STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Petitioner, )
)
vs. ) Case No. 98-1270
) HOBE SOUND GERIATRIC VILL., ) INC., d/b/a EDGEWATER MANOR, )
)
Respondent. )
) AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Petitioner, )
)
vs. ) Case No. 98-2553
)
THE MANORS AT HOBE SOUND, )
d/b/a EDGEWATER MANOR, )
)
Respondent.1 )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on September 9, 10, and 11, 1998, in Stuart, Florida, before Patricia Hart Malono, the duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Jennifer Steward, Esquire
Agency for Health Care Administration 1400 West Commercial Boulevard
Suite 110
Fort Lauderdale, Florida 33309
For Respondent: Mary K. Robbins-Kralapp, Esquire
Qualified Representative
SMITH, HAUGHEY, RICE & ROEGGE, P.C.
1400 Abbott Road, Suite 410 East Lansing, Michigan 48823
STATEMENT OF THE ISSUE
Whether the Respondent's license as a skilled nursing facility should have been changed to conditional effective January 28, 1998, and March 30, 1998.
PRELIMINARY STATEMENT
In a letter dated February 17, 1998, the Agency for Health Care Administration ("Agency") notified Hobe Sound Geriatric Vill., Inc., d/b/a Edgewater Manor ("Edgewater Manor"),2 that its nursing home license was being changed to conditional for the period from January 28, 1998, through February 28, 1998, based on a survey with an exit date of January 28, 1998. Edgewater Manor timely requested a formal hearing regarding the change in its licensure status, and the Agency transmitted the case to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned DOAH Case
No. 98-1270.
In a letter dated May 6, 1998, the Agency notified Edgewater Manor that its nursing home license was being changed to conditional for the period from March 30, 1998, through
February 28, 1999, based on a survey with an exit date of March 30, 1998. Edgewater Manor timely requested a formal hearing regarding this licensure status, and the Agency
transmitted the case to the Division of Administrative Hearings for assignment of an administrative law judge. The case was assigned DOAH Case No. 98-2553. An order was entered June 30, 1998, consolidating the two cases for hearing, and the formal hearing was held on September 9, 10, and 11, 1998.
At hearing, the Agency presented the testimony of Teresa Weis-Dwyer and Florence Treakle, both Registered Nurse Specialists employed by the Agency. The Agency tendered
Ms. Weis-Dwyer as an expert in skilled nursing services, specifically, in the treatment of pressure sores. An objection to the tender was sustained, and the witness was not qualified as an expert. Agency's Exhibits 1 through 12 and 14 through 27 were offered and received into evidence; Agency's Exhibit 13 was marked and offered into evidence but was withdrawn. On rebuttal, the Agency presented the testimony of Florence Treakle.
Edgewater Manor presented the testimony of the following witnesses: Jean Uvanille, an expert witness; H. F., daughter of a resident of Edgewater Manor; F. H., C. H., and E. H., relatives of a resident of Edgewater Manor; Janice Bey, the Director of Nursing at Edgewater Manor; John Crouch, O.D.; Darryl Wright, a registered nurse employed by Edgewater Manor; Dante J.
Graziani, III, a registered nurse formerly employed by Edgewater Manor; D. C., the husband of a resident at Edgewater Manor; Kelly Streich, the Director of Social Services at Edgewater Manor; Enid Lue, a certified nursing assistant employed by Edgewater Manor;
Sheila Worrell, a certified nursing assistant employed by Edgewater Manor; Deborah Hursey, a certified nursing assistant employed by Edgewater Manor; and Sherie Montero, a registered nurse formerly employed by Edgewater Manor as Assistant Director of Nursing. Respondent's Exhibits 1 though 44 were offered and received into evidence.
Objections were made to the admissibility of Respondent's Exhibits 3 and 15 on the grounds of hearsay. The exhibits were received into evidence subject to the provisions of Section 120.57(1)(c), Florida Statutes (1997), regarding the use of hearsay in administrative proceedings. Counsel for Edgewater Manor was given leave to present argument in Edgewater Manor's proposed recommended order to support its contention that, on the basis of the foundation laid by Edgewater Manor's Director of Nursing, Respondent's Exhibits 3 and 15 would be admissible over objection in a civil proceeding pursuant to Section 90.803(6), Florida Statutes (1997), as records of regularly conducted business activity. Counsel for the Agency was also given leave to present argument on this issue in the Agency's proposed recommended order.
Having considered the arguments of counsel and the relevant statutory and case law, Respondent's position is rejected. These documents consist of the report of an examination of a resident of Edgewater Manor by a physician who is not on Edgewater Manor's medical staff and of the discharge summary of a psychiatric
hospital relating to a resident of Edgewater Manor who was admitted to that hospital for testing and evaluation. Edgewater Manor attempted to establish the foundation required by Section 90.803(6), Florida Statutes (1997),3 through the testimony of its Director of Nursing that these records are regularly received by Edgewater Manor, included in the charts maintained by Edgewater Manor for its residents, and relied upon by the staff of Edgewater Manor for the treatment of its residents.
This testimony is not sufficient to establish that these documents are business records of Edgewater Manor. The documents contain diagnoses, observations, medical opinions, and test results relating to residents of Edgewater Manor, which were prepared by an outside physician and by employees and staff of a psychiatric hospital. In order for these documents to be admissible as business records to prove the truth of the diagnoses, observations, opinions, and test results contained therein, the required foundation must be laid by the custodian of records or other qualified person employed by the physician who performed the medical examination and by the hospital in which the discharge summary was prepared. See C. Ehrhardt, Florida Evidence (1998 ed.), Volume 1, Section 803.6a at 1099-1107.
Respondent's Exhibits 3 and 15 are, therefore, received into evidence subject to the restriction on the use of hearsay as the basis for a finding of fact found in Section 120.57(1)(c).
On December 7, 1998, the Petitioner filed a Motion for Official Recognition, requesting that official recognition be taken of portions of the State Operations Manual published in the Federal Register by the Department of Health and Human Services, Health Care Financing Administration. Upon consideration of the grounds for the motion and of the lack of any objection by the Respondent, the motion is GRANTED, and those portions of the State Operations Manual dealing with tag F223, tag F224,
tag F225, and tag F314 are officially recognized and shall be considered evidence in these consolidated cases.
On March 8, 1999, Edgewater Manor filed a Motion to Add Additional Information for Good Cause. As noted above, the final hearing in these consolidated cases concluded on September 11, 1998, and the record was closed at that time. In its motion, Edgewater Manor requests, in essence, that the record in this case be reopened and documents prepared by the Department of Children and Family Services be received into evidence. These documents relate to the investigation and resolution of reports of abuse involving two persons residing in Edgewater Manor.
The Agency for Health Care Administration filed a response in opposition to the motion on March 22, 1999, in which it conceded that the underlying facts in the Department of Children and Family Services investigation and in the instant cases are the same. The Agency argued, however, that different regulatory standards govern the investigation and classification of reports
of abuse by the Department of Children and Family Services and the licensure surveys of long-term care facilities conducted by the Agency and the assignment of ratings based on these surveys. Because of this, the Agency's position is that the results of the abuse investigation and the conclusions reached by the Department of Children and Family Services are not relevant to resolving the issues presented in these cases. Having considered the grounds for the motion, the arguments of the parties, and the record in this case, the Motion to Add Additional Information for Good Cause is DENIED.
The Transcript of Proceedings was filed with the Division of Administrative Hearings, and the parties timely filed proposed findings of fact and conclusions of law, which have been duly considered.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
The Agency for Health Care Administration is the state agency responsible for licensing and regulating the operation of nursing home facilities. Chapter 400, Part II, Florida Statutes (1997).
Edgewater Manor, located at 9555 Southeast Federal Highway, Hobe Sound, Florida, is a 120-bed facility licensed to operate as a nursing home pursuant to the provisions of
Chapter 400, Part II, Florida Statutes, and the rules found in Chapter 59A-4, Florida Administrative Code. Edgewater Manor also participates in the federal Medicare and Medicaid programs.
Edgewater Manor was rated superior from 1991 through 1994, and in 1997; it was rated standard in 1995 and 1996.
The Agency conducted a survey of Edgewater Manor with an exit date of January 28, 1998, for the purpose of determining the degree of compliance with the applicable criteria. As a result of the January 28, 1998, survey and insofar as is relevant to the instant proceeding, the Agency cited Edgewater Manor for two violations relating to the quality of care provided its residents, classified the violations as Class II deficiencies, assigned Edgewater Manor a conditional rating, and issued Edgewater Manor a conditional license effective January 28, 1998, through February 28, 1998.
The Agency conducted a follow-up survey with an exit date of March 30, 1998. The two Class II deficiencies identified during the January 28 survey had been corrected, but Edgewater Manor was cited for another violation relating to the quality of care provided its residents, and the new violation was classified as a Class II deficiency. A conditional rating was assigned, and a conditional license was issued effective March 30, 1998, through February 28, 1999. A follow-up survey was conducted on June 4, 1998, and the Agency found that all previously cited
deficiencies had been corrected, a standard rating was assigned, and a standard license was issued.
When the Agency prepares to conduct a compliance survey of a nursing home, a team of surveyors is selected, which meets and reviews documentation which includes the facility's history of deficiencies and its resident census. The team then takes an orientation tour of the facility, led by a staff member. After the orientation tour, the team selects its Phase I sample of residents to review; the Phase I review includes both comprehensive and focused reviews. A focused review is conducted when the team selects a particular resident with certain identifiable conditions which fall within the team's areas of concern. After the Phase I review is completed, a Phase II review is conducted, in which the team performs only focused reviews of particular residents.
After the facility survey is completed, the team meets to discuss the results of the investigation and to evaluate the results to determine if the nursing home is in compliance with the applicable statutes, rules, and regulations. Violations are assessed in accordance with the criteria set forth in the State Operations Manual, which is published by the federal Health Care Financing Agency and provides guidance to state surveyors in interpreting and applying the federal rules and regulations applicable to nursing homes.
The State Operations Manual, Guidance to Surveyors, includes "tag numbers" corresponding to provisions of the rules found in Title 42, Chapter 483, Code of Federal Regulations. In the State Operations Manual, a "tag number" is assigned to each provision of the federal rules, and the intent of the rule provision is set forth, together with guidelines, procedures, and probes which are to be used by the state surveyors in determining whether a particular rule provision has been violated.
The parties stipulated that the deficiencies cited in the surveys were based on violations of tag F223, corresponding to Title 42, Section 483.13(b) Code of Federal Regulations; tag F224, corresponding to Title 42, Section 483.13(c)(1)(i),
Code of Federal Regulations; tag F225, corresponding to Title 42, Section 483.13(c)(1)(ii), Code of Federal Regulations; tag F250, corresponding to Title 42, Section 483.15(g), Code of Federal Regulations; and tag F314, corresponding to Title 42, Section 483.25(c)(1) and (2), Code of Federal Regulations.
