06-001908 Agency For Health Care Administration vs. Gold Key Development, Inc., D/B/A Carriage Inn Status: Closed Recommended Order on Tuesday, October 17, 2006.

Summary: Respondent should be subjected to an administrative fine and survey fee based on four class II violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1 908

)

GOLD KEY DEVELOPMENT, INC., )

d/b/a CARRIAGE INN , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on

September 18, 2006, in Panama City, Florida, before Suzanne F.

Hood, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Mic hael O. Mathis, Esquire

Agency for Health Care Administration

Fort Knox Building III, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: Jane A. Jones, Administrator

Gold Key Development, Inc. ,

d/b/a Carriage Inn

3409 West 19 th Street

Panama City, Florida 32405

STATEMENT OF THE ISSUES

The issues are whether Petitioner should impose

administrative fines for four class II violations and a survey

fee on Respondent, and if so, in what amount.

PRELIMINARY STATEMENT

On or about April 14, 2006, Petitioner Agency for Health

Care Administration (Petiti oner) issued an Administrative

Complaint against Respondent Gold Key Development, Inc., d/b/a

Carriage Inn (Respondent). Said complaint alleged that

Respondent had four class II violations during a license survey

in February 2006. Specifically, the compl aint alleged that

Respondent committed the following violations of Florida

Administrative Code Rule 58A - 5: (a) failing to ensure that a

resident’s record included a physician’s order for medications;

(b) failing to ensure that staff properly observes and documents

assistance with medication; (c) failing to have licensed staff

administer medication in accordance with physician orders; and

(d) failing to ensure that call bell/lights in residents’ rooms

were in good working order.

Respondent filed a timely request for a formal hearing to

contest Petitioner’s allegations. Petitioner referred

Respondent’s request to the Division of Administrative Hearings

on May 24, 2006.

A Notice of Hearing dated June 5, 2006, scheduled the

hearing for July 12, 2006.

On June 30, 2006, Petitioner filed a Motion for Continuance

and to Compel Discovery. After hearing oral argument in a

telephone conference on July 7, 2006, the undersigned issued an

Order granting the Motion to Compel and an Order Granting

Continuance and R e - scheduling Hearing for August 14, 2006.

On August 10, 2006, Respondent filed a Motion for

Continuance. After hearing oral argument in a telephone

conference on August 14, 2006, the undersigned issued an Order

Granting Continuance and Re - scheduling Hear ing for September 18,

2006.

During the hearing Petitioner presented the testimony of

three witnesses and offered a composite exhibit, which was

accepted as evidence. Respondent presented the testimony of one

witness and offered three exhibits, which were accepted as

evidence.

The court reporter filed the Transcript on September 26,

2006. Petitioner filed a Proposed Recommended Order on

October 6, 2006. As of the date that this Recommended Order was

issued, Respondent had not filed proposed findings o f fact and

conclusions of law.

FINDINGS OF FACT

1. Petitioner is the agency responsible for licensing and

regulating assisted living facilities (ALFs) in Florida.

Respondent is licensed to operate as an ALF in Panama City,

Florida.

2. On F ebruary 14 - 15, 2006, Petitioner performed a

licensing survey at Respondent’s facility. During the survey,

Respondent correctly determined that Resident No. 2 was

receiving a medication known as Bactrim and a medication known

as Lexapro. Resident No. 2’s records did not contain

physician’s orders for the two medications.

3. Resident No. 2’s most recent health assessment form

indicated that she needed assistance with medication.

Respondent’s staff administered Resident No. 2’s medications ,

even tho ugh the staff members were not licensed to do so.

4. Shortly after the survey, Resident No. 2’s regular

physician entered an order ceasing administration of Bactrim and

Lexapro. The physician also changed Resident No. 2’s health

assessment form to show that she no longer needed assistance

with medication.

5. At the time of the survey, Respondent did not have a

fulltime licensed professional to administer medications.

Instead, a licensed practical nurse prepared pill organizers

once a week. Som e residents had family members who prepared

pill organizers at home and left the organizers with Respondent

for administration during the week.

