute door that "did not

close to a positive latch" because of a missing lock mechanism.

The Petitioner also found that a laundry chute door in the first

floor laundry chute collection room was using only one of two

locking devices and that hardware was missing from what is

apparently the unused locking device. The evidence fails to

establish that these items were not functioning properly at the

time of the March survey or that they were not repaired on a

timely basis after the April survey.

18. As of the date of the hearing, the doors are inspected

on a weekly basis in an attempt to maintain and repair broken

parts on an expedited basis.

TAG K 067

19. Tag K 067 alleges that the Respondent failed to meet a

standard requiring that air handlers automatically shut down in

the event of a fire alarm. The purpose of the standard is to

prevent distribution of smoke through the facility via the air

conditioning system in the event of a fire.

20. During the March inspection, three of fifteen air

handlers failed to shut down automatically when the fire alarm

was set off. The specific handlers that failed to shut down

were identified as two on the fourth floor and the "east" air

handler on the second floor.

21. The approved POC provided that the specified air

handlers would be serviced to shut down when the fire alarm went

off. The air system was serviced on April 4, 2002, after which

the system functioned properly.

22. During the April reinspection, the air conditioning

compressor and fan in the fourth and second floors were not

functioning at all, and therefore it was not possible to

determine whether or not the air handlers would shut down as

required. Because the system was not working, the test was not

performed. The evidence fails to establish that this deficiency

existed at the time of the April reinspection.

23. At the hearing, the Respondent provided persuasive

testimony and evidence establishing that the air conditioning

system was subsequently returned to working order and that the

system properly shut down upon activation of the fire alarm

system.

TAG K 130

24. Tag K 130 alleges that the Respondent failed to meet a

standard requiring that electrical equipment be in accordance

with the "National Electrical Code."

25. During the March inspection, the Petitioner found that

some electrical outlets were loose in the wall mounting boxes or

did not have sufficient tension to retain electrical cord plugs.

Also during the March inspection, the Petitioner found that some

residents of the facility were using household-type extension

cords.

26. The approved POC provided that outlets would be

repaired and extension cords would be removed.

27. During the April reinspection, the Petitioner found

that the cited deficiencies had been repaired but that

household-type extension cords were in use in resident rooms

other than those originally cited in March.

28. As of the date of the hearing, room inspections are

performed on a weekly basis to prevent improper extension cord

use.

29. Although the Respondent asserted that relatives of

facility residents bring in the extension cords despite the

instructions to the contrary, the evidence fails to establish

that the facility is unable to prevent the use of household-type

extension cords in residents rooms.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

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

31. The Petitioner asserts that the alleged Class III

deficiencies at issue in this proceeding are violations of

Section 400.23(8)(c), Florida Statutes (2001), and warrant

imposition of an administrative fine.

32. As to the imposition of an administrative fine, the

Petitioner has the burden of establishing facts sufficient to

warrant the fine by clear and convincing evidence. Department

of Banking and Finance v. Osborne Stern , 670 So. 2d 932 (Fla.

1996).

33. Section 400.23(8)(c), Florida Statutes (2001),

provides as follows:

(8) The agency shall adopt rules to provide

that, when the criteria established under

subsection (2) are not met, such

deficiencies shall be classified according

to the nature and the scope of the

deficiency. The scope shall be cited as

isolated, patterned, or widespread. An

isolated deficiency is a deficiency

affecting one or a very limited number of

residents, or involving one or a very

limited number of staff, or a situation that

occurred only occasionally or in a very

limited number of locations. A patterned

deficiency is a deficiency where more than a

very limited number of residents are

affected, or more than a very limited number

of staff are involved, or the situation has

occurred in several locations, or the same

resident or residents have been affected by

repeated occurrences of the same deficient

practice but the effect of the deficient

practice is not found to be pervasive

throughout the facility. A widespread

deficiency is a deficiency in which the

problems causing the deficiency are

pervasive in the facility or represent

systemic failure that has affected or has

the potential to affect a large portion of

the facility's residents. The agency shall

indicate the classification on the face of

the notice of deficiencies as follows:

