STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE MOORINGS, INC., d/b/a THE CHATEAU AT MOORINGS PARK,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
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) Case No. 02-4795
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AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
THE MOORINGS, INC., d/b/a THE CHATEAU AT MOORINGS PARK,
Respondent.
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) Case No. 02-4796
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RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in these consolidated cases on April 1, 2003, in Naples, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For AHCA: Tom R. Moore, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3
Tallahassee, Florida 32308-5403
For The Chateau: Karen L. Goldsmith, Esquire
Goldsmith, Grout and Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011
Winter Park, Florida 32790-2011 STATEMENT OF THE ISSUES
DOAH Case No. 02-4795: Whether the licensure status of The Moorings, Inc., d/b/a The Chateau at Moorings Park ("The Chateau") should be reduced from standard to conditional for the period from July 18, 2002, to August 21, 2002.
DOAH Case No. 02-4796: Whether The Moorings committed the violations alleged in the Administrative Complaint dated November 12, 2002, and, if so, the penalty that should be imposed.
PRELIMINARY STATEMENT
By Notice of Assignment of Conditional Licensure Status letter dated November 12, 2002, The Chateau was notified by the Agency for Health Care Administration ("AHCA") that its Skilled Nursing Facility license had been subjected to a rating change from "standard" to "conditional" as a result of one Class II deficiency found in a licensure and certification survey completed on July 18, 2002. By Administrative Complaint, also dated November 12, 2002, AHCA notified The Chateau of its intent to impose an administrative fine of $2,500 for the Class II deficiency found in the survey completed on July 18, 2002.
The Chateau timely filed a Petition for Formal Administrative Hearing on November 26, 2002, contesting both the conditional licensure and the intent to impose an administrative fine. On December 13, 2002, AHCA forwarded both matters to the Division of Administrative Hearings ("DOAH") for assignment of an Administrative Law Judge and conduct of a formal hearing.
The conditional licensure matter was assigned DOAH Case
No. 02-4795, and the administrative fine matter was assigned DOAH Case No. 02-4796. Without objection, AHCA's motion to consolidate the two proceedings was granted by Order dated January 17, 2003, and the consolidated cases were set for hearing on February 6, 2003. On January 29, 2003, ACHA filed an unopposed motion to continue. On January 30, 2003, the undersigned entered an order granting the motion to continue and re-scheduling the hearing for April 1, 2003.
At the formal hearing, AHCA presented the testimony of Diane Ashworth, a registered nurse specialist for the Agency; Christine Byrne, a registered nurse specialist for the Agency and expert in nursing in long-term care facilities; Steve Emling, a health facility evaluator for the Agency; and Joan Cagley-Knight, a registered nurse consultant for the Agency. AHCA's Exhibits 1, 1A through 16, 18, 20, and 24 through 33 were accepted into evidence.
The Chateau offered the testimony of Regina Driesbach, executive director of Moorings Park; Lily L'Esperance, a registered nurse ("RN"), director of health services at The Chateau, and an expert in geriatric long-term care nursing; Oriaene Celestin, a certified nursing assistant ("CNA") at The Chateau; Diane Lanctot, an RN at The Chateau; Maher Moussa, director of rehabilitation services at Moorings Park and an expert in physical therapy; Mondy Sataille, a CNA at The Chateau; Brian Kiedrowski, M.D., an expert in geriatric medicine; Nancy Lockner, an assistant social worker at The Chateau and an expert in long-term care social work; and Diane Gail Ross, an RN, director of nursing services at The Chateau at the time of the survey, and an expert in long-term care nursing. The Chateau's Exhibits 1 through 6, 8, and 9 were accepted into evidence.
On April 15 and 16, 2003, The Chateau and AHCA, respectively, filed memoranda of law on the admissibility of testimony by witnesses for The Chateau as to out-of-court statements made by the residents whose falls were the subject of the alleged deficiency. By Order dated May 30, 2003, the undersigned overruled AHCA's objection and admitted the testimony.
A Transcript of the proceeding was filed at the Division of Administrative Hearings on May 27, 2003. On May 29, 2003, AHCA
filed a motion to extend the time for submission of proposed recommended orders, which was granted by Order dated May 30, 2003. Pursuant to that Order, both parties filed Proposed Recommended Orders on June 24, 2003.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:
AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes; Chapter 59A-4, Florida Administrative Code.
The Moorings, Inc. is a Florida corporation with its principal address at 120 Moorings Park Drive, Naples, Florida. It is a not-for-profit organization governed by a local board of directors. Moorings Park is a continuing care retirement community.
The Chateau is the long-term care facility at Moorings Park. It is a 106-bed skilled nursing facility located at 130 Moorings Park Drive, Naples, Florida.
The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of
identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency.
One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and IV representing the least severe deficiency.
