96-001095
Agency For Health Care Administration vs.
Gem House
Status: Closed
Recommended Order on Wednesday, August 21, 1996.
Recommended Order on Wednesday, August 21, 1996.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8AGENCY FOR HEALTH CARE )
13ADMINISTRATION, )
15)
16Petitioner, )
18)
19vs. ) CASE NO. 96-1095
24)
25GEM HOUSE, )
28)
29Respondent. )
31_______________________________)
32RECOMMENDED ORDER
34A formal hearing was conducted in this proceeding before Daniel Manry, a
46duly designated Hearing Officer of the Division of Administrative Hearings, on
57July 16, 1996, in Orlando, Florida. The parties, witnesses, and court reporter
69attended the formal hearing in Orlando. The undersigned participated by video
80conference from Tallahassee, Florida.
84APPEARANCES
85For Petitioner: Linda L. Parkinson, Esquire
91Division of Health Quality Assurance
96Agency for Health Care Administration
101400 West Robinson Street, Suite 309
107Orlando, Florida 32801
110For Respondent: Pamela Mosley, Esquire
115McCrary and Mosley, P.A.
11947 East Robinson Street, Suite 211
125Orlando, Florida 32801
128STATEMENT OF THE ISSUES
132The issues for determination in this case are whether Respondent's license
143should be renewed and whether Petitioner properly imposed a moratorium on
154Respondent prior to the expiration of Respondent's license.
162PRELIMINARY STATEMENT
164By letter dated January 11, 1996, Petitioner denied the renewal of
175Respondent's license. Respondent timely requested a formal hearing.
183At the formal hearing, Petitioner presented the testimony of three
193witnesses and submitted three exhibits for admission in evidence. Respondent
203presented the testimony of one witness and submitted no exhibits for admission
215in evidence. The identity of the witnesses and exhibits, and the rulings
227regarding each, are set forth in the transcript of the formal hearing filed on
241July 31, 1996.
244Petitioner timely filed its proposed recommended order ("PRO") on August 9,
2571996. Respondent did not file a PRO. Proposed findings of fact in Petitioner's
270PRO are accepted in this Recommended Order.
277FINDINGS OF FACT
2801. Petitioner is the governmental agency responsible for inspecting
289assisted living facilities ("ALFs") and enforcing licensure requirements for
300ALFs in accordance with Chapter 400, Florida Statutes, 1/ and Florida
311Administrative Code Rule 58A-5. 2/ Respondent is licensed to operate an ALF
323for six residents. Respondent operates its ALF at 2809 Round About Lane,
335Orlando, Florida 32818 (the "facility").
3412. Petitioner inspected Respondent's operation of the facility five times.
351Petitioner surveyed the facility on December 19, 1994, and on March 28 and June
36514, 1995. Petitioner conducted a desk review on April 21, 1995. Petitioner
377conducted a follow-up visit and a complaint investigation at the facility on
389November 27, 1995.
3923. The surveys conducted on December 19, 1994, and on March 28 and June
40614, 1995, cited 19 uncorrected deficiencies. The follow-up visit conducted on
417November 27, 1995, cites four new deficiencies not cited in the previous
429surveys. The complaint investigation conducted on November 27, 1995, cites two
440new deficiencies.
4424. Petitioner has complied with the alternative requirements of Section
452400.419(1)(a). Petitioner has provided Respondent with timely and adequate
461notice of all deficiencies determined during each inspection. Petitioner
470provided Respondent with an adequate explanation of the nature of the
481deficiencies and the corrective action needed.
4875. The administrator was present when all of the surveys were conducted.
499Petitioner discussed the deficiencies with the administrator and explained the
509corrective action required for each deficiency. A pharmacy consultant was
519required to assist the administrator with deficiencies in Respondent's
528medication program
5306. Petitioner advised the administrator of the need for Respondent to
541submit a plan of correction on the deficiency statement with a proposed
553completion date for correcting each deficiency. Respondent failed to correct
563the deficiencies.
5657. Petitioner filed an administrative complaint against Respondent on
574November 1, 1995. The administrative complaint charged Respondent with the
584uncorrected deficiencies cited in all of the surveys except the follow-up visit
596and the complaint investigation conducted on November 27, 1995. Respondent
606timely requested a formal hearing.
6118. On February 7, 1996, a formal hearing was conducted in Division of
624Administrative Hearings ("DOAH") Case Number 95-5679. A final order was entered
637on March 28, 1996. The final order required Respondent to pay a fine of $7,250
653pursuant to Sections 400.419(1)(b) and (c), 400.419(2), and 400.414(1).
6629. Respondent did not appeal the final order. Respondent failed to pay
674the administrative fine ordered in DOAH Case Number 95-5679.
68310. Petitioner correctly denied the renewal of Respondent's license, in
693part, because Respondent failed to pay an administrative fine within the meaning
705of Section 400.417(1). Petitioner correctly imposed a moratorium pursuant to
715Section 400.415 on the basis of repeated and continuing deficiencies permitted
726by Respondent. For the same reasons, Petitioner correctly denied the renewal of
738Respondent's license pursuant to Sections 400.401(3) and 400.414(2)(b), (d), and
748(g).
