99-002485 Marlene C. Berthelot, D/B/A Four Palms Manor vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, December 13, 1999.

Summary: Agency proved minor violations of statute which, though not relating to resident care, were Class III violations justifying minimum fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLENE C. BERTHELOT, d/b/a FOUR )

PALMS MANOR, )

)

Petitioner, )

)

vs. ) Case No. 99-2485

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

A hearing was held in this case in St. Petersburg, Florida,

on October 20, 1999, before Arnold H. Pollock, an Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Renee H. Gordon, Esquire

Gay and Gordon, P.A.

Post Office Box 265

St. Petersburg, Florida 33731

For Respondent: Karel L. Baarslag, Esquire

Agency for Health Care

Administration

2295 Victoria Avenue

Ft. Myers, Florida 33901

STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether

Respondent’s Extended Congregate Care ( ECC) license for the

facility at 302 11th Avenue, Northeast, in St. Petersburg,

Florida, should be renewed, and whether her license to operate

that assisted living facility should be disciplined because of

the matters alleged in the denial letter dated April 16, 1998,

and in the Administrative Complaint filed herein on December 15,

1998. Ms. Berthelot requested formal hearing on those issues,

and this hearing ensued.

PRELIMINARY MATTERS

By letter dated April 16, 1998, the Agency for Health Care

Administration’s Bureau of Health Facility Compliance notified

Ms. Berthelot that her application for renewal of her ECC

license for Four Palms Manor, an assisted living facility she

operated, had been denied because the facility failed to

maintain a standard license for the two years previous to the

application. By letter dated December 2, 1998, the Agency’s

compliance bureau also advised her that her renewal application

for a license to operate the assisted living facility had been

denied because the facility failed to meet minimum licensing

requirements when, after a period of conditional licensing from

April 8 through October 7, 1998, it failed to correct eight

deficiencies previously identified. Thereafter, by

Administrative Complaint dated December 15, 1998, the Agency

indicated its intention to impose administrative fines totaling

$2,400, because of discrepancies noted in a survey of the

facility conducted on December 30, 1997, and followed up on

March 26, 1998.

Ms. Berthelot requested formal hearing on these combined

allegations, and this hearing ensued.

At the hearing, the Agency presented the testimony of Ann

DaSilva, an assisted living facility surveyor for the Agency,

and introduced Agency Exhibits 1 through 4. Ms. Berthelot

testified in her own behalf and presented the testimony of Betty

J. Revels, the senior person on staff at Four Palms. She also

introduced Four Palms Exhibits A through F.

A Transcript of the proceedings was filed November 5, 1999.

Subsequent to the receipt thereof, both counsel submitted

matters in writing. These matters were carefully considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Agency

for Health Care Administration (Agency) was the state agency in

Florida responsible for the licensing and regulation of assisted

living facilities in this state. Respondent Marlene C.

Berthelot operated Four Palms Manor, a licensed assisted living

facility located at 302 11th Avenue, Northeast, in St.

Petersburg, Florida.

2. Ann DaSilva had been a surveyor of assisted living

facilities for the Agency for at least five years at the time of

the initial survey in this matter that took place in December

1997. On that occasion, Ms. DaSilva, in the company of another

surveyor, Mr. Kelly, inspected the facility in issue on a

routine basis. At that time, Ms. DaSilva noted that with regard

to at least one resident, there was no health assessment by the

resident’s physician in the resident’s file. A health

assessment should contain the physician’s evaluation of the

resident’s capabilities and needs, as well as his or her initial

status upon admission.

3. In this case, Ms. DaSilva found that the health care

provider had not addressed the skin integrity of the resident at

the time of admission as should have been done. This is

important because if the resident had had a skin problem or some

other health problem, the resident might well not have been

eligible to reside in the facility because facilities of this

kind normally do not have the capability of treating pressure

sore ulcers.

4. Ms. DaSilva also found that the health assessment did

not accurately reflect the resident’s status at the time of the

survey. She found the resident was far less capable of doing

what the health assessment said she could do, and the assessment

was neither current nor accurate. The resident required

assistance in all activities of daily living, and it was

reported the resident fell out of bed because she could not

stand. This situation was written up as Tag A-403.

