Pursuant to notice, a formal hearing was held in the above- styled case on October 24, 1996, at Tampa, Florida, before Richard Hixson, a duly designated Administrative Law Judge of the Division of Administrative Hearings. Supplemental proceedings were conducted on February 28, 1997.
For Respondent: Howard J. Shifke, Esquire
The issue for determination in this case is whether Respondent's license to practice nursing home administration should be revoked or otherwise disciplined for violations of
On March 4, 1996, Petitioner, AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF NURSING HOME ADMINISTRATORS, filed a
three-count Administrative Complaint alleging that Respondent, MARY ALICE DESSASAU, violated certain provisions of Chapter 468, Florida Statutes. Specifically, Count 1 alleged that Respondent repeatedly acted in a manner inconsistent with the health, safety or welfare of patients in violation of Section 468.1755(l)(k), Florida Statutes; Count 2 alleged that Respondent was negligent or incompetent in the practice of nursing home administration in violation of Section 468.1755(l)(g), Florida Statutes; and Count
3 alleged that Respondent repeatedly violated the rights under law of persons in a nursing home in violation of Section 468.1755(l)(m), Florida Statutes.
Respondent filed a timely request for formal hearing, and on April 8, 1996, the case was forwarded to the Division of Administrative Hearings. Pursuant to motion of the parties, the hearing in this case was continued to October 24, 1996, and as indicated above, pursuant to motion, and without objection, a supplemental hearing was conducted on February 28, 1997.
At the initial hearing on October 24, 1996, Petitioner presented the testimony of Barbara A. Doyle, R.N., Sandra G. Carey, R.N., and Victor Raiser, M.H.A. Petitioner presented nine
exhibits that were received in evidence. Respondent testified in her own behalf, and presented seven exhibits that were received in evidence. At the hearing Respondent made an ore tenus Motion to Dismiss because of insufficiencies in the Administrative Complaint.
At hearing on February 28, 1997, Petitioner presented rebuttal witnesses Eva Bulmer, Marvin Ray Johnson, and Donna M. Casebeer. A transcript of the hearing was filed on March 6, 1997. At the close of the hearing Respondent renewed her Motion to Dismiss. Petitioner filed an Amended Proposed Recommended Order on March 18, 1997. Respondent did not submit a Proposed Recommended Order. For reasons set forth below, Respondent's Motion to Dismiss the Administrative Complaint is DENIED.
Respondent, MARY ALICE DESSASAU, is a licensed nursing home administrator in the State of Florida, having been issued license number NH0002826. From 1993 to 1995, Respondent was employed as the nursing home administrator of The Ambrosia Home in Tampa, Florida.
Respondent, MARY ALICE DESSASAU, is also a licensed registered nurse in the State of Florida, having been issued nursing license number 003029. From 1989 to 1993, Respondent served as a nurse and also as director of nursing for The Ambrosia Home.
Petitioner, AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD
OF NURSING HOME ADMINISTRATORS, is the agency of the State of Florida vested with statutory authority to administer the provisions of Chapter 468, Part II, Florida Statutes, governing nursing home administration and conducting disciplinary proceedings pursuant to Section 468.1755, Florida Statutes.
Alleged Insufficiencies of the Administrative Complaint
Respondent contends that the Administrative Complaint improperly referenced the wrong license number. Paragraph 2 of the Administrative Complaint alleges:
Respondent is, and has been at all times material hereto, a licensed Nursing Home Administrator in the State of Florida, having been issued license number 003029.
In this respect, Paragraph 2 mistakenly references Respondent's license as a registered nurse instead of her nursing home administrator license. The style of the case, however, clearly identified the prosecuting agency as the Board of Nursing Home Administrators, and the remaining allegations of the Administrative Complaint clearly relate to Respondent's practice of nursing home administration. Moreover, on April 2, 1996, Respondent executed her election of rights, and in her election referenced her nursing home administration license number, which is 0002826. Respondent clearly was on notice that this proceeding sought to discipline her license to practice nursing home administration.
Respondent also contends that there are insufficiencies in Paragraph 10 of that the Administrative Complaint which alleges:
The violations and deficiencies include but are not limited to the following:
Residents were placed in the facility's
23 bed locked unit based upon inappropriate criteria. Frail elderly residents were placed on this unit with violent, mentally ill patients.
The nursing home did not appropriately re-evaluate the patients being placed in the locked unit.
At least one resident was denied his freedom from reprisal when, after the resident had pulled the facility's fire alarm on July 26, staff members were instructed to shave his beard without the resident's assent.
Residents were denied privacy when staff and other individuals rendered personal care to them. A resident was observed in the shower with the shower curtain and door open. Other residents were present in the outer- room and could have observed the resident in the shower. The therapy room where residents received treatment was open to public view and residents were observed receiving treatment.
