vs. ) Case No. 97-1654
Respondent. )
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on August 19, 1997.
For Respondent: Jonathon S. Grout
Goldsmith & Grout, P.A. Post Office Box 2011 Winter Park, Florida 32790
The issue is whether Petitioner should grant Respondent’s application for a renewal of its limited nursing services license.
By letter dated February 27, 1997, Petitioner notified Respondent that it was denying Respondent’s application for a
limited nursing services license. Respondent timely demanded a formal hearing.
At the hearing, Petitioner called five witnesses and offered into evidence 13 exhibits. Respondent called three witnesses and offered into evidence one exhibit. All exhibits were admitted.
The court reporter filed the transcript on September 5, 1997. The last proposed recommended order was filed on November 5, 1997.
Respondent operates an assisted living facility (ALF) in Fort Myers. A standard ALF license allows the licensee to provide residents with assistance with their activities of daily living (ADLs).
Respondent’s standard ALF license authorizes Respondent to operate 120 beds. Respondent's facility contains three units. The Special Care Unit is for residents requiring the most care, such as residents suffering from Alzheimer's Disease or dementia.
Respondent holds a limited nursing services license. This specialty license authorizes the ALF to hire nurses to provide selected, nonintensive nursing services, such as catheter care, enemas, and digital stool removals.
Respondent's ALF and specialty licenses expired on December 7, 1996. By letter dated February 27, 1997,
Petitioner advised Respondent that it would deny Respondent’s reapplication for a limited nursing services license. The letter explains that Respondent had failed to maintain a standard license for the preceding two years, and Petitioner had imposed a moratorium on the facility on December 23, 1996.
Petitioner conducted two surveys of Respondent’s facility. The first took place December 2-3, 1996, and the second took place December 20, 1996. Petitioner's representatives also made several other site visits during the period in question.
Petitioner assigns “tag” numbers to deficiencies discovered during surveys. Petitioner has litigated only certain deficiencies uncovered in the two surveys. The relevant tag numbers for the first survey are 409, 515, 700, and 705. The relevant tag numbers for the second survey are 500, 508, 515, 521, 605, 700, 902, 905, and 1023.
Tag 409 charges that Respondent retained one resident who “no longer” met the criteria for ALFs. This resident, identified as Resident No. 7, had a health assessment dated April 28, 1995, stating that the resident was independent in ambulation and transferring and only required supervision in ADLs. However, during the December 2-3 survey, the resident required total assistance in all ADLs except ambulation and transferring.
The surveyor listed Tag 409 as a Class II deficiency and gave Respondent until January 17, 1997, to correct the situation.
Tag 515 charges that Respondent did not provide sufficient staff to supervise and care for the residents in the Special Care Unit. During the five-month period from June through October 1996, there were 126 incident reports. Sixty of these reports concerned residents residing in the Special Care Unit, which had 26 residents on the day of the survey. Sixty-six of these reports concerned more independent residents residing in the less secure areas of the facility; there were 64 such residents on the day of the survey.
The disproportionately large number of incidents in the Special Care Unit involved mostly resident injuries (51 of
60 reports), with 85 percent of these injuries consisting of falls unobserved by staff or residents found with an injury.
Tag 515 also notes that the surveyor found a staff person shaving two male residents in the television room, which was occupied at the time by 19 residents.
The surveyor listed Tag 515 as a Class II deficiency and gave Respondent until January 17, 1997, to correct the situation.
Tag 700 charges that Respondent failed to notify the health-care providers of “significant changes” in five of eight residents (Resident Nos. 3, 4, 5, 6, and 7) and failed
to notify the medical director of appropriate measures for a “significant health decline” for one resident (Resident
No. 4).
Tag 700 notes that Resident No. 3 lost 11 pounds in three months, from 176 pounds at admission to 165 pounds. Resident No. 4 lost 36 pounds from January 1995 through November 1995, when the resident weighed only 109 pounds. Tag 700 states that this resident suffered bouts of diarrhea and vomiting and that Respondent was unresponsive to the resident’s medical needs. Resident No. 5, who is 5 feet, one inch tall, weighed 126 pounds in November 1995 and gained 19 pounds in three months. Resident No. 6 lost 16 pounds from October 2, 1996, when the resident weighed 116 pounds. Resident No. 7 lost 18 pounds, to 130 pounds, between April 1995 and November 1995, then lost another 10 pounds through February 1996, but then regained much of the lost weight, weighing 140 pounds in June 1996.
The surveyor listed Tag 700 as a Class II deficiency and gave Respondent until January 17, 1997, to correct the situation.
Tag 705 charges that Respondent did not protect residents’ rights to privacy, dignity, and personal property. Tag 705 states that the semi-private rooms of Resident Nos. 2 5, 6, 7, 8, 10, 11, 13, 14, 15, and 17 contained personal unlabelled hygiene items; a staffperson shaved a male resident
in the common area in the presence of 19 residents; a staffperson brushed the hair of four female residents without doing more than rinsing the brush in water between brushings; a sign outside room no. 27 stated, “Needs Assistance in Case of Fire”; and the medicine cabinet in the common area contained two unlabelled deodorant containers and two containers labeled with the names of residents--all of which should have been in the residents’ rooms.