Unfortunately, neither party offered into evidence the reports of the surveys referenced herein, in which the factual bases for each violation were set out. Accordingly, for purposes of the findings of fact herein, the specific nature of the violations alleged against Edgewater Manor could only be derived from the testimony of the two Agency surveyors who testified at the hearing.
DOAH Case No. 98-1270: January 28, 1998, survey
Resident 34
With regard to Resident 3, the Agency cited Edgewater Manor for a Class II deficiency based on violations of tag F223, tag F224, tag F225, and tag F250, as a result of the January 28, 1998, survey. The tag F223 violation is associated with the requirement of Title 42, Section 483.13(b), Code of Federal Regulations, that residents of long-term care facilities have the right to be free from abuse. The tag F224 violation is associated with the requirements of Title 42,
Section 483.13(c)(1)(ii), (iii), and (2) through (4), Code of Federal Regulations, that a facility must develop and implement policies to prohibit abuse, neglect, and mistreatment, and not use abuse to control its residents. The tag F225 violation is, in this case, associated with the requirements of Title 42, Section 483.13(c)(2), (3), and (4), Code of Federal Regulations, that facility staff must report and investigate suspected abuse, neglect, or mistreatment. The tag F250 violation is associated with the requirement in Title 42, Section 483.15(g), Code of Federal Regulations, that a facility must provide social services to maintain the well-being of the residents.
Resident 3 became a resident of Edgewater Manor on September 24, 1990. His diagnoses as of September 1992 included organic mental syndrome, arteriosclerotic heart disease, chronic
obstructive pulmonary disease, dementia, Parkinson's disease, and depression.
At the time at issue herein, Resident 3 lived in Room 124, which is in Edgewater Manor's Protective Care Unit. He had lived in Room 124 for quite a while before the unit where that room was located was converted to the locked Protective Care Unit. When asked before the conversion if he wanted to move to another unit, he chose to remain in Room 124. In the opinion of Janice Bey, Edgewater Manor's Director of Nursing, he was appropriate for the unit because he had been diagnosed with dementia secondary to Parkinson's disease.
In 1997 and 1998, Resident 3's thought processes were impaired as a result of the dementia associated with Parkinson's disease, which was by that time in an advanced stage. In four Minimum Data Sets (comprehensive assessments) completed for Resident 3 from April 1997 through December 1997, it was noted that he was capable of independently making decisions regarding the tasks of daily life; that his short- and long-term memory was "OK"; that he had no indicators of periodic disordered thinking or awareness; and that he consistently exhibited inappropriate behavior but that the behavior was easily altered. Socially inappropriate behavior, as used in the Minimum Data Set, includes sexual behavior.
At the time at issue herein, Resident 3 walked with a shambling gait, and his ability to ambulate was impaired by
spasticity associated with Parkinson's disease. Numerous entries in the Nursing Care Notes for Resident 3 reflect that he was found on the floor of his room or in the hall after falling or losing his balance and sliding down the wall to the floor. He suffered from obvious tremors in his hands, which increased in severity when he was agitated or excited.
Resident 3 was treated with Sinemet for his Parkinson's disease, a drug which has a noted side-effect of hypersexuality. He was referred for a psychiatric consultation in 1995 because he exhibited inappropriate sexual behavior.
At the time at issue herein and notwithstanding the assessment included in the Minimum Data Set, Resident 3 was observed to experience periods of confusion regarding time and place, even though, at various times during the day, he appeared oriented as to time, place, and person. He was capable of independently making decisions concerning the basic activities of daily living, such as when to eat, when to sleep, and when to go to the bathroom. Resident 3 was not, however, able to make decisions requiring the exercise of judgment because, as a result of his dementia and impaired cognitive ability, he could not evaluate the consequences of such decisions. Resident 3 acted primarily to fulfill his basic needs.
Inappropriate sexual behavior involving staff.
Entries in the Nursing Care Notes maintained for 1997 and early 1998 by the nurses on the Protective Care Unit and in
the Social Progress Notes maintained for the same time period by Edgewater Manor's social services director document a number occasions on which Resident 3 engaged in inappropriate sexual behavior toward female staff. According to the reports, this behavior was directed especially at certified nursing assistants and occurred primarily as they provided direct care. Resident 3 reportedly attempted to kiss the certified nursing assistants, grabbed at and actually grabbed their breasts and other private parts, pinched their buttocks, and exposed himself and masturbated in front of them. Resident 3 reportedly cornered one certified nursing assistant in his room, and she had to crawl over his bed to escape.
Instances involving such behavior directed to staff were noted to have occurred on December 11, 1996; on January 9, February 11, March 6, July 8, August 29, and December 30, 1997; and on January 24, 1998. Inappropriate behavior toward staff members was also noted in the 1997 monthly summaries included in the Nursing Care Notes for March, April, May, June, July, August, September, October, and December.
Kelly Streich, the social services director at Edgewater Manor, was notified of some of the instances of inappropriate sexual behavior involving staff. She was notified of an instance involving staff which took place on December 11, 1996, and she responded by notifying Resident 3's sister-in-law and requesting that her husband, Resident 3's brother, talk with
him about the behavior. The sister-in-law suggested that Resident 3 should be seen by his physician and by a male psychologist. According to Ms. Streich's notes, Resident 3 denied that his behavior towards staff was serious.
On December 18, 1996, Ms. Streich noted a nurse's report that Resident 3 had not exhibited any inappropriate sexual behavior since December 11 and that, in the nurse's opinion, a psychological consultation was not necessary. Later on
December 18, Ms. Streich reported that Resident 3 was seen by his physician and promised that he would not make sexual advances to the staff in the future. Resident 3 was not seen by a psychologist at this time due to his promise that he would stop engaging in offensive behavior.
After being notified of the behavior involving staff which occurred January 9, 1997, Ms. Streich again notified Resident 3's family and his physician. She also reviewed Resident 3's care plan and modified it to provide that she continue to monitor Resident 3 and to make one-to-one visits and provide counseling. Primarily, however, Ms. Streich determined that staff should continue to discourage Resident 3's inappropriate sexual behavior and that his physician should speak with him again.
Resident 3's annual review was completed in April 1997. In her notes, Ms. Streich reported that Resident 3's cognitive status remained the same and that he was alert and oriented as to
time, place, and person. She described Resident 3 as "isolative" and noted that he preferred watching television in his room to interacting with other residents. Ms. Streich also observed that he continued to have episodes of inappropriate sexual behavior and that the staff continued to discourage this behavior.
Ms. Streich testified that she should also have noted that Resident 3 sometimes exhibited confused thought processes.
In the care plan developed as a result of this annual review and dated April 11, 1997, it was noted that Resident 3 had difficulty with "individual coping" which was "evidenced by inappropriate sexual behavior related to Cognitive impairment." The interventions identified in the care plan to reach the stated goal that Resident 3 would "not exhibit inappropriate sexual gestures to staff by next review," included the following:
Be firm but gentle when correcting resident's inappropriate sexual behavior
Monitor & document inappropriate behavior
Discourage all inappropriate behavior of resident with staff
Provide 1:1 individual visits
In an entry dated June 25, 1997, Ms. Streich observed as part of her quarterly review of Resident 3's care plan that he continued to exhibit inappropriate sexual behavior. She further noted: "Staff continues to tell him this behavior is unacceptable." Ms. Streich determined that the care plan did not
need to be changed and that she would continue to provide one-to- one supportive visits.
In her quarterly review recorded September 20, 1997, Ms. Streich noted that Resident 3 "occasionally display[ed] inappropriate sexual gestures." Ms. Streich determined that no changes were needed to his care plan and that staff should continue to discourage Resident 3's inappropriate sexual behavior.
In her quarterly review recorded December 19, 1997, Ms. Streich noted that Resident 3 "continues to be inappropriate at times sexually - displays gesture to direct care staff." She
recommended that no change be made to his care plan and indicated that her one-to-one supportive visits would continue and that appropriate behavior would be reinforced.
Inappropriate sexual behavior toward staff in a long- term care facility, and especially in a protective care unit for patients suffering from dementia, is not unusual. Edgewater Manor had guidelines directing staff how to handle residents who engaged in inappropriate sexual behavior and provided its staff with in-service training for avoiding and redirecting this behavior.
Inappropriate sexual behavior with residents.
The Nursing Care Notes and Social Service Notes document instances of Resident 3's sexual behavior involving female residents of the Protective Care Unit. The Agency
surveyor was particularly concerned with reports of Resident 3's behavior with three residents of the Protective Care Unit, Resident 18, Resident 19, and Resident 20.
Resident 18
When Resident 18 was admitted to Edgewater Manor on June 16, 1997, she was an eighty-five-year-old widow who suffered from Alzheimer's disease. She had short- and long-term memory problems and was moderately impaired in her ability to make decisions regarding activities of daily living. Resident 18 was ambulatory and was very social and outgoing, appearing to enjoy interacting with others, especially men, and she would sometimes escort other residents to her room for conversation.
Ms. Streich reported in the Social Service Notes for Monday, June 30, 1997, that, on the previous Friday and Saturday nights, Resident 18 was found in her room with Resident 3 in what were described in Ms. Streich's notes as "various sexual positions." Both Resident 3 and Resident 18 were lying fully clothed in Resident 18's bed during these encounters. On both occasions, Resident 18 resisted when staff separated them.
Ms. Streich did not personally observe the encounters, and she did not interview the nurse reporting the encounters to learn what was meant by "various sexual positions."
Ms. Streich contacted H. F., Resident 18's daughter, on June 30 regarding her mother's behavior and asked that the family decide if staff should continue to separate Resident 3 and
Resident 18 should they attempt to engage in any further intimate contact.5 In her notes dated July 1, 1997, Ms. Streich reported that Resident 18's family had decided that Resident 3 and Resident 18 should be allowed to continue their relationship. A note was added to Resident 3's care plan by the care plan team that "condoms available from floor nurse," and an addition was made to Resident 18's care plan on July 7, 1997, by the care plan team, to address "DESIRE FOR AN INTIMATE RELATIONSHIP WITH
ANOTHER RESIDENT." The care plan provided that
Resident will participate in a safe sexual encounter as she wishes.
Provide resident with a safe, private room
Provide condoms on request
Family will be kept aware of situation Condoms available from floor nurse.
In H. F.'s opinion, her mother might have Alzheimer's disease and be forgetful, but she still has her personality and would not do anything she did not want to do. H. F. believed at the time at issue herein that her mother was capable of consenting to intimate contact, including sexual intercourse. Although H. F. believed it absurd to think that her mother would want to have sexual intercourse, she also thought it was responsible of Edgewater Manor to include in her mother's care plan a provision that she should be provided with condoms on request.
