06-004798 Agency For Persons With Disabilities vs. Threshold, Inc. Status: Closed Recommended Order on Tuesday, April 17, 2007.

Summary: No basis exists for a continuing moratorium on admissions, and no further sanctions should be imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH )

DISABILITIES , )

)

Petitioner , )

)

vs. ) Case No. 06 - 4798

)

THRESHOLD, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursu ant to notice, a final hearing was conducted in this

case on February 1 and 2, 2007, in Orlando, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Stacy N. Robinson, E squire

Department of Children and

Family Services

400 West Robinson Street

Suite S - 1106

Orlando, Florida 32801

For Respondent: James Dennis, Esquire

Threshold, Inc.

3550 North Goldenrod Road

Winter Park, Florida 32792

STATEMENT OF THE ISSUE S

The issue s in this case are whether Respondent violated

provisions of Chapter 393, Flor ida Statutes (2006), 1 in the

operation of its residential group homes and, if so, whether a

moratorium on admissions or other sanction is warranted.

PRELIMINARY STATEMENT

Respondent, Threshold, Inc. (Threshold) , is licensed by the

State of Florida to opera te group homes for persons with

developmental disabilities. Petitioner, Agency for Persons with

Disabilities (APD or the Agency) , is responsible for licensing

and monitoring the operation of such facilities.

During the summer of 2006, three former employe es of

Threshold approached employees of the Agency with complaints and

stated concerns about how Threshold was operating. Based on

those conversations, the a rea a dministrator decided to inspect

the group homes. A team of inspectors was assembled by the

A gency; most of the inspectors came from outside the geographic

area where the homes are located.

On September 5 and 6, 2006 , the Agency team conducted an

investigatory survey of the group homes. Seven problem areas

were identified by the Agency team:

1) Administration of medications by

unlicensed persons who had not r eceived the

requisite training;

2) Failure to properly maintain a drug

count on controlled drugs and prescription

medications;

3) Failure to follow physician's orders on

a client's prescri bed medication and making

an unauthorized change to the medication;

4) Inappropriate use of restraints,

including a physical restraint known as the

BARR procedure;

5) Failure to report all incidents and

failure to follow through with medical

intervention in some reported incidents;

6) Failure to conduct required background

screening on some personnel;

7) Failure to maintain proper staffing

levels to insure client safety and well -

being.

These areas of concern were presented to Threshold during

an exit c onference upon completion of the survey. Threshold was

given the opportunity to sub mit a response to the findings.

On September 19 , 2006, the Agency apparently hand - delivered

to Threshold an Order of Immediate Moratorium (Order) . However,

neither party i ntroduced a copy of the Order into evidence nor

is it attached to the pleadings. Threshold was preparing its

written response (the "Response") to APD's findings when the

Order was served. The Response was quickly finalized and

delivered to the Agency on or about October 6, 2006. Threshold

received no feedback from the Agency concerning the Response.

On November 17 , 2006, the Agency conducted a follow - up

inspection of the group homes. The original investigative team

was utilized for the follow - up inspect ion with the exception of

one member who had a scheduling conflict. That member did a

desk review of the Agency's findings but did not read the

Response before issuing her fin al statement on the matter.

At the final hearing , Petitioner called four witness es:

Jeffrey Coleman, contract manager for the Agency; Colleen Foley,

o perations m anagement c onsultant II; Candace Michelle Ledbetter,

registered nurse ( RN ) c onsultant; and Steve Roth, a rea

a dministrator. Petitioner offered E xhibits A through N into

evide nce. All but E xhibits B and G were accepted into evidence.

Respondent presented the testimony of four witnesses: John

Shadler, a ssistant b ehavioral a nalyst; Latonia Overstreet, h uman

r esources t echnician; Vadim Klochko, c hief o perating o fficer;

and Dr. Robert E. Wright, c hief e xecutive o fficer/ c hief n ursing

o fficer. Respondent also offered seven exhibits, all of which

were received into evidence. Official recognition was taken of

the Developmental Disabilities Waiver Services Handbook.

At the close of the evidentiary portion of the final

hearing, the parties were allowed 15 days from the filing of the

hearing transcript to file their respective proposed recommended

orders. A four - volume hearing T ranscript was filed at DOAH on

March 13, 2007. Both part ies filed P roposed R ecommended O rders ,

containing proposed findings of fact and conclusions of law.

The parties' proposals have been carefully considered during the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

licensing and monitoring operations of foster care homes, group

home facilities, and residential habilitation centers.

