STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

COMMONS AT LUTHERAN TOWERS,

Respondent.

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) Case No. 02-1904

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case on October 3, 2002, in Orlando, Florida.

APPEARANCES

For Petitioner: Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701

For Respondent: Jay Adams, Esquire

Broad & Cassel

215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether Petitioner, Agency for Health Care Administration, properly found that Respondent, Commons at Orlando Lutheran

Towers, violated the requirements for operating a nursing home contained in 42 C.F.R. Section 483.13(c) and, if such a violation did occur, did Petitioner properly classify it as a Class II deficiency.

PRELIMINARY STATEMENT

On October 23, 2001, Petitioner conducted a survey of Respondent pursuant to the authority contained in Chapter 400, Florida Statutes. As a result of that survey, Petitioner charged Respondent with one Class II deficiency. This was a citation under Tag F225, Staff Treatment of Residents, and was related to Respondent's handling of two incidents of "resident on resident" abuse. The residents at issue were identified in the Form 2567 as Residents 9, 25, and 26. By letter received on March 28, 2002, Petitioner informed Respondent that it had changed Respondent's licensure status from "Standard" to "Conditional" as a result of the deficiency noted in the survey effective October 25, 2001.

On April 18, 2002, Petitioner received Respondent's Petition for Formal Administrative Hearing. On May 9, 2002, Petitioner forwarded a Notice to the Division of Administrative Hearings advising of the request for administrative hearing and requesting the assignment of an Administrative Law Judge to conduct all necessary proceedings. On May 9, 2002, an Initial Order was forwarded to the parties.

On May 23, 2002, the case was scheduled for final hearing on August 8, 2002, in Orlando, Florida. On July 22, 2002, the parties filed a Joint Motion for Continuance. On July 24, 2002, the case was rescheduled for final hearing on October 3 and 4, 2002.

The final hearing was held as rescheduled on October 3, 2002. Petitioner presented two witnesses, Marina Gosselin and Mary Ann Pierce, and offered three exhibits, which were received into evidence and marked Petitioner's Exhibits 1, 2, and 3.

Respondent presented two witnesses, Mary Ricciardi and Kim Boudrie, and offered four exhibits, which were received into evidence and marked Respondent's Exhibits 1, 2, 3, and 4.

At the close of the proceeding, the undersigned Administrative Law Judge requested the production of two documents which had been discussed by witnesses:

1. a decision-making matrix (supplied by Petitioner to Respondent), and (2) a letter from the Department of Children and Family Services purportedly advising Respondent not to report any "patient on patient batteries where no harm is done." These documents were to be filed within 15 days. Following the production of these documents, the parties were to have 15 days to take depositions related to these documents, if necessary.

   On November 5, 2002, Respondent filed the decision-making matrix with the Division of Administrative Hearings and advised

   that it had "been unable, in the exercise of due diligence, to locate the letter requesting that certain incident reports not be reported."

   The Transcript of the proceedings was filed on November 22, 2002, 49 days after the final hearing. On November 26, 2002, due to the delay in filing the Transcript of the proceedings, an Order was entered rescheduling the time for filing proposed recommended orders to December 13, 2002. This date was later extended to December 20, 2002. Both parties timely filed Proposed Recommended Orders, which were thoughtfully considered

   by the undersigned.

   
   

   FINDINGS OF FACT

   
   

   Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made:

   1. Petitioner is the state agency charged with the licensing of nursing homes and the assignment of licensure status pursuant to Chapter 400, Florida Statutes. Petitioner evaluates nursing home facilities to determine their degree of compliance with established state rules as a basis for making the required licensure assignment. In addition, Petitioner is responsible for conducting Federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with Federally mandated statutory requirements. These Federally established requirements are applicable to

      Florida nursing homes pursuant to Rule 59A-4.1288, Florida Administrative Code.

   2. Respondent is a licensed nursing home located at

      
      

      210 Lake Avenue, Orlando, Orange County, Florida.

      
      

   3. As authorized by Chapter 400, Florida Statutes, Petitioner surveyed Respondent to determine whether Respondent was in compliance with applicable state and federal laws and regulations. When Petitioner conducts a survey of a nursing home, it issues a survey report, commonly referred to by its form number, a "2567." If deficiencies are noted in the "2567," they are identified by a "Tag" number which identifies the particular section of 42 C.F.R. 483 which addresses the deficiency. In addition, the survey determines the level of deficiency. As a result, the alleged deficient practice, the particular regulation violated, and the class of the deficiency, are cited in the 2567 survey report.