5. Tag A-403 was re-cited in a follow-up survey conducted

on March 26, 1998. At that time the surveyor found that the

health assessment did not address the resident’s method of

medication administration. On admission, the resident was

receiving no medications at all. After she began taking

medications, the facility failed to get an order from her

physician to indicate how the medications were to be

administered, self or with help of staff administration. Tag A-

403 was cited for a third time in the October 1998 survey where

the same deficiency, as cited in the March survey, the failure

of the file to reflect how the resident’s medications were to be

administered, was again cited. The record still did not

indicate how the resident was to receive her medications. This

tag was classified as a Class III deficiency and that

classification appears to be appropriate.

6. Tag A-406, whi ch deals with the facility’s need for an

evaluation of the resident’s ability to self-preserve in case of

emergency, was also cited as a deficiency in the December 30,

1997, survey. There was no evidence in the file that such an

evaluation was accomplished during the first 30 days after

admission regarding this resident as is required by rule.

Ms. DaSilva observed the resident in bed at 9:30 a.m., and the

nurses’ notes reflected she was totally dependent and needed

help with locomotion. The resident suffered from cerebral palsy

with severe paresis (weakness) on one side. This situation

raised the surveyor’s concern as to whether the resident could

get out of the facility in the event of an emergency. No

indication appeared in the records or documentation regarding

this resident, and no supplement was provided upon the request

of the surveyor.

7. Ms. DaSilva also heard the resident call out for

assistance, a call which remained unanswered because the one

staff member on duty at the time was not in the immediate area.

Ms. DaSilva observed that the resident was not able to stand

without assistance but the facility’s paper-work indicated the

resident could self-ambulate. This was obviously incorrect.

When the facility administrator, Ms. Berthelot, was called by

her staff manager, she came to the facility to assist in finding

the requested paperwork, but was unable to locate in the file

any evaluation of the resident’s capability to self-preserve.

8. Tag A-406 was re-cited in the March 1998 survey because

again there were two residents who had been in the facility for

over 30 days without any evaluation of their ability to self-

preserve. It was cited for a third time during the October 1998

survey when the surveyor found two other residents who had been

in the facility for over 30 days but who had not been evaluated

for their ability to self-preserve, and notwithstanding a

request for such documentation, none was found or produced.

This resulted in Tag 406 being classified as a Class III

deficiency.

9. At the March 26, 1998, survey, Ms. DaSilva cited

Tag A-504, which deals with the requirement for direct care

staff to receive training in patient care within 30 days of

being hired. The Agency requires documentation of such

training, and surveyors look at the files of the staff members

on duty to see if the employee’s file contains certification of

the proper training, appropriate application information,

references, and like material. This information is needed to

ensure that the employee is qualified to do the job. Here,

examination of the facility’s files failed to show that the one

staff person on the premises during the evening shift Monday

through Friday, Employee No. 1, had had the proper training. It

also appeared that Employee No. 3, who was hired to work alone

on Thursday and Friday evenings and Saturday and Sunday day

shifts, also did not have any record of required training. This

subject matter was again cited during the October 1998 survey.

When Ms. DaSilva requested the file of the individual on duty,

there was nothing contained therein to reflect the individual

had had the required training. This was properly classified as

a Class III deficiency.

10. Tag A-505 was also cited as a result of the March 1998

survey. This tag deals with the requirement for staff who

provide personal services to residents to be trained in

providing those services. Ms. DaSilva asked for and was given

the facility’s files but could find no evidence of proper

training having been given. This subject matter was again cited

as a result of the October 1998 survey. At the hearing,

Respondent presented certificates of training in personal

hygiene, medication policy and training, and direct care 2-hour

staff training, given to all employees of all Respondent’s

facilities. These certificates reflect, however, that the

training was administered on April 22, 1998, after the March

1998 survey but before the October 1998 survey, though that

survey report reflects the item was again tagged because of

employees scheduled to work alone who did not have documentation

of appropriate training. This was a Class III deficiency.