Petitioner has authority to sanction or penalize licensees who

do not comply with statutory and rule requirements.

2. Threshold holds a Standard license for the operation of

group homes for the developmentally disabled. Threshold has

been licensed as a developmentally disabled group home for over

30 years. Its license had never been sanctioned by the s tate

before this m oratorium was imposed. Threshold is enrolled in

the Medicaid p rogram and has entered into a Medicaid Waiver

Agreement with Petitioner.

3. Threshold owns and operates five group homes located in

the greater Orlando area. The homes are licensed for up to 32

beds or clients. At present, as a result of the moratorium on

admissions, there are 27 clients in residence. The moratorium's

prohibition against filling the empty beds has cost Threshold

$277,404.30 in lost revenues as of the date of the fin al

hearin g.

4. Threshold's operations are managed by Dr. Bob Wright,

its c hief e xecutive o fficer and c hief n ursing o fficer, along

with Vadim Klochko, its c hief o perating o fficer. Wright holds a

doctorate in Health Care Administration and is a r egistered

n urse. K lochko studied medicine in Krasnodar, Russia , and did a

fellowship in psychiatry before moving to the United State s in

2000. He was previously a b oard - c ertified b ehavioral a nalyst,

but has let that certification lapse.

5. The medical staff for Threshold includes the two

gentlemen described above and Elena Toporkova, who received her

medical degree in St. Petersburg, Russia. Toporkova also holds

a m aster ' s d egree in p ublic h ealth.

6. Threshold's Medicaid Waiver Agreement with the State of

Florida outline s the contractual arrangement between the

parties. Threshold must comply with terms of the Waiver

Agreement in order to receive state funding. Threshold also

operates an Adult Day Training program, but funding for that

program does not come under the Wai ver Agreement. The current

Waiver Agreement between the parties was signed and took effect

January 11, 2007 ( i.e. , after the inspections and imposition of

a moratorium which are the focus of the instant proceeding).

7. During the Summer of 2006, Steve Ro th, a rea

a dministrator for APD, began receiving anonymous emails

concerning alleged improper practices at Threshold. After

several such emails, Roth requested and was granted a meeting

with the author of those allegations. He met with two former

and one current Threshold employee who described their concerns

about practices at Threshold.

8. One of the complainants, Vikki Bower, had been a long -

time employee of Threshold. During the period of her

employment, Bower was charged and pled nolo contendre to

M edicaid fraud. Because of that charge, Wright asked the APD

a rea a dministrator whether Bower could continue working in her

position as c hief o perating o fficer of Threshold. Told that she

could not continue in that position, Wright created another job

for her outside the realm of Medicaid so that she could remain

employed. Meanwhile, Threshold had loaned Bower $16,000 to hire

legal counsel to defend her in the criminal trial associated

with the charge. But Bower would not accept the new position

and resi gned from Threshold. (At that time, she was already in

discussions with APD about alleged violations.)

9. The concerns raised by Bower prompted Roth and his

supervisors to take action. Roth assembled a team of surveyors

from outside Threshold's service area for the purpose of

conducting a fair and objective review of the provider.

10. An unannounced inspection of Threshold's group homes

was conducted by Respondent on September 5 and 6, 2006. At the

conclusion of the inspection , an exit conference was c onducted

to advise Threshold of the findings. As a result of the

findings, APD imposed a moratorium on admissions , which was

communicated to Threshold by way of a letter dated September 19,

2006. Attached to the moratorium letter was a written statement

of the deficiencies found d uring the initial inspection.

11. An announced follow - up inspection was conducted on

November 17 , 2006 . Two months later, by letter dated

January 12, 2007, Respondent advised Threshold that there were

still some areas of conce rn, so the moratorium would continue.

Threshold was directed to submit a plan of correction and come

into compliance with the stated areas of concern. The

January 12 , 2006, letter acknowledg ed improvement in the areas

of i ncident reporting, administerin g medications, drug

accountability, and general medical issues. The remaining areas

of concern were identified as: "staff development, personnel

records, and staffing ratios." Threshold was given 11 days to

submit its Plan of Correction to address the c oncerns. (The

Plan of Correction was ultimately submit ted on the fourteenth

day.)