On July 15 through 18, 2002, AHCA conducted an annual licensure and certification survey of The Chateau to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes.
The survey team alleged several deficiencies during the survey, only one of which is at issue in these proceedings. At issue is the deficiency identified as Tag F324 (violation of
42 C.F.R. Section 483.25(h)(2), relating to ensuring that each resident receives adequate supervision and assistive devices to prevent accidents).
The deficiency alleged in the survey was classified as Class II under the Florida classification system for nursing homes. 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." Section 400.23(8)(b), Florida Statutes.
The deficiency alleged in the survey was cited as a federal scope and severity rating of G, meaning that the deficiency was isolated, caused actual harm that is not immediate jeopardy, and did not involve substandard quality of care.
Based on the alleged Class II deficiency in Tag F324, AHCA imposed a conditional license on The Chateau, effective July 18, 2002. The Chateau submitted a plan of correction, and AHCA performed a follow-up survey indicating that the facility had addressed AHCA's concerns. The Chateau's standard license was restored, effective August 21, 2002. The Chateau's submission of a plan of correction did not constitute an admission of the alleged deficiency.
The survey allegedly found a violation of 42 C.F.R. Section 483.25(h)(2):
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.
* * *
Accidents. The facility must ensure that--
The resident environment remains as free of accident hazards as is possible; and
Each resident receives adequate supervision and assistance devices to prevent accidents. (Emphasis added.)
In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F324." The Agency's allegations in this case involved accidental falls suffered by two residents at The Chateau.
The Form 2567 listed two incidents under Tag F324, one involving Resident 7 and another involving Resident 12. The surveyor observations read as follows (unless otherwise noted, abbreviations and non-standard spellings are reproduced as they appear in the Form 2567):
Based upon record review, observation, and interview the facility failed to ensure that
2 of 16 active sampled residents (#12 and #7) at risk for falls received adequate supervision and assistance to prevent the residents from falling and injuring themselves. This is evidenced by: 1. Resident #12 had a Cerebral Vascular
Accident with Left Hemiparesis. The resident required supervision and assistance for Activities of Daily Living (ADL's) and was assessed to be at risk for falls. The resident was left unattended on the toilet on 7/9/02, fell off the toilet and sustained a fractured left rib. 2. Resident #7 was at risk for falls due to a Cerebral Vascular Accident and was further at risk for falling due to Parkinson Disease [sic]. The resident was left unattended in the bathroom on 5/31/02 and sustained a fractured left hip after tripping over his Foley catheter tubing and falling to the floor.
Findings include:
The medical record for Resident #7 was reviewed on 7/16-18/02. This resident was admitted to the facility on 3/25/02 with diagnoses including: diabetes mellitus, arthritis, cerebrovascular accident (stroke), and Parkinson's disease.
A review of nursing notes dated 5/31/02 revealed the resident had fallen in his bathroom. The note stated the following: "0745 called to Rm CNA reported resident on the floor. Res was brushing his/her teeth @ sink in standing position-- fell backward. Full ROM. No obvious deformity noted. C/O L hip pain. Denies head or back pain. Had prev. fx R hip. Lifted to feet C/O L hip pain. Refused to go to hospital @ this time. Dr. notified of incident new orders received for [x-rays] notified nurse." "1400 Result from x-ray came back @ a Novitis placed L femoral intero chanteric fx. Dr. notified order to send Pt to the ER. Daughter notify agree to keep the Pt room while in the hospital call 911 have Pt sent to ER."
The Hospital Consultation Document dated 5/31/02 was reviewed. It revealed: The chief complaint: "I slipped and fell." "History of Present Illness: Resident with
multiple medical problems, followed by Dr., who today at the nursing home apparently fell and tripped over his Foley catheter while trying to go to lunch, and had a resultant trauma to his left hip and left shoulder, with resultant hip fracture."
The Hospital Admission record dated 5/31/02 showed the diagnosis: "Left intratrochanteric hip fracture. The patient was admitted for opened reduction internal fixation of the left hip."
According to facility records, the resident was readmitted on 6/05/02.
Following the record review, an interview was conducted with the resident on 7/16/02 at approximately 1:30 PM. The resident stated he had fallen on 5/31/02. He stated he started to move away from the bathroom sink and tripped over the Foley catheter (indwelling urinary catheter) tubing that was on the floor. The staff member left him unattended, according to the resident, while the staff retrieved the resident's glasses on the bedside table.
An interview was conducted with the facility's Risk Manager on 7/17/02 at approximately 3:30 PM who stated that no one had interviewed the resident following the accident.
Review of the clinical record revealed a Minimum Data Set (MDS), completed on 4/22/02. This MDS showed the following: The resident was assessed as a 2 (2= Moderately Impaired-- decisions poor: cues/supervision required) for Cognitive skills for daily decision-making. Under section P, Special Treatment and procedures Alzheimer's/dementia special care unit was indicated.