11. As a result of the December 1997 survey, Ms. DaSilva

also cited the facility under Tag A-602, which deals with

medication administration, and requires staff who administer

medications to be trained in appropriate methods. At the time

of the survey, Ms. DaSilva observed a staff member pour

medications from prescription bottles into her hand, take the

medications to the resident, and give them to her. This staff

member was not a licensed person and only licensed staff may

administer medications. At the time, when asked by Ms. DaSilva,

the staff member admitted she was not licensed and had not

received any training in medication administration.

12. Tag A-602 was again cited as a result of the March

1998 survey because at that time Ms. DaSilva observed a staff

member assist a resident correctly, but when she looked at the

records, she found the member had not received the required

training. This has, she contends, a potential for improper

medications being given which could result in possible harm to

the resident. This Tag was again cited as a result of the

October 1998 survey. On this occasion, Ms. DaSilva’s review of

records or employees who had indicated they had assisted with

medications revealed no evidence of appropriate training. Here

again, the training was certified as having been given in April

1998, and Respondent contends that by the time of the October

1998 survey, the certificates were in the records. They were

not found by the surveyors, however, and it is the operator’s

responsibility to make the records available. This constitutes

a Class III violation.

13. Under the rules supporting citation Tag A-703, a

facility must have an ongoing activities program into which the

residents have input. On December 30, 1997, Ms. DaSilva

interviewed the residents who indicated there was no activities

program at Four Palms. Ms. DaSilva observed no planned

activities taking place over the six to seven hours she was

there. This deficiency was re-cited during the March 1998

survey. Again, Ms. DaSilva interviewed the residents who

indicated they watched TV or walked. A calendar of activities

was posted, but there was no indication any were taking place,

and upon inquiry, a staff member indicated none were being done

that day. The activities calendar provided by the staff member

merely listed potential activities, but did not indicate when or

where they would take place.

14. Ms. DaSilva again cited the facility for a deficiency

in its activities program as a result of the October 1998

survey. At this time, she observed no activities during the

time she was at the facility. The staff member on duty reported

that the planned activity was not done because she did not have

time to do it. At that time, residents were observed to be

lying on their beds or watching TV. The one staff person on

duty was cooking, cleaning, or helping residents with care

issues. This is a Class III deficiency.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Section 120.57(1), Florida Statutes.

16. Assisted living facilities in Florida are licensed by

the Agency under the provisions of Chapter 400, Part III,

Florida Statutes, and the Agency is required to conduct periodic

evaluations of those facilities for compliance with pertinent

statute and rule.

17. Deficiencies noted during an evaluation are classified

as either Class I, Class II, or Class III deficiencies. Class

III deficiencies are those which are determined to have an

indirect or potential relationship as opposed to an immediate

danger or direct relationship to the health, safety, or security

of the residents.

18. Rati ngs assigned by Agency evaluators are designated

as standard, conditional, or superior. A standard rating means

the facility has no Class I or II deficiencies, has corrected

all Class III deficiencies within the time specified therefor,

and is in substantial compliance with established criteria.

19. The conditional rating, which the Agency seeks to

award here, means that this facility, due to the presence of

Class III deficiencies not corrected within the time set

therefor, is not in substantial compliance at the time of the

survey with established criteria.

20. The Agency has the burden of proof in this case to

establish, by a preponderance of the evidence, that there was a

basis for imposing a conditional rating on Four Palm Manor’s

license. Florida Department of Transportation v. J.W.C., Inc. ,

396 So. 2d 776 (Fla. 1st DCA 1981; Balino v. Department of

Health and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA

1977).

21. The evidence of record clearly establishes that the

Agency correctly issued Class III deficiencies in the initial or

first follow-up inspection which remained uncorrected by the

subsequent follow-up evaluations. Therefore, it properly

awarded Four Palms Manor a Conditional license for the period

from April 8, 1998 through October 7, 1998.

22. In its letter to Ms. Berthelot, Four Palms’

Administrator, dated December 2, 1998, the Agency cites as its

basis for denial of her renewal application for an operating

license the fact that the facility:

. . . failed to meet the minimum licensing

requirements pursuant to s. 400.414(1)(I),

F.S. After a period of conditional license

4/8/98 through 10/7/98, the facility failed

to correct 8 deficiencies cited during

surveys conducted 12/10/97, 3/26/98 and

10/26/98.