T he D eficiencies

12. At the time of the November 17 , 2006, follow - up survey

(which was an announced visit), the group homes were essentially

in compliance. However, due to the Agency's prior finding of

significant understaffing and lack of training, it decided to

continue the moratorium. Each of the findings from the

September investigation which support the mora torium will be

addressed below:

Administering, C ounting and R eporting C ontrol M edications

13. The Agency could not ascertain from Threshold's

records which employees had the responsibility for giving

medications, and whether persons giving medications had received

the required training and validation. Each employ ee assisting

with medications must be trained and then validated, i.e. ,

supervised in the actual administering of medications to a

patient. Although assured by Threshold that all necessary

training and validation had been done, the Agency did not find

acc eptable proof of such during its initial inspection. Also,

even though the facility had appropriate storage for controlled

med ications , drug counts did a lways match the report sheets.

1 4 . Most of the cited records reviewed by APD involved

employees who d id not actually assist in administering

medications. Those persons would not need documentation of

training in their files. One employee (identified as "D.P.")

was initially trained in medication administration in July 2006.

She was not validated until September 15, 2006, i.e. , after the

initial survey by APD but before the follow - up survey. There

are no specific time frame requirements for validation after the

training.

1 5 . In its written Response to APD, Threshold acknowledged

the drug count errors. Changes were made in personnel and

increased staffing hours to address the problem. At the time of

the re - survey, the Agency's citations had been properly

resolved.

1 6 . Threshold had a valid program for training its

employees who assisted with medicatio ns. All such employees

were required to take two tests, a written examination on

relevant terms and then a hands - on competency test. These tests

exceed the requirements for training. Threshold could not

produce copies of the written tests, but there is no requirement

that they be re tained in an employee's files.

Incorrect Count of C ontrolled S ubstances

1 7 . The survey team found instances of incomplete doses or

missed doses of medications. This constitutes an incorrect

count and should be reported to th e Agency as an "incident."

Threshold f ailed to make all such reports.

1 8 . Threshold improved oversight responsibilities by its

p rogram m anagers to address this issue. Additionally, changes

in key s taff positions were made to re - e nsure compliance. At

th e time of the follow - up survey , the discrepancy had been

corrected and policies put in place to prevent re - occurrence.

Providing M edications C ontrary to D octor's O rders

1 9 . The survey team found one instance of a client

receiving drugs , which were contrar y to a physician's

prescription. The client, M . N . , was given a different

medication than the one prescri bed by his treating physician.

20 . M . N . 's situation involved an obese client who had been

on a regimen of Risperdal. On August 15 , 200 6 , M . N . 's curre nt

treating physician saw M . N . and ordered a change from Risperdal

to Geodon. The physician was unaware at that time that M . N . had

a history of adverse reactions to Geodon. Threshold's

behavioral analyst noticed the change in med ication when M . N .

returne d to the home. He immediately notified the RN on staff

and called the physician to advise him about the possible

problem. Threshold's RN had the staff administer the Risperdal

instead of the Geodon , pending return of a call from the

physician. When the doctor called, he wholeheartedly concurred

that the prescription of Geodo n was in error and that Risperda l

should be continued. This matter did not constitute a

deficiency during the follow - up survey and is not currently a

problem.

Improper U se of R estrai nts

21 . Two instances of improper restraints were noted by the

survey team. In the first, a client had been physically

restrained using a "BARR procedure" (wherein employees use

physical techniques to lower a client to the ground and keep him

in a prone position until he is no longer a threat to himself or

others). The client was left lying on a mat near a doorway,

concerning the Agency that he would be stepped on. Further, the

length of time he was down on the mat caused so me concern to the

survey team .

2 2 . Threshold evinced a valid reason for using the BARR

procedure on this difficult client. They had been caring for

this client for a number of years. The client became aggressive

almost every day after lunch and wanted to go home. He was

physically strong and was able to inflict injury on himself and

others. When he began to show aggression, he had to be

restrained. The BARR restraint was used in conjunction with a

procedure known as "extinction," the practice of not providing

attention to the per son's bad behavior. In this case, the

client was put down to the mat and then effectively ignored

until he realized his behavior would not be rewarded. At that

point, he was allowed t o get up and rejoin activities.

2 3 . In the second instance, an obese p erson was restrained

using the BARR procedure for an undetermined amount of time.

The Agency surveyor was concerned about him being restrained

absent the presence of a clock on the wall to time the restraint

period.

2 4 . Threshold has been treating this c lient for ten years ,

and his physician is aware of the use of this procedure. Time

is kept by the employees using a wall clock (which was missing

the day of the survey), watches , and/or cell phone clocks.

2 5 . Both of the above - described incidents occurre d at the

Adult Day Training site rather t han at one of the group homes.