Ms. Bey was notified of the encounters between Resident 3 and Resident 18 which had taken place on June 27 and 28, 1997. She spoke with staff about the encounters and concluded that there had not been an incident of abuse involving Resident 3 and Resident 18. The term "incident" is defined in the long-term care context as "any unusual happening in a facility that deviates from day-to-day normal activities or anything that results in an injury." Ms. Bey does not believe that sex is an unusual activity, and, in her opinion, Resident 18 was capable of refusing to do anything she did not want to do.
Ms. Bey did not conduct an investigation beyond speaking with staff, and she did not notify the facility administrator of the encounters between the two residents.
Ms. Bey concluded as a result of her investigation that no abuse had occurred, and, accordingly, no incident and accident report was completed by the facility, nor were the encounters between Resident 3 and Resident 18 reported to Florida's Abuse Registry.
The encounters between Resident 3 and Resident 18 were also investigated by the Assistant Director of Nursing, Sherree Montero. Ms. Montero interviewed both staff who had observed Resident 3 and Resident 18 together on June 27 and 28 and staff who had heard about the encounters from other staff. Ms. Montero concluded that there was no evidence that Resident 3 had sexually abused Resident 18.
Resident 3 and Resident 18 apparently abandoned their relationship after their first two encounters because there are no further reports of their engaging in sexual conduct, and neither ever requested condoms.
On the basis of the information contained in the nursing and social service notes and of the information she obtained through interviews, the Agency surveyor concluded during the survey which was completed on January 28, 1998, that
Resident 18 had been the victim of sexual abuse by Resident 3 on June 27 and 28, 1997, and that Edgewater Manor had allowed the abusive situation to occur. In the surveyor's opinion, Resident 18 "lacked the capacity to make that decision [to be sexual] and needed to be protected,"6 even though the surveyor was told by H. F. that Resident 18 could make her own decisions. The surveyor's conclusion that Edgewater Manor's management and the nurses on the Protective Care Unit allowed an abusive situation to exist was also based on her opinion that, even if Resident 18 were able to consent to a sexual relationship, she would need a physical examination and a lubricant before having intercourse.
There is no evidentiary basis in the record to support these conclusions of the Agency's surveyor or a finding of fact that Resident 3 sexually abused Resident 18. Rather, the evidence presented is sufficient to establish with the requisite degree of certainty that Resident 18 had the capacity to consent
to an intimate relationship and that she did so with regard to her two encounters with Resident 3. The evidence is also sufficient to establish that Edgewater Manor's staff responded appropriately to the situation.
Resident 19
Resident 19 suffers from Alzheimer's disease and, at the time at issue herein, was alert and oriented towards herself only. She was severely impaired in her ability to make decisions involving activities of daily living. She was incontinent of bowel and bladder and wore a diaper at all times. She was non- verbal except that she would respond to her name being called by uttering noises. She constantly wandered throughout the Protective Care Unit and seldom stayed in one place for any length of time. She often wandered into the rooms of other residents on the unit, and she was sometimes found on the beds in these rooms. When she sat or lay down, she would often lift her legs and wave them in the air.
It was reported in the Nursing Care Notes that, on December 30, 1997, Resident 19 was found in Resident 3's room, lying across his bed. In the opinion of the nurse who observed this behavior, Resident 3 was attempting to remove Resident 19's slacks and briefs. Resident 19 was described as disoriented, and she was assisted out of Resident 3's room. When Resident 3 was interrupted, he reportedly stated "It's hard, let me do her - let me do her." The nurse told Resident 3 that his behavior was
unacceptable, and he was closely monitored for the rest of the night.
On December 31, it was noted that Ms. Streich called Resident 3's brother, who came in and talked to him about his behavior. Resident 3 was reportedly well-behaved until mid- January 1998.
Ms. Bey was notified of Resident 3's encounter with Resident 19, and she spoke with staff members about the incident. She was unable to find a staff member who had witnessed
Resident 3 pulling Resident 19's slacks down below her waist, although a corner of her brief was sticking above the waistband of the slacks, as though the slacks had not been pulled up completely. The nurse who documented the incident in the Nursing Care Notes would not change her interpretation of what had occurred in Resident 3's room that night; other witnesses interviewed by Ms. Bey stated that Resident 3 sat in his chair until Resident 19 was escorted from his room.
As a result of her investigation, Ms. Bey concluded that there had not been an incident of abuse involving Resident 3 and Resident 19. As a result, she did not report the incident to the administrator or prepare an incident and accident report.
Ms. Montero also investigated this encounter and interviewed both staff who had observed the incident and staff who had heard about it from others. Based on these interviews and on her own knowledge of Resident 3's physical condition,
Ms. Montero concluded that it was not likely that Resident 3 could have successfully pulled Resident 19's slacks down because he often needed assistance dressing himself.
The evidence presented by the Agency is sufficient to establish with the requisite degree of certainty that, when he was interrupted by Edgewater Manor's staff, Resident 3 was attempting unsuccessfully to pull Resident 19's pants down as she lay on the bed. The evidence presented by the Agency is not sufficient to establish with the requisite degree of certainty that Resident 3 sexually abused Resident 19: To the contrary, the evidence presented is sufficient to establish with the requisite degree of certainty that Resident 3 did not have the mental capacity to formulate the intention to inflict either physical or psychological injury on Resident 19 by his behavior. Moreover, the evidence is uncontroverted that Edgewater Manor's staff intervened promptly to prohibit Resident 3 from completing the act of removing Resident 19's slacks.
Resident 20
At the time at issue herein, Resident 20 suffered from Alzheimer's disease and was alert and oriented to herself and others, although she was sometimes confused as to time and place. She had short- and long-term memory problems and was moderately impaired in her ability to make decisions regarding activities of daily life. It was noted on the Multiple Data Set for June 1997 that her cognitive status had deteriorated since the previous
quarterly review. She was combative and frequently angry with herself and others, and she sometimes resisted care. She wandered throughout the Protective Care Unit and sometimes exhibited frustration, anxiety, and agitation. Her husband visited her every day, and he attended to her personal needs.
Resident 20 was very territorial and would become agitated if another resident came into her room. She did not speak very well, but she would communicate by chattering loudly and waving her arms. As a result, it was always obvious when Resident 20 was agitated or upset.
It was reported in the Nursing Care Notes for Resident 3 that, on January 22, 1998, he was
found in Rm 123 making sexual advances to both ladies and ejaculation [sic] on the floor after masturbating in front of them. Both ladies were upset. R escorted to own room and then did it on the floor there.
R laughed when this nurse told him his actions were not appropriate for public viewing.
Room 123 is occupied by Resident 20 and her roommate and is directly across the hall from Resident 3's room.
It was reported in the Nursing Care Notes for
Resident 20 that, on January 22, 1998, she was very upset because the man from "124-2" had come into her room and made sexual advances to her. She reportedly yelled and pushed away from him.
When this encounter was reported to Ms. Bey, she was told that Resident 3 held up his gown with his left arm while he walked, masturbated with his right hand, and ejaculated. Ms. Bey
investigated by interviewing staff, and she concluded that the report of the event contained in the Nursing Care Notes was not objective. In Ms. Bey's opinion, Resident 3 was physically incapable of performing these acts simultaneously because of his advanced Parkinson's disease and his history of falling. Ms. Bey spoke with the nurse who had charted the nursing note, but the nurse refused to change the note, stating that the note accurately described the encounter.
Ms. Montero also investigated this event and concluded that Resident 3 was not physically capable of simultaneously walking, holding up his gown, and masturbating, much less of ejaculating twice within a thirty-minute period.
The evidence presented by the Agency is sufficient to establish that Resident 3 stood in Resident 20's room holding his gown up, masturbating, and ejaculating. The evidence presented by the Agency is not sufficient to establish with the requisite degree of certainty that Resident 3 sexually abused Resident 20. To the contrary, the evidence presented is sufficient to establish with the requisite degree of certainty that Resident 3 did not have the mental capacity to formulate the intention to inflict either physical or psychological injury on Resident 20 by his behavior. Moreover, the evidence is uncontroverted that Edgewater Manor's staff intervened promptly to remove Resident 3 from Resident 20's room.
Generally
In addition to the instances of inappropriate sexual behavior involving Resident 18, Resident 19, and Resident 20, Resident 3 was reported to have behaved inappropriately toward other residents of the Protective Care Unit. The following notation was entered in the Nursing Care Notes for July 9, 1997, at 10:00 p.m.:
Resident walks down hallway grabbing [at] other female residents. Attempts to pull a female resident into another room. This nurse found resident pushing shoulders of a female resident down towards bed. Resident starting [sic] kissing another female resident on lips and started leaning over. This nurse caught them. This nurse reminds resident about behavior towards females.
Resident continued this behavior for over 2 [hours] this evening.
In the Nursing Care Notes for January 24, 1998, it was reported that
Resident sexual promiscuity has increased during the last two weeks. Resident calls female staff into room while he is masturbating. He laughs when staff attempts to tell him that his behavior is not appropriate. He was also observed to fondle fellow female residents & was observed undressing them in his room. Fellow residents do not have the mental capacity & are unaware of his sexual advances as it appears. He was again redirected & told that his behavior is unacceptable & . . . the resident just denies he does nothing [sic] wrong & that his behavior is acceptable.
As a result of Resident 3's behavior in the weeks preceding January 24, a psychiatric consultation was ordered by Resident 3's physician on January 26, 1998. The report of the
consultation was dated February 5, 1998, and the psychiatrist reported that Resident 3's hypersexuality might be controlled by medication. It was also noted in the report that Resident 3 had been referred for a psychiatric consultation in 1995 as a result of sexually inappropriate, aggressive behavior.
The Agency's surveyor did not discuss Resident 3's behavior with Ms. Bey or with Mr. Murray, the administrator of Edgewater Manor. Rather, she contacted the Florida Abuse Registry and the Martin County Sheriff's Department and reported her interpretation of Resident 3's behavior based on the information she had gathered from the documentation and her interviews with staff. As a result of suggestions by the Agency's surveyor and the adult protective investigator, Edgewater Manor placed a personal alarm, also known as a tether alarm, on Resident 3. This device would sound an alarm if Resident 3 moved from his chair, so that the staff would know where he was at all times.
Although Ms. Bey investigated the reports regarding the sexual behaviors Resident 3 exhibited with Resident 18,
Resident 19, and Resident 20, she did not reduce to writing the results of her investigation. No incident and accident reports relating to these events were prepared and no reports were submitted to adult protective services about Resident 3's behavior because Ms. Bey concluded from her investigations that there were no instances of suspected abuse, mistreatment, or
neglect involving Resident 3. Had Ms. Bey suspected that abuse had occurred, she would have reported the incidents involving Resident 3 to the Florida Abuse Registry, pursuant to Edgewater Manor's policy of reporting all instances of suspected abuse, mistreatment, or neglect.