6. Respondent’s staff, who were not licensed to administer

medicine, took the pill organizers to the resident s on a daily

basis. For seven residents, the pill organizers were not

properly labeled with the name of the medicine, the time of

administration, the amount and strength of dosage, and the

method of administration.

7. Respondent’s staff would docu ment the medication

administration or assistance with self - administration on the

morning shift. For medicines that required twice - a - day dosage,

Respondent’s staff on the afternoon/evening shift would either

give the residents a second dose or remind the r esidents to

self - administer the medication. The second dose was not

documented on the medication observation record (MOR).

8. Respondent’s residents had call bells/lights in their

bedrooms in case they needed help. The call bells/lights in

five bedroo ms were not working when Petitioner conducted the

survey.

9. Respondent’s administrator was aware of the problem

with the call bells/lights; she knew the manufacturer’s

inventory had been destroyed in a fire in January 2006, making

it difficult to find parts to repair the system.

10. It would have been very expensive to replace the

entire call bell/light system. Therefore Respondent’s

administrator was satisfied to let the residents either use

their personal cell phones or the emergency call stations in the

halls or common areas to summon help.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and 400.419,

Florida S tatutes.

12. Petitioner has the burden of proving by clear and

convincing evidence that Respondent had four class II violations

during a license survey. See Dept. of Banking and Finance, Div.

of Securities and Investor Protection v. Osborne Stern and Co. ,

670 So. 2d 932, 933 (Fla. 1996).

13. Petitioner met its burden of proving that Respondent

violated the following rules: (a) Florida Administrative Code

Rule 58A - 5.024(3)(c), requiring a resident’s record to include a

physician’s order for prescriptio n medications, such as Bactrim

or Lexapro, when facilities administer or assist with self -

administration; (b) Florida Administrative Code Rule 58A -

5.0185(3)(c), requiring a facility’s staff to observe the self -

administration of medication, to report concer ns about

residents’ reactions to medications, and to document any such

concerns in the residents’ MOR; (c) Florida Administrative Code

Rule 58A - 5.0185(4)(a), requiring facilities that provide

medication administration to have properly licensed staff to

dis pense the medicine in accordance with physicians’ orders or

prescription labels; and (d) Florida Administrative Code Rule

58A - 5.023(1)(b), requiring facilities to maintain all appliances

and equipment, such as call bells in good working order.

14. Each of the above - referenced violations are class II

violations as defined Section 400.419(2)(b), Florida Statutes

(2006), which states as follows:

Class “II” violations are those conditions

of occurrences related to the operation and

maintenance of a fa cility 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. The agency shall impose an

administrative fine for a cited class II

violation in an amount not less that $1,000

and not exceeding $5,000 for each violation.

A fine shall be levied notwithstanding the

correction of the violation.

15. In this case, Respondent is guilty of four class II

violations. Thus, Petitioner is required to impose an

administrative fine on Respondent in an amount not less than

$4,000.

16. Petitioner also may assess a survey fee against

Respondent in the amount of $500 pursuant to Section

400.419(10), Florida Statutes (2006), which s tates as follows:

(10) In addition to any administrative

fines imposed, the agency may assess a

survey fee, equal to the lesser of one half

of the facility’s biennial license and bed

fee or $500, to cover the cost of conducting

initial complaint in vestigations that result

in the finding of a violation that was the

subject of the complain t or monitoring

visits conducted under s. 400.428(3)(c) to

verify the correction of the violations.

RECOMMENDATION

Based in the foregoing Findings of Fact and Co nclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order, finding that

Petitioner is guilty of four class II violations, imposing an

administrative fine in the amount of $4000, and assessing a

survey fee in the amount of $500.

DONE AND ENTERED this 17th day of October , 2006 , in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 17th day of October , 2006 .

COPIES FURNISHED :

Michael O. Mathis, Esquire

Agency for Health Car e Administration

Fort Knox Building III, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Jane A. Jones

Gold Key Development, Inc.

d/b/a Carriage Inn

3409 West 19th Street

Panama City, Florida 32405

Richard Shoop, Agency Clerk

Agency for Health Care Administration

Fort Knox Building

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

William Roberts, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Christa Calamas, Secretary

Agency for Health Care Administration

Fort Knox Building

2727 Mahan Drive, Suite 3116

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 da ys 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.