Reporting of I ncidents and M edical F ollow - up

2 6 . The Agency found 55 incidents , which it felt met the

requirements for reporting to APD. Of these, only 22 were

reported to APD. Ther e were also 22 incidents that the Agency

felt warranted medical intervention , but for which no

intervention had been provided. At final hearing , that number

was reduced to nine incidents. Each of those was minor in

nature. For example, a client named D . slipped when getting out

of the shower. He hit the side of his face on the counter,

resulting in a slight scratch. Two days later the scratch was

gone. The Agency contends a doctor should have been called or

he should have been taken to the emergency r oom. There is no

competent and substantial eviden ce to support that contention.

2 7 . All minor incidents are evaluated by Threshold's RN on

staff. If the injury requires only minimum first aid (called

"mommy care"), then it is not necessary to have furth er medical

intervention. There is a policy in place for evaluating each

incident on its own merits so that any event requiring further

medical attention receives it timely. An RN evaluating a client

at the time of the incident can do so much better than a person

review ing the record at a later date.

Background S creening and Employee Files

2 8 . In its review of employee files, only two of seven

files contained evidence of medication training and validation.

One staff member did not have an Affidavit of G ood Moral

Character; another member had an affidavit that had not been

notarized. In five of ten files, local law enforcement checks

had not been submitted within five days. There was no record of

law enforcement checks at all in three files. Two employ ees'

records did not include a copy of their high school diplomas.

2 9 . As stated in the Response, the missing a ffidavit was

in a "to be filed" folder and the un - notarized a ffidavit was

awaiting a new notary (and has now been completed). The late -

filed la w enforcement checks were due to APD's own mistake over

whether they were required. Threshold was initially told by APD

they weren't necessary; when APD reversed its opinion , the

checks were immediately submitted. One employee without a high

school diplo ma in his file is a graduate of Florida State

University. His college diploma was provided. The other person

is a foreign national who worked only temporarily , and her

diploma was never received.

Staffing R atios did not M eet R equirements

30 . As part of the survey, the Agency requested and was

provided time sheets for employees. Utilizing the provided time

sheets and comparing them to the number of clients served and

number of hours worked, APD concluded that Threshold's staffing

levels were inadequate. APD also raised a concern over the

amount of overtime hours by some staff.

31 . According to the Agency's review, Threshold was

understaffed by some 3,025 hours during four identified pay

periods. The surveyor used the staffing ratios identified by

the A gency for four different levels of client. Level I

requires .3 staff to each client; Level II is .6 to 1 ; Level III

is .8 to 1 ; and Level IV is 1 to 1. The surveyor, who had not

previously reviewed homes with a tiered system, did not utilize

an FTE (full time equivalent) methodology to compare staff to

client ratios. Instead, she rounded up to nearest whole number.

This methodology completely abrogates the ratio concept and is

not credible. Further, the surveyor did her calculations on all

five group h omes as a whole, despite the fact each is

individually licensed. Thus, her conclusions concerning

staffing were skewed. This particular surveyor had never

reviewed a group home with a four - level tiered system for

intensive clients. Her findings are not persuasive.

3 2 . Some lead staff perform a considerable amount of

hands - on care with clients. This time would not show up on time

sheets because they are salaried employees. House managers also

get involved in care , and their time would not be included i n

the time cards. Administrative staff who work overtime to fill

a position would have time showing up as administrative , but

which is actually direct care time. Contract employees ,

furnished through a contract with a local provider (VicDon

Staffing) , al so woul d not show up on time cards.

3 3 . Counting all persons who actually provided direct care

to clients during the four time periods at issue would result in

a considerable over - staffing. Even so, Petitioner was concerned

that using administrative staf f for client care needs could

result in too much overtime, thus possibly putting clients at

risk due to employee exhaustion. No evidence was presented to

suggest that overtime work by staff membe rs was creating such a

problem.

Follow - up Survey

3 4 . At the time of the follow - up survey, there was no

indication of any threat to the life, safety or welfar e of

clients at the group home.

3 5 . Using Threshold's methodology (which is more credible

than the Petitioner's method) for counting staff hours,

Threshold p rovided well in excess of the staffing hours required

unde r its contract with the state.

3 6 . With the exception of one employee, Elorine Feacher,

all employee training records, proof of training , and education

records were up to date. Feacher was a prior employee who had

recently returned to work at Threshold. Her new application and

records had not yet made it to an employee file. That

discrepancy is minor in nature.

CONCLUSIONS OF LAW

3 7 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes.

3 8 . The Agency, as the party asserting the affirmative of

the issue, has the burden of proof in this matter. See Balino

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

349 (Fla. 1st DCA 1977). The attempt to sanction Threshold's

"valuable business or professional license" must be proven by

clear and convincing evidence. See Ferris v. Turlington , 510

So. 2d 292 , 294 (Fla . 1987) .

3 9 . Threshold owns and operates group home facilities,

which are defined in S ubs ection 393 .063( 15 ), Florida Statutes,

as:

[A] residential facility licensed under

this chapter which provides a family living

environment including supervi sion and care

necessary to meet the physical, emotional,

and social needs of its residents. The

capacity of such a facility shall be at

least 4 residents b ut not more than 15

residents.

40 . The Threshold group homes also fall within the

definition of "R esidential Facility" found at Subsection

392.063( 26 ), Florida Statutes. Subsection 393.067, Florida

Statutes, outlines the licensure requirements for group homes

and/or residential facilities.

41 . Subsection 393.0673, Florida Statutes, reads in

pertinent part as follows:

(1) The agency may deny, revoke, or

suspend a license or impose an

administrative fine, not to exceed $1,000

per violation per day, if the applicant or

licensee:

* * *

(c) Has failed to comply with the

applicable requirem ents of this chapter or

rules applicable to the applicant or

licensee.

* * *

(4 ) The department may issue an order

immediately suspending or revoking a license

when it determines that any condition in the

facility presents a danger to the heal th,

safety, or welfare of the residents in the

facility.

(5 ) The department may impose an

immediate moratorium on admissions to any

facility when the department determines that

any condition in the facility presents a

threat to the health, safety, or w elfare of

the residents in the facility.

4 2 . APD Operating Procedure No. 10 - 002 addresses the

requirement for reporting adverse incidents. Subsection 3 of

10 - 002 includes the process for reporting "Reportable

Incidents," which include:

(a) Altercati ons - A physical

confrontation occurring between a consumer

and a member of the community, a consumer

and provider, or two or more consumers at

the time services are being rendered and

that results in law enforcement

contact. . . .

(b) Consumer Injur y - An injury sustained

or allegedly sustained due to an accident,

act of abuse, neglect or other incident

occurring while receiving services from an

APD operated, licensed or contracted

provider, Medicaid waiver provider, or

ICF/DD that requires medical a ttention in an

urgent care center, emergency ro om or

physician office setting.

(c) Consumer Arrest - [Not relevant to

the facts of this case]

(d) Missing Competent Adult - [Not

relevant to the facts of this case]

(e) Suicide Attempt - [Not relev ant to

the facts of this case]

(f) Other - Any event not listed above

that jeopardizes a consumer's health, safety

or welfare. Examples may include but are

not restricted to severe weather condition

damage (e.g. tornadoes or hurricanes),

criminal acti vity by providers or employees,

fires or other hazardous events or

conditions, etc. If the event may generate

unfavorable media attention, it is to be

re ported as a critical incident.

4 3 . There is no competent substantial evidence that any of

the incide nts at issue required additional medical treatment.

Thus, all required incidents were reported to A PD.

4 4 . Each of the deficiencies uncovered by Petitioner

during its initial survey of the group homes was fully and

satisfactorily resolved. There is no f urther basis for

sanctions or continuation of the moratorium on admissions.

4 5 . As of December 11, 2006 ( i.e. , after the two

inspections but prior to the Agency's continuation of the

moratorium on admissions) , Shelly Brantley, d irector of APD,

issued a M emorandum concerning how to impose disciplinary

actions against APD - licensed homes. Under the terms of that

Memorandum, the violations by Threshold would not support

imposition of a moratorium.

RECOMMENDATION

Based on the foregoing Findings of Fact and Co nclusions of

Law, it is

RECOMMENDED that a final order be entered by the Agency for

Persons with Disabilities withdrawing the Moratorium effective

immediately. No further action against Respondent's license is

warranted.

DONE AND ENTERED this 1 7 th day o f April , 2007 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9 675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 7 th day of April , 2007.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(2006), unless oth erwise indicated.

COPIES FURNISHED :

James Dennis, Esquire

Threshold, Inc.

3550 North Goldenrod Road

Winter Park, Florida 32792

Stacy N. Robinson, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S - 1106

Orlando, Florid a 32801

Michael McGuckin, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

John Newton, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Flor ida 32399 - 0950

Barney Ray, Interim Executive Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions with in

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.