Male residents were observed wearing unzipped pants or no underwear, and exposed themselves to other residents.
Female residents complained that male residents would wander into their rooms at night and get into bed with them.
Residents were observed with dirty clothing and other unsanitary conditions.
One resident was inappropriately restrained.
As recited in Paragraphs 4, 5, 6, 7, 8 and 9 of the Administrative Complaint, the allegations of Paragraph 10 are based upon two inspections by an agency survey team of The Ambrosia Home on July 17, 1995, and again on August 9, 1995.
Paragraph 7 specifically alleges that on July 28, 1995, Respondent signed the Statement of Deficiencies and Plan of Correction which set forth the basis for the specific allegations of Paragraph 10. In this request, the Administrative Complaint is sufficient in its allegations of specifying those acts and omissions for which Petitioner seeks to discipline Respondent's license to practice nursing home administration.
Conditions at The Ambrosia Home
At all material times hereto, The Ambrosia Home was a long-term nursing home facility generally serving residents of modest means, many of whom suffered mental infirmities. Residents with serious mental infirmities were often housed in a locked unit (also known as the 300 wing) within the facility.
Prior to July 1995, Petitioner received several complaints regarding deficiencies of the conditions at The Ambrosia Home. These complaints related to resident abuse, staff abuse, quality of care and quality of life for the residents.
In response to these complaints, the agency on July 11- 12, 1996, assembled a team of surveyors to investigate conditions at The Ambrosia Home. The team of surveyors included health care practitioners and nursing home professional.
Barbara Doyle, a registered nurse, social worker, registered dietitian, and life safety specialist served as the survey team leader.
Sandra C. Carey, a registered nurse who also holds a
master's degree in business administration served as a survey team member. Ms. Carey has extensive experience working in long- term care facilities, as well as in sub-acute and acute care facilities.
The team conducted an extended survey of The Ambrosia Home from July 13-17, 1995. Respondent was the nursing home administrator at The Ambrosia Home at this time. The survey team interviewed Respondent during the course of the team's investigation of the complaints relating to The Ambrosia Home.
The survey team conducted an intensive review of patient records, interviewed staff and residents, and extensively inspected the facility.
Because of the complaint regarding residents in the locked unit, the survey team was particularly concerned with conditions in the 300 wing. The survey team observed and recorded several deficiencies in the locked unit. Supervision in the locked unit was inadequate. One nurse was responsible not only for the locked unit, but also a second unit of the facility, which resulted in mentally infirm residents being unattended.
The facility, and especially the locked unit, was not properly cleaned. The smell of urine permeated the facility. Restrooms had dried fecal matter on the toilets, and were without soap, toilet tissue, or towels.
One resident of the unit, M. K., was inappropriately restrained.
Keys to the locked unit were not readily available to staff in case of fire or other emergency.
Resident Abuse Allegations
In addition to the deficiencies of the locked unit, the survey team investigated and confirmed that on May 26, 1996,
P. C., a resident of The Ambrosia Home had been inappropriately and severely restrained by a Certified Nursing Assistant (CNA) when attempting to leave the grounds of the facility. As a result of this incident, P. C. suffered scrapes and bruises. Respondent did not become aware of this incident or the injuries sustained by the resident until five days afterwards. Respondent then reported the CNA involved in the incident for abuse. The CNA, however, remained employed at The Ambrosia Home until June 28, 1995.
Records of The Ambrosia Home reflected that CNAs were employed at the facility prior to the completion of background checks by the agency's abuse hotline.
In a separate incident, by order of the owner of The Ambrosia Home, another resident W. D., was forcibly given a haircut and shaved for pulling a fire alarm. Respondent took no steps to address this incident, and doubted that the incident occurred.
Agency Actions
As a result of the severity of the findings verified by the survey team, the agency placed The Ambrosia Home on a 23-day
termination track. Respondent, as the administrator of the facility, was notified of the deficiencies, and on July 28, 1995, signed the Statement of Deficiencies and Plan of Correction for The Ambrosia Home.
On August 9, 1995, the survey team returned to The Ambrosia Home for a second follow-up inspection. The deficiencies first verified by the survey team in July 1995 were not corrected.
After the second inspection, Respondent was terminated from her position as administrator and the locked unit within The Ambrosia Home was closed. The residents were placed in other facilities.
Standards of Nursing Home Administrators
Respondent, as nursing home administrator of The Ambrosia Home, was responsible for operation of the facility in accordance with state and federal statutes, rules and regulations.
As indicated above, The Ambrosia Home served residents with significant medical infirmities and of limited financial resources. Respondent was aware of the deficiencies of the facility and attempted at times to bring these problems to the attention of the owner.