During the survey, the Agency surveyor was provided with a copy of Edgewater Manor's policy and procedures to prevent abuse, neglect, and mistreatment. Although the policy addressed resident-to-resident abuse and sexual harassment, the survey team concluded that the policy had not been implemented to prevent what the team considered to be the abusive behavior of Resident 3 toward the female residents of the Protective Care Unit.
Summary
The evidence presented by the Agency is sufficient to establish that Resident 3 had a pattern of engaging in inappropriate sexual behavior directed to both female staff and female residents on the Protective Care Unit. The evidence presented by the Agency is not, however, sufficient to establish with the requisite degree of certainty that Resident 3 could, or did, formulate the intent to inflict physical or psychological injury that would be necessary for his behavior to constitute sexual abuse, as that term is defined in the State Operations Manual. Indeed, the evidence taken as a whole supports a finding that Resident 3 was an elderly man who, as a result of progressive cognitive impairment related to advanced Parkinson's
disease, engaged in inappropriate sexual behavior in response to the basic urge for sexual gratification but without any appreciable comprehension of the potential effect of his behavior on others.
As derived from the evidence presented herein, the Agency charged that Edgewater Manor failed to prevent, investigate, document, and report Resident 3's sexual abuse of female residents on the Protective Care Unit. Because the Agency has failed to present sufficient evidence to support a finding of fact that Resident 3 committed sexual abuse, Edgewater Manor did not breach its duty to prevent, investigate, document, or report abuse. Moreover, the evidence establishes that Edgewater Manor's staff promptly and appropriately intervened to interrupt
Resident 3's inappropriate sexual behavior involving Resident 19 and Resident 20 and to confirm that Resident 3's relationship with Resident 18 was consensual.
Additionally, the evidence is uncontroverted that Edgewater Manor had a written policy statement with procedures designed to prevent abuse, neglect, and mistreatment of residents7 and that investigations were done of the encounters between Resident 3 and Resident 18, Resident 19, and Resident 20 by both the Director of Nursing and the Assistant Director of Nursing. Because the investigations lead to the conclusion that sexual abuse had not occurred in any of the three encounters, no written reports were prepared, and the encounters were not
reported to the Florida Abuse Registry. The evidence is, therefore, not sufficient to establish that Edgewater Manor violated the requirements that sexual abuse be prevented, investigated, documented, and reported.
The evidence presented by the Agency is sufficient to establish with the requisite degree of certainty that Edgewater Manor failed to provide Resident 3 with the medically-related social services necessary for his physical, mental, and psychosocial well-being. Resident 3 was first sent for a psychiatric consultation in 1995 because he had engaged in inappropriate sexual behavior, but, notwithstanding the numerous instances of Resident 3's inappropriate sexual behavior toward staff and other residents from July 1997 through late January 1998, Resident 3 was not referred for another psychiatric consultation until January 26, 1998.
The interventions identified in the care plans for Resident 3 were limited to correcting Resident 3 when he engaged in inappropriate sexual behavior, observing and documenting such behavior, and discouraging such behavior toward staff. In addition, the social services director conducted one-on-one "supportive" visits with Resident 3. Edgewater Manor's staff, pursuant to policy, interrupted and redirected Resident 3 when he was observed engaging in inappropriate sexual behavior involving others.8 Resident 3's family members and physician were asked to talk with him after episodes of inappropriate behavior. Because
it became obvious that none of these interventions resulted in anything more that a temporary hiatus in his inappropriate sexual behavior, Edgewater Manor should have developed a care plan designed to provide Resident 3 with the services he needed to control his inappropriate sexual behavior both to enhance his own well-being and to protect other residents of the Protective Care Unit.
Resident 12
As a result of the January 28, 1998, survey, the Agency cited Edgewater Manor for a Class II deficiency based on a violation of tag F314. The tag F314 violation and Class II deficiency cited by the Agency are associated with the requirement in Title 42, Section 483.25(c), Code of Federal Regulations, that facilities ensure that residents do not develop pressure sores which are not unavoidable and that residents with pressure sores be provided necessary treatment and services.
A pressure sore is defined in the State Operations Manual as an "ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or shear." The seriousness of a pressure sore is described using a "staging system" in which the characteristics of the sore are classified by reference to four stages, two of which are relevant here: A Stage II pressure sore exists when "[a] partial thickness of skin is lost; may present as blistering surrounded by an area of redness and/or induration"; a pressure
sore has reached Stage III when "[a] full thickness of skin is lost; exposing the subcutaneous tissue; presents as shallow crater; may be draining."9
Unrelieved, prolonged pressure on areas of dependency such as the heels and the buttocks and coccyx can cause the development of pressure sores, and pressure sores can develop and/or worsen as a result of various clinical conditions. Peripheral vascular disease contributes to the development and impedes the healing of pressure sores because blood vessels are constricted, blood flow is decreased, and skin integrity and healing are compromised because nutrients aren't delivered efficiently to the tissue and because the removal of waste materials is inhibited. Chronic bowel and urinary incontinence compromise skin integrity and contribute to the development of pressure sores, first, because the skin in the area of the buttocks and coccyx is continually being rubbed to clean the resident after each episode of incontinence and, second, because even with regular cleaning and the application of an ointment to provide a moisture barrier it is impossible to keep an incontinent resident's skin from coming into contact with urine and stool. Weight loss affects skin integrity because it is indicative of poor nutrition and hydration, which impede healing.
At the time of the January 28, 1998, survey,
Resident 12 was a ninety-six-year-old woman who was admitted to Edgewater Manor on October 30, 1990.10 Her diagnoses as of
December 1, 1997, and January 1, 1998, included senile dementia, atrial fibrillation, organic brain syndrome, psychotic disorder, cerebral vascular accident, iron deficiency anemia, peripheral vascular disease, stasis ulcer on lower right leg, and impaired skin integrity. As of December 1, 1997, Resident 12 was, and had been for some time, incontinent of bowel and bladder and consistently had loose stool. Since at least August 13, 1997, Resident 12 had been totally dependent on staff for all activities of daily living and was severely impaired in decision- making.
Based on Resident 12's diagnoses and her general condition as of December 1, 1997, Resident 12 had several of the primary risk factors for developing pressure sores identified in tag F314: She was immobile and depended on the staff for repositioning; she spent time in a wheelchair with a restraint to keep her properly positioned; and she suffered from peripheral vascular disease, chronic bowel incontinence, and continuous urinary incontinence.
Resident 12 was identified by Edgewater Manor as a person at risk of the development of pressure sores, and a care plan dated August 20, 1997, was developed which provided generally for increased protein in her diet and directed that she be given a multivitamin and vitamin C. The care plan reflected that, as of August 20, 1997, Resident 12 had an open area on her right lateral calf,11 and the plan contained specific provisions
to deal with the development of pressure sores and with impaired skin integrity. A soft tech mattress, which is like a large feather pillow, was placed on her bed to reduce pressure on the pressure points on her body; she was to be provided with clean dry linens; range of motion manipulation was to be done on her extremities every shift; she was to be turned and repositioned every two hours, her heels were to be off the bed at all times, and pillows were to be placed under her calves; she was to be encouraged to consume all the fluids on her food tray and 80-to-
100 percent of her food; pillows were to be used to keep any bony prominences from direct contact with each other; balmex ointment (bag balm) was to be used on her buttocks after each episode of incontinence; and she was to have a daily skin assessment.
Much of the preventive care set out in the August 20 care plan was to be provided by certified nursing assistants. Specifically, because Resident 12 was dependent on staff for almost all activities of daily living, certified nursing assistants were responsible for, among other things, turning and repositioning Resident 12 every two hours, feeding, bathing and grooming, and cleaning her body and her bed after episodes of incontinence. The services provided were recorded daily for each shift on a form entitled "Nurse Assistant Care Records," which was completed and initialed daily by the certified nursing assistant caring for the resident during each shift.
The Nurse Assistant Care Records completed for Resident 12 during October, November, and December 1997 establish
that, each day, she was fed by the staff and ate her meals in one of Edgewater Manor's dining rooms; that she was repositioned; that she had frequent bouts of bowel and bladder incontinence; that she was cooperative and accepted assistance; that she received passive range of motion movement; and that she spent time sitting in a wheelchair, with restraints.
Frequent turning and repositioning is a critical component of care to prevent the development of pressure sores. The Nursing Assistant Care Records for October, November, and December 1997 reflect that Resident 12 was turned and repositioned each shift. The records do not, however, show the frequency of turning and repositioning and variously reflect that Resident 12 turned and repositioned herself independently, that she turned and repositioned herself with assistance, and that she was fully dependent on staff for turning and repositioning.
Enid Lue, a certified nursing assistant who provided care to Resident 12 during these three months, testified that she personally turned and repositioned Resident 12 every two hours whenever she cared for her and that she was routinely informed verbally by the certified nursing assistant who cared for Resident 12 during the shift preceding hers that Resident 12 had been turned and repositioned every two hours during that shift. Ms. Lue confirmed that Resident 12 was totally dependent on staff
for turning and repositioning and testified that she had incorrectly indicated on the Nursing Assistant Care Records that she had merely assisted Resident 12 to turn and reposition herself.
The wound care nurse who provided treatment to Resident 12 for the stasis ulcer on her leg and for the pressure sore which developed on her coccyx testified that whenever he provided treatment to Resident 12 and whenever he passed her room, which was several times each day, he observed that she had been turned and repositioned. Notations are included in the monthly summaries in the Nursing Care Notes for Resident 12 indicating that she was turned and repositioned every two hours in October, November, and December 1997. In addition, the daily Nursing Care Notes maintained for Resident 12 include entries indicating that Resident 12 was turned and repositioned every two hours; the entries in the daily notes appear with greater frequency after December 30, 1997.
In September 1997, it was noted in the Dietary Progress Notes maintained by Edgewater Manor's dietitian for Resident 12 that she had problems with skin integrity. The amount of protein in her diet was increased, and it was noted that she received a multi-vitamin and vitamin C, both of which aid in promoting healing. In the quarterly dietary care plan review conducted on November 4, it was noted that Resident 12's weight had remained stable at 117 pounds since January 1997 and that she was on a
mechanical soft diet. Resident 12 was to be continued on the current care plan, and staff was directed to encourage fluids. On December 5, the dietitian ordered that protein rich foods be sent on Resident 12's tray.