74911. The deficiencies addressed in Case Number 95-5679 were adjudicated in
760that case and are not reconsidered in this Recommended Order. Reconsideration
771of those issues is precluded by the doctrine of collateral estoppel.
78212. There are only two matters at issue in this proceeding. They are
795Respondent's failure to pay the fine ordered in Case Number 95-5679 and the
808deficiencies determined as a result of the follow-up visit and complaint
819investigation conducted on November 27, 1995.
82513. The deficiencies determined as a result of the follow- up visit
837conducted on November 27, 1995, are Class III deficiencies within the meaning of
850Section 400.419(3)(c). The deficiencies cited as a result of the complaint
861investigation conducted on November 27, 1995, are Class II deficiencies within
872the meaning of Section 400.419(3)(b).
87714. Respondent does not maintain complete personnel files on each member
888of the staff in violation of Rules 58A-5.024(1)(f) and 58A-5.0191(2)(a).
898Personnel files maintained by Respondent fail to document staff competency and
909training in first aid.
91315. Respondent does not execute contracts for each resident on or before
925their admission in violation of Section 400.424 and Rules 58A-5.024(2)(a) and
93658A-5.0181(5)(b). Respondent admitted four new residents after June 14, 1995.
94616. Respondent does not complete health assessments for those residents
956admitted after June 14, 1995, in violation of Rule 58A-5.0181(4)(a). The method
968of management for resident medications is not identified on all health
979assessments. The administrator incorrectly supervises the residents' self-
987administration of medication.
99017. Respondent does not designate a properly trained person to have access
1002to medications in violation of Rules 58A- 5.0182(6)(b) and 58A-024(1)(c).
1012Respondent does not identify a method of management for resident medications in
1024violation of Rule 58A-5.0182(6).
102818. Respondent does not accurately maintain the medication log, including
1038timely and accurate entries of dosages taken by residents. Respondent's staff
1049does not consistently and accurately observe self-administration of medication
1058by residents. Discrepancies exist between the medication and dosages prescribed
1068for residents, those actually taken by residents, and entries by the staff in
1081the medication log.
108419. Respondent does not provide required reports by a consulting
1094pharmacist in violation of Rule 58A-5.033(5)(a). The report required on or
1105about April 11, 1995, was not filed until May 31, 1995. None of the subsequent
1120reports required to update the initial report have been filed.
113020. Respondent does not note changes in each resident's condition in
1141violation of Rule 58A-5.0182(2)(e). Respondent does not document procedures for
1151the receipt, resolution, and documentation of resident complaints in violation
1161of Rule 58A- 5.0182(7)(d).
116521. Menus are undated in violation of Rules 58A- 5.020(1)(h)1 and 58A-
11775.024(3)(b)2. Substitutions are not recorded. Menus with recorded
1185substitutions are not kept on file for six months.
119422. The noon meal on November 27, 1995, consisted of a cheese sandwich,
1207chicken noodle soup, a banana, and apple juice. The meal was not on any menu.
122223. There are no menus or meal plans to meet the nutritional needs of
1236residents requiring therapeutic diets in violation of Rule 58A-5.020(1)(c). The
1246health plan for a resident admitted on July 13, 1995, prescribed a low fat and
1261low cholesterol diet. Respondent maintains no meal plan or menus for this diet
1274and has never served the therapeutic diet prescribed for this resident.
128524. Menus are not reviewed annually by a dietitian or dietetic technician
1297in violation of Rule 58A-5.020(1)(e). No menus in the facility have been
1309reviewed for 17 months.
131325. The door nearest the garage is a primary fire exit for residents in
1327the south end of the facility. It can not be opened from the inside except by a
1344person with the key to a lock installed by Respondent in violation of Rule 58A-
13595.023(1).
136026. Respondent does not provide a safe, secure environment to at least one
1373developmentally disabled resident in violation of Sections 400.428(1)(a) and
1382Rule 58A-5.0182. The resident returned home about 4:00 a.m. one day.
1393Respondent forced the resident to remain outside for over two hours until
1405sunrise.
140627. The resident slept in a chair on the porch of the facility.
1419Respondent receives state funds to provide the resident with a safe, secure
1431environment.
1432CONCLUSIONS OF LAW
143528. The Division of Administrative Hearings has jurisdiction over the
1445subject matter and the parties. The parties were duly noticed for the formal
1458hearing.
145929. Petitioner has the burden of proof in this proceeding. Petitioner must
1471show by a preponderance of evidence that Respondent committed the acts alleged
1483by Petitioner and the reasonableness of any proposed penalty. Young v. State,
1495Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida
1507Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st
1519DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d
1531349 (Fla. 1st DCA 1977).
153630. Petitioner satisfied its burden of proof. Respondent failed to pay
1547the administrative fine ordered in DOAH Case Number 95-5679, and failed to
1559correct the deficiencies cited as a result of the follow-up survey and the
1572complaint investigation conducted on November 27, 1995.