Interview with the facility Social Worker on 7/18/02 at approximately 9:30 AM revealed
the resident's cognitive status had improved so that his capacity was being reviewed for increased cognitive functioning.
Additionally, the resident was assessed for ability to walk in the room (How resident walks between locations in his/her room) as needing extensive assistance by one person. (coded 3/2. 3= Extensive Assistance 2= One person physical assist). Under section J, Health Conditions, "Unsteady gait" was indicated for the resident as well as accidents, "Fell in the past 30 days".
The RAP summary for Falls had the following documentation: "Ambulating with extensive assist of two in PT room. Compromised safety awareness associated with cognitive impairment."
The resident triggered for Falls and a plan of care dated 4/11/02 revealed the following goal: "Resident will not be injured in a fall. Staff are to assist in ambulation and transfer. Anticipate needs as much as possible and place items close at hand."
The resident was assessed as at risk for falls, facility staff responsible for the care and supervision of the resident failed to implement the plan of care by not providing adequate supervision as needed.
Resident #12 was admitted to the facility on 6/25/02 from the hospital. The admitting diagnosis included, but was not limited to: Cerebral Vascular Accident (CVA) with Left (L) Hemiparesis; Status Post fracture T-12 (Thoracic); Seizure Disorder; Systemic Lupus; severe Interstitial Lung Disease; Pulmonary Hypertension and Congestive Heart Failure (CHF).
The facility initially care planned the resident for falls with a goal that the resident would not be injured in a fall. The approaches included: providing
assistance in ambulation and transfer; reminding the resident to use call light for assistance; providing the resident with routine toileting per request of resident to decrease risk and personal protection device to bed and wheelchair.
On 6/25/02 the resident had a physical therapy assessment completed in the facility. The facility physical therapist notes state, "Client is now presenting self with severe weakness of left extremities, decreased balance and poor endurance.
Causing client to be functioning at a very limited activity level. Client also has complete foot drop on L side with mediolateral instability.
Sensation/Proprioception: Noted loss of proprioception in left extremities, which along with present weakness cause client to have no functional use of left extremities at this time. Orientation forgetful at times. Transfers Sit to stand with extensive assist times 2 and verbal cues for posture. Client unable to maintain sitting balance on her own. Sitting posture is round shouldered, head forward position leaning to left side. Client unable to get any support from left lower extremity when standing. Client is at high risk for falls. Client has multifactorial balance problems due to weakness, decreased balance, decreased endurance, decreased vision, decreased proprioception. This was discussed with client and nursing."
On 6/28/02 the facility completed a 5 day Medicare Minimum Data Set (MDS) for the resident which showed the following assessment:
In Section G Physical Functioning and Structural Problems the resident was assessed in G1b as 3/3 (3= Extensive Assistance/ 3= Two+ person physical assist).
In G1c and G1d-- Walk in Room and Walk in Corridor the resident was assessed 8/8 (Activity did not occur during entire 7 days).
In G1i-- Toilet use was assessed as 4/2 (4= Total Dependence-- Full staff performance of activity during entire 7 days).
In G3a Balance while Standing and G3b Balance while sitting-- position, trunk control the resident was assessed as 3/0 (3= Not able to attempt test without physical help and 0= Maintained position as required in test).
In G6 Modes of transfer the resident was assessed in b as using bed rails for bed mobility or transfer, in c as requiring to be lifted manually, and in e as needing transfer aid (e.g. slide board, trapeze, cane, walker, brace).
In Section J Health Conditions and in J4 Accidents the resident was assessed as having fell in past 31 to 180 days.
In Section P Special Treatments and Procedures the resident was noted to be receiving Speech, Occupational and Physical therapy.
Review of the nursing note for 6/29/02 revealed: "1100 hours max assist with all ADLs-- and transfers, alert-- noted to have slid to the floor in the bathroom with CNA in attendance-- lost grip on bar next to toilet, stated banged back of head left side." Further review of the nursing notes revealed: "Daughter notified that mother was with a CNA at the time and that the CNA was assisting her mother with pulling up her pants."
Review of the physical therapy notes dated 7/2/02 revealed: "Left knee will tend to buckle easily if client not concentrating on
what she is doing. Client does show severe loss of proprioception and severe neglect of left upper extremity, client encouraged to work on HEP on her own. Client remain at high risk for falls (had one fall this past week) will continue to use bed and wheelchair alarms for safety. Also noted much instability of pelvis when standing."
Further review of nursing notes from 7/1/02 to 7/8/02 indicated the facility was providing 2 person assist with transfer and toileting.
Review of the nursing note on 7/8/02 revealed: "assist of 2-- resident requested only one person transfer her-- educated on risks of this and reinforced that we will continue to use 2 people to transfer."