Daily skin assessments for each resident are routine practice at Edgewater Manor, and they are completed by licensed nurses, with a certain number of residents being assessed each shift. Pursuant to a memorandum to all licensed nurses, dated July 8, 1996, the nurses are to note the results of the skin assessment on a Daily Skin Assessment form. The nurses are specifically alerted to watch for redness, tearing, sheet burns, friction, shearing, and pressure areas, among other things.
On December 18, 1997, it was noted on the Daily Skin Assessment for Resident 12 that a blister, redness, and/or an open area was observed on her "cheeks." On December 19, Resident 12's physician discontinued the application of bag balm as a moisture barrier on her buttocks and ordered that Desitin ointment be applied instead. The change in the type of ointment to be used on Resident 12's buttocks was made because a reddened area had been detected. The appearance of the reddened area was not, however, charted in the Nursing Care Notes, as required by the Edgewater Manor internal memorandum dated July 8, 1996.
On December 24, 1997, it was noted on the Daily Skin Assessment that Resident 12 had an open area on her buttocks. This is reflected in the Nursing Care Notes for December 24, and
a new order was given by Resident 12's physician on that date. The new order directed that a hydrocoloid dressing12 was to be applied to the coccyx every three days and that, on the third day, the dressing was to be removed, the area cleaned with a solution of normal saline and dried, and a new dressing applied. The open area was located in a fold of Resident 12's buttock, and two people were required to treat the wound because the buttocks had to be separated to expose it for treatment.
On December 29, Resident 12's physician visited her, but he did not issue any new treatment orders except to discontinue the "leg buddy," a type of restraint used to help maintain proper positioning for a person sitting in a wheelchair. The "leg buddy" had been ordered on December 9, 1997, to replace a "lap buddy," another, more restrictive, device used to maintain proper positioning in a wheelchair. The staff noted in the Nursing Care Notes of December 29 that the "leg buddy" had been tried but did not properly position Resident 12 in the wheelchair. It allowed her to slide down in the chair and to rock back and forth. This caused pressure on Resident 12's coccyx and irritated the area. Even so, it was not improper to prescribe use of the leg buddy for Resident 12 because it was important for her to sit up to improve healing, and the leg buddy is the least restrictive restraint for use with a wheelchair.
On December 30, Dante Graziani, Edgewater Manor's wound care nurse, visited Resident 12 for the first time to treat both
the pressure sore on the coccyx area and the stasis ulcer on the right lower leg.13 Mr. Graziani removed the hydrocoloid dressing which had been placed on the coccyx area pursuant to the treatment prescribed by Resident 12's physician on December 24, and he observed that the wound had worsened since it was first noted on December 24. Mr. Graziani was on vacation from December 24 through December 29 and did not observe the open area on December 24, when treatment began. Nonetheless, he was able to determine that the pressure sore was at Stage II14 on
December 24 based on the information provided in the Nursing Care Notes and physician's order. In his experience as a wound care nurse, it is not unusual for pressure sores to worsen during the first days of treatment, and it is standard procedure to allow a week for each new treatment to see if the sore is responding. In Mr. Graziani's opinion, it was unlikely that the sore would have appeared worse when the hydrocoloid dressing was changed on the third day after treatment began and it was not inappropriate for that treatment to have been continued for an additional three days, until December 30.
On December 30, Mr. Graziani made the first entry for Resident 12 on the Weekly Pressure Sore Progress Report, which is an internal Edgewater Manor report usually prepared by the wound care nurse. Mr. Graziani determined from his examination that the pressure sore had advanced to Stage III.15 He noted on the report that the open area measured two centimeters wide and three
centimeters long, with a depth of two-tenths of a centimeter, about the size of a quarter. Mr. Graziani attributed the worsening of the pressure sore between December 24 and
December 30 to Resident 12's continued incontinence, her failure to eat well, her weight loss, her iron deficiency anemia, and her peripheral vascular disease.
On the basis of the information provided by
Mr. Graziani, Resident 12's physician ordered a change in the treatment of the pressure sore on the coccyx on December 30. Because there was necrotic tissue in the wound, the hydrocoloid dressing was discontinued and a transigel pad was ordered. A transigel pad is a debriding agent and facilitates the removal of necrotic tissue from a wound. Mr. Graziani indicated on the Weekly Pressure Sore Progress Report that December 30 was the first day of treatment with the transigel pad. Also on
December 30, Resident 12's physician ordered five days' bed rest and insertion of a Foley catheter until the open area on the coccyx resolved.
A care plan for Resident 12 was prepared to address the pressure sore on her coccyx and the statis ulcer on her right leg. The alteration to the integrity of her skin was attributed to her immobility, peripheral vascular disease, and incontinence. The care plan incorporated the physician's orders for use of the transigel pad, insertion of the Foley catheter, and five days' bed rest. It also provided for routine preventive care such as
continued use of the soft tech mattress, turning and repositioning every two hours, use of pillows to turn and reposition and to keep pressure off Resident 12's wounds, use of heel protectors, and range of motion to all extremities each shift.
The Nursing Care Notes for January 3, 1998, reflect that Resident 12 was not chewing her food and, as a result, was choking. A notation was made that the speech therapist would be notified. In an entry on the Dietary Progress Notes dated January 7, 1998, the dietitian reported that Resident 12's diet had been changed to puree on the recommendation of the speech therapist because Resident 12 had exhibited a problem chewing her food, although the precise date the change was made is not recorded in either the Nursing Care Notes or the Dietary Progress Notes.
On January 5, Resident 12's physician ordered a urine culture and sensitivity test because her urine had become dark and cloudy. On the same day, the physician prescribed the antibiotic Cipro for a week and ordered that Resident 12 be encouraged to take fluids. The urinary culture confirmed that Resident 12 had a urinary tract infection. Although fluids were encouraged, Resident 12 generally took them poorly during her illness. The urinary tract infection was resolved on or about January 12, 1998.
Also on January 12, 1998, it was noted in the Dietary Progress Notes that Resident 12's weight had dropped to 110.5 pounds, a ten-pound weight loss since December 8, 1997, but still above her ideal body weight of 85-to-105 pounds. The dietitian noted that Resident 12 had been ill with a urinary tract infection but that she had improved and was again eating in the dining room. The dietitian also noted that Resident 12 continued to have skin breakdown and recommended that a protein supplement be prescribed to combat Resident 12's weight loss and to meet her need for increased protein in her diet. The protein supplement was ordered by Resident 12's physician on January 12 and was to be given twice each day.
During the time she had the urinary tract infection, Resident 12 continued to receive treatment for the stasis ulcer on her leg and for the pressure sore on her coccyx. On January 8, 1998, the transigel pad was ordered discontinued because the sore on Resident 12's coccyx had been debrided; orders were given by Resident 12's physician that a hydrocoloid dressing was to be placed on the wound on the coccyx.
Mr. Graziani noted on the Weekly Pressure Sore Progress Report that, as of January 8, the pressure sore was a Stage II sore.
On January 15, Mr. Graziani noted that the pressure sore was improving with the use of the hydrocoloid dressing. However, by January 22, the sore was larger, although still a Stage II sore, and the treatment was changed back to a transigel
pad to debride the wound. The record does not reflect the date the pressure sore to the coccyx was resolved, but it was present at the time of the January 30, 1998, survey.
The Agency's surveyor based her conclusion that resident 12 developed an avoidable pressure sore while she was a resident of Edgewater Manor on the surveyor's review of documentation provided by Edgewater Manor; on interviews with staff, specifically with Doris Huey, a licensed practical nurse who cared for resident 12; and on an Edgewater Manor internal memorandum to licensed nurses dated July 8, 1996, regarding daily skin assessments. There is no evidence in the record that the Agency's surveyor actually observed resident number 12 during her review of the resident's condition.
It is uncontroverted that Resident 12 developed a pressure sore while a resident of Edgewater Manor. The evidence is, however, sufficient to establish with the requisite degree of certainty that Resident 12's clinical condition was such that she was at risk for developing pressure sores and that the care plan for Resident 12 included appropriate routine preventive care measures. In addition, the evidence is sufficient to establish with the requisite degree of certainty that Edgewater Manor's staff provided the prescribed routine preventive and daily care, such as turning and repositioning every two hours; cleaning and drying Resident 12 after episodes of incontinence, including applying ointments to her buttocks which acted as a moisture
barrier; using a soft tech mattress to decrease pressure on areas of dependence and bony prominences; and increasing the amounts of protein in Resident 12's diet, changing her food to puree, and encouraging Resident 12 to take fluids. Although weight loss puts a resident at risk of slow healing, nothing in this record associates the development or worsening of Resident 12's pressure sore with her ten-pound weight loss between December 8 and January 8.
Finally, the evidence is sufficient to establish with the requisite degree of certainty that Resident 12 received proper treatment to promote healing of the pressure sore, to avoid infection, and to prevent development of new sores.
Routine preventive care was continued, and orders were issued for a change from bag balm to Desitin ointment when a reddened area was discovered on Resident 12's coccyx, for use of a hydrocoloid dressing as soon as the sore developed into an open area, and for insertion of a Foley catheter to minimize moisture in the area.
In light of all of the evidence of record, the failure of Edgewater Manor's staff to document in the Nursing Care Notes the treatment of the pressure sore from December 24 through
December 29 cannot support the inference that such treatment was not given.
DOAH Case No. 98-2553: March 30, 1998, survey
When the Agency's survey team conducted the March 30, 1998, follow-up survey, Edgewater Manor was found to have
corrected the two Class II deficiencies identified in the January 28 survey involving Resident 3 and Resident 12. However, as a result of the March 30 follow-up survey, the Agency cited Edgewater Manor for a Class II deficiency based on a violation of tag F224. The tag F224 violation and Class II deficiency cited by the Agency are associated with the requirements in Title 42, Section 483.13(c), Code of Federal Regulations, that facilities develop and implement written policies prohibiting the mistreatment, neglect, and abuse of residents.
Resident 8, who was born on October 7, 1914, was admitted to Edgewater Manor on February 22, 1996, with a primary diagnosis of a fracture of the femur intertrochanteric, that is, a fractured hip.
In a Minimum Data Set completed January 12, 1998, Resident 8's diagnoses were listed as hypertension, peripheral vascular disease, non-Alzheimer's dementia, transient ischemic attack, and hemiplegia/hemiparesis. She had both short- and long-term memory problems and was severely impaired in her decision-making ability, with a deterioration of her cognitive status having occurred since the previous assessment. She was totally dependent on staff for personal hygiene, locomotion in a
wheelchair both on and off her unit, dressing, eating, and toilet use. She was frequently incontinent of bowel and always incontinent of bladder. She had two areas on her skin which exhibited redness which did not disappear when pressure was
relieved, and she had a pressure ulcer in which a partial thickness of skin was lost, presenting as either an abrasion, blister, or shallow crater. She also had skin tears or cuts and was receiving protective and/or preventative skin care. She could reposition herself in her bed with limited assistance from one staff member.16 On the other hand, Resident 8 needed extensive assistance to transfer from her bed to a chair or wheelchair, with two staff members required to assist her by providing weight-bearing support or, at times, full support. Her ability to perform activities of daily living had deteriorated since the previous assessment, and Edgewater Manor staff's predicted that Resident 8's condition would continue to decline.
