STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Petitioner, )
)
vs. )
) AMERICAN MEDICAL ASSOCIATIONS, ) INC., d/b/a OAKVIEW ) REHABILITATION AND CARE CENTER, )
)
Respondent. )
Case No. 01-4128
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Petitioner, )
)
vs. )
) AMERICAN MEDICAL ASSOCIATES, ) INC., d/b/a OAKVIEW ) REHABILITATION AND CARE CENTER, )
)
Respondent. )
Case No. 01-4129
)
RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held in this case before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings, on January 30-31, 2002, in Gainesville, Florida.
APPEARANCES
For Petitioner: Michael P. Sasso, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Suite 310-G
Tallahassee, Florida 33701
For Respondent: Alfred W. Clark, Esquire
117 South Gadsden Street, Suite 201 Post Office Box 623
Tallahassee, Florida 3201-0623 STATEMENT OF THE ISSUES
Whether Respondent violated Sections 400.022(1)(l), 400.022(1)(o), and 400.147(4) and (7), Florida Statutes, and Rules 59A-4.1288, 59A-4.106(2), and 59A-4.108(4), Florida Administrative Code, for which a fine is authorized under Sections 400.22(3), 400.102, 400.121, 400.19(3), and 400.23(8)(a), and if so, what penalties should be imposed. (DOAH Case No. 01-4129);
Whether a moratorium on admissions was appropriately ordered by Petitioner against Respondent on August 10, 2001, (DOAH Case No. 01-4128).
PRELIMINARY STATEMENT
By an Administrative Complaint dated August 21, 2001, the Agency for Health Care Administration (AHCA/Agency) notified American Medical Associates, Inc., d/b/a Oakview Rehabilitation and Care Center (Respondent/Oakview) that the Agency intended to impose a civil penalty of $96,000.
The Administrative Complaint sought a civil penalty arising from a July 30-31, 2001, survey of Respondent facility, on the allegation in paragraph (3)(a) that Respondent failed to take prompt and/or adequate measures to assure that residents are protected against verbal abuse, resident-on-resident abuse, and potential repeat physical abuse, and in paragraph (3)(b) failure to provide adequate supervision and/or effective interventions to prevent injury or potential injury or harm to residents. It was also alleged in paragraph (3)(c) that Respondent failed to ensure that all incidences of alleged and actual abuse are thoroughly investigated, documented, and reported to the Agency, that staff immediately report alleged incidences of resident physical and verbal abuse in accordance with the Agency's policies and procedures to enable prompt investigation and abuse prevention and to ensure that corrective action/interventions are taken to prevent further resident abuse; and finally, it was alleged that Respondent failed to ensure that there is adequate staff supervision to keep residents safe from harm.
A moratorium was imposed by Petitioner against Respondent on August 10, 2001, as a result of the July 30-31, 2001, survey in which three Class I deficiencies were cited, because Petitioner alleged that these deficiencies put residents in immediate danger of death or serious harm.
Respondent timely challenged the foregoing allegations in a single petition, and requested a disputed-fact hearing. The cases were referred to the Division of Administrative Hearings on or about October 17, 2001, and consolidated for hearing.
At hearing, AHCA presented the oral testimony of Jan Rebstock, an AHCA Health Facility Evaluator; Dr. Cora Kurtz, Ph.D., AHCA Area 3 Office Manager; Dr. Susan Acker, Ph.D., AHCA Nursing Services Director in the Division of Managed Care and Health Quality; and Cheryl Williams, an AHCA Surveyor who has a Master's Degree in social work. Petitioner's Exhibits 1 through
23 were admitted in evidence. Respondent presented the testimony of Josephine Sokevitz, a Licensed Practical Nurse (LPN) at Oakview, and Lyle Wilcox, an expert in nursing home administration. Respondent's Exhibits 1 through 17 were admitted in evidence.
A Transcript was filed on March 7, 2002. On March 21, 2002, Respondent filed a letter stating that the parties had agreed to file their respective Proposed Recommended Orders no later than April 5, 2002. That agreement was ratified by an Order entered March 27, 2002.
The parties' respective Proposed Recommended Orders have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
AHCA is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida.
Respondent Oakview operates a licensed nursing home at
300 N.W. 1st Avenue, Williston, Florida.
The standard form used by AHCA to document survey findings is known as a "2567" form, titled "Statement of Deficiencies and Plan of Correction." A nursing home facility deficiency is noted on the 2567 form and referred to as a "Tag."
The survey of Respondent's facility on May 9, 2001, arose out of a complaint. Respondent Oakview was cited for Tags F224, F309, and F490. Each of these three Tags was classified as a Class III deficiency. No Class II or Class I deficiencies were charged. No fines were assessed by the Agency, and the facility did not dispute the allegations. Also, no facts related to the May 9, 2001, survey are alleged as the basis for the Administrative Complaint herein.
The survey of June 15, 2001, also was initiated as a result of a complaint. Respondent was cited for four Tags: F223, F226, F279, and F324. Tags F223 and F226 were classified by the Agency as Class II violations. Tags F279 and F324, were classified as Class III violations. No fines were assessed by the Agency. The facility's Plan of Correction indicated that the deficiencies would be corrected by July 30, 2001.
