vs. )
PINEHURST HEALTH CARE ) ASSOCIATES, LLC, d/b/a SEAVIEW ) NURSING AND REHABILITATION ) CENTER, )
Respondent. )
Case Nos. 02-1585
Pursuant to notice, a formal hearing was held in this case before Florence Snyder Rivas, Administrative Law Judge, Division of Administrative Hearings, on August 13-14, 2002, in Fort
Lauderdale, Florida.
For Respondent: Donna H. Stinson, Esquire
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
By Administrative Complaint dated June 12, 2002, Petitioner (Petitioner or AHCA) notified Respondent (Respondent or SeaView) of its intent to change Respondent’s license rating from standard to conditional effective February 8, 2002, and to impose a $25,000 fine based upon AHCA's finding that SeaView had violated various regulatory requirements. Respondent timely requested an administrative hearing.
At hearing, AHCA presented the testimony of seven witnesses and submitted Exhibits 1-14, 16, and 18-20 into evidence, and also submitted one deposition, post-hearing. SeaView presented the testimony of four witnesses and submitted Exhibits 1 through 9 into evidence, as well as one deposition. The identity of the witnesses and exhibits and any attendant rulings are set forth in the three-volume Transcript of hearing filed on September 27, 2002.
The parties timely filed Proposed Recommended Orders which have been carefully considered. Throughout this Recommended Order, references to statutes or chapters are to the Florida Statutes (2002), and references to Rules are to the Florida Administrative Code (2002).
Whether SeaView was properly issued a conditional license and should pay an administrative fine for violation of
regulations at the time of surveys conducted on February 8 and February 21, 2002.
AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7). SeaView is a licensed nursing home located in Pompano Beach, Florida.
AHCA conducted a survey of SeaView on February 8, 2002, and alleged that SeaView violated the standards of Section 400.022(1)(l), and Rule 59A-4.109(1)(c)2, and 3, which relate to the obligations of a nursing home to supervise residents to assure their safety.
It is undisputed that during the survey period, two residents were outside the facility, out of the company of staff, for brief periods of time. AHCA contends that these incidents demonstrate that SeaView failed to adequately supervise these residents, thereby placing them, and one other resident, “at risk of serious injury, harm, impairment or death.”
AHCA also asserted that SeaView failed to adequately implement policies and procedures for investigating, reporting, and preventing allegations of possible neglect in violation of Section 400.022(1)(l) and Rule 59A-4.109(1)(c)2, by failing to report an incident to the abuse registry, failing to review a resident’s records as part of its investigation, failing to
interview sufficient people as part of its investigation, and failing to take corrective action.
AHCA is required to rate the severity of any deficiency identified in a survey. AHCA assigned both of the identified deficiencies a Class I rating. This means that the deficiency “has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility.” Section 400.23(8)(a).
On a follow-up visit on February 21, AHCA again cited the same violations as Class I deficiencies.
The charges arising out of the February 8 survey revolve primarily around a resident referred to by the parties as G. D. At the time of his admission to SeaView in September 2001, G. D. suffered from Alzheimer’s disease and alcoholic dementia.
It was SeaView's practice to place cognitively impaired residents such as G. D. on the second floor of the facility. SeaView's management felt that the second floor was a more secure location for individuals like G. D. who, on account of their impairments, were considered to be at risk for attempting to exit the facility without staff knowledge or supervision, also known as "elopement."
Like many Alzheimer's patients, G. D. was confused, often agitated and combative, and prone to wander. His care
plan therefore employed management practices typically recommended by medical professionals for the caregivers of Alzheimer's patients, i.e. checking on him every hour, encouraging his family to bring in personal possessions, and involving him in activities of his liking, etc.
G. D., like many Alzheimer's patients, was unable to fully benefit from activities. He was inclined to wander in and out of activities and to verbally interrupt them. He was at times restless and resistant to care. He was on medications which produced side effects which may have negated their beneficial effects. He tended to walk around the hallways aimlessly and try to push the alarmed doors open.
Staff at SeaView, aware of these behaviors, appropriately contacted G. D.’s physician in December 2001, to obtain an order for a new psychiatric consult. This resulted in the addition of a new medication. Thereafter, nursing notes on January 7, 2002, indicated that G. D. was less aggressive and less agitated.