Review of the nursing notes on 7/9/02 revealed: "1900-2400 Total assist with all ADL's. Two person transfer. CNA brought resident to bathroom and gave resident call light to pull when finished. Resident leaned to Left side and fell off toilet at 2130. Resident reports hitting top of head on cabinet/floor. No edema or hematoma noted to scalp.... Resident reports pain to Left rib cage. Resident does not want to go to ER (Emergency Room) and agreed to have X- rays of ribs at AM at facility. Between
2400 and 0700.... Still with c/o (complaints of) left rib pain.
Interview with Risk Manager and Administrator on 6/18/02 at 10:30 AM revealed that the CNA left the resident alone in the bathroom on 7/9/02.
On 7/9/02 the resident was X-rayed in the facility. Nursing note of 7/10/02 states "rib X-ray back. + (positive) for fx (fracture) Left anterior lat (lateral) approximately 10th rib."
On 7/10/02 the facility received the following written interpretation from the Radiologist: "There is a definite acute fracture of left lower anterolateral rib, which appears to be the tenth rib." Impression: "Fracture of left anterolateral lower rib, probably the tenth rib. Cannot absolutely exclude fracture of left posterior fourth rib, although this is considered less likely."
At the hearing, AHCA conceded that falls can happen, and that a facility is not required to be an absolute guarantor against falls. When a first fall for a resident occurs, AHCA generally deems it an accident and does not cite it as a violation. It is only a second fall for the same resident that is usually deemed an "incident" that may warrant a citation.
AHCA employs a "Resident Assessment Protocol" or "RAP" for falls that provides a systematic approach to the evaluation of a fall and assists facility staff in identifying risk factors for falls and potential preventive interventions.
The RAP's guidelines for resident care planning state that a major risk factor is the resident's history of falls. The guidelines note that "internal risk factors" involving the resident's underlying health problems should be addressed to prevent falls.
The guidelines also list "external risk factors," including medications, appliances and devices, and environmental or situational hazards. The guidelines note that external risk
factors can often be modified to reduce the resident's risk of falls. As to the external risk factor of "medications," the guidelines state:
Certain drugs can produce falls by causing related problems (hypotension, muscle rigidity, impaired balance, other extrapyramidal side effects [e.g., tremors], and decreased alertness). These drugs include: antipsychotics, antianxiety/hypnotics, antidepressants, cardiovascular medications, and diuretics.
Were these medications administered prior to or after the fall?
If prior to the fall, how close to it were they first administered?
Resident 7 was an 89-year-old male who had been admitted to The Chateau in March 2002. At the time of admission, Resident 7 suffered from several conditions: metabolic myopathy, early stage Parkinson's disease, adult-onset diabetes, hypertension, and failure to thrive. Upon admission, he could not walk or feed himself. As of April 22, 2002, Resident 7's balance was unsteady, but he was able to rebalance himself without the use of an assistive device.
Resident 7's treatment plan for functional goals, dated March 12, 2002, noted that he was a "high fall risk." A preliminary fall assessment, also dated March 12, 2002, showed a score of 21, on a scale where a score of 10 or above indicated a risk of falling. Among the factors noted in this assessment was
"loss of balance while standing." An assessment of Resident 7's activities of daily living ("ADL") functions, dated March 25, 2002, showed that he required "total care" for eating, "extensive assistance" for dressing and grooming, and assistance in transfers.
A RAP summary, dated March 29, 2002, stated that the family reported that Resident 7 had fallen at home within the last 30 days. The RAP stated that Resident 7 required extensive assistance from two people to ambulate in the physical therapy room.
In addition to his physical limitations, Resident 7 displayed some mental confusion at the time of his admission to The Chateau. On March 19, 2002, Nancy Lockner, a social worker at The Chateau, administered a mental status examination on which Resident 7 scored 20 out of a possible 30 points.
Ms. Lockner testified that a score below 25 on this "mini- mental" exam triggers a finding of incompetency as regards medical decisions. The resident's physician signs a statement of incompetency empowering a designated health care surrogate to make medical decisions for the resident. This procedure was followed with Resident 7.
The RAP of March 29, 2002, noted that Resident 7 exhibited "[c]ompromised safety awareness associated with cognitive impairment."
Resident 7's care plan, dated April 11, 2002, confirmed that he was at risk for falls, stated a goal that he would not be injured in a fall, and set forth the following among the means to be used to prevent falls: "Anticipate needs as much as possible and place items close at hand. Ask [Resident 7] if he needs anything before leaving room."
By May 31, 2002, the date of his fall, Resident 7's overall condition had improved dramatically. His metabolic myopathy had cleared and the failure to thrive had been reversed.