Oakview disputed the allegations contained in the June 15, 2001, survey report, through the Informal Dispute Resolution Process (IDR). The IDR is a federal dispute resolution process whereby a facility has an opportunity to present information informally which may cause the state agency to delete, sustain, or modify the deficiency cited in a survey.
As a result of the IDR, Tag F223 was changed to F224.
The IDR panel sustained the remainder of the Tags and the classification for each.
On July 30-31, 2001, the Agency initiated a follow-up survey. This "re-visit" was to determine if deficiencies noted in the prior complaint surveys of May 9, 2001, and June 15, 2001, had been corrected. The surveyor reviewed quality indicators (statistics) and the two prior surveys in order to investigate whether Respondent Oakview had timely come into compliance with state and federal regulations.
As a result, Respondent was cited on July 30-31, 2001, with five Tags: F223, F225, F251, F324, and F490. Tags F223, F324, and F490 were classified as Class I violations. Tags F224, and F251, were classified as Class III violations.
Subsequently, by administrative action, the Agency changed Tag F223 to F224. The classification of the Tag remained as a Class I violation.
Legislation effective May 15, 2001, defines Class I deficiencies/violations as situations in which immediate corrective action is necessary because they have caused, or are likely to cause, serious injury, harm, impairment, or death to a resident receiving care in that facility. Class II deficiencies compromise the resident's ability to maintain or reach his or her highest practicable physical, mental, or psychosocial well-being. Class III deficiencies are those deficiencies that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practical physical, mental, or psychosocial well- being. "Class" or "classification" relates to the nature of the deficiency.
Also, effective May 15, 2001, each classification must also be designated, for purposes of assigning a fine, as having an "isolated," "patterned," or widespread" scope. "Scope" addresses the pervasiveness of the deficiency designated as Class I, II, or III. See Section 400.23(8), Florida Statutes.
In this case, the parties do not so much dispute that deficiencies were found, but the controversy is as to the nature (class) and scope which should have been assigned.
June 15, 2001 Survey: Generally
The June 15, 2001 Survey is significant because the Tags cited therein give rise to AHCA's assertion that, pursuant to Section 400.023(8)(a), Florida Statutes, the Agency may double the fine assessed relevant to the July 30-31, 2001 Survey.
Agency Surveyor Cheryl Williams was the sole surveyor on the June 9, 2001, survey. The survey document dated June 15, 2001, named Tags F224 (formerly F223), and F226, which were classified as Class II deficiencies. (See Findings of Fact 5-7).
June 15, 2001 Survey: Tag F224
Based on interviews of staff, a review of resident clinical records, and the "unusual incidents" tracking system, the surveyor cited Tag F224, as a Class II deficiency, for failure to develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property, because the facility failed to protect each resident from physical and sexual abuse as required by law.
The evidence is clear that written policies and procedures were in place at Oakview on June 15, 2001. However, two incidents must be examined to determine if the written policies and procedures were adequately implemented.
On June 9, 2001, Resident 2 (a 72-year-old male diagnosed with dementia and cognitive and memory impairments) and
Resident 1 (a 71-year-old female with a form of dementia and a history of socially inappropriate, i.e., sexually aggressive behaviors) were spotted by a Certified Nursing Assistant (CNA) in Resident 1's bed at approximately midnight, during regular rounds. The incident was written up in nurses' notes and tracked through the incident tracking system as "intercourse" and/or "sexual assault." It was reported by Oakview to the Abuse Hotline, as the facility is required to do, but with an eleven- hour delay. Oakview also reported the incident to the Sheriff's Department, which investigated and declined to prosecute. It became a "three-day wonder" in the local newspaper.
The evidence concerning this incident does not support AHCA's allegation that the incident amounted to a "sexual assault," or even intercourse. When discovered, the couple were in Resident 1's bed. Resident 1 was not resisting the male resident physically or verbally. Resident 2's pants were down to his knees, and he was attempting to pull them up. Resident 1 was raising her clothing, exposing herself from the waist down. Resident 1's hips were elevated, with her feet and shoulders on the bed. The male resident, Resident 2, remarked, "I'm so sorry," as he exited the room. When Resident 2 was removed, Resident 1 described him as "such a nice man."
A medical examination of the female resident the next day did not reveal any physical trauma associated with sexual
assault, and a psychiatric examination two days later did not reveal any distress as a result of the incident.
Immediately after the sexual incident, Respondent Oakview placed the male resident on a 15-minute cyclical observation schedule for several days during the investigation, and moved the residents to rooms more distant from each other. Originally, they had been across the hall from each other. There is no evidence of any additional contact between these residents, although both were ambulatory.
Oakview also investigated the matter by interviewing staff and family members of the residents. Since her admission to the facility on May 15, 2001, there had been several times when Resident 1 had made sexual advances toward male residents. She was described as "hyper-sexual and disinhibited [sic]," frequently attempting to climb into bed with male residents, touching males inappropriately, and making sexually inappropriate remarks towards males. During the investigation, Resident 1's husband explained that she had been sexually active up until her admission, and he expressed regret if the June 9, 2001, incident were her fault.