   4. Petitioner conducted its annual survey of Respondent from October 22 through 25, 2001, and issued a 2567 survey report noting certain deficiencies. Based on an examination of Respondent's records and interviews with Respondent's staff, Petitioner determined that two adverse incidents took place which were abusive and required reporting to the appropriate State authorities pursuant to the Federal regulation contemplated by 42 C.F.R. Subsection 483.13(c)(1); in

      particular, Respondent had failed to report the abusive incidents to appropriate officials within five working days. The survey report noted a Tag F225, which incorporates 42 C.F.R. Subsection 483.13(c)(1). Petitioner determined this to be a Class II deficiency. As a result of this deficiency, Petitioner changed Respondent's licensure status from Standard to Conditional effective October 25, 2001.

   5. Petitioner conducted a "follow-up" survey on December 13, 2001, which determined that the deficiency under Tag F225 had been corrected, and reinstated the Standard licensure status effective that date.

   6. Respondent has a policy statement entitled Resident Abuse/Neglect/Misappropriation of Resident's Property. Number 6 of the policy statement states: "[R]eports of abuse, neglect, or misappropriation of resident property will be reported to the proper State authorities within five (5) days of the incident."

   7. Both incidents took place in Respondent's Alzheimer's unit; this is a 42-bed, dedicated unit that is locked to prevent residents from leaving the unit.

   8. The residents of this unit all suffer cognitive loss to the point that they are no longer able to care for themselves. Typically, they are severely cognitively impaired and are unable to understand what they are doing. Residents are placed in the Alzheimer's unit because their disease has progressed beyond

      that level seen in residents in other areas of Respondent's facilities.

   9. At approximately 3:30 p.m., on October 10, 2001, Resident 26, a female, was discovered in the room of Resident 25, a male. Resident 26 had her pants down to her knees and one side of her incontinence brief was un-taped. Resident 25 had his hand on Resident 26's abdomen.

   10. At the time of the incident, Resident 25 was in his own room and was in a Broda chair with a pelvic restraint. He was fully dressed. Resident 26 was returned to her room where it was discovered that she had a soiled incontinence brief.

   11. The incident was immediately reported by the nurse who discovered it to his supervisors. Contemporaneous notes were entered into Resident 25's records. A late note was entered into Resident 26's medical files on October 15, 2001. An investigation was initiated that included taking written statements from staff personnel involved; informing the Interdisciplinary Team of the incident; preparation of an incident/accident report; and preparation of reports concerning the incident to the facilities' risk manager.

   12. Responsible parties for both residents were notified of this incident on October 11, 2001. Resident 26's physician and the facilities' medical director were informed of this incident. The Incident Report was circulated among appropriate

       staff, and a contemporaneous entry was entered in the Monthly Resident Incident Worksheet.

   13. The incident was not timely reported to Adult Protective Services or Petitioner as required by Federal regulations. After its investigation of the incident between Resident 25 and Resident 26, Respondent determined that no sexual abuse took place, and, therefore, a report to appropriate State authorities within five days of the incident was not warranted.

   14. A second incident took place on September 13, 2001.

       
       

       This incident involved Resident 9 who was hit by another resident. The "aggressor" resident was seen standing over Resident 9, who was seated in a Broda chair, striking Resident 9 on the arms, upper body, and back with her fists and yelling at Resident 9 to stay out of her room.

   15. The "aggressor" resident was returned to her room.

       
       

       Resident 9 was taken to the nurse's station where she was examined and comforted. She remained at the nurse's station for the next two hours where she was monitored. Physical examination noted no red marks, bruises, or apparent injuries.

       Range of motion examinations revealed no limitations.

       
       

   16. The unit manager was informed of the incident, as was the risk manager. A contemporaneous incident/accident report was made. Resident 9's daughter was notified the following day.

       The incident/accident report was reviewed by the Director of Nursing, the Medical Director, and Respondent's Administrator. The incident was contemporaneously reported in the Monthly Resident Incident Worksheet.

   17. The incident was not timely reported to Adult Protective Services or Petitioner as required by Federal regulations. After its investigation of the incident between Resident 9 and the "aggressor" resident, Respondent determined that no actual harm occurred, and, therefore, a report to appropriate State authorities within five days of the incident was not warranted.

   18. No evidence was presented indicating that the conduct of Resident 25, Resident 26, or the "aggressor" resident could have been anticipated or reasonably prevented. Similarly, no evidence was presented indicating that Resident 26 or Resident 9 actually suffered any "physical, mental or psychosocial" harm. However, each incident involved activities which had the potential to cause significant physical, mental or emotional impairment.