By the time of the fall, Resident 7's mental confusion had cleared considerably. He was able to understand what was said to him, and was able to make his wishes known to the staff. The staff persons who worked with Resident 7 believed they could depend on him to follow instructions. On June 6, 2002, a few days after his fall, Resident 7 scored 26 out of 30 points on a second "mini-mental" exam, indicating competency.
Resident 7 had initially been placed in the facility's secure unit for his safety, but by late May had improved such that The Chateau's staff was trying to convince him to move off the unit. Resident 7 was functioning at a higher level than the other residents on the secure unit, but wished to stay there because he had become attached to the staff people on the unit.
By May 31, 2002, Resident 7 was able to balance himself and to ambulate up to 300 feet without direct physical assistance. His minimum data set ("MDS") of April 22, 2002, coded him as requiring "extensive assistance" for both transfers and walking, with physical assistance from one person. "Extensive assistance" means that the resident is able to perform part of a given activity, but also needs weight-bearing support and/or full staff performance of the activity on occasion.
In practice, staff provided Resident 7 with close supervision but no hands-on assistance when he walked. Resident 7 used a walker, which is a recognized safety device.
He was counseled as to the danger of walking without supervision by a staff person. Prior to May 31, 2002, Resident 7 had not fallen during his stay at The Chateau.
Mondy Sataille was an experienced CNA who worked regularly with Resident 7. Regina Dreisbach, the executive director of Moorings Park, described Ms. Sataille as one of the reasons why Resident 7 insisted on staying in the secure unit. At times, Ms. Sataille allowed Resident 7 to stand with his walker in the room while she gathered his clothes or other items for him, without incident.
On the morning of May 31, 2002, Resident 7 called Ms. Sataille into his room. He told her that he wanted to get
dressed and go to the bathroom before going out for breakfast. Ms. Sataille asked Resident 7 if he wanted to use his wheelchair, because he was sometimes weak in the morning.
Resident 7 declined the wheelchair. Ms. Sataille brought him his walker, then watched him get dressed.
After dressing, Resident 7 went to the bathroom while Ms. Sataille waited at the door. After brushing his teeth, he started to walk out of the bathroom and asked Ms. Sataille where his glasses were. Ms. Sataille told him they were lying at the end of his bed, between six and seven feet away from where they were standing.
Resident 7 asked Ms. Sataille to get the glasses for him. Ms. Sataille hesitated, because getting the glasses would require her to leave his side. She suggested they wait until they both reached the bed, when he could pick up the glasses for himself. Resident 7 insisted that Ms. Sataille get the glasses.
Ms. Sataille agreed to get the glasses. She told Resident 7 that he would have to stand still while she did so, that he should not attempt to walk until she returned to his side. As she took her second step toward the bed and reached for the glasses, Ms. Sataille heard a noise. She turned back and saw Resident 7 on the floor.
Resident 7 told Ms. Sataille that he tripped over the tubing from his Foley catheter. The tubing ran from inside his
pants to a collection bag, which was attached to his walker. Ms. Sataille reported the resident's statement, though she did not believe that he could have tripped over the tubing, given its short length and the fact that it remained attached to the standing walker even after Resident 7 fell.
The evidence is insufficient to find that the tubing from the Foley catheter caused Resident 7's fall. It is at least as plausible that he fell while attempting to walk alone, or that he simply lost his balance.
On the date of his fall, Resident 7 was sent to the emergency room of a NCH Healthcare System hospital in Naples, where he was diagnosed with a left intratrochanteric hip fracture. An orthopedic surgeon performed an open reduction internal fixation of the left hip with a DHS compression screw.
At the hearing, Ms. Sataille testified that she was "not exactly" aware that Resident 7 was at risk for falls. She knew that he was at risk when he was admitted to the facility, but said she was later told by the physical therapist that "he's okay to use his walker," which led her to believe she did not need to supervise him so closely as she did prior to therapy. Her belief was reinforced by the fact that she had left him standing alone holding onto his walker on prior occasions to no ill effect.
However, Ms. Sataille's statements are undercut by her initial hesitation to leave the side of Resident 7 when he asked her to retrieve his glasses and her admonition that he stand still while she was away from his side. These actions make it apparent Ms. Sataille knew that leaving Resident 7 unattended for even a few seconds was risky, despite her testimony that she had done so on prior occasions.
Based upon all the facts presented, it is found that Resident 7's fall could have been avoided had facility staff simply provided the close supervision that The Chateau's own medical records indicated was required when the resident used his walker. Though this was Resident 7's first fall in the facility, the staff was aware that he had fallen at home and was at high risk for further falls. The fact that Ms. Sataille had left Resident 7 standing alone on previous occasions without his falling did not change the requirement of close supervision when he ambulated.
Diane Gail Ross, The Chateau's director of nursing services and expert in long-term care nursing, opined that Resident 7 was being "supervised," even when Ms. Sataille was not in direct proximity to him. Ms. Ross' opinion begs the question of whether such supervision was adequate to the needs of Resident 7 as established in the medical record. The Chateau
failed to provide adequate supervision to Resident 7, and this failure directly led to his fall and consequential injuries.
Resident 12 was an 87-year-old female who had been admitted to The Chateau on June 25, 2002. Prior to admission, Resident 12 had suffered a stroke. Her underlying conditions included systemic lupus, seizure disorders, interstitial lung disease, and hypertension. Due to the stroke, her left side was extremely weak to the point of flaccidity, though her right arm had good strength and a full range of motion. Resident 12 was unable to walk and used a wheelchair to ambulate.
Resident 12 had no cognitive impairment. She was administered a "mini-mental" exam on June 28, 2002, and scored
27 out of a possible 30 points, indicating that she was able to make her wishes known and was competent to make her own medical decisions.
Resident 12's therapy treatment progress notes for June 25, 2002, indicated that she had "complete footdrop" on the left side with medial lateral instability. "Footdrop" refers to the inability to dorsiflex, or evert, the foot caused by damage to the common peroneal nerve. The notes also recorded a loss of proprioception in Resident 12's left extremities. In layman's terms, "proprioception" is the ability to sense one's whereabouts that allows the body to orient itself in space
without visual clues. Resident 12 was noted as alert and oriented, but forgetful at times.
The June 25, 2002, progress notes also recorded that Resident 12 required extensive assistance from two people to transfer from her bed to her wheelchair, and required verbal cues for posture. She was unable to maintain sitting balance on her own. Her sitting posture was round-shouldered, with her head in a forward position and leaning to the left. Her standing posture was round-shouldered, head forward, and bent heavily forward from the waist. Her left leg provided no support when she stood.
Finally, the June 25, 2002, progress notes stated that Resident 12 was at high risk for falls, and that she would need bed and wheelchair alarms for safety. She had balance problems attributed to weakness, poor endurance, decreased vision, and decreased proprioception.
Resident 12's MDS dated June 29, 2002, indicated a code of "3/3" for transfers, meaning that she required "extensive assistance" and support from at least two persons to transfer between surfaces. As to toilet use, Resident 12 was coded at "4/2", meaning "total dependence" (full staff performance) with support from one person. Contemporaneous nurses' notes indicate that, on some occasions, Resident 12 required two persons to assist her with toilet use.
On the morning of June 29, 2002, Resident 12 slid to the bathroom floor while a CNA was assisting her in pulling up her pants. Resident 12 was standing when the incident occurred.
The next set of weekly therapy treatment progress notes for Resident 12, dated July 2, 2002, noted the fall on June 29, 2002, and stated that she remained at high risk for falls. The progress notes indicated that Resident 12's sitting balance now showed a tendency for her to lose her balance backwards and to the left side. Similarly, her standing balance showed a tendency to lean backwards and to the left.
During the first week of July 2002, the facility's ADL flowsheets showed that Resident 12 was able to use the toilet with the assistance of one person during the day, but required the assistance of two persons at night. However, the nurses' notes for the same period show that on at least some occasions Resident 12 required two persons to assist her in toilet use during the day.
The next set of weekly therapy treatment progress notes for Resident 12, dated July 9, 2002, again showed that her tendency was to lose her balance backwards, both when sitting and standing. She was still at risk for falls and still needed bed and wheelchair alarms for safety.
A second MDS for Resident 12 was completed on July 8, 2002. Resident 12's status for transfers was unchanged since
the June 29 MDS. However, her status for toilet use was upgraded from "4/2" ("total dependence"/one person physical assist) to "3/2" ("extensive assistance"/one person physical assist).
A RAP for Resident 12, dated July 8, 2002, noted that she had "[c]ompromised safety awareness. Resident feels she is capable of independence in tasks and lacks insight into limitations at times."
As of July 9, 2002, Resident 12's only fall in The Chateau was her slide to the floor when having her pants pulled up in the bathroom. The facility had noted that she tended to fall backward when losing her balance, and in fact she had never fallen forward. She was able to sit in her wheelchair without falling.
At approximately 9:30 p.m. on July 9, 2002,
Resident 12 fell forward off the toilet. She hit the top of her head, either on the cabinet or the floor, and experienced pain in her left rib cage. Subsequent examination revealed that she suffered an acute fracture of a left anterolateral rib.
The Chateau had a care plan in place for Resident 12's toileting, and devices in place to maintain her safety. The Chateau had outfitted Resident 12's toilet with a three-sided commode seat that had armrests on both sides and a bar in back. It was designed to support the resident as she sat on the
toilet. The Chateau's records for Resident 12 indicated that she was able to maintain a sitting position for up to 30 minutes as of July 9, 2002. Thus, there was every reason to believe the commode seat would be adequate to support Resident 12 for the short time she sat on the commode.