A care plan was developed January 18, 1998, in which the care to be given to Resident 8 in light of the January 12 assessment was specified.17
On February 25, 1998, at approximately 10:00 a.m., a hematoma (bruise) of moderate size was found on Resident 8's left upper arm. Edgewater Manor's Director of Nursing, Janice Bey, was notified of the hematoma through an incident report, conducted an investigation to determine the cause of the injury, and concluded that the hematoma resulted from a blood-draw done on February 23 and not from abuse, neglect or mistreatment.
Ms. Bey did not reduce to writing the results of her investigation into the cause of the hematoma on Resident 8's arm.
Also on February 25, 1998, at approximately 3:30 p.m., the registered nurse on duty was called to Resident 8's room by a certified nursing assistant to observe that Resident 8's left great toe was swollen and looked inflamed. The wound care nurse and a podiatrist were called to evaluate the wound. On
February 27, at approximately 4:00 p.m., a certified nursing assistant reported that there was some bleeding on Resident 8's left great toe and that the toenail had come off. The toe was rinsed with normal saline solution and loosely wrapped with gauze; there was no indication that the toe had received any previous treatment. Ms. Bey was notified of the bleeding toe and of the missing nail through an incident report. She was already aware that the toe was swollen and inflamed. Ms. Bey investigated the cause of the injury by interviewing the staff members who cared for Resident 8, and she personally examined Resident 8's toe. She concluded that the swelling and inflammation of the toe, with the subsequent loss of the toenail, was the result of Resident 8's peripheral vascular disease, exacerbated by the fact that she was not ambulatory. Ms. Bey found no bruising or skin tears around the toe and, therefore, determined that no abuse, neglect, or mistreatment had occurred. Ms. Bey did not reduce to writing the results of her investigation.
At approximately 3:00 p.m. on March 4, 1998, an aide reported that Resident 8 had an "ecchymotic" area (bruise) above
her right eye. The licensed practical nurse on duty at the time completed an incident report and noted that the cause of the bruise and the place and time it occurred was unknown.
On March 17, 1998, Resident 8 received two skin tears as she was being transferred from her bed to a wheelchair. The tears were on the right shin area, at right angles to one another, and were approximately one centimeter long by one centimeter wide. A small amount of redness was noted. The skin tears were cleansed and wrapped. Resident 8's son was notified of the skin tears, and an incident report and treatment request were sent via facsimile to Resident 8's physician. Ms. Bey was notified of the skin tears, and she investigated the cause of the injury. Ms. Bey found no evidence that the skin tears were caused by neglect or mistreatment, especially since Resident 8's skin was extremely fragile and paper-thin. Ms. Bey did not reduce to writing the results of her investigation.
On March 21, 1998, at approximately 7:45 p.m., the nurse on duty was called to Resident 8's room to examine her left lower leg, which had a bruised area and was hot to the touch. An incident report was prepared, and Ms. Bey was contacted at her home. She directed the nurse to contact Resident 8's physician. The physician was notified of the condition of the leg at approximately 9:30 p.m. He initially diagnosed Resident 8's condition as cellulitis and issued new orders for treatment of this condition. By 6:00 a.m. on March 22, antibiotics were being
administered, and shortly thereafter, Resident 8's temperature was recorded at 100.4 degrees. By 2:30 p.m. on March 22, the left lower leg was not quite as swollen but was still hot to the touch.
Ms. Bey visited Resident 8 when she returned to work on Monday, March 23. She observed that the leg had edema and that it was no longer red but was dark bluish in color. Based on her observation, Ms. Bey doubted that the diagnosis of cellulitis was accurate. Ms. Bey directed that Resident 8's physician be called, and she recommended that an x-ray be taken of the leg.
On March 23, Resident 8's physician visited her and ordered an x-ray of the left lower leg and ankle.
The x-ray of the left ankle, which was read by a radiologist at the Martin Memorial Diagnostic Center on March 23, 1998, showed that Resident 8 had a "trimalleolar fracture with significant displacement and disruption of the mortise," with "generalized soft tissue swelling" noted. An x-ray of the tibia and fibula taken at the same time revealed evidence of "the distal fracture" but no others, and the report contained the observation that Resident 8's bones were demineralized and vascular calcifications were noted.
On March 25, Resident 8 was transported to the office of a Dr. Fraraccio for examination and treatment. He concurred that Resident 8 had an old "fracture of the left distal femur" and that she also had "a fresh fracture of the left ankle." He
put a short cast on the leg, and she was returned to Edgewater Manor. Resident 8's left lower leg was still in the cast when the March 30, 1998, survey was conducted.
When Edgewater Manor received the reports which indicated that Resident 8's ankle was fractured and displaced, Ms. Bey spoke with the staff to determine the cause of the injury. As a result of this investigation, Ms. Bey concluded that Resident 8 had not been dropped when being transferred and that the fracture could not be associated with any particular event.
Ms. Bey's clinical impression was that Resident 8 had very fragile bones and a history of fractures, as set out in reports of x-rays taken in May 1997, which were maintained as part of Resident 8's chart. In her opinion, Resident 8's ankle could have been fractured when she was transferred from the bed to a chair or turned and repositioned in the bed or by the pressure of a wash cloth when she was bathed. Ms. Bey relied during her investigation on the opinion of Dr. Fraraccio, which she solicited, that he believed the fracture was unavoidable and that it "could have occurred during normal transfer or by any other maneuver, such as turning the patient in bed." Ms. Bey ultimately concluded that the fracture was not caused by abuse, neglect, or exploitation, but she did not reduce to writing the results of her investigation.
The Agency's surveyor determined that each of Resident 8's bruises, the inflamed toe, and the ankle fracture were caused by mistreatment or neglect by the staff. This determination was not based on any independent investigation by the surveyor but solely on her conclusion that Resident 8 could not have injured herself because she was cognitively impaired, was totally dependent on staff for activities of daily living, and required the assistance of two people for transfers from her bed to a chair or wheelchair. Even if it such a determination were relevant to the violation alleged, the Agency presented no evidence from which it could be found, with any degree of confidence, that Resident 8 was the victim of abuse, mistreatment, or neglect.
The Agency did not, however, cite Edgewater Manor with a tag F224 violation for having abused, mistreated, or neglected Resident 8 or with a tag F225 violation for having failed to investigate incidents involving abuse, neglect, or mistreatment.18 Rather, the Agency cited Edgewater Manor with a tag F224 violation for failing to develop and implement written policies and procedures to prohibit mistreatment, neglect, and abuse of residents.19 The evidence conclusively establishes that Edgewater Manor had indeed developed such written policies and procedures for the protection of all of its residents from abuse, mistreatment, or neglect and provided a copy to the Agency surveyor. Furthermore, the Agency presented no evidence to
establish that these policies were not implemented with regard to Resident 8.
The survey team apparently based its decision to cite Edgewater Manor for a tag F224 violation and Class II deficiency related to Resident 8 on the lack of documentation of Ms. Bey's investigations into the causes of Resident 8's bruises, inflamed toe, and fractured ankle. 20 The team apparently applied the following reasoning: Because there were no written reports of Ms. Bey's investigations, no investigations had been conducted; because no investigations were conducted, it was not possible for Edgewater Manor to develop written policies and procedures to prohibit abuse, neglect, or mistreatment or to develop a care plan for Resident 8 to avoid future injuries.21 These inferences lack any foundation in logic and, as noted above, are not supported by the evidence presented in this case.
Finally, the evidence is not sufficient to establish with the requisite degree of certainty that the care plan developed for Resident 8 failed to specify the means by which she was to be transferred from her bed to a chair or wheelchair,22 even assuming that the inclusion of such instructions would be necessary to protect her from abuse, mistreatment, or neglect.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of
the parties thereto pursuant to Sections 120.569 and .57(1), Florida Statutes (1997).
Pursuant to Section 400.23(8), Florida Statutes, the Agency is required to evaluate each nursing home facility operating in Florida at least every fifteen months to determine whether it is in compliance with the applicable law. In addition to the criteria set forth in Section 400.23, Florida Statutes, and in the rules adopted by the Agency in Chapter 59A-4, Florida Administrative Code, nursing home facilities in Florida must be in compliance with the rules found in Title 42, Chapter 483, Code of Federal Regulations, which are incorporated and made applicable in Florida both in Section 400.23 and in
Rule 59A-4.1288. Prescriptions for meeting the requirements of the relevant provisions of the Code of Federal Regulations are included in the State Operations Manual, which is used to guide Agency surveyors in the survey process.
If the Agency identifies a violation as a result of a compliance survey, the violation is classified pursuant to Section 400.23(9), Florida Statutes, as a Class I, Class II, or Class III deficiency. Class I deficiencies "present an imminent danger to the residents or guests of the nursing home facility or a substantial probability that death or serious physical harm would result therefrom." Section 400.23(9)(a), Florida Statutes. Class II deficiencies "have a direct or immediate relationship to the health, safety, or security of the nursing home facility
residents, other than class I deficiencies." Section 400.23(9)(b), Florida Statutes. Class III deficiencies "have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies." Section 400.23(9)(c), Florida Statutes.
A rating is assigned to a nursing home facility on the basis of the deficiencies identified during the survey and any follow-up surveys. A standard rating is assigned when "a facility has no class I or class II deficiencies, has corrected all class III deficiencies within the time specified by the agency, and is in substantial compliance with" state law and the federal rules incorporated therein. Section 400.23(8)(a), Florida Statutes. A superior rating is assigned when a facility meets the criteria for a standard rating and has provided for "enhanced programs and services" in seven specified areas. Section 400.23(8)(c), Florida Statutes.
A conditional rating is assigned to a facility when, "due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, [the facility] is not in substantial compliance at the time of the survey with criteria established" by state law and the federal rules incorporated therein. Section 400.23(8)(b), Florida Statutes.
Section 400.23(8)(b) further provides:
If the facility comes into substantial compliance at the time of the followup survey, a standard rating may be issued. A facility assigned a conditional rating at the time of the relicensure survey may not qualify for consideration for a superior rating until the time of the next subsequent relicensure survey.
The Agency has the burden of proving by a preponderance of the evidence that there exists a basis upon which the January 28, 1998 and March 30, 1998, conditional licenses were issued to Edgewater Manor. Young v. Department of Community Affairs, 567 So. 2d 2 (Fla. 2d DCA 1990).
DOAH Case No. 99-1270: January 28, 1998, survey
Resident 3
Title 42, Section 483.13(b) and (c), Code of Federal Regulations, provide in pertinent part:
Abuse. The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.
* * *
Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.
The facility must--
(i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;
The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law
through established procedures (including to the State survey and certification agency).
The facility must have evidence that all alleged violations are thoroughly investigated and must prevent further potential abuse while the investigation is in progress.
The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.
Title 42, Section 483.13(b), Code of Federal Regulations, is linked with tag F223 and Title 42, Section 483.13(c), Code of Federal Regulations, is linked with tag F224 and tag F225. 23 In the Guidance to Surveyors section of the State Operations Manual applicable to long-term care facilities, the guidelines relevant to this subsection provide in pertinent part:
These requirements [in Section 483.13(b) and (c)] specify the right of each resident to be free from abuse, corporal punishment, and involuntary seclusion, and the facility's responsibilities to prevent not only abuse, but also those practices and omissions, neglect, and misappropriation of property, that if left unchecked, lead to abuse.
Residents must not be subjected to abuse by anyone, including, but not limited to, facility staff, other residents, consultants or volunteers, staff of other agencies serving the individual, family members or legal guardians, friends, or other individuals.
"Abuse" is defined as the willful infliction of injury, unreasonable confinement,
intimidation, or punishment with resulting physical harm or pain or mental anguish, or deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. This presumes that instances of abuse of all residents, even those in a coma, cause physical harm, or pain or mental anguish.
* * *
"Sexual abuse" includes, but is not limited to, sexual harassment, sexual coercion, or sexual assault.
In Thunderbird Drive-In Theatre, Inc. v. Reed, 571 So. 2d 1341, 1344 (Fla. 4th DCA 1990), the court discussed the meaning of the term "willful" as follows:
In King v. Eastern Airlines, Inc., 536 So.2d 1023, 1027 (Fla. 3d DCA 1987), the court presented a definition of willful misconduct as "the intentional performance of an act with knowledge that the ... act will probably result in injury or damage" or as "reckless disregard of the consequences" or as "a deliberate purpose not to discharge some duty necessary to safety." In Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193, 1198 (7th Cir.1987), the court referred to the following definition of willful conduct:
Prosser and Keeton, authorities on torts, have stated that the "usual meaning" assigned to "willful" (as well as reckless and wanton) "[i]s that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow . .
.." Prosser and Keeton Handbook of the Law of Torts Sec. 34 at 213 (5th ed. 1984). Prosser and Keeton's definition of willfulness requires that three elements be
established: (1) the actor do an intentional act of an unreasonable character (2) in disregard of a known or obvious risk that was great (3) as to make it highly probable that harm would follow.
Thus, we perceive that the use of the word "willfully" requires something more than mere knowledge or awareness. Rather, it requires intent and purpose that the act or condition take place.
Accord Miller v. State, 636 So. 2d 144, 150 (Fla. 1st DCA 1994).
On the basis of the facts found herein, the Agency has failed to prove by a preponderance of the evidence that Edgewater Manor violated tag F223 by not preventing Resident 3 from sexually abusing other residents of the Protective Care Unit.
The Agency failed to meet its burden of proving that the encounters between Resident 3 and Resident 18 were anything but consensual. The Agency also failed to meet its burden of proving an essential element of abuse: that Resident 3 had the necessary cognitive ability to willfully inflict physical or psychological injury on Resident 19, Resident 20, or any other resident of Edgewater Manor.
The intent of Title 42, Section 483.13(c), Code of Federal Regulations, which is linked to tag F224 and tag F225, is set out in the Guidance to Surveyors included in the State Operations Manual as follows:
Intent: [Section]483.13(c)
The intent of this regulation is to assure that the facility has in place an effective system that regardless of the source (staff, other residents, visitors, etc.) prevents
mistreatment, neglect and abuse of residents, and misappropriation of resident's [sic] property. However, such a system cannot guarantee that a resident will not be abused; it can only assured that the facility does whatever is within its control to prevent mistreatment, neglect, and abuse of residents or misappropriation of their property.
Such steps include, but are not limited to, identification of residents whose personal histories render them at risk for abusing other residents, an assessment of appropriate intervention strategies to prevent occurrences, monitoring the resident for any changes that would trigger abusive behavior, and reassessment of the strategies on a regular basis.
Based on the findings of fact herein, the Agency has failed to prove by a preponderance of the evidence that Edgewater Manor violated tag F224 or tag F225 because the Agency failed to prove that Resident 3's inappropriate sexual behavior constituted abuse as defined in the Guidance to Surveyors for tag F223 and Title 42, Section 483.13(b) and (c), Code of Federal Regulations. Although the facts presented herein might support a violation of tag F224 and tag F225 based on neglect, the Agency did not charge Edgewater Manor with the neglect of any of its residents with respect to the actions of Resident 3.24 Rather, the Agency focused exclusively on what the Agency surveyor regarded as the sexually abusive behavior of Resident 3. The federal Health Care Financing Agency has chosen to define abuse for purposes of the State Operations Manual as a willful act. As set forth above, Resident 3 was not capable of acting willfully with regard to his efforts to gratify his sexual urges, and it cannot be concluded
that, on the basis of the violations alleged in the testimony of the Agency's surveyor, Edgewater Manor violated tag F224 or
tag F225.
Title 42, Section 483.15(g)(1), Code of Federal Regulations, provides: "The facility must provide medically- related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident." This section is linked to with tag F250.
In the Guidance to Surveyors section of the State Operations Manual applicable to long-term care facilities, the guidelines provide in pertinent part:
Regardless of size, all facilities are required to provide for the medically-related social services needs of each resident. This requirement specifies that facilities aggressively identify the need for medically- related social services, and pursue the provision of these services. It is not required that a qualified social worker necessarily provide these services. Rather, it is the responsibility of the facility to identify the medically-related social services needs of the resident and assure that the needs are met by the appropriate disciplines.
According to the guidelines, "'[m]edically-related social services' means services provided by the facility's staff to assist residents in maintaining or improving their ability to manage their everyday physical, mental, and psychosocial needs." Among the services identified in the guidelines is "providing or arranging provision of needed counseling services." The guidelines also specify that "conditions to which the facility
should respond by evaluating a resident's behavior and providing social services by staff or referral" include a resident's "strik[ing] out at another resident" and experiencing "[d]ifficulty with personal interaction and socialization skills." Resident 3's behavior, though sexual in nature, falls within these general categories of conditions which require an aggressive response from the facility. The Agency has proven by a preponderance of the evidence that Edgewater Manor violated tag F250 by failing to provide meaningful medically-related social services to Resident 3 to enhance his physical, mental, and psychosocial well-being and to protect the other residents when Resident 3 engaged in inappropriate sexual behavior.
Because Edgewater Manor's violation of tag F250 had "a direct and immediate relationship to the health, safety, or
security of the nursing home facility residents," Edgewater Manor should be cited with a Class II deficiency as a result of the January 28, 1998, survey. The parties have stipulated that this deficiency was corrected at the time of the March 30, 1998, survey.
Resident 12
Title 42, Section 483.25(c), Code of Federal Regulations, which is linked to tag F314, provides:
Pressure sores. Based on the comprehensive assessment of a resident, the facility must ensure that --
A resident who enters the facility without pressure sores does not develop pressure sores unless the individual's
clinical condition demonstrates that they were unavoidable; and
A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.
Pursuant to the Guidance to Surveyors provided for tag F314 in the State Operations Manual,
[a] determination that development of a pressure sore was unavoidable may be made only if routine preventive and daily care was provided. Routine preventive care means turning and proper positioning, application of pressure reduction or relief devices, providing good skin care (i.e., keeping the skin clean, instituting measures to reduce excessive moisture), providing clean and dry bed linens, and maintaining [sic] adequate nutrition and hydration as possible.
On the basis of the facts found herein, the Agency has failed to sustain its burden of proving by a preponderance of the evidence that the development of the pressure sore on Resident 12 could have been avoided. Rather, Edgewater Manor has proven by a preponderance of the evidence that it provided Resident 12 with routine preventive and daily care appropriate for one at risk of developing pressure sores but that her clinical condition was such that the development of the pressure sore was unavoidable.
DOAH Case No. 98-2553: March 30, 1998, survey Resident 8
That portion of Title 42, Section 483.13(c), Code of Federal Regulations, which is linked to tag F244, provides:
Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment,
neglect, and abuse of residents and misappropriation of resident property.
(1) The facility must --
(i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.
Pursuant to the Guidance to Surveyors provided in the State Operations Manual,
[t]he intent of this regulation is to assure that the facility has in place an effective system that regardless of the source (staff, other residents, visitors, etc.), prevents mistreatment, neglect and abuse of residents, and misappropriation of resident's property. However, such a system cannot guarantee that a resident will not be abused; it can only assure that the facility does whatever is within its control to prevent mistreatment, neglect, and abuse of residents and misappropriation of their property.
On the basis of the facts found herein, the Agency has failed to sustain its burden of proving by a preponderance of the evidence that Edgewater Manor failed to develop and implement written policies and procedures to prohibit mistreatment, neglect, and abuse of its residents in general and of Resident 8 in particular.
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 in DOAH Case No. 98-1270
Finding that Hobe Sound Geriatric Vill., d/b/a Edgewater Manor, violated the requirements of Title 42, Section 483.15(g), Code of Federal Regulations;
Citing Edgewater Manor with a Class II deficiency at the time of the January 1998 survey based on a violation of tag F250; and,
Denying Edgewater Manor's request to change its conditional rating for the period from January 28, 1998 through March 30, 1998.
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 in DOAH Case No. 98-2553
Rescinding the conditional rating for the period from March 31, 1998, through February 28, 1999; and
Issuing the appropriate rating to Edgewater Manor effective March 31, 1998.
DONE AND ENTERED this 10th day of May, 1999, in Tallahassee, Leon County, Florida.
PATRICIA HART MALONO
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1999.
ENDNOTES
1 For the sake of consistency, the identity of the Petitioner and the Respondent in the style of DOAH Case No. 98-2553 has been reversed.
2/ Hobe Sound Geriatric Village, Inc., is a corporate entity which does business as The Manors at Hobe Sound. The Manors at Hobe Sound consists of an assisted living facility and a 120-bed skilled nursing facility. The 120-bed skilled nursing facility does business as Edgewater Manor, which is the entity whose license is at issue in this proceeding.
3/ This statute provides
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness. The term "business" as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
No evidence in the form of an opinion or diagnosis is admissible under paragraph (a) unless such opinion or diagnosis would be admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly.
4/ In order to preserve their confidentiality, residents of Edgewater Manor shall be referred to in this Recommended Order by resident number.
5/ H. F. was in Massachusetts, where she spends her summers, when she was notified of these incidents. H. F. lives in Florida from October to May, H. F. visits her mother regularly when she is in Florida. H. F. is familiar with her mother's mental capabilities.
6/ Transcript at 223. Ms. Treakle also testified: "I don't believe that someone with a dementia diagnosis on a protective care unit -- I mean ethically I feel it's wrong, that she does not have the mentation to consent . . .." Transcript at 309.
7/ Because this policy and procedures statement was not offered into evidence, it is not possible to discern from the record whether Edgewater Manor's actions were consistent with the policy and procedures.
8/ If Resident 3 was observed masturbating in his room, the policy was to provide him with privacy.
9/ These definitions are found in Agency's Exhibit 2 and were adopted by the Agency's witness as accurate.
10/ The Agency's surveyor testified that resident number 12 was admitted to Edgewater Manor on May 27, 1997, and this is supported by the date on the Current Plan of Care prepared on August 20, 1997, and received into evidence as Agency's Exhibit
However, the Physician's Orders received into evidence as Respondent's Exhibit 2 indicate an admission date of October 30, 1990, and orders are included in that document which date from November 1990.
11/ This open area was a stasis ulcer caused by poor circulation to Resident 12's extremities. Neither the development nor the treatment of the stasis ulcer formed a basis for the tag F314 violation or class II deficiency.
12/ A hydrocoloid dressing is one designed to keep moisture from the affected area.
13/ A stasis ulcer is usually found on the extremities and is caused by poor circulation. A pressure sore is found on bony prominences such as the coccyx area and is the result of pressure, friction, or shear. The stasis ulcer is not the basis for a deficiency in the January 28, 1998, survey.
14/ A pressure sore is Stage II when "[a] partial thickness of skin is lost; may present as blistering surrounded by an area of redness and/or induration."
15/ A pressure sore is Stage III when "[a] full thickness if [sic] skin is lost; exposing subcutaneous tissue; presents as shallow crater; may be draining."
16/ As defined on the Minimum Data Set, "limited assistance" means the resident was "highly involved in activity; received
physical help in guided maneuvering of limbs or other nonweight bearing assistance "
17/ It should be noted that the care plan received into evidence and relied on by the Agency is incomplete in that it is missing pages 3 and 5. Accordingly, the lack of directions for transferring Resident 8 from her bed to a chair or wheelchair, referenced in the Agency's proposed finding of fact number 68 is not supported by the evidence. In reaching this conclusion, the testimony of the Agency's surveyor that she "copied the care plan that was present in the clinical record at the time of my review" has been considered but found not persuasive.
18/ Again, it must be noted that the Agency's survey report was not offered into evidence so recourse can only be had to the testimony of the Agency's surveyors to define the precise basis for the deficiency citation relating to Resident 8. And, in response to questions posed by counsel for Edgewater Manor, Ms. Dwyer, the Agency surveyor responsible for the review of Resident 8, testified as follows:
Q: Did you cite the facility for a failure to use - - based on using verbal, mental, sexual or physical abuse, corporal punishment or involuntary seclusion?
A: No.
Transcript at 141.
19/ In response to questions posed by counsel for the Agency, Ms. Dwyer testified as follows:
Q: Okay. What does your review of these notes and you interview demonstrate regarding this facility's level of compliance with the standard referenced by F-224?
A: We felt that the facility did not investigate how these fractures and injuries to this particular resident occurred.
A:[sic] When we interviewed the director of nursing, she revealed that she had no documentation of any investigation of these injuries.
Q: Okay. Now, the standard you identified as being the facility -- facility developing and implementing policies to prohibit
mistreatment, neglect and abuse or to not use abuse on residents, can you explain what relevance the, for lack of a better term, incidents you described throughout the nurse's notes from February 25th through March 23rd, collectively or individually, what significance they had to this regulatory standard?
A: Yes. The standard says that the facility must implement policies and procedures that prohibit mistreatment, neglect, of the residents.
We felt that the facility did not investigate as to whether or not this resident was mistreated, not following the care plan or the comprehensive assessment to determine how this resident should be transferred without the resident sustaining any injuries.
In response to questions posed by counsel for Edgewater Manor, Ms. Dwyer testified as follows:
Q: Did you cite the facility for a failure to develop written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property?
A: Yes.
Q: All right. So it is the failure to implement written policies and procedures that you are alleging the deficient facility practices?
Correct. Transcript at 89-90; 142.
20/ Interestingly, the Agency failed to point to any rule or
regulation requiring that the results of investigations into the cause of resident injuries be documented in writing.
21/ In response to questions posed by counsel for the Agency, Ms. Dwyer testified as follows:
Q: Why would the lack of documentation regarding investigation be a violation of this standard or be a Class 2 deficiency, if it is a violation?
A: One of the things that we look at in a survey is to ensure that the facility has adequately investigated and put a system in place to prevent reoccurrence of a particular deficient practice that the facility might have been cited for.
For instance, in this particular resident's case, we wanted to find out what investigation the facility has done and what steps they put in place to prevent this resident from being injured again in the future.
Transcript at 166-67.
22/ The Current Plan of Care for Resident 8 received into evidence as Agency's Exhibit 10 is incomplete and cannot, therefore, be used as evidence to establish that nothing in the care plan was designed to minimize the potential for injury to Resident 8.
23/ The parties stipulated that tag F225 was associated with Title 42, Section 483.13(c)(1)(ii), Code of Federal Regulations. This provision relates only to the proscription that the facility "[n]ot employ individuals who have been" found guilty by a court or an administrative tribunal having abused, neglected, or mistreatmented. No evidence was presented to establish that Edgewater Manor violated this code provision. Rather, the evidence indicates that the actual code provisions at issue herein are found at subsections (c)(2), (c)(3), and (c)(4) of Section 483.13.
24/ This is an issue which cannot be resolved in this proceeding because Edgewater Manor was not charged with neglect. See Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987)(disciplinary action may be taken against a licensee based only upon the offenses specifically alleged in the administrative complaint); Wray v. Department of Professional Regulation, Board of Medical Examiners, 435 So. 2d 312 (Fla. 1st DCA 1983).
COPIES FURNISHED:
Jennifer Steward, Esquire
Agency for Health Care Administration 1400 West Commercial Boulevard
Suite 110
Fort Lauderdale, Florida 33309
Mary K. Robbins-Kralapp, Esquire Qualified Representatives
SMITH, HAUGHEY, RICE & ROEGGE, P.C.
1400 Abbott Road, Suite 410 East Lansing, Michigan 48823
Sam Power, Agency Clerk
Agency for Health Care Administration Fort Knox Building 3, Suite 3431
2727 Mahan Drive
Tallahassee, Florida 32308
Paul J. Martin, 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.
| Issue Date | Proceedings |
|---|---|
| Jun. 18, 1999 | Final Order filed. |
| May 10, 1999 | Recommended Order sent out. CASE CLOSED. Hearing held 09/9-11/98. |
| Mar. 22, 1999 | Petitioner Agency for Health Care Administration`s Motion to Strike and Memorandum in Opposition to Respondent`s Motion to Add Additional Information for Good Cause Shown (filed via facsimile). |
| Mar. 08, 1999 | (M. Robbins-Kralapp) Motion to Add Additional Information for Good Cause w/cover letter rec`d |
| Dec. 31, 1998 | (M. Hoffman, Jr., M. Robbins-Kralapp) Notice of Withdrawal of Appearance and Substitution of Counsel; Proof of Service filed. |
| Dec. 07, 1998 | Petitioner Agency for Health Care Administration`s Proposed Recommend Order (filed via facsimile). |
| Dec. 07, 1998 | Edgewater Manor`s Proposed Recommended Order (filed via facsimile). |
| Dec. 07, 1998 | Petitioner Agency for Health Care Administration`s Motion for Official Recognition (filed via facsimile). |
| Nov. 24, 1998 | Order Extending Time for Filing Proposed Recommended Orders sent out. (PRO`s due by 12/7/98) |
| Nov. 18, 1998 | (Petitioner) Agreed to Motion for Extension of Deadline to File Proposed Recommended Orders (filed via facsimile). |
| Oct. 15, 1998 | (6 Volumes) Transcript of Proceedings filed. |
| Sep. 28, 1998 | Affidavit of Bertyl V. Johnson, Jr. w/cover letter filed. |
| Sep. 17, 1998 | (Respondent) Affidavit of Burtley Johnson (filed via facsimile). |
| Sep. 09, 1998 | CASE STATUS: Hearing Held. |
| Sep. 08, 1998 | Letter to Judge Malono from Mary Robbins (RE: request to add exhibits) (filed via facsimile). |
| Sep. 04, 1998 | Joint Prehearing Stipulation (filed via facsimile). |
| Aug. 25, 1998 | (Petitioner) Agreed to Motion for Extension of Deadline to File Joint Prehearing Stipulation (filed via facsimile). |
| Aug. 24, 1998 | Order Extending Time for Filing Prehearing Stipulation sent out. (stipulation due by 9/3/98) |
| Aug. 21, 1998 | (Petitioner) Agreed to Motion for Extension of Deadline to File Joint Prehearing Stipulation (filed via facsimile). |
| Aug. 21, 1998 | Petitioner Agency for Health Care Administration`s Response to Respondent`s First Request for Production of Documents (filed via facsimile). |
| Jun. 30, 1998 | Notice of Hearing sent out. (hearing set for Sept. 9-11, 1998; 9:00am; Stuart) |
| Jun. 30, 1998 | Prehearing Order sent out. |
| Jun. 30, 1998 | Order of Consolidation and Canceling Hearing in DOAH Case No. 98-1270 sent out. (Consolidated cases are: 98-1270 & 98-2553) |
| Jun. 10, 1998 | Joint Response to Initial Order and Motion to Consolidate (Cases requested to be consolidated: 98-2553, 98-1270) (filed via facsimile). |
| Apr. 21, 1998 | Order Accepting Qualified Representative sent out. (for M. Robbins-Kralapp) |
| Apr. 21, 1998 | Notice of Hearing sent out. (hearing set for 7/9/98; 9:00am; Stuart) |
| Mar. 27, 1998 | Motion to Admit Mary K. Robbins-Kralapp, Pro Hac Vice (filed via facsimile). |
| Mar. 27, 1998 | Joint Response to Initial Order (filed via facsimile). |
| Mar. 19, 1998 | Initial Order issued. |
| Mar. 13, 1998 | Notice; Petition for Formal Administrative Hearing, letter form; Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 17, 1999 | Agency Final Order | |
| May 10, 1999 | Recommended Order | Nursing home had Class II deficiency because it did not provide adequate medically-related social services to male resident with dementia; proof sufficient to show pressure sore unavoidable. |