* * *

(c) A class III deficiency is a deficiency

that the agency determines will result in no

more than minimal physical, mental, or

psychosocial discomfort to the resident or

has the potential to compromise the

resident's ability to maintain or reach his

or her highest practical physical, mental,

or psychosocial well-being, as defined by an

accurate and comprehensive resident

assessment, plan of care, and provision of

services. A class III deficiency is subject

to a civil penalty of $1,000 for an isolated

deficiency, $2,000 for a patterned

deficiency, and $3,000 for a widespread

deficiency. The fine amount shall be

doubled for each deficiency if the facility

was previously cited for one or more class I

or class II deficiencies during the last

annual inspection or any inspection or

complaint investigation since the last

annual inspection. A citation for a class

III deficiency must specify the time within

which the deficiency is required to be

corrected. If a class III deficiency is

corrected within the time specified, no

civil penalty shall be imposed.

34. In this case, the burden has not been met as to

imposition of a fine for the laundry chute doors and for the air

handling system. The burden has been met as to the residents'

use of household-type extension cords.

35. The evidence establishes that the malfunctioning doors

cited in the March inspection were repaired by the April

reinspection. Only the second floor laundry chute access door

was not working properly. Testimony that the door was repaired

subsequent to the March inspection was credited.

36. As to the air handling system, because the air

handlers were not functioning at the time of the April

reinspection, the Petitioner has failed to meet the burden of

establishing that the system would not properly shut down during

activation of the fire alarm. Given that the air handlers were

not working at all, it is not possible to find that they would

not have shut down under a fire test.

37. Finally, as to the use of household extension cords,

such use would likely be clearly visible to anyone entering a

resident's room. Although the Respondent asserted that families

bring in such items contrary to instructions from the facility,

the fact that they are brought in does not establish that the

Respondent can not prevent their use. Accordingly, an

administrative fine of $1,000 is appropriate under these

circumstances.

38. The Petitioner also asserts that the failure to

correct the Class III deficiencies within the time established

for correction constitutes a violation of Section 400.23(7)(b),

Florida Statutes (2001), and warrants rating the facility as

"conditional."

39. Section 400.23(7)(b), Florida Statutes (2001),

provides as follows:

(7) The agency shall, at least every 15

months, evaluate all nursing home facilities

and make a determination as to the degree of

compliance by each licensee with the

established rules adopted under this part as

a basis for assigning a licensure status to

that facility. The agency shall base its

evaluation on the most recent inspection

report, taking into consideration findings

from other official reports, surveys,

interviews, investigations, and inspections.

The agency shall assign a licensure status

of standard or conditional to each nursing

home.

* * *

(b) A conditional licensure status means

that a facility, due to the presence of one

or more class I or class II deficiencies, or

class III deficiencies not corrected within

the time established by the agency, is not

in substantial compliance at the time of the

survey with criteria established under this

part or with rules adopted by the agency.

If the facility has no class I, class II, or

class III deficiencies at the time of the

followup survey, a standard licensure status

may be assigned.

40. As to the imposition of a conditional rating on the

facility, the Petitioner has the burden of establishing by a

preponderance of the evidence, entitlement to the relief sought.

Florida Department of Transportation v. J.W.C. 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). In this case, because the deficiencies cited in the

March inspection were corrected by the time of the April

reinspection, the imposition of a conditional rating is not

warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Administration

enter a Final Order imposing an administrative fine of $1,000 on

the Respondent.

DONE AND ENTERED this 30th day of May, 2003, in Tallahassee,

Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

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 30th day of May, 2003.

COPIES FURNISHED :

Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North

Sebring Building, Suite 310H

St. Petersburg, Florida 33701

Donna H. Stinson, Esquire

Broad & Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302

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

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 agency that

will issue the Final Order in this case.