There was also a bar on the shower door within reach of the toilet, and a grab bar behind the commode. Resident 12 had adequate strength on her right side to pull herself with that arm. A call bell was within her reach as she sat on the commode.
At the time of the fall, Resident 12 was being supervised by Oriaene Celestin, an experienced CNA who knew Resident 12 well. Ms. Celestin and another CNA had helped Resident 12 onto the toilet. Ms. Celestin then positioned herself outside the open door of the bathroom, discreetly monitoring the resident. When Resident 12 fell, Ms. Celestin immediately went into the bathroom and called for assistance.
Ms. Celestin testified that she did not go into the bathroom while Resident 12 used the toilet because Resident 12 had expressly told her that she wished to be alone in the bathroom. Ms. Celestin described Resident 12 as a very demanding person who did not hesitate to tell staff what she wanted.
Regina Driesbach, executive director of Moorings Park, Diane Lanctot, an RN who worked with Resident 12, and Brian Kiedrowski, M.D., Resident 12's physician, all testified that Resident 12 was an outspoken, independent, strong-willed woman who insisted on making her own decisions even as her health declined. Ms. Lanctot confirmed that Resident 12 had asked to be alone in the bathroom.
At the hearing, AHCA objected to the hearsay testimony as to Resident 12's expression of her desire to be alone in the bathroom. The Chateau contended that these statements should be admitted because they were not offered to prove the truth of the matter asserted, but to indicate the effect of Resident 12's utterances on Ms. Celestin in particular and of the staff of The Chateau in general. The undersigned overruled the objection and allowed the testimony as to Resident 12's stated desire to be alone in the bathroom, for the limited purpose stated by The Chateau.
However, even if the out-of-court statements of Resident 12 were excluded from the record, the requirement that a facility respect the resident's dignity gives rise to a common-sense presumption that the resident should be left alone when using the toilet, unless safety concerns mandate the direct presence of facility staff. The relevant question is not whether Resident 12 asked to be left alone in the bathroom, but
whether her safety in the bathroom could not be reasonably assured without Ms. Celestin's physical presence inside the bathroom.
Christine Byrne, AHCA's expert in nursing in long-term care facilities, suggested several steps that The Chateau could have taken to make Resident 12 safer when using the bathroom. One of those proposed steps, having "someone standing outside of the bathroom door, which would facilitate resident privacy although asking the resident to crack the door a little bit," merely described what The Chateau in fact did.
Ms. Byrne's other suggestions included soliciting safety ideas from the resident, putting a safety belt on the toilet, placing a wheelchair in front of the toilet, consulting with the physical therapist as to positioning the resident on the commode, assessing the physical environment in the bathroom, and re-evaluating the resident's medications in conjunction with the facility's pharmacist.
Dr. Kiedrowski, an expert in geriatric medicine, testified that restraining Resident 12 on the toilet would be problematic because she was short and heavyset, and a safety belt could cause the entire commode to flip over if she fell forward. Aside from that practical problem, Dr. Kiedrowski testified that the entire issue of restraints is very sensitive in the long-term care setting, and that anything blocking a
resident's movements should be employed only as a last resort. He did not believe that a safety belt on the commode or a wheelchair in front of it would be an acceptable restraint.
Ms. Driesbach testified that she did not believe a safety belt could be attached to the three-sided seat on Resident 12's commode. Maher Moussa, director of rehabilitation services at Moorings Park and an expert in physical therapy, testified that the toilet seat was adequate and appropriate.
As to medications, AHCA suggested at the hearing that Resident 12's fall might have been caused by her reaction to Ambien (zolpidem tartrate), a hypnotic agent prescribed to induce sleep, and phenobarbital, a barbiturate prescribed for seizure disorders that has a common side effect of drowsiness. On the evening of July 9, 2002, Resident 12 took a 5 mg tablet of Ambien at 8:30 p.m., and a 30 mg tablet of phenobarbital at 9:00 p.m. ACHA suggests that the facility failed to account for the possible effects of these medications, in derogation of the RAP guidelines set forth at Finding of Fact 16 above.
While AHCA's suggestion is plausible, no firm evidence was offered to support it. Diane Lanctot was the RN who responded to Ms. Celestin's call for help after Resident 12 fell. She took Resident 12's vital signs and tested her range of motion. Ms. Lanctot testified that Resident 12 seemed alert, and was not confused or disoriented.
Based on all the evidence, it is found that The Chateau took reasonable steps to ensure Resident 12's safety and dignity in light of the reasonably foreseeable risk of falls. Resident 12 had been sitting in a wheelchair since her admission and had never fallen forward. Her only previous fall was from a standing position. The only indication in the entire medical record of any tendency to fall forward was in the initial progress notes of June 25, 2002. Every subsequent notation mentioned Resident 12's tendency to fall backward and to the left when she lost her balance. The Chateau took sufficient precautions to prevent a backward fall off the toilet. Two CNAs assisted Resident 12 into the bathroom, as indicated by the MDS and the daily ADL flowsheets. Ms. Celestin did not remain in the bathroom while Resident 12 used the toilet, but remained at the open door keeping watch. There was no foreseeable reason for Ms. Celestin to compromise the resident's dignity by remaining in the bathroom while Resident 12 used the toilet. Under all the circumstances, The Chateau provided adequate supervision and appropriate assistive devices to prevent accidents in the case of Resident 12.
In summary, based upon all the evidence adduced at the final hearing, AHCA's finding of a deficiency under Tag F324 was demonstrated by clear and convincing evidence as to the circumstances surrounding the fall of Resident 7. AHCA failed
to demonstrate, by even a preponderance of the evidence, that the fall of Resident 12 was due to any act or omission on the
part of The Chateau.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
AHCA is authorized to license nursing home facilities in the State of Florida, and pursuant to Chapter 400, Part II, Florida Statutes, is required to evaluate nursing home facilities and assign ratings.
The Agency has the burden to establish the allegations that would warrant the imposition of a conditional license. Beverly Enterprises-Florida v. Agency for Health Care Administration, 745 So. 2d 1133 (Fla. 1st DCA 1999). AHCA must show by a preponderance of the evidence that there existed a basis for imposing a conditional rating on The Chateau’s license. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).
As to the imposition of an administrative fine, the standard of proof is clear and convincing evidence. Department
of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla.
1987).
The "clear and convincing" standard requires:
[T]hat the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Section 400.23, Florida Statutes, provides in pertinent part:
(7) The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a licensure status to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. The agency shall assign a licensure status of standard or conditional to each nursing home.
* * *
(b) 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.
Section 400.23(8)(b), Florida Statutes, defines a Class II deficiency as:
[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.
The July 2002 survey of The Chateau included a deficiency identified as Tag F324 (violation of 42 C.F.R. Section 483.25(h)(2), relating to ensuring that each resident receives adequate supervision and assistive devices to prevent accidents). This deficiency was identified as Class II, and thus, subjected the facility to conditional licensure. Because
the deficiency was isolated, the Agency seeks to impose a $2,500 fine.
AHCA established by clear and convincing evidence that the cited deficiency occurred as to Resident 7. Resident 7 was a high-fall risk. While his mental and physical condition improved dramatically during his stay at The Chateau, and he was able to walk up to 300 feet using a walker, the fact remained that he required close supervision while ambulating. That he did not fall in the facility prior to May 31, 2002, is a tribute to the diligence of The Chateau's staff. However, in this one isolated instance, a brief failure to maintain adequate supervision led directly to an injurious fall.
It could be reasonably argued that this momentary lapse in supervision should not constitute a deficiency.
Ms. Sataille merely took two steps away from Resident 7, and in that instant, he fell. However, the converse of that argument is more convincing. Ms. Sataille had only to decline
Resident 7's request that she retrieve his glasses, guide him the few steps to his bed, and thereby avert the risk caused by leaving him alone. AHCA correctly found the facility's practices constituted a deficiency under Tag F324.
AHCA properly characterized this as a Class II deficiency. The Chateau compromised the ability of Resident 7 to maintain or reach his highest practicable physical, mental,
and psychosocial well-being as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.
ACHA did not establish that the cited deficiency occurred as to Resident 12, either by clear and convincing evidence or even a simple preponderance. The evidence established that The Chateau provided adequate supervision and proper assistive devices to Resident 12, when the resident's known risk factors were balanced against the resident's right to dignity.
Because this was an isolated Class II deficiency, an administrative fine in the amount of $2,500 is required, notwithstanding The Chateau's timely correction of the deficiency. Section 400.023(8)(b), Florida Statutes.
RECOMMENDATION
Upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Agency for Health Care Administration enter a final order upholding its notice of intent to assign conditional licensure status to The Moorings, Inc., d/b/a The Chateau at Moorings Park, for the period of July 18, 2002, through August 20, 2002, and imposing an administrative fine in the amount of $2,500.
DONE AND ENTERED this 7th day of August, 2003, in Tallahassee, Leon County, Florida.
S
LAWRENCE P. STEVENSON
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 7th day of August, 2003.
COPIES FURNISHED:
Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011
Winter Park, Florida 32790-2011
Tom R. Moore, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3
Tallahassee, Florida 32308-5403
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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 07, 2003 | Recommended Order | Agency demonstrated that facility committed one Class I violation, where failure to supervise in accordance with care plan led directly to resident`s injurioius fall. Conditional licensure and $2,500 fine recommended. |
