vs.
Respondent.
) Case No. 03-1535
Pursuant to notice, a final hearing was held in this case on September 23, 2003, in Orlando, Florida, before William R. Pfeiffer, a designated Administrative Law Judge (ALJ) of the Division of Administrative Hearings (DOAH).
For Petitioner: Katrina D. Lacy, Esquire
St. Petersburg, Florida 33701
For Respondent: Hafeez R. Ali, pro se
Whether Grace Manor, a licensed assisted living facility, is subject to a $2,000 fine for failing to timely correct five
violations, as alleged in the Administrative Complaint filed by Petitioner on November 26, 2002.
On or about June 4, 2002, the Agency for Health Care Administration (the Agency or AHCA) conducted a survey at Grace Manor Retirement, Inc., d/b/a Grace Manor, Inc. (Grace Manor), and cited the assisted living facility for violating Florida Administrative Code Rule 58A-5.025(1)(c), failure to provide two residents a list of available services and fees not included in the daily, weekly, or monthly rate, or provide reference to a separate fee schedule, which is included in the admission contract. During this survey, Grace Manor was also cited for violating Florida Administrative Code Rule 58A-5.0182(6)(h), failure to limit the use of physical restraints; for violating Florida Administrative Code Rule 58A-5.030(7)(c), and Section 400.407(3)(b), Florida Statutes (2002), failure to ensure that the extended congregate care service plan was developed and agreed upon by the resident or resident representative; and for violating Florida Administrative Code Rule 58A-5.030(8)(c), failure to ensure that nursing services are authorized by a health care provider's order and pursuant to a plan of care, and recorded in nursing progress notes.
On November 26, 2002, the Agency served an administrative complaint on Grace Manor seeking to impose a $2,000 fine for
four uncorrected Class III deficiencies cited at the June 4, 2002, survey (AHCA No. 2002045983). Grace Manor timely filed a Petition for Formal Administrative Hearing with the Agency Clerk. The case was forwarded to DOAH and assigned Case No. 03- 1535.
At the hearing, the Agency called the following witnesses: Doris Spivey, Health Facility Evaluator Supervisor, and Vilma Pellot, Registered Nurse Specialist. The Agency offered Petitioner's Exhibits 2, 3, 4, and 5. All exhibits were received in evidence. Respondent, Hafeez R. Ali, testified in his own behalf and offered Respondent's Exhibits 1, 2, 3, and 4, which were received in evidence.
The one-volume Transcript of the final hearing was filed with DOAH on October 9, 2003. The Agency timely filed a Proposed Recommended Order which has been considered.
The Agency is the regulatory authority responsible for the licensure and enforcement of all applicable statutes and rules governing assisted living facilities pursuant to Chapter 400, Part III, Florida Statutes (2002), and Florida Administrative Code Chapter 58A-5.
Grace Manor is an assisted living facility located at
321 East Harvard Street, Orlando, Florida 32804.
AHCA has the regulatory authority to conduct Extended Congregate Care (ECC) quarterly surveys of assisted living facilities in the State of Florida, to ensure that they are in compliance with Florida Administrative Code Chapter 58A-5. When deficiencies exist, depending on their nature and severity, they are classified as Class I, Class II, and Class III, with Class III being the least serious. Deficiencies are noted in a Summary Statement of Deficiencies, and the facility is given a specific time period in which to correct those violations. If the deficiency is not corrected within the designated time frame, AHCA has the authority to impose a civil penalty on the facility.
The evaluation, or survey, of a facility includes a resident review and may consist of record reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings on a standard prescribed Agency Form 3020, which is titled "Statement of Deficiencies and Plan of Correction."
During the survey of a facility, existing violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, and sets forth specific factual allegations that are believed to support the violation.
In this case, Grace Manor is charged with failing to timely correct four Class III violations. A Class III deficiency is one in which the Agency determines that it indirectly or potentially threatens the physical or emotional health, safety, or security of a facility's residents and is subject to an administrative fine of not less than $500 and not exceeding $1,000 for each violation.
On February 12, 2002, AHCA conducted an ECC quarterly survey at Grace Manor. During this survey, Grace Manor was cited for seven deficiencies ("Tags"). Four of the seven deficiencies are the subject of AHCA's administrative complaint.
Doris Spivey, AHCA Health Facility Evaluator Supervisor, was responsible for the ECC quarterly survey at Grace Manor on February 12, 2002. At that time, Grace Manor was cited for the following deficiencies which were the subject of the hearing: Tag A312 (Count I), failure to provide two residents a list of available services and fees not included in the daily, weekly, or monthly rate, or provide reference to a separate fee schedule, which is included in the admission contract; Tag A724 (Count II), failure to limit the use of physical restraints; Tag E602 (Count III), failure to ensure that the extended congregate care service plan was developed and agreed upon by the resident or resident representative; and Tag E712 (Count IV), failure to ensure that nursing services are
authorized by a health care provider's order and pursuant to a plan of care, and recorded in nursing progress notes.
Following the survey, Grace Manor was provided a copy of the Summary Statement of Deficiencies and instructed to correct each deficiency on or before the specified correction date.
The mandated correction date for Tags A312, E602, and E712 was March 12, 2002, the standard thirty days from the date of the survey.
The mandated correction date for Tag A724 was February 22, 2002, due to the seriousness of the violation and the potential risk to the resident.
Sixteen weeks later, on June 4, 2002, a follow-up survey was conducted at Grace Manor. At that time, the above four deficiencies remained uncorrected.
Tag A312
Regarding Tag A312, failure to provide two residents a list of available services and fees not included in the daily, weekly, or monthly rate, or provide reference to a separate fee schedule, which is included in the contract, Respondent admitted that there was no list of fees listed in the resident contract when the surveyor reviewed them on February 12, 2002.
During the February 12, 2002, survey, Ms. Spivey reviewed all of the residents' records. Of those, three
resident files failed to contain a list of additional services and the additional fee for those services.
Respondent contends that there are no fees attached to the services that are provided in the facility.
During the June 4, 2002, survey, Petitioner reviewed the records of six residents (residents admitted July 14, 1996; February 2, 1998; December 16, 2000; November 19, 2001;
April 19, 2002; and June 1, 2002). While Respondent contends that each resident is given a cost sheet addendum explaining the additional charges when ECC services are necessary, he could not provide documentation.
Respondent acknowledged that the facility's form stating, "Grace Manor will provide ECC at a cost of $1,800 per month" was the only form available for review by the surveyor on June 4, 2002. Respondent admitted that he bases any additional prices on the doctor's charge.
Tag A724
As to Tag A724, failure to limit the use of physical restraints, Ms. Spivey observed a resident (admitted
September 1, 1999) fully reclined in a chair and unable to remove herself from the chair. This resident also had full-bed rails on her bed.
Ms. Spivey further observed a resident (admitted December 16, 2000) confined in a wheelchair, secured by a seat
belt that the resident was unable to release. This resident had full-bed rails on her bed.
Ms. Spivey observed a resident (admitted December 8, 1999) using half-rails pursuant to a doctor's order dated February 26, 2000.
Ms. Spivey observed a resident (admitted September 17, 1999) using a half-rail pursuant to an order dated back to 1999. There was nothing in the record to indicate that the facility had received any physician's orders or updates for the half- rails.
Ms. Spivey also observed a resident (admitted December 11, 1998) using half-bed rails without a physician's order for the bed rail.
Respondent admitted that the facility was deficient when the surveