95-005676
Agency For Health Care Administration vs.
Willia's Bahamas Home Care Center
Status: Closed
Recommended Order on Thursday, February 15, 1996.
Recommended Order on Thursday, February 15, 1996.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8AGENCY FOR HEALTH CARE )
13ADMINISTRATION, DIVISION OF )
17HEALTH QUALITY ASSURANCE, )
21)
22Petitioner, )
24)
25vs. ) CASE NO. 95-5676
30)
31WILLIA'S BAHAMAS HOME CARE )
36CENTER, )
38)
39Respondent. )
41______________________________)
42RECOMMENDED ORDER
44Pursuant to notice, the Division of Administrative Hearings, by its duly
55designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this
67case on January 11, 1996, in West Palm Beach, Florida.
77APPEARANCES
78For Petitioner: Linda L. Parkinson, Esquire
84Agency for Health Care Administration
89Division of Health Quality Assurance
94400 West Robinson Street, Suite S-309
100Orlando, Florida 32801
103For Respondent: Willia Mae Mackey, Administrator
109Willia's Bahama Home Care Center
114125 Old Dixie Highway
118Riviera Beach, Florida 33404
122STATEMENT OF THE ISSUE
126Whether a moratorium should be placed on Respondent's facility.
135PRELIMINARY STATEMENT
137Petitioner, Agency for Health Care Administration (Agency), imposed a
146moratorium on the Respondent, Willia's Bahamas Home Care Center, effective
156October 10, 1995 and notified Respondent verbally on that day. By letter dated
169October 17, 1995, the Agency notified Respondent in writing of the moratorium
181imposed on the facility. As grounds for the imposition of the moratorium, the
194Agency alleged that there were conditions which threatened the health, safety,
205or welfare of the facility residents. Upon receipt of the moratorium letter,
217Respondent requested a formal administrative hearing. The case was forwarded to
228the Division of Administrative Hearings for assignment to a hearing officer.
239At the final hearing, the Agency called the following witnesses, Darrell
250Donatto, Robert Cleva, Merle McDonald, James Ison, Nathan Weitz, Polly Weaver,
261Joseph Narkier, Mary Jane Battaglia, and Harold Bahlow. Petitioner's Exhibits
2711-8 were admitted in evidence. Willia Mackey testified on behalf of Willia's
283Bahamas Home Care Center. Respondent's Exhibits 1 and 2 were admitted in
295evidence.
296At the final hearing the parties agreed to file proposed recommended orders
308within ten days of the date of the filing of the transcript. The transcript was
323filed on January 25, 1996. The Agency filed its proposed recommended order on
336February 2, 1996. The Respondent did not file a proposed recommended order.
348The Agency's proposed findings of fact are addressed in the Appendix to this
361Recommended Order.
363FINDINGS OF FACT
3661. The Respondent, Willia's Bahamas Home Care Center (Willia's), is an
377Assisted Living Facility (ALF) located at 125 W. Dixie Highway, Riviera Beach,
389Florida, with a standard license to operate an ALF for 24 residents.
4012. Petitioner, Agency for Health Care Administration (Agency), surveyed
410the facility on November 9, 1994 and cited deficiencies. A time frame was given
424to the facility for the correction of thirty deficiencies. As a result of the
438survey of November 9, 1994, the facility was issued a conditional license.
4503. On September 28, 1995, a fire inspector from the Riviera Beach Fire
463Department conducted an appraisal visit of the facility. Many deficiencies were
474cited and the facility was furnished with a letter dated September 29, 1995,
487listing the deficiencies and requesting that Willia's notify the Fire Department
498when the deficiencies were corrected so that the Fire Department could conduct a
511follow up inspection.
5144. During the September 28, 1995, visit, the fire inspector noticed that a
527lawn mower was in an inside room with a container of combustible liquid next to
542a gas water heater. This condition posed an immediate threat to the residents
555of the facility and the fire inspector had the facility move the lawn mower
569before he left the facility.
5745. The fire inspector also noted on the September 28 visit that the fire
588alarm system was not working. The fire alarm system had been out of service for
603some time and was not being monitored. There were no reports of testing or
617inspection of the fire alarm system. The lack of a working fire alarm system
631prevented immediate identification of a fire problem, the immediate alerting of
642the residents for escape, and the immediate notification to the fire department.
6546. On January 4, 1996, an employee of the Riviera Beach Fire Department,
667made a follow-up visit to Willia's. The fire alarm system was still non-
680functional and had been since July, 1995. The facility is a two-story building
693which does not have a sprinkler system. The lack of a functional fire alarm
707system posed a threat to the safety of the residents.
7177. On September 28, 1995, the Environmental Services' section of the
728Department of Health and Rehabilitative Services conducted an appraisal visit of
739the facility. Deficiencies were cited and the facility was furnished with an
751inspection report dated September 28, 1995, which listed the deficiencies. The
762following deficiencies were a threat to the health, safety, and welfare of the
775residents: 1) hot water at a temperature of 122 degrees Fahrenheit; 2) an
788extension cord that was too long which presented a trip hazard; and 3)
801protruding nails.
8038. On October 13, 1995, Environmental Services conducted a follow-up visit
814and found that the most serious of the deficiencies had been corrected.
8269. On September 28, 1995, the Agency conducted an appraisal visit of
838Willia's along with Nathan Wetiz, a member of the Ombudsman Council. Thirty one
851deficiencies were cited. Fifteen of these deficiencies had been previously
861cited during the November 9, 1994, visit by the Agency. The facility was given
875a statement of deficiencies along with a time frame for correcting the
887deficiencies.
88810. Some of the residents of the facility were entitled to receive
900personal funds from OSS/SSI. The records at the facility showed that the
912residents were being asked to sign for the funds two months before the funds
926were due to be disbursed.
93111. At the time of the September 28, 1995 appraisal visit both Mary Jane
945Battaglia, R.N. and Mr. Weitz found that residents' medications were being
956recorded in error. Medications were recorded as having been administered on the
968day after the survey. The records showed that residents were not being given
981their medications at the prescribed times. The nurse counted the medications of
993one resident and compared them with the medication record and found that there
1006were medications which were not being given as prescribed. Such medications
1017included Persantin which reduces blood clots and Verapamil which reduces the
1028heart rate and prevents strokes.
103312. During the September 28 visit, Ms. Battaglia discovered that one
1044resident was inappropriate for an ALF. This resident required the assistance of
1056two people to help her stand. The resident was unable to propel herself in a
1071wheel chair and had diminished vision. She had to be given her medications,
1084which were being administered by unlicensed staff. The resident needed 24-hour
1095nursing supervision. During the visit, Mrs. Mackey was observed being verbally
1106abusive to the resident, telling her to shut up and calling her stupid.
111913. In addition to the deficiencies discussed in the preceding paragraphs,
1130the following deficiencies were also cited. The weight records of the residents
1142were being filled in without weighing the residents, thereby threatening the
1153residents's health since there would be no way to track whether the residents
1166were actually losing weight. One resident was being restrained by 3/4 bedside
1178rails without a physician's order. Activities were not being provided for the
1190residents. There was no documentation that the nutritional needs of the
1201residents were being met. Menus were not being reviewed by a licensed
1213dietitian. The posted menus were not being followed and the meals were not
1226served on time. Two screw-in fuses were missing in the day room, which could
1240lead to residents being shocked.
124514. On October 10, 1995, the Agency advised the facility that it was being
1259placed under a moratorium. At that time Willia's had a census of nine
1272residents. By letter dated October 17, 1995, the Agency gave written
1283notification to the facility of the moratorium.
129015. A follow-up visit was conducted on November 29, 1995 by Joe Narkier
1303and Nathan Weitz. Twenty deficiencies were cited including nineteen uncorrected
1313deficiencies and a violation of the moratorium imposed on October 10, 1995.
1325Eleven of these deficiencies were deficiencies which had been cited during the
1337November 9, 1994 survey.
134116. At the time of the November 29 revisit, the following conditions still
1354threatened the health, safety, and welfare of the residents. The fire alarm
1366system still was not working. There was an inappropriate resident in the
1378facility, who needed care beyond that which the facility was licensed or staffed
1391to provide. Medication records were inaccurate. Semi-annual weights were still
1401not being recorded for all residents. Menus were not being followed and meals
1414were not being served on time.
142017. Another follow-up visit was conducted on January 10, 1996. The
1431deficiencies which were noted in the November 29 visit had not been corrected.
144418. Administrative Complaint number 9-95-639 ACLF was issued against
1453Willia's, fining the facility $2,400 as a result of twelve deficiencies which
1466were found at the November 9, 1994 survey which were repeat violations found
1479during the September 28, 1995 appraisal visit. No hearing was requested by the
1492facility. A Final Order was issued by the Agency on December 1, 1995, imposing
1506the fine against Willia's for the repeat deficiencies alleged in the
1517administrative complaint.
151919. At the final hearing Mrs. Mackey, the administrator of Willia's stated
1531that she was going to voluntarily surrender her license to the Agency. She
1544tendered the license to the Agency.
1550CONCLUSIONS OF LAW
155320. The Division of Administrative Hearings has jurisdiction over the
1563parties to and the subject matter of this proceeding. Section 120.57(1),
1574Florida Statutes.
157621. Chapter 400, Part III, Florida Statutes, provides for the licensing
1587and regulation of Assisted Living Facilities by the Agency.
159622. Section 400.415, Florida Statutes, provides:
1602The agency may impose an immediate moratorium
1609on admissions to any facility when the agency
1617determines that any condition in the facility
1624presents a threat to the health, safety, or
1632welfare of the residents in the facility. A
1640facility the license of which is denied,
1647revoked, or suspended as result of a violation
1655of s. 400.414 may be subject to immediate
1663imposition of a moratorium on admissions to
1670run concurrently with licensure denial,
1675revocation, or suspension.
167823. Rule 10A-5.033(3), which is now numbered 58A-5.033(3), Florida
1687Administrative Code, provides:
1690(a) An immediate moratorium on admissions
1696to the facility shall be placed on the
1704facility by the central Office of Licensure
1711and Certification when it has been determined
1718that any condition in the facility presents a
1726potential threat to the health, safety, or
1733welfare of the residents in the facility.
1740The following conditions are examples of
1746potential threats constituting grounds for
1751a moratorium:
17531. Unsafe practices relating to medication.
17592. Presence of resident inappropriately
1764placed in the facility according to the
1771criteria in Rule 10A-5.0181, F.A.C.
17763. Food supply inadequate for proper
1782nutrition of the residents.
17864. Deficiencies relating to fire safety.
17925. Lack of proper supervision to meet the
1800needs of the residents.
18046. Actions by a facility or its employee
1812that are grounds for denial, revocation, or
1819suspension of a license pursuant to
1825Rule 10A-5.033(4), F.A.C.
18287. Multiple Class I or Class II deficiencies
1836or uncorrected Class III deficiencies.
1841* * * *
1845(c) Moratoriums shall not be lifted until
1852the deficiencies have been corrected and the
1859department has been assured by a monitoring
1866survey that there is no longer any threat to
1875the residents' health, safety, or welfare.
1881The removal of the moratorium will be communi-
1889cated by a telephone call and confirmed by a
1898written notification.
190024. Class II and Class III deficiencies are defined in Section 400.419(3),
1912Florida Statutes as follows:
1916(b) Class "II" violations are those condi-
1923tions or occurrences related to the operation
1930and maintenance of a facility or to the
1938personal care of residents which the agency
1945determines directly threaten the physical or
1951emotional health, safety, or security of
1957facility residents, other than class I
1963violations. . . .
1967(c) Class "III" violations are those
1973conditions or occurrences related to the
1979operation and maintenance of a facility or
1986to the personal care of residents which the
1994agency determines indirectly or potentially
1999threaten the physical or emotional health,
2005safety, or security of facility residents,
2011other than class I or class II violations. . . .
202225. The agency has grounds for the imposition of the moratorium. The
2034facility had unsafe practices relating to medication. The medications were not
2045correctly recorded. Residents were not being given their medications at the
2056prescribed times.
205826. The facility had a resident which was inappropriate for the facility.
2070The resident could not perform the activities of daily living, required 24-hour
2082nursing supervision, was not capable of taking her own medication, and was not
2095capable of self preservation in the event of an emergency. Thus, the resident
2108did not meet the criteria for admission to the facility as set forth in Rule
212358A-5.0181, formerly 10A-5.0181, Florida Administrative Code.
212927. There were multiple Class II deficiencies which included an
2139inappropriate resident, inaccurate medication records, and medications
2146administered by unlicensed staff.
215028. As of the date of the final hearing there were uncorrected Class III
2164deficiencies, which included semi-annual weights of the residents not being
2174recorded, menus not being followed and meals not being served on time.
218629. As of the date of the final hearing, the fire alarm system was still
2201inoperable.
2202RECOMMENDATION
2203Based on the foregoing Findings of Fact and Conclusions of Law, it is
2216RECOMMENDED that a Final Order be entered affirming the imposition of the
2228moratorium.
2229DONE AND ENTERED this 15th day of February, 1996, in Tallahassee, Leon
2241County, Florida.
2243___________________________________
2244SUSAN B. KIRKLAND, Hearing Officer
2249Division of Administrative Hearings
2253The DeSoto Building
22561230 Apalachee Parkway
2259Tallahassee, Florida 32399-1550
2262(904) 488-9675
2264Filed with the Clerk of the
2270Division of Administrative Hearings
2274this 15th day of February, 1996.
2280APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5676
2287To comply with the requirements of Section 120.59(2), Florida Statutes, the
2298following rulings are made on the Petitioner's proposed findings of fact:
2309Petitioner's Proposed Findings of Fact:
23141. Paragraphs 1-9: Accepted in substance.
23202. Paragraph 10: Accepted to the extent that the resident
2330were signing for funds before the funds were due to be
2341disbursed. Rejected that the residents were not
2348receiving funds as hearsay.
23523. Paragraphs 11-12: Accepted in substance.
23584. Paragraph 13: The tenth sentence is rejected as hearsay.
2368The remainder is accepted in substance.
23745. Paragraph 14: Accepted in substance.
23806. Paragraph 15: The eighth sentence is rejected as
2389hearsay. The tenth sentence is rejected as unnecessary.
2397The remainder is accepted in substance.
24037. Paragraph 16: Accepted in substance.
24098. Paragraph 17: Rejected as unnecessary.
24159. Paragraph 18: Accepted in substance.
242110. Paragraph 19: Accepted in substance to the extent that
2431Mrs. Mackey intended to voluntarily surrender the
2438license for the facility.
2442Respondent's Proposed Findings of Fact:
2447The Respondent did not file proposed findings of fact.
2456COPIES FURNISHED:
2458Linda L. Parkinson
2461Senior Attorney
2463Agency For Health Care Administration
2468Division of Health Quality Assurance
2473400 West Robinson Street, Suite S-309
2479Orlando, Florida 32801-1976
2482Willia Mae Mackey
2485Owner/Administrator
2486Willa's Bahamas Home Care Center
2491125 Old Dixie Highway
2495Riviera Beach, Florida 33404
2499R. S. Power, Agency Clerk
2504Agency for Health Care Administration
25092727 Mahan Drive
2512Fort Knox Building 3, Suite 3431
2518Tallahassee, Florida 32308-5403
2521Jerome W. Hoffman
2524General Counsel
2526Agency For Health Care Administration
25312727 Mahan Drive
2534Fort Knox Building 3, Suite 3431
2540Tallahassee, Florida 32308-5403
2543NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2549All parties have the right to submit written exceptions to this recommended
2561order. All agencies allow each party at least ten days in which to submit
2575written exceptions. Some agencies allow a larger period within which to submit
2587written exceptions. You should contact the agency that will issue the final
2599order in this case concerning agency rules on the deadline for filing exceptions
2612to this recommended order. Any exceptions to this recommended order should be
2624filed with the agency that will issue the final order in this case.
- Date
- Proceedings
- Date: 03/20/1996
- Proceedings: Final Order filed.
- Date: 02/02/1996
- Proceedings: (Petitioner) Proposed Recommended Order (for Hearing Officer signature) filed.
- Date: 01/26/1996
- Proceedings: Letter to Hearing Officer from Linda L. Parkinson Re: Respondent`s Exhibit #2 filed.
- Date: 01/25/1996
- Proceedings: Transcript of Proceedings ; Exhibits from the Proceedings filed.
- Date: 01/11/1996
- Proceedings: CASE STATUS: Hearing Held.
- Date: 01/04/1996
- Proceedings: (Joint) Prehearing Stipulation filed.
- Date: 01/03/1996
- Proceedings: (AHCA) Prehearing Stipulation filed.
- Date: 12/08/1995
- Proceedings: Order of Prehearing Instructions sent out.
- Date: 12/08/1995
- Proceedings: Notice of Hearing sent out. (hearing set for 1/11/96; 10:00am; West Palm Beach)
- Date: 12/07/1995
- Proceedings: (Petitioner) Response to Initial Order filed.
- Date: 11/30/1995
- Proceedings: Initial Order issued.
- Date: 11/20/1995
- Proceedings: Notice; Agency Action Letter; Request for Formal Hearing, Letter Form filed.