During her tenure as administrator, Respondent attempted to work in good faith with the owner of The Ambrosia Home to address the deficiencies of the facility; however, due,
in part, to the medical circumstances of the residents and the financial constraints of the facility the deficiencies of The Ambrosia Home were not corrected.
Respondent did not adequately supervise the staff of The Ambrosia Home.
The deficiencies of The Ambrosia Home developed over several years during Respondent's tenure as administrator of the facility.
Respondent was, however, responsible for being aware of the incidents of mistreatment of residents, as referenced above, and for taking the appropriate measures to address such incidents to protect the welfare of the residents of the facility. Respondent did not take appropriate measures to become aware of these incidents of mistreatment in a timely manner, and did not take appropriate measures to address the incidents.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes, and Section 455.225, Florida Statutes.
Respondent’s Motion To Dismiss
A complaint filed by an administrative agency must be specific enough to inform the accused with reasonable certainty of the nature of the charges, but the administrative complaint need not fulfill the technical niceties of a legal pleading.
Maddox v. Department of Professional Regulation, 592 So.2d 717, (Fla. 1st DCA 1991); See also Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984).
The complaint is required to specify the nature of the alleged allegations and the statutory provisions allegedly violated. Id. at 720.
The Administrative Complaint filed in this matter delineates the charges being brought against the Respondent as well as the bases of those charges.
Respondent was clearly on notice of the charges against her nursing home administrator's license and was provided with the opportunity to respond to those charges. Accordingly, Respondent’s Motion to Dismiss is DENIED.
STATUTORY VIOLATIONS
Pursuant to Section 468.1755(2), Florida Statutes, the Board of Nursing Home Administrators is empowered to revoke, suspend or otherwise discipline the license of a nursing home administrator for the following violations of Section 468.1755, Florida Statutes as alleged in the Administrative Complaint:
Section 468.1755(l)(k), Florida Statutes, by repeatedly acting in a manner inconsistent with the health, safety, or welfare of the patients of the facility in which Respondent is the administrator;
Section 468.1755(l)(g), Florida Statutes, by being negligent or incompetent in the practice of nursing home administration;
Section 468.1755(l)(m), Florida Statutes, by repeatedly violating any of the provisions of law, code, or rules of the licensing or
supervising authority or agency of the state or political subdivision thereof having jurisdiction of the operation and licensing of nursing homes.
Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d
487 (Fla. 1973). In this disciplinary licensing proceeding, Petitioner must prove the alleged violations of Section 468.1755(l)(k), (g), and (m), Florida Statutes, by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987).
“Clear and convincing evidence” requires that evidence must be found to be credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and witnesses must be lacking in confusion as to facts in issue; evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983).
The function of the nursing home administrator under statutes and rules is not limited to that of "record keeper," but extends to responsibility for sheltering and protecting health and well being of patients. Magnolias Nursing and Convalescent Center v. Department of Health and Rehabilitative Services, Office of Licensure and Certification, 428 So.2d 421 (Fla. 1st DCA 1983).
The evidence is clear and convincing that Respondent violated Section 468.1755(l)(k), Florida Statutes.
The evidence is clear and convincing that Respondent violated Section 468.1755(l)(g), Florida Statutes.
The evidence is clear and convincing that Respondent violated Section 468.1755(l)(m), Florida Statutes.
PENALTY
The rules governing disciplinary proceedings of the Board of Nursing Home Administrators, found at Rule 59T-14.004, Florida Administrative Code, provide a range of penalties for violations of the provisions of Section 468.1755(l)(k), (g), and (m), Florida Statutes.
Rule 59T-14.004(3)(a), Florida Administrative Code, permits the Board to deviate from the proposed guidelines upon a showing of aggravating or mitigating circumstances by clear and convincing evidence.
Rule 59T-14.004(3)(b), Florida Administrative Code, provides that circumstances which may be considered for the purpose of mitigation or aggravation of penalty include, but are not limited to, the following:
The severity of the offense;
The danger to the public;
The number of repetitions of offenses;
Previous disciplinary action against the licensee in this or any other jurisdiction;
The length of time the licensee has practiced;
The actual damage, physical or otherwise, caused by the violation;
The deterrent effect of the penalty
imposed;
The effect of the penalty upon the licensee's livelihood;
Any efforts at rehabilitation;
Attempts by the licensee to correct or stop violations, or refusal by the licensee to correct or stop violations;
Any other mitigating or aggravating circumstances.
While the evidence establishes that Respondent failed to meet the statutory standards required of a nursing home administrator, the evidence also shows that Respondent during her tenure as administrator attempted to address the deficiencies, but was deterred in her efforts due to the conditions beyond her immediate control. Under these circumstances, there is mitigating evidence which compels the conclusion that the most severe penalty is not warranted.
Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1997.
Howard J. Shifke, Esquire
Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431
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.