   19. Respondent was in substantial compliance with

       
       

       42 C.F.R. Section 483.13(c) in its response to the two incidents reported. The two incidents were immediately internally reported, thoroughly investigated, relatives were notified, appropriate notation was made in patient and institutional

       records, and appropriate preventative and ameliorative action was taken.

       CONCLUSIONS OF LAW

       
       

   20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes.

   21. Rule 59A-4.1288, Florida Administrative Code, reads, in pertinent part, as follows:

       Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference.

       
       

   22. Petitioner has the burden of establishing by a preponderance of the evidence that Respondent violated the requirements of 42 C.F.R. Section 483.13(c). Florida Department

       of Transportation v. J. W. C. Company, Inc., 396 So. 2d 788 (Fla. 1st DCA 1981); Beverly Enterprises-Florida v. Agency for Health Care Administration, 745 So. 2d 1133 (Fla. 1st DCA 1999).

       42 C.F.R. Section 483.13(c) reads, in pertinent part, as

       
       

       follows:

       
       

       * * *

       
       

2. 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).

   
   

3. The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress.

   
   

4. 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.

If Petitioner demonstrates that such violations did occur, it must then demonstrate that such violations constituted a Class II deficiency warranting the imposition of a conditional license.

1. Section 400.23(7), Florida Statutes, provides, in pertinent part:

   1. A standard licensure status means that a facility has no class I or class II deficiencies and has corrected all class III deficiencies within the time established by the agency.

      
      

   2. A conditional licensure status means that a facility, 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, is not in substantial compliance at the time of the survey with criteria established under this part or with rules adopted by the agency. If the facility has no class I, class II, or

      class III deficiencies at the time of the followup survey, a standard licensure status may be assigned.

      
      

2. Section 400.23(8), Florida Statutes, provides, in pertinent part:

   * * *

   
   

   1. 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.

      
      

      * * *

      
      

   2. 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."

   
   

3. Section 400.147, Florida Statutes, requires nursing homes and related health care facilities to develop and implement policies and procedures for investigation, assessment, and reporting of adverse incidents to residents. "Adverse incident," as the statutory definition relates to the two incidents at issue in this case, means: "abuse, or neglect" as defined in Section 415.102, Florida Statutes.

4. Section 415.102, Florida Statutes, provides the following definitions:

   (1) "Abuse" means any willful act or threatened act that causes or is likely to cause significant impairment to a vulnerable adult's physical, mental, or emotional health. Abuse includes acts and omissions.

   
   

   * * *

   
   

   (15) "Neglect" means the failure or omission on the part of the caregiver to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, that a prudent person would consider essential for the well-being of a vulnerable adult. The term "neglect" also means the failure of a caregiver to make a reasonable effort to protect a vulnerable adult from abuse, neglect, or exploitation by others. "Neglect" is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.

   
   

5. The preponderance of the evidence establishes that Respondent had established policies and procedures to address adverse incidents to residents. In the instant case, both incidents were thoroughly internally reported and investigated in accordance with appropriate procedures. Respondent's determination that these incidents were not reportable "to other officials in accordance with State law through established procedures (including to the State survey and certification

   agency)" as required by 42 C.F.R. Section 483.13(c) was a judgment error. Notwithstanding Respondent's determination that no actual harm occurred, the two incidents were "abusive" as contemplated by Florida law. The cited Federal regulation clearly requires reporting of "the results of all investigations." As such, Respondent failed to fully comply with 42 C.F.R. Subsection 483.13(c).

6. Petitioner failed to present sufficient evidence that supports its determination that Respondent's failure to report its investigation of the two incidents warrants a licensure change from Standard to Conditional. No evidence was offered to support the contention that the subject residents' ability to maintain or reach his or her highest practicable physical, mental or psychosocial well-being was compromised. Both incidents in question presented the potential for compromise of the subject residents' ability to maintain or reach his or her highest practicable physical, mental or psychosocial well-being, but neither incident resulted in any demonstrable physical, mental or psychosocial discomfort. The evidence presented supports a determination that Respondent's failure to report as required by 42 C.F.R. Section 483.13(c) warrants a Class III deficiency.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered changing the classification of the deficiency to Class III and eliminating the imposition of the Conditional licensure status effective October 25, 2001.

DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

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 January, 2003.

COPIES FURNISHED:

Jay Adams, Esquire Broad & Cassel

215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302

Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701

Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building, Suite 3431 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.

Docket for Case No: 02-001904

Orders for Case No: 02-001904