This citation is incorrect. Section 400.414(2)(e) Florida

Statutes, authorizes the Agency to deny, revoke, or suspend a

license for:

Five or more repeated or recurring identical

or similar Class III violations of this part

which were identified by the agency during

the last biennial inspection, monitoring

visit, or complaint investigation and which,

in the aggregate, affect the health, safety,

or welfare of the facility residents.

23. Here, the evidence shows that there were more than

five recurring identical or similar Class III violations

identified in the last three surveys. However, though each,

taken alone or in combination with the other, might constitute a

threat to residents, there was no significant evidence of record

to indicate that the health, safety, or welfare of any of the

residents was actually being affected. Therefore, it would be

inappropriate to deny renewal of the basic operating license.

24. The Agency also has denied the facility renewal of its

Extended Congregate Care license because it failed to maintain a

standard license for the previous two years prior to renewal.

The letter denying the license renewal is dated April 16, 1998,

and it refers to the conditional license period extending from

April 8, 1998 to October 7, 1998, almost six months in the

future. However, the Agency failed to establish when the prior

ECC license was due to expire or when the application for

renewal was submitted. Section 400.407(3)(b), Florida Statutes,

provides that application for renewal of an ECC license may be

denied if the facility did not maintain a standard license for

two years. This provision also requires the Agency to give

notice of approval or denial within 90 days after receipt of

request for issuance or application. In the instant case, since

the denial letter was dated April 16, 1998, the application must

have been submitted subsequent to January 16, 1998. Since the

two year period relates to the date of application for renewal,

and since the denial letter was dated on April 16, 1998, only

eight days after the issuance of the conditional license, the

Agency has not established, by a preponderance of the evidence,

that the disqualification period applies in this case.

Therefore, denial of the renewal of the ECC license is not

appropriate.

25. Section 400 .419(3)(c), Florida Statutes, authorizes

the Agency to impose an administrative fine upon licensed

facilities for uncorrected Class III deficiencies. The statute

provides that the fine shall be not less than $100 nor more than

$500 for each violation. In the Administrative Complaint as

filed, the Agency cited eight separate violations for each of

which it sought to impose a fine of $300. However, at hearing,

the Agency presented evidence on only six of the alleged

violations. Therefore, it seeks to impose a total

administrative fine of $1,800. Under the circumstances of this

case, only four of the six alleged violations present any

reasonable basis for discipline. That dealing with the activity

schedule, while proven, must be looked at in the light of

reason. This facility is not a large facility with extended

staff. Only a few individuals reside in the facility, and there

is no indication that any of them evidenced any displeasure or

dissatisfaction with the activities available to them.

Consequently, no fine is appropriate.

26. With regard to the administration of medications, this

is by far the most significant of the alleged violations. Even

here, however, the evidence or record showed that upon re-

evaluation, the staff member properly dispensed the medication

but the surveyor’s review of the records failed to reveal the

member had received the appropriate training. Again, since the

staff member was properly dispensing the medications, it may be

assumed the individual had been trained to do it that way.

Therefore, the discrepancy is one of record keeping rather than

action. No fine is appropriate.

27. The remaining four alleged violations all relate to

record keeping and the failure to document training or

examinations. Under the circumstance of this case, imposition

of more than a $100 fine for each of the four violations would

be inappropriate.

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 granting Respondent renewal of a license to

operate Four Palm Manor, an assisted living facility at 302 11th

Avenue, Northeast in St. Petersburg, Florida; granting renewal

of the ECC license for the same facility; and finding Respondent

guilty of Class III deficiencies for Tags 403, 406, 504, 505,

602, and 703 on the surveys done on December 30, 1997, and

March 26, 1998. An administrative fine of $100 should be

imposed for each of Tags 403, 404, 504, and 505.

DONE AND ENTERED this 13th day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

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 13th day of December, 1999.

COPIES FURNISHED:

Karel L. Baarslag, Esquire

Agency for Health Care Administration

2295 Victoria Avenue

Fort Myers, Florida 33901

Renee H. Gordon, Esquire

Gay and Gordon, P.A.

Post Office Box 265

St. Petersburg, Florida 33731

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Julie Gallagher, General Counsel

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

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.