Shortly before 8:00 p.m., on January 9, 2002, G. D. was being attended to by a certified nursing assistant (CNA) who left him briefly to attend to another resident. G. D. went to the nurse’s station, interacted with the nurse there, and left in his wheelchair. Less than ten minutes later, the CNA tried unsuccessfully to locate him. The nurse and CNA looked
throughout the second floor, and when they still did not find him, went downstairs where a visitor who was just leaving motioned through a window that he was outside. The staff went out and found him tipped over on his right side, in his wheelchair, about 6-8 steps from the front door and near the bottom of concrete steps leading to a second floor exit door. He was alert and spoke, and said he was fine and that he fell from “way up top.”
Staff checked G. D. and called 911. G. D. was taken by ambulance to a hospital. The neurosurgeon who was consulted documented that there was no evidence of head trauma.
A CT scan was performed which did show that G. D. had old, chronic subdural hematomas (internal bleeding) on both his right and left sides, with a recent bleed into the one on the left. There is no evidence regarding when or how G. D. suffered the hematoma. The evidence did establish that hematomas can occur in the absence of significant trauma, and can even result from a strong sneeze or cough.
The CT scan revealed no evidence of significant head trauma, however, such as swelling, which would be expected to be present with a severe blow.
G. D. died three days later of the hematoma.
It is impossible to know how G. D. was able to exit the building. At first, SeaView concluded, largely on the basis
of his statement, that G. D. had fallen down the outside stairs from the second floor. SeaView staff revised its opinion on further consideration, and concluded that G. D. was somehow able to make his way down the elevator to the first floor, and then exit the building unnoticed.
In reaching this conclusion, SeaView noted that the upstairs door had a 15-second delay mechanism and alarm, which had to be manually turned off by staff once activated. No alarm was heard or deactivated, and a check revealed that the mechanism was working. Shortly after the incident, staff exited the upstairs door and the alarm sounded. AHCA’s investigation determined that all doors were in working order and in compliance with all life safety code requirements.
Neither the stairway nor the wheelchair exhibited any damage as would be expected from a fall down the steep, concrete stairs, and G. D. himself showed no external signs of injury except a skin tear on his arm.
The evidence established that the incident occurred just prior to 8:00 p.m.; a time when staff were no longer present in the common areas, as they were putting residents to bed, and just before the front door alarm was activated for the night. From those facts, SeaView reasons that "the most likely means of exit would have been for G. D. to negotiate the elevator and exit through the front door of the facility."
However, as SeaView concedes, there was no evidence that G. D. had ever used the elevator before; the idea that he was able to do so on this occasion taxes credulity, and in any event is also not supported by evidence.
In charging SeaView with failing to adequately supervise G. D., AHCA denies that it is advancing a strict liability standard in cases where a patient is successful in exiting a building. Rather, AHCA contends that SeaView's failure to sufficiently supervise G. D. is proven by the fact that he was outside the building long enough to allow a fall from his wheelchair.
The dispute may be one of semantics. AHCA concedes that escape is a known and common risk with dementia patients in nursing homes; that the law prohibits physical or medical restraint of residents; and there is no combination of interventions which are effective in all circumstances to prevent escape; and, most significantly, that there is no standard of practice which requires one-on-one supervision.
AHCA alleged that SeaView was on notice that G. D. had escaped the facility on two prior occasions. This allegation was not supported by evidence, nor was there any evidence of prior incidents of escapes by other residents at SeaView.
AHCA additionally charged that SeaView violated a duty of reporting by not calling the state's elder abuse registry to
report G. D.'s escape. However, the evidence established that SeaView did in fact notify AHCA and filed required reports with the agency. Sea View's administration concluded that neglect did not exist, and thus there was no need to make the additional report to the registry. The decision was based upon the short time during which G. D. was out of view of staff, and the immediate attention given to finding him. Reasonable nursing home administrators might have erred on the side of reporting, but there is no evidence to suggest that the course followed by SeaView was outside the bounds of legitimate professional judgment.
Immediately following the incident involving G. D., when SeaView's administration was of the view that he might have exited from the second floor door, SeaView had an additional alarm installed to ensure audibility.
AHCA cited concerns regarding two additional patients, referred to by the parties as Residents number 3 and number 4, in the February 8 survey. As to these patients, AHCA charged deficient practice in that portions of their care plans directed to the possibility of escape did not contain a time frame for monitoring their whereabouts, and the monitoring was not documented. With respect to Resident number 3, AHCA also asserted that the approach of trying to redirect the resident was faulty, as the records reflected that often he did not
respond to redirection. A surveyor also testified that she noted two times when Resident number 3 was unobserved by staff, but this testimony was effectively discredited upon cross- examination.
The evidence failed to establish either the insufficiency of the patient care plans or the failure by SeaView to implement appropriate care plans. The inclusion of a time frame for monitoring does not ensure that a resident will be unable to elude staff. G. D.'s care plan, for example, contained a requirement that he be checked hourly. In practice, he was in contact with staff far more often.
AHCA alleged that the monitoring of residents was not adequately documented. However, the evidence failed to establish the existence of a legal or industry standard which suggests that routine observation, or monitoring, of a resident should be documented.
As a result of the February 8 survey, AHCA required SeaView to move all residents who might have been at risk for elopement to the first floor. Additionally, AHCA required SeaView to place monitors at all exits to the facility, whose sole purpose was to monitor the exit doors, all of which, except the front door, were alarmed and on a delay mechanism. AHCA also required SeaView to increase the delay mechanism from 15 to
30 seconds.
SeaView implemented all these measures. However, SeaView was opposed to moving dementia and wandering residents from the second floor, which was more secluded and secure than the first floor. SeaView complied against its better judgment, because AHCA threatened to take action against the administrator’s professional license if he did not comply.
At the February 21 follow-up survey visit, the surveyors originally concluded that SeaView had corrected all deficiencies. However, after SeaView’s Director of Nursing informed them that a resident referred to by the parties as Resident number 7, or A. D., had been found outside a doorway the previous day. AHCA changed its conclusion and again asserted that both deficiencies remained at a level warranting conditional licensing.
On February 20 A. D. was noted to be just outside the staff entry door near the laundry room. He was outside no longer than five minutes, and the evidence suggests that the housekeeping director escorted him outside.
No evidence was presented to explain why the housekeeping director escorted the resident outside, or how the facility addressed this lapse. This gap in the evidence is troubling, but what is known about the incident does not support a finding of inadequate supervision inasmuch as the exit
apparently took place with the assistance of staff, and was promptly remedied.
The only direct evidence concerning what supervision
A. D. received came from an AHCA surveyor, who testified that while she observed A. D., and he was up and about, staff would take his hand and redirect him when he approached doorways.
AHCA asserted that the care plans for A. D. and a person referred to by the parties as Resident number 2 were deficient because, while there was a direction to monitor the residents, the care plans did not include the “type, frequency, and duration” of such monitoring. Again, the evidence established that monitoring involves visual or auditory contact by staff sufficient to assure that the patient's whereabouts are accounted for at reasonable intervals appropriate to the individual's circumstances. There is no regulation, and AHCA cited to no standard, which would require such information in a care plan. Significantly, similar care plans have been reviewed and approved by AHCA in subsequent surveys at SeaView.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
In this case, AHCA has the burden of proving the basis for changing Sea View's licensure rating to conditional and the
basis for imposing an administrative fine. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 789 (Fla. 1st DCA, 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977).
For the reasons set forth above, AHCA has failed to support the serious sanctions it seeks to impose. The proof surrounding G. D.'s elopement is insufficient to support Petitioner's allegation that he was inadequately supervised, unless a strict liability standard is applied. There is no basis to do so absent any evidence of an industry standard of care which SeaView failed to comply with.
It is an unfortunate fact of life that individuals who are institutionalized in secure facilities under suicide watch protocols are able to take their lives. The record in its entirety supports the conclusion that SeaView fulfilled its legal obligations to supervise G. D., and his exit occurred in spite of such supervision. See Beverly Enterprises - Florida,
Inc. d/b/a Beverly Health and Rehabilitation Center – Rio Pinar v. AHCA, Case No. 97-2017, Final Order rendered 7/2/1998, in which the agency found that the requirement for supervision does not mandate one-on-one supervision, and that accidents can occur even when appropriate supervision is provided.
Similarly, the record as a whole fails to support the charge that residents other than G. D. were inadequately supervised so as to create a likelihood that they would suffer serious injury, harm, impairment, or death.
There was no evidence to support the charge that SeaView failed to implement its policies and procedures regarding investigation, reporting, or prevention of abuse and neglect with regard to the incident involving G. D.
Neither was the evidence sufficient to establish that other residents were at risk because their care plans were
insufficient.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the AHCA enter a final order dismissing the Amended Administrative Complaint with prejudice.
DONE AND ENTERED this 23rd day of October, 2002, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2002.
Lealand McCharen, Agency Clerk Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop 3
Valda Clark Christian, General Counsel Agency for Healthcare Administration 2727 Mahan Drive
Catherine B. Parks, Esquire Quintairos, McCumber, Prieto
& Wood, P.A.
Donna H. Stinson, Esquire Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
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.