Resident 2, after admission to Oakview on May 23, 2001, had also acted "inappropriately" by masturbating in the presence of female CNAs who were giving him a shower. This conduct was recorded in facility records and occurred during the initial care
planning period following his admission. As a result of this conduct, his care plan identified his "sexual [behavior] inappropriate towards staff" (emphasis supplied) and he was assigned two CNAs for bathing purposes. Social services progress notes dated June 10, 2001, revealed that Resident 2 had been sexually inappropriate to the nursing home staff at the dialysis center the day previous to the sexual incident with Resident 1, at midnight on June 9, 2001. Prior to the June 9, 2001, sexual incident with Resident 1, there were no indicators that Resident
2 had ever exhibited any sexually or socially inappropriate behavior toward other residents.
In hindsight, it may have been unwise to place Resident 1 near any male patient's room, but the June 9, 2001, sexual involvement of these residents seems to have occurred very shortly after both arrived and when both were assumed to be asleep in separate rooms. It was not to be expected based on the facility's experience with them in the interim, and the entire episode seems to have been mutually consensual. Also, facility staff appropriately and effectively intervened as soon as anyone was aware of the June 9, 2001, sexual situation. When the surveyor recorded this event as a tag, she was not aware the male also suffered from dementia, as did the female, and that element weighed in her decision to cite the facility.
The second incident cited by AHCA under Tag F224 in its June 15, 2001, survey document is a confrontation which had occurred between Resident 3 and Resident 4 on June 14, 2001.
Resident 4 had been identified by Oakview as an aggressive and angry resident who had a tendency towards confrontation with all other residents. His aggressive characteristics had been care planned and interventions had been developed for his aggressive behavior. Staff were aware of the planned interventions and that his conduct would require constant intervention and redirection by staff. Accordingly, staff carefully monitored Resident 4's whereabouts and proximity to other residents.
The confrontation on June 14, 2001, occurred when the wheelchairs of Residents 3 and 4, who lived on opposite wings of the facility, came in contact as they came around a hallway corner from different directions. Usually, staff could predict when Resident 4 would be returning from the dining room and station themselves to dissuade confrontations with people he met on the way. On this occasion, Nurse Sokevitz came around the corner just a few seconds late. Resident 4 had already struck- out at Resident 3, initiating a territorial dispute. Staff immediately intervened, and the residents were separated and taken to different areas of the facility. Neither resident
suffered any serious injury. There were no other confrontations between these two residents.
June 15, 2001 Survey: Tag F226
Tag F226, as a Class II deficiency, was assigned by the surveyor because the "intercourse" incident was not reported by Oakview to the Abuse Hotline for approximately 11 hours, whereas the facility's plans in place called for immediate reporting.
The evidence suggests that the Abuse Hotline, as part of its protocol, refuses to accept a complaint by a third party (the facility) of alleged resident-on-resident abuse, and that everything that could be done to "protect" each resident was being done between discovery of the residents in bed together and successful reporting of the incident.
June 15, 2001 Survey: Tag F324
This survey also charges Tag F324, as a Class III deficiency, because the facility allegedly did not ensure that each resident received adequate supervision and assistance devices to prevent accidents, and again is based on Resident 1 (female) having been "sexually assaulted" by Resident 2 (male) on June 9, 2001, and Resident 3 having been physically assaulted by Resident 4, on June 14, 2001, and also upon an allegation of insufficient staff.
July 30-31, 2001 Survey: Generally
Agency surveyor Jan Rebstock was the sole surveyor for the July 30-31, 2001 Survey. Ms. Rebstock's testimony focused on Tags F224 (formerly Tag 223), F324, and F490, which formed the respective bases of paragraph (3)(a), (b), and (c) of the Administrative Complaint.
July 30-31, 2001 Survey: Tag F224
Based on resident interviews, clinical record review, resident observation, staff interviews, and review of the facility's "fall" tracking tool, AHCA alleged that Oakview did not take prompt and/or adequate measures to assure that residents were protected against verbal abuse in one case (Resident 8), resident-on-resident abuse in one case (Residents 1 and 2), and potential repeat physical (sexual) abuse in another case (Resident 6).
In a resident interview during the July 30-31, 2001, survey, Resident 8 stated that "I have accidents" and that a nurse who worked on the weekends called her "pissy" and "stupid" and yelled at her when she was not in her room for medications. The resident also stated that such remarks hurt her feelings and that she had reported the occurrences to the Director of Social Services. The Director of Social Services told the surveyor that the resident had spoken to her on Tuesday, July 24, 2001, about verbal abuse on a different subject by the same weekend nurse.
The allegation of verbal abuse had not been investigated as of Monday, July 30, 2001.
The surveyor's concern was that the six-day delay in investigation created the potential for repeated verbal abuse. The delay from Tuesday to Monday is a considerable delay and had the effect of exposing Resident 8 and other residents to further abuse by the nurse on the intervening weekend. The facility's excuse for the delay was that its Director of Social Services had been out of the facility on sick leave for most of the intervening time. It is probable that it was necessary to interview the nurse before firing her, but the Director could have assigned the investigation to someone else before going home sick. The offending nurse was, in fact, fired August 1, 2001, after the survey pointed out the problem.