157931. Petitioner complied with the requirements of Section 400.419(1)(a).
1588Petitioner made a reasonable attempt to discuss the deficiencies and required
1599corrective action with Respondent.
160332. Section 400.417(1) provides that a license shall not be renewed if the
1616licensee has any outstanding fines. Respondent has an outstanding fine.
162633. Pursuant to Section 400.415, Petitioner properly imposed a moratorium
1636on Respondent based on the continuing, uncorrected deficiencies committed by
1646Respondent, including deficiencies in Respondent's medication program,
1653therapeutic diets, and a locked fire exit. For the same reasons, Respondent has
1666violated the public trust, is incompetent to provide continuing adequate care to
1678residents, has committed five or more repeated and recurring Class III
1689violations which affect the health, safety, or welfare of residents, and has
1701failed to meet minimum license standards or requirements in violation of
1712Sections 400.401(3), 400.414(2)(b) and (d), and 400.414(2)(g).
1719RECOMMENDATION
1720Based upon the foregoing Findings of Fact and Conclusions of Law, it is
1733RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty
1743of the allegations at issue in this proceeding, sustaining the moratorium, and
1755denying the renewal of Respondent's license as an ALF.
1764RECOMMENDED this 21st day of August, 1996, in Tallahassee, Florida.
1774___________________________________
1775DANIEL MANRY, Hearing Officer
1779Division of Administrative Hearings
1783The DeSoto Building
17861230 Apalachee Parkway
1789Tallahassee, Florida 32399-1550
1792(904) 488-9675
1794Filed with the Clerk of the
1800Division of Administrative Hearings
1804this 21st day of August, 1996.
1810ENDNOTES
18111/ All chapter and section references are to Florida Statutes (1995) unless
1823otherwise stated.
18252/ Unless otherwise stated, all references to rules are to rules promulgated in
1838the Florida Administrative Code in effect on the date of this Recommended Order.
1851COPIES FURNISHED:
1853Douglas Cook, Director
1856Agency for Health Care Administration
18612727 Mahan Drive
1864Tallahassee, Florida 32308
1867Jerome Hoffman, General Counsel
1871Agency for Health Care Administration
18762727 Mahan Drive
1879Tallahassee, Florida 32308
1882Linda L. Parkinson, Esquire
1886Division of Health Quality Assurance
1891Agency for Health Care Administration
1896400 West Robinson Street, Suite 309
1902Orlando, Florida 32801
1905Pamela Mosley, Esquire
1908McCrary and Mosley, P.A.
191247 East Robinson Street, Suite 211
1918Orlando, Florida 32801
1921Sam Power, Agency Clerk
1925Agency for Health Care Administration
1930Fort Knox Building 3
19342727 Mahan Drive, Suite 3431
1939Tallahassee, Florida 32308
1942NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1948All parties have the right to submit written exceptions to this Recommended
1960Order. All agencies allow each party at least 10 days in which to submit
1974written exceptions. Some agencies allow a larger period within which to submit
1986written exceptions. You should contact the agency that will issue the final
1998order in this case concerning agency rules on the deadline for filing exceptions
2011to this Recommended Order. Any exceptions to this Recommended Order should be
2023filed with the agency that will issue the final order in this case.
- Date
- Proceedings
- Date: 10/08/1996
- Proceedings: Final Order filed.
- Date: 09/04/1996
- Proceedings: Respondent`s Exceptions to Recommended Order filed.
- Date: 08/30/1996
- Proceedings: Respondent`s Exceptions to Recommended Order (filed via facsimile).
- Date: 08/09/1996
- Proceedings: (AHCA) Proposed Recommended Order filed.
- Date: 07/31/1996
- Proceedings: Transcript of Proceedings filed.
- Date: 07/16/1996
- Proceedings: Final Video Hearing Held; for applicable Time frames, refer to CASE STATUS form stapled on right side of Clerk`s Office case file.
- Date: 05/14/1996
- Proceedings: Order Continuing and Rescheduling Formal Hearing sent out. (hearing reset for 7/16/96; 9:30am; Orlando)
- Date: 05/13/1996
- Proceedings: (Respondent) Response to Motion to Amend Denial Letter filed.
- Date: 05/07/1996
- Proceedings: (Petitioner) Motion to Amend Denial Letter filed.
- Date: 03/28/1996
- Proceedings: Notice of Hearing sent out. (hearing set for May 23-24, 1996; 9:00am; Orlando)
- Date: 03/25/1996
- Proceedings: (Petitioner) Response to Initial Order filed.
- Date: 03/21/1996
- Proceedings: Respondent`s Response to Initial Order filed.
- Date: 03/11/1996
- Proceedings: Initial Order issued.
- Date: 02/29/1996
- Proceedings: Notice; Request for Formal Hearing, Letter Form; Agency Action ltr. filed.
Case Information
- Judge:
- DANIEL MANRY
- Date Filed:
- 02/29/1996
- Date Assignment:
- 03/11/1996
- Last Docket Entry:
- 10/08/1996
- Location:
- Orlando, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO