99-001697 Agency For Health Care Administration vs. Northpointe Retirement Community Status: Closed Recommended Order on Thursday, February 10, 2000.

Summary: Rule requiring staffer trained in first aid to be present in each facility means entire facility and not in each building, as claimed by the agency; complaint dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 99-1697

)

NORTHPOINTE RETIREMENT )

COMMUNITY, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on December 1,

1999, in Pensacola, Florida, before Donald R. Alexander, the

assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administration

Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5803

For Respondent: Mohamad H. Mikhchi, President

Northpointe Retirement Community

5100 Northpointe Parkway

Pensacola, Florida 32514

STATEMENT OF THE ISSUE

The issue is whether Respondent should have a civil penalty

in the amount of $1,600.00 imposed for allegedly failing to

timely correct three violations of administrative regulations, as

alleged in the Administrative Complaint filed by Petitioner on

February 18, 1999.

PRELIMINARY STATEMENT

This matter began on February 18, 1999, when Petitioner,

Agency for Health Care Administration, issued an Administrative

Complaint charging that Respondent, Northpointe Retirement

Community, a licensed assisted living facility, had failed to

timely correct three violations of administrative rules

discovered during the course of three inspections by Petitioner

in 1998 and 1999. Because of these violations, Petitioner

intends to impose upon Respondent a civil penalty in the amount

of $1,600.00.

Respondent denied the allegations and requested a formal

hearing under Section 120.569, Florida Statutes, to contest the

charges. The matter was referred by Petitioner to the Division

of Administrative Hearings on April 12, 1999, with a request that

an Administrative Law Judge be assigned to conduct a formal

hearing. By Notice of Hearing dated July 8, 1999, a final

hearing was scheduled on December 1, 1999, in Pensacola, Florida.

On November 30, 1999, the case was transferred from

Administrative Law Judge Diane Cleavinger to the undersigned.

At the final hearing, Petitioner presented the testimony of

Jacqueline Klug, an agency public health nutrition consultant.

Also, it offered Petitioner's Exhibits 1-9. All exhibits were

received in evidence. Respondent was represented by its

president and owner, Mohamad H. Mikhchi, who testified on its

behalf.

The Transcript of the hearing was filed on January 18, 2000.

Proposed Findings of Fact and Conclusions of Law were filed by

Petitioner on January 31, 2000, and they have been considered by

the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. When the events herein occurred, Respondent, Northpointe

Retirement Community (Respondent), was licensed to operate an

assisted living facility ( ALF) at 5100 Northpointe Parkway,

Pensacola, Florida. As an ALF, Respondent is subject to the

regulatory jurisdiction of Petitioner, Agency for Health Care

Administration (AHCA).

2. One regulatory responsibility of AHCA is to conduct

periodic licensure surveys of ALFs to ensure that they are

complying with certain standards embodied in Chapter 58A-5,

Florida Administrative Code. If standards are not being met,

depending on their nature and severity, the deficiencies are

classified as Class I, II, and III violations, with Class I being

the most serious violation. After deficiencies are noted in a

licensure survey, the facility is given a time certain in which

to correct those violations. If no correction is made, AHCA

normally imposes a civil penalty upon the erring facility.

3. Respondent is charged with having failed to timely

correct one Class II and two Class III violations. By law, a

Class II deficiency is one which the agency determines to have a

direct or immediate relationship to the health, safety, or

security of nursing home residents. A Class III deficiency is a

deficiency which the agency determines to have an indirect or

potential relationship to the health, safety, or security of the

nursing home residents.

4. On October 5 through 7, 1998, an AHCA representative

conducted a routine licensure survey of Respondent's facility.

During the survey, the representative noted, among other things,

that Respondent did not have a staff member within the facility

at all times who was certified in first aid, including

cardiopulmonary resuscitation (CPR). If true, this omission

contravened the requirements of Rule 58A-5.019(5)(f), Florida

Administrative Code, and constituted a Class III violation.

5. On November 12, 1998, AHCA conducted a second licensure

survey of Respondent's facility. During the survey, its

consultant discovered two standards being contravened. First,

Respondent failed to comply with good sanitary practices in its

food preparation area in various respects, which constituted a

violation of Rule 58A-5.020(1)(b), Florida Administrative Code.

The specific deficiencies are described in detail in Petitioner's

Exhibit 2, and collectively they constituted a Class II

violation.

6. The same survey also revealed that Respondent failed to

maintain an adequate emergency supply of water for drinking and

cooking purposes. While Respondent had a private well on its

premises to meet these needs, the quality of the water had not

yet been tested by the Escambia County Health Department. In the

absence of such testing, or the presence of any other emergency

supply of water, Respondent violated Rule 58A-5.020(1)( i),

Florida Administrative Code, a Class III violation.

7. After the foregoing inspections had occurred, Respondent

was given a written report containing a list of all violations,

and it was given until December 3, 1998, in which to make

corrections.

8. On February 5, 1999, AHCA conducted a follow-up survey

of Respondent's facility and noted that Respondent had still

failed to remediate the previously cited deficiencies. First,

during the late evening shift (11 p.m.-7 a.m.) on January 29,

1999, there was no person on duty in Phase II of the complex who

was certified in first aid, including CPR. Second, the well had

still not been inspected and approved for human consumption, and

there was an inadequate amount of water on hand for the residents

in the event of an emergency. Finally, although the earlier

sanitary violations had been corrected, the AHCA representatives

discovered a new sanitary violation in the food preparation area

involving the improper thawing of meat. Under AHCA policy,

unless no sanitary violations are found in the follow-up

inspection, a continuing violation of the rule has occurred.

Except for the first-cited deficiency, which is discussed below,

the foregoing deficiencies constituted an uncorrected Class II

violation and an uncorrected Class III violation.

9. While admitting that a person certified in first aid was

not present in one of his buildings during the late shift on

January 29, 1999, Respondent's owner contended that the AHCA rule

was still satisfied. Under his interpretation, the rule only

requires that he have one person trained in first aid, including

CPR, within the entire facility, rather than in each building;

AHCA, however, interprets the word "facility" as meaning each

building within the facility, and because there was no person in

Phase II of the facility, it maintains that the rule was

violated. For the reasons given in the Conclusions of Law, this

interpretation of the rule is found to be clearly erroneous.

10. As to the second violation, which pertains to sanitary

food practices, Respondent admits that the violation occurred,

but suggested that it pertained to mildew which developed behind

loose caulking in the kitchen, which was later corrected. At the

hearing, however, the ACHA consultant pointed out that the

violation occurred because of improper thawing of food, and not

caulking, and thus there was a continuing sanitary violation in

the food preparation area.

11. As to the lack of an emergency water supply,

Respondent's owner pointed out that he had made a good faith

effort to comply with the regulation, but had difficulty in

determining from the local disaster preparedness authority

exactly how much water per resident was required in the event of

an emergency. Shortly after the follow-up survey, he purchased

adequate amounts of bottled water to meet the requirements of the

rule.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

13. Because Respondent is subject to the imposition of an

administrative fine, Petitioner bears the burden of proving by

clear and convincing evidence that the allegations in the

Administrative Complaint are true. See , e.g. , Osborne Stern &

Co. v. Dep't of Banking and Finance , 670 So. 2d 932, 935

(Fla. 1996).

14. By clear and convincing evidence, Petitioner has

established that Respondent violated Rule 58A-5.020(1)(b) and

( i), Florida Administrative Code, as charged in the

Administrative Complaint. Therefore, Respondent is guilty of one

Class II and one Class III violation.

15. The final allegation concerns a charge that Respondent

violated Rule 58A-5.019(5)(f), Florida Administrative Code, which

requires that the licensee assure that "there is at least one

staff member within the facility at all times who has a

certification in first aid as required by Rule 58A-5.019(2),

F.A.C." In making this charge, Petitioner has interpreted the

rule to mean that a trained person must be in each building of

the licensed premises rather than one in each facility. Whether

this interpretation is correct depends on its conformity with

several judicial principles. First, an agency's interpretation

of its rules will not be overturned unless the interpretation is

clearly erroneous. Dep't of Insurance v. Southeastern Volusia

Hospital Dist. , 438 So. 2d 815, 820 (Fla. 1983). However,

interpretation of agency rules is appropriate only where such

rules contain ambiguities, or the language is not plain or the

meaning clear. Kimbrell v. Great American Insurance Co. , 420 So.

2d 1086, 1088 (Fla. 1982). Where the administrative ruling or

policy is contrary to the plain and unequivocal language being

interpreted, the ruling or policy is clearly erroneous. Woodley

v. Dep't of Health and Rehab. Svrs. , 505 So. 2d 676, 677 (Fla.

1st DCA 1987). See also Eager v. Fla. Keys Aqueduct Authority ,

580 So. 2d 771, 772 (Fla. 3d DCA 1991).

16. Here, the rule is clear and unambiguous and requires

only that a properly trained person be within the "facility" at

all times. By expanding the definition of the word "facility" to

require that a trained person be within each building of a

facility constitutes a clearly erroneous interpretation. Cf.

Garcia- Cantera v. Dep't of State , 605 So. 2d 804, 805-06 (Fla.

3rd DCA 1993)(agency's discretion in interpreting a statute

somewhat more limited where penalties may be imposed).

Therefore, the final allegation must fail.

17. In its Proposed Recommended Order, Petitioner seeks to

impose a $1,000.00 penalty for the Class II violation and a

$300.00 penalty for the Class III violation, or a total of

$1,300.00. The source of authority for those penalties is found

in Section 400.419(3)(b) and (c), Florida Statutes (1997). The

first provision authorizes AHCA to impose "a civil penalty in an

amount not less than $500 and not exceeding $1,000 for each

[uncorrected Class II] violation," while the latter provision

authorizes AHCA to impose "a civil penalty of not less than $100

nor more than $500 for each [uncorrected Class III] violation."

Because the statutes contain a range of penalties, this implies

that the amount of the fine to be imposed depends on the facts of

each case and any mitigating or aggravating circumstances that

may be present.

18. As to the Class II violation, which involved the

improper thawing of food during the follow-up inspection, except

for this violation, Respondent had corrected all other

deficiencies previously found in earlier surveys. Given

Respondent's good faith efforts to correct the deficiencies, it

is concluded that a $500.00 fine is more appropriate. AHCA's

suggested fine in the amount of $300.00 for the uncorrected Class

III violation falls within the mid-range of the penalties and is

likewise appropriate.

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 determining that Respondent has violated

Rule 58A-5.020(1)(b) and ( i), Florida Administrative Code, and

that an $800.00 civil penalty be imposed. The remaining

violation should be dismissed.

DONE AND ENTERED this 10th day of February, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

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 10th day of February, 2000.

COPIES FURNISHED:

Sam Powers, Agency Clerk

Agency for Health Care Administration

Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Michael O. Mathis, Esquire

Agency for Health Care Administration

Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Mohammad H. Mikhchi, President

Northpointe Community Retirement

5100 Northpointe Retirement

Pensacola, Florida 32514

Julie Gallagher, General Counsel

Agency for Health Care Administration

Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

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.