The surveyor read the records as indicating that Resident 6 (apparently the sexually active female No. 1 of June 9, 2001), and not the male, had previously been moved to another part of the facility, as part of the corrective action plan in response to her alleged sexual abuse by male Resident 7 (the sexually active Resident No. 2 of June 9, 2001), and then
the female was briefly removed to a hospital and returned to the Oakview facility. On July 30, 2001, during a tour of the facility, the surveyor observed Resident 6/1's room was only a few doors down from Resident 7/2's room. Resident 7/2 was now
documented as having "sexually assaulted" the female on June 9, 2001.
Although the undersigned accepts that, in fact, the facility considered the male the aggressor and moved him, there is confusion in the two surveys as to which gender allegedly sexually assaulted the other and which had to be removed to another bedroom. The testimony attempting to identify the room numbers of Residents 6/1 and 7/2, also is less than clear. However, a schematic of the facility does not reveal that these randy Septuagenarians were assigned to rooms near each other as of July 30-31, 2001. While they were assigned respectively to rooms 76 and 79 at the time of the original incident on June 9, 2001, the proximity of their rooms on July 30-31, 2001, does not appear to be a problem. By July 30-31, 2001, Ms. 6/1 was also medicated to reduce agitation.
Based on clinical record review and facility fall tracking records, Petitioner AHCA also alleged under Tag F224, that Oakview did not provide adequate supervision and/or effective interventions to prevent injury from resident-on- resident physical abuse for Residents 1 and 2 on July 20, 2001, as more fully described below, under Tag F324.
AHCA contends, under Tag F224, that the facility's failure to maintain interventions, such as keeping Residents 6/1 and 7/2 apart, created the potential for repeat physical and
sexual abuse and that the failure of the facility to timely investigate both the allegations of verbal abuse and the incidents of physical and sexual abuse created a potential for repeat abuse and was a serious threat to the health and safety of the residents at the facility.
July 30-31, 2001 Survey: Tag F324
Clinical records revealed that on July 17, 2001, Resident 2 and Resident 3 had been found by nurses to be fighting with each other in the secured unit. The care plan for Resident 2, dated May 30, 2001, documented a need to monitor Resident 2 for aggression against other residents and staff.
Clinical records review of Resident 1 also revealed that on July 20, 2001, Resident 1 had two altercations, within approximately an hour of each other, with Resident 2 on the secured unit patio, and these altercations resulted in Resident 1's sustaining a laceration to the left side of his "skull" and bruising to the ribs, requiring his transfer to an
emergency room. In the emergency room, he was evaluated and had sutures to his scalp, but he was not seriously enough injured to be admitted to the hospital. There is no evidence of other altercations between these two residents. Surveyors faulted staff for allowing Residents 1 and 2 to get back together within less than an hour. These two July 20, 2001, altercations also were part of the F224 Tag, above.
Under Tag F324, Oakview is charged with failing to implement effective and timely intervention of Resident 2, known by the care plan and July 17, 2001 incident, for aggressive behavior, and failing to provide adequate supervision within the secured unit so as to prevent the subsequent altercations between Residents 1 and 2 on July 20, 2001, the second of which resulted in serious injury to Resident 1.
Testimony of Ms. Sokevitz, L.P.N., who was on the scene of the July 17, 2001, altercation, shows that incident was no more than a confrontation with threats and fist-waving by Resident 2 at Resident 3, who also was easily aggravated. At that time, Resident 2 was removed to the patio and counseled. As an extra precaution, Resident 3 was moved out of the secured unit to another wing overnight. Resident 1 forgot what happened, and Resident 2 was able to feel less belligerent after counseling. She explained that monitoring, intervening, and redirecting Resident 2 was a constant effort for staff.
Clinical record review also revealed that Resident 8 was at risk for falls. Care plan documents dated May 1, 2001, indicated that the resident should not be allowed outside alone and was to wear a "wander guard," an electronic device worn on the arm to alert staff to the whereabouts of a resident and to prevent that resident from leaving the facility unattended.
However, a wander guard is not fail-safe. It is
possible for some persistent residents to disable the wander guard system by removing the arm band.
Nurses' notes on May 4, 2001, documented that Resident 8 was found lying outside on the facility's west wing patio, apparently having slid from a chair. Notes dated
May 24, 2001, document that Resident 8 was found on her back on the west wing patio, and was then transported to a local hospital for evaluation. Another fall on the patio was documented as her being found there on July 10, 2001. Notes on July 11, 2001, document that the resident lost balance and fell outside on the patio while trying to open the door. On July 12, 2001, the resident complained of severe pain when moving her shoulder.
Subsequent x-rays revealed that she had a broken arm. There is no evidence besides the connotation of the words in the notes of "found" and "apparently" to support a belief that Resident 8 was alone on the patio when she fell on May 4, May 24, and July 10, but that is sufficient. The same notes also suggest Resident 8 was not alone on July 11, 2001, when she fell while opening the door. On July 31, 2001, the surveyor observed Resident 8 not wearing a wander guard as called for in her care plan. A review of the clinical records not available to the surveyor revealed that the wander guard had been discontinued by doctor's order on July 25, 2001, on the 11:00 p.m. to 7:00 a.m., shift. Oakview is charged with failing to implement Resident 8's care plan by
providing adequate staff supervision of her while she was on the patio during the 3:00 p.m. to 11:00 p.m. shift, which resulted in repeated falls and subsequent injury. The concern that the surveyor expressed was that use of the wander guard and closer supervision by a one-on-one methodology when Resident 8 went to the patio "may have prevented" her falls and injuries.
Resident 8 was an alert and oriented 40 years' old independent woman, with no significant cognitive impairments, who was identified by the facility as being at risk for falls. The facility planned various interventions for Resident 8, including one that she should "never go outside alone and alert nurse when going outside to smoke." She was also to use a wander guard system to alert staff when she was leaving the building, but the wander guard was later discontinued, because she was not an elopement risk and was entitled to come and go from the facility at liberty. In fact, Resident 8 regularly left the facility, signing herself out as "responsible person."
The care plan was that Resident 8 should "never go outside alone." Testimony indicated that Resident 8 was supposed to notify staff when she was going outside. Apparently, she was unreliable in this regard. The facility submits that it could not force Resident 8 to notify staff or prevent her from coming and going as she pleased to the patio.
Since four falls occurred while Resident 8 was ostensibly wearing a wander guard, one has to guess if the wander guard was not working or if staff were alerted by the wander guard and did not move fast enough to the patio to prevent these falls on May 4, May 24, July 10, and July 11, 2001. If staff were present on July 11, 2001, that still had not prevented the fall while opening the door. Since the wander guard seems to have had no effect on preventing the four falls, its discontinuance on July 25, 2001 was not unreasonable, for the reasons stated in Findings of Fact 45-46.
The surveyor did not suggest that the facility was required to be an absolute insurer that Resident 8 not fall, but felt that someone being with her or the wander guard in place "might have" prevented the falls. Since all Resident 8's falls occurred on the patio, and she did not alert staff when she was going out there, the facility's remaining options come down to either a wander guard, which had proven ineffectual; constant one-on-one monitoring of Resident 8's location by a staff member; or stationing a staff member on the patio at all times. Due to the personnel and cost-efficiency problems inherent in 24-hour per day, one-on-one monitoring of residents, the Agency seems over-critical of the treatment of Resident 8 within Tag F324.
Also cited under Tag F324 is the loss and recovery of certain patients. Clinical record review by the surveyor of
cognitively impaired residents' records revealed that Residents 10, 11, and 12 left the facility during the 3:00 p.m. to
11:00 p.m. shift, without staff being aware that they were absent from the facility.
Nurses' notes for Resident 12 document that the resident had attempted to leave the facility on May 8, 2001. The need for a wander guard because of the elopement risk was noted. The wander guard was in place on May 28, 2001, and on June 11, 2001, but on June 13, 2001, Resident 12 walked out the front door of the facility after supper, sometime around 5:45 p.m. The Williston police were notified. Resident 12 was found by the police a few blocks away from the facility and returned. Apparently, the resident was not wearing a wander guard when found.
Resident 10 (female) is severely cognitively impaired.
Her care plan indicated that she needed a wander guard to alert staff of any attempt at elopement. Her care plan also provided that facility staff were to assist her with ambulation and transfers (getting in and out of chairs, etc.), and to monitor her whereabouts frequently. On June 16, 2001, nurses' notes document that Resident 10 apparently went out the door by the dining room, which is near the front entrance, and was later located in a neighbor's yard. Her wander guard was noted to be missing. She was also missing from the facility's East Unit,
according to nurses' notes, on July 23, 2001. She was eventually located in a male resident's bathroom, asleep on the toilet, apparently unharmed.
Resident 11 is severely cognitively impaired. The care plan indicates that he needed to be monitored every shift, daily. Nurses' notes on June 18, 2001, document that Resident 11 eloped from the facility while wearing a wander guard. He was found by the Williston Police Department and returned to the facility unharmed. The resident's wander guard simply did not go off. There was no indication as to how long the resident was missing because the last nursing note was made at 2:30 a.m., on June 18, 2001. On July 25, 2001, nurses' notes documented that Resident
11 was twice found wandering outside the facility and that staff attempts to redirect his behavior were unsuccessful.
The Respondent is charged with failing to provide adequate supervision to prevent cognitively impaired residents from leaving the facility unattended and unnoticed. This was perceived as a serious threat to the health and safety of the residents at the facility.
Consistent monitoring of residents is the standard for preventing elopements. Wander guards are an adjunct to that monitoring. This facility also uses television cameras at every door to prevent elopements. While wander guards and television cameras are not infallible, the number of elopements reported
here is excessive, based on the sample number of files reviewed. Either the facility is not maintaining the effectiveness of its wander guards, or it is not monitoring residents sufficiently to keep wander guards on them.
The July 30-31 Survey: Tag F490
AHCA alleged that, based on clinical record review, staff interview, review of the facility abuse policies and procedures, and review of the fall tracking tool, the facility's administration was not ensuring, that incidences of alleged and actual abuse are thoroughly investigated and documented in accordance with facility policy; that staff immediately report alleged incidences of abuse in accordance with facility policy to enable prompt investigation and abuse prevention; that corrective action/interventions are taken and maintained to prevent further resident abuse; and that there is adequate staff supervision to keep residents safe from harm.
Facility policy is that all suspected verbal and physical abuse are to be investigated immediately, including assessing the resident, interviewing staff and witnesses, and notifying resident families and regulatory agencies as appropriate. Additionally, all employees are to be trained in identifying, assessing and reporting potential victims of alleged or suspected abuse at the time of hire, and annually thereafter. On July 30, 2001, the facility's Staff Development Coordinator
stated to the surveyor that the last annual abuse training had been given on June 15, 2000.
However, in testimony, the surveyor admitted that she had also learned, during the survey, that on July 27, 2001, staff received in-service instruction on dealing with "disruptive behavior."
Interviews of facility management at the July 30-31, 2001, Survey revealed that there was no available duty description for the Director of Social Services position. The Administrator thought the Director of Social Services was responsible for "abuse coordination," and the Director of Social Services thought the Director of Nursing was responsible. The facility policy document states "the Abuse Coordinator for this facility is the Director of Social Services, Director of Nursing, or Designee."
The Administrative Complaint alleges that the F490 Tag on July 30-31, 2001, is a violation of 42 CFR Section 483.75, adopted by reference in Rule 59A-4.1288, Florida Administrative Code, which requires a nursing home to be "administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident." That allegation is based entirely upon the foregoing deficiencies identified elsewhere in the survey relating to investigation and
reporting of alleged abuse (F225), corrective action to prevent further abuse (F224), and adequate staff supervision to protect residents (F324).
The first three examples of alleged deficiency F409 recited in the survey document rely upon Tag F225, which is classified as a Class III deficiency. The fourth example for this alleged deficiency is recited in the survey document at Tag F224, and forms the basis for paragraph (3)(a) of the Administrative Complaint. The fifth example for this alleged deficiency is recited in the survey document at F324 and forms the basis for paragraph (3)(b) of the Administrative Complaint.
Tag F225 was cited in this survey as a Class III deficiency upon the same findings recited in F224 and Findings of Fact 31-36, and cites the falls, the verbal abuse, and the resident-on-resident physical abuses noted supra. plus an additional "physical abuse" by one other resident who allegedly deliberately ran over another resident's toes with his wheelchair.
Also of concern under Tag F225 was the absence of a fulltime qualified social worker required for a facility of more than 120 beds. Oakview was licensed for 180 beds. The population of Oakview on July 30-31, 2001, was only 127.
Tag F490 was assigned because the surveyor felt all other tags cumulatively related to a failure of administration, generally.
There is no credible, weighty, and significant evidence directly related to the "toes" incident, another resident allegedly verbally abused by the weekend nurse, insufficient staff, or the Section 400.147(4) and (7), Florida Statutes, charges related to internal risk management, incident reports, and the need to make notifications and investigations based on required incident reports of abuse, neglect, or harm, within one business day, except for the June 9, 2001, sexual incident, which was reported to law enforcement. It is noted that, with the exception of the verbal abuse reported July 30, 2001, by Resident 8, directly to the surveyor, all knowledge the surveyors gathered was from records of the facility, so internal reports were being made in one form or another.
How the Fines Were Calculated
Tag F224, incorporates 42 CFR Section 483.13(c)(1)(i); Rule 59A-4.1288, Florida Administrative Code; and paragraph (3)(a) of the Administrative Complaint, regarding "staff treatment of residents" and states:
The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.
Tag F324 incorporates 42 CFR Section 483.25(b)(2); and Rule 59A-4.1288, Florida Administrative Code; and paragraph (3)(c) of the Administrative Complaint, regarding "quality of care" and states:
Each resident must receive, and the facility must provide, the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well being, in accordance with the comprehensive assessment and plan of care.
Tag F490 incorporates 43 CFR Section 483.75; Rule 59A-4.1288, Florida Administrative Code; and paragraph (3)(c) of the Administrative Complaint, regarding "administration," and states:
A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.
The fine assessed for July 30-31, 2001, Tags F224, F324, and F490, was $15,000.00, apiece, on the theory these were "widespread" Class I deficiencies.
The assessed fines were doubled by the Agency because the facility had been previously cited for two Class II deficiencies (Tag F224 and Tag F226), during the June 15, 2001, survey investigation.
Also, due to the facility having been cited for three Class I deficiencies during the July 30-31, 2001, survey and two
or more Class II deficiencies in the June 15, 2001 Survey, AHCA subjected the facility to a six-month survey cycle and assessed an additional fine of $6,000.00, totaling all fines out at
$96,000.00.
The Moratorium
The Agency imposed an Order of Moratorium on Admissions (Order) on Respondent facility as of August 10, 2001, pursuant to Section 400.121(5)(a), Florida Statutes. This Order meant that the facility could admit no new residents while it was in effect.
The Order was imposed due to the conditions in the facility found in the July 30-31, 2001, survey. It was felt these deficiencies posed a threat to the health, safety, or welfare of the residents.
The moratorium was lifted on August 22, 2001, when a re-survey showed that, within 22 days, all deficiencies had been corrected.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
AHCA's construction of Section 400.121(9), Florida Statutes, is not persuasive. It is the Agency's duty to go forward and the Agency's burden of proof to prove the deficiencies/violations by clear and convincing evidence, because
it seeks to impose a fine and moratorium. Dept. of Banking and Finance v. Osborne Stern, 670 So. 2d 932 (Fla. 1996).
The significant charges are synopsized as follows: June 15 July 30-31
Tag F224 (Class II) Tag F224 (Class I) Tag F226 (Class II) Tag F324 (Class I) Tag F324 (Class III) Tag F490 (Class I)
Only specific charges within the June 15, 2001, and July 30-31, 2001, Surveys are disputed.
The repetitive nature of some of the survey materials and the statutes and rules charged by the Administrative Complaints make analysis of this case difficult, but the solution is found in the following statutes, applicable to fines and the moratorium.
Subsection 400.121(5)(a), Florida Statutes, provides that:
The agency may impose an immediate moratorium on admissions to any facility when the agency determines that any condition in the facility presents a danger to the health, safety, or welfare of the residents in the facility.
Section 400.23, Florida Statutes, provides for classification of deficiencies according to the nature and scope of the deficiency as follows:
The agency shall adopt rules to provide that, when the criteria established under subsection (2) are not met, such deficiencies
shall be classified according to the nature and the scope of the deficiency. The scope shall be cited as isolated, patterned, or widespread. An isolated deficiency is a deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations. A patterned deficiency is a deficiency where more than a very limited number of residents are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same resident or residents have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the facility. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility's residents. The agency shall indicate the classification on the face of the notice of deficiencies as follows:
A class I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. A class I deficiency is subject to a civil penalty of
$10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the
last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine must be levied notwithstanding the correction of the deficiency.
A class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine shall be levied notwithstanding the correction of the deficiency.
A class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class III deficiency is subject to a civil penalty of $1,000 for an isolated deficiency, $2,000 for a patterned deficiency, and $3,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual
inspection. A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected.
If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed.
Section 400.121, Florida Statutes, provides, in pertinent part:
The agency may deny an application, revoke, or suspend a license, or impose an administrative fine, not to exceed $500 per violation per day, against any applicant or licensee for the following violations by the applicant licensee, or other controlling interest:
A violation of any provision of s. 400.102(1)1;
***
Except as provided in s. 400.23(8), a
$500 fine shall be imposed for each violation. Each day a violation of this part occurs constitutes a separate violation and is subject to a separate fine, but in no event may any fine aggregate more than
$5,000. A fine may be levied pursuant to this section in lieu of and notwithstanding the provisions of s. 400.23. . . .
Section 400.19(3), Florida Statutes, provides, in pertinent part,
. . . The survey shall be conducted every 6 months for the next 2-year period if the facility has been cited for a class I deficiency, has been cited for two or more class II deficiencies arising from separate surveys or investigations within a 60-day period, or has had three or more substantiated complaints within a 6-month period, each resulting in at least one class I or Class II deficiency. In addition to any
other fees or fines in this part, the agency shall assess a fine for each facility that is subject to the 6-month survey cycle. The fine for the 2-year period shall be $6,000, one-half to be paid at the completion of each survey.
These statutes and the rules adopted pursuant to them may be applied to the facts only as proven.
The June 15, 2001, survey involves Tags F224, F226, and F324. Tag F224 is made up of the failure to develop and implement written policies; the facility's handling of the
June 9, 2001, alleged sexual assault; and the June 14, 2001, clash of the wheelchairs, the nature of which the Agency classified as Class II. Tag F226 is based upon the failure of the facility to report the alleged June 9, 2001, sexual assault "immediately," which the Agency classified as Class II. Tag F324 is based on the June 9 sexual incident and the wheelchair incident, to which the Agency has assigned Class III.
Apparently, no scope was assigned to these and no fines were imposed in connection with them. Scope assessment was reserved until the July 30-31, 2001 survey.
No part of F224 (failure to develop plans and policies or failure to implement same with regard to the sexy Septuagenarians or aggressive Resident 4) has been proven. It is a "given" that cognitively impaired adults should be protected by the facility from their own consensual shortcomings. While it is
questionable whether Ms. 1/6 and Mr. 2/7 had the cognitive ability to consent to intercourse, there also is no proof of either intercourse or sexual assault. Likewise, there is no evidence the facility could have reasonably anticipated the June 9, 2001, midnight tryst. As to the belligerent Mr. 4, the
facility had interventions in place, kept him on the secure wing, and did everything possible to avoid territorial battles between the dining room and "home," but sometimes failed. Everybody fails sometime. An isolated incident is insufficient to uphold Tag F224. This same reasoning applies to remove Tag F324 from consideration. Moreover, Tag F324 is merely a reiteration of Tags F224 and F226. But for there possibly being two federal statutes and two Agency rules which track one another, there is no reason to put the facility in "double jeopardy." Tag F324 should be eliminated. Tag F226, based on a delay in reporting the sexual incident, is a puzzle. The facility has a duty to report "immediately." "Immediately" is not eleven hours after the fact. However, if the Agency will not accept the report, what is the facility to do? Reports did go to law enforcement, and everything that could be done to assess and protect Residents
1 and 2 was done. Tag F226 also should be eliminated.
Having established that the June 15, 2001, survey should not have cited Tags F224, F226 or F324, no scope need be assessed and no fine is applicable to that survey.
The July 30-31, 2001, Survey assigned Tags F224, F324, and F490. The Agency assigned Tag F224 a Class I deficiency based upon the verbal abuse of one resident by the weekend nurse; proximity of the rooms of the residents who had been sexually active on June 9; and the two altercations between Residents 1 and 2 on June 20, resulting in Resident 1 needing scalp sutures. Tag F324 was assigned a Class I status on the basis that the fight between Residents 2 and 3 on July 17 should have been prevented and should also have caused staff to prevent the two July 20 fights between Residents 1 and 2, wherein Resident 1 was injured; the four falls of Resident 8; and the elopements of Residents 10, 11 and 12. Tag F490 is based on a failure to hire, train, and staff to handle abuse.
The verbal abuse, and the delay in investigating it, was proven; the "dangerous proximity" of the couple involved in the June 9, 2001, sexual incident was not proven. The two altercations of Resident 1 and Resident 2 within one hour were proven, and the evidence suggests that facility staff knew the antagonists should have been kept apart longer than an hour to prevent recurrence. Overall, this "lumping together" of events best fits a Class II category with a "patterned" scope. The incidents themselves are dissimilar but enough residents were involved to fit that category of "scope."
As to Tag F324, the July 17, 2001, fight between Residents 2 and 3 seems to have been handled remarkably well. That method should have been repeated on July 20, 2001, see supra. The evidence is not persuasive that anything more could have been done to prevent Resident 8's falls. The elopements of Residents 10, 11, and 12 are, however, sufficient in and of themselves to prove this is a widespread Class I deficiency.
Respondent argues eloquently that the F490 Tag is just a repetition of Tag F225, rated as Class III, and all other charges and constitutes a sort-of "double jeopardy catch-all." However, the surveying community's view is more persuasive that a facility administrator bears ultimate responsibility for hiring, training, and oversight. Nonetheless, if Class III was sufficient for F225, it is sufficient for F490, instead of the Class I rating assigned by the Agency. So many aspects of all the residents' lives are impacted by a failure to oversee quality assurance and abuse investigation that the scope assigned should be "widespread."
Therefore, Tag F224 constitutes a Class II, patterned deficiency ($5,000); Tag F324 constitutes a widespread Class I deficiency ($15,000); and the F490 Tag constitutes a Class III widespread deficiency ($3,000).
Because there is now no Class I or Class II deficiency on the June 15, 2001 date, none of the foregoing fines may be doubled.
Since a Class III deficiency is not to be fined if corrected within the time specified and correction was achieved August 22, 2001, the $3,000 fine for F490 should not be imposed.
Sections 400.19(3) and 400.121, Florida Statutes, provide fining methodologies which are discretionary with the Agency. The Agency has chosen the method provided in Section 400.23(8), Florida Statutes, for imposing fines, and that method will not be disturbed.
94. The single Class I deficiency on July 30-31, 2001, is sufficient cause to invoke the moratorium pursuant to Section 400.121(5)(a), Florida Statutes, and to impose the six-month survey cycle, pursuant to Section 400.19(3), Florida Statutes. Accordingly, that $6,000 fine is appropriate.
Upon the foregoing findings of fact and conclusions of law, it is
RECOMMENDED the Agency for Heath Care Administration enter a single final order which:
Upholds the moratorium and six-month survey cycle in DOAH Case No. 01-4128; and
Imposes the foregoing fines totaling $26,000 in DOAH Case No. 01-4129.
DONE AND ENTERED this 5th day of June, 2002, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
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 5th day of June, 2002.
ENDNOTE
1/ One of the statutes and rules charged against Respondent is Section 400.102, Florida Statutes, but without designating any Subsection or any of the six paragraphs under Subsection (one).
COPIES FURNISHED:
Michael P. Sasso, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Suite 310-G
Tallahassee, Florida 33701
Alfred W. Clark, Esquire
117 South Gadsden Street, Suite 201 Post Office Box 623
Tallahassee, Florida 3201-0623
Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3116 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 | Document | Summary |
|---|---|---|
| Feb. 17, 2003 | Agency Final Order | |
| Jun. 05, 2002 | Recommended Order | First application of Section 400.23(8)(2001), effective May 15, 2001, provisions assigning class and scope of nursing home deficiencies. Single Class I is sufficient for moratorium. Agency selection of 400.23(8) for fine calculation will not be disturbed. |