The surveyor listed Tag 705 as a Class II deficiency and gave Respondent until January 17, 1997, to correct the situation.
Regardless of their merits, the deficiencies cited in the first survey do not rise to the level of violations because Petitioner did not allow the corrective time to run on the cited deficiencies. At the time of the survey, Petitioner effectively informed Respondent that these deficiencies would ripen into violations only if Respondent failed to correct the situations by January 17, 1997. The record does not indicate whether Respondent timely made the required corrections because of the circumstances surrounding the death of a resident following the first survey, but prior to the deadline for correction.
The resident who died, known as Resident No. 1, was admitted to Respondent’s facility on December 7, 1996. She was legally blind and suffered from progressive dementia. She
was frail and weak and required assistance with her ADLs. A staffperson assigned Resident No. 1 a room in the Special Care Unit next to the fire exit into the courtyard.
Resident No. 1 wandered, which is typical of residents suffering from dementia. On December 18, she wandered out into the courtyard, and staff had to help her back into the building.
ALFs are not allowed to restrain residents. Wandering is actually therapeutic for the residents suffering from dementia because restraints confuse and aggravate them. Also, the placement of Resident No. 1 by the exit was indicated by her blindness, which would extend the time required for safe evacuation in the event of fire or other hazard.
During the early morning hours of December 20, Resident No. 1 left her room and opened the door into the courtyard. She entered the courtyard, which is unenclosed. There is a gate leading to the outside, but it is always chained and locked. The door leading back to the building locks once the door closes.
At some point while in the courtyard, Resident No. 1 fell to the ground and evidently could not get up. It was a cold night, and she lay there until morning, when a staffperson discovered that she was not in her bed. Staffpersons found her, still alive, in the courtyard, but she
died a short time later due to hypothermia. Although not likely a contributing cause to the death of Resident No. 1, the response of staff to the medical emergency betrayed a lack of training; a staffperson called a physician and waited for his return call instead of immediately summoning emergency medical help.
There are several grave shortcomings in Respondent’s handling of Resident No. 1. First, Respondent’s policy is for staff to conduct bed-checks every two hours between 10 p.m. and 6 a.m. for residents in the Special Care Unit. It is likely that a staffperson did not conduct this bed-check or conducted it in a negligent fashion because Respondent was probably outside for more than a couple of hours.
Second, there is an alarm on the door, but it was inoperative at the time of the incident. Thus, Resident No. 1 was able to open the door without sounding the alarm, which would have increased the chance of detection by staff.
Third, two floodlights in the courtyard were burned out. This left darkened areas where staffpersons could not readily see. It is unclear if Resident No. 1 was found in such an area. If so, the lighting was a material factor in her death; if not, a lack of reasonable diligence by staff in checking the courtyard was a material factor in her death.
Fourth, the gate leading out of the courtyard was locked, which prevented Resident No. 1 from getting out of the
courtyard and perhaps being seen by someone. Respondent justly defends the fact that the door from the building to the courtyard was unlocked due to the need of persons to evacuate the building, but it is unclear why this reasonable safety precaution would not extend to the gate leading from the courtyard to the exterior of the building. Some hazards are such that safety demands an evacuation from the vicinity of the building, not just the building itself, especially where, as in the courtyard, residents would still be surrounded by the building. Residents’ security requires that the gate be locked to intruders, but as was the case with the door between the courtyard and the building, the gate could have been designed to have been left open from the inside and locked from the outside.
Fifth, there is a general failure of supervision. No ALF can safeguard against unreasonable risks, but the likelihood of a confused resident wandering outside to the courtyard; the dire risks presented by a weakened, confused resident remaining outside on a cold night; and the minimal burden, in terms of hiring and training of staffpersons, of preventing this incident portray a case of negligent supervision.
Immediately following the incident, Petitioner conducted another survey of Respondent’s facility. This
survey generated several tags and a moratorium, which Petitioner later lifted.
The front of the second survey report lists several untagged deficiencies that are noted elsewhere in the survey and require immediate correction. These are increasing 24- hour staff by one staffperson over 24 hours, adding one trained staffperson to provide onsite supervision of all awake residents in the Special Care Unit at all times, making and documenting bedchecks every hour in the Special Care Unit, replacing burned-out lights in the courtyard, removing the chain and lock from the exterior courtyard gate, and posting notice of the moratorium in a public place.
Tag 500 charges that the administrator did not ensure resident safety through sufficient staffing. To some extent, Tag 500 speaks in terms of a failure to respond to the staffing deficiencies cited in the first survey. This is disingenuous on Petitioner’s part. Petitioner identified these problems prior to the death of Resident No. 1. If the risk seemed so great at the time, Petitioner should have required corrective action immediately. Petitioner now faults Respondent for not implementing this change more quickly than Petitioner itself required.
Most of the elements of the Tag 500 deficiency were evident at the time of the earlier survey. Most prominent among these elements was the locked gate because, when
Petitioner belatedly directed Respondent to remove the lock, no one immediately knew where the key had been kept.
Petitioner had repeatedly surveyed this facility with the lock and chain on the gate and never objected to this obvious hazard to residents.
Less certain, but much more likely than not to have been evident at the time of the first survey, are the burned- out floodlights and inoperative alarm. It is unlikely that the surveyors checked either of these items.
On the other hand, although the surveyors could have required greater frequency and documentation of bedchecks at the time of the first survey, they could not have known that a staffperson would ignore Respondent’s policy on bedchecks. Adherence to this policy might have saved the life of Resident No. 1.
The surveyor listed Tag 500 as a Class I deficiency and directed Respondent to correct the situation immediately by adding another staffperson to the Special Care Unit 24 hours-a-day, ensuring that alarms are operational at all times, implementing and documenting hourly bed checks, prohibiting unstable residents from using the courtyard unsupervised, and prohibiting all residents from using the courtyard at night.
Also involving Resident No. 1, Tag 515, Tag 521, Tag 700, Tag 905, and Tag 1023 charge that Respondent lacked
sufficient staffpersons to safeguard the residents. Demanding the same corrective actions as Tag 500, these tags require such actions as additional training, an additional staffperson, hourly bedchecks, alarm checks, and lighting maintenance. The surveyor listed these tags as Class I deficiencies and required Respondent to take immediate corrective action.
Tag 902 charges that there were odors of urine during visits on December 23, December 24, and January 9; that the floors were poorly cleaned on December 23; and that the Special Care Unit lacked pictures on the walls. The surveyor listed Tag 902 as a Class I deficiency and gave Respondent until February 24 to correct the situation.
Tag 508 and Tag 605 are Class II deficiencies. Tag
508 involves involving staff scheduling and training, and Tag 605 involves medication practices. These deficiencies are not of sufficient gravity to affect the outcome of the case.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
Sections 400.404 and 400.402 define ALFs and provide for their licensure. Section 400.402(13) defines "limited
nursing services" as those acts that may be performed pursuant to Chapter 464, Florida Statutes.
Section 400.407(3)(c) authorizes the issuance of a limited nursing services license. In relevant part, the statute states:
Existing facilities qualifying to provide limited nursing services shall have maintained a standard license and . . . not have been subject to administrative sanctions which affect the health, safety, and welfare of residents for the previous
2 years or since initial licensure if the facility has been licensed for less than 2 years.
Section 400.414 provides that Petitioner may "deny, revoke, or suspend" a "license issued under this part" for various grounds. Section 400.414(2)(a) identifies the ground of an "intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility." Section 400.414(2)(g) identifies the ground of a licensee's "failure . . . to meet the minimum license standards or the requirements of rules adopted under this part."
Section 400.414(1) imposes the burden of proof on Petitioner, evidently even in application cases where the burden of proof would be on the applicant under case law. Petitioner has assumed that it has the burden of proof in this case.
Petitioner has approached the case relying heavily on its surveys, various cited deficiencies, and the
establishment of Class I and II violations. Proving such violations would allow Petitioner to deny the application for a limited nursing services license under Section 400.414(2)(g).
However, it is unnecessary to consider whether the cited deficiencies ripened into violations in this case. The conditions that Respondent negligently permitted to exist on the morning of December 20 seriously affected the health, safety, and welfare of Resident No. 1. The statutes clearly grant Petitioner the discretion to deny licensure under these circumstances.
Respondent relies heavily on the language of Section 400.407(3)(c), contending that, for existing facilities, Petitioner may deny an application for a limited nursing services license only if the facility has not maintained a standard license or has been subject to administrative sanctions in the preceding two years.
There are obvious questions whether Petitioner has proved that any of the Class I or II deficiencies ripened into violations or whether Petitioner subjected Respondent's ALF to administrative sanctions during the two years immediately preceding the expiration of the specialty license in question. Although a moratorium is an administrative sanction, it did not occur until after the expiration of the statutory two-year period.
However, Section 400.407(3)(c) merely states the requirements for qualification and does not list all of the reasons why Petitioner may deny an application. Section
400.414 identifies numerous grounds on which denial is authorized, and Section 400.414 applies to licenses "under this part," which includes limited nursing services licenses. Petitioner may rely on Section 400.414 to deny Respondent's application for this specialty license because Petitioner's denial letter clearly informed Respondent that the application was denied due to the circumstances surrounding the death of Resident No. 1--which are the same circumstances authorizing denial under Section 400.414.
RECOMMENDED that the Agency for Health Care Administration enter a final order denying Respondent's application for a limited nursing services license.
DONE AND ENTERED this 26th day of December, 1997, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 1997.
Jonathon S. Grout Goldsmith & Grout, P.A. Post Office Box 2011 Winter Park, Florida 32790
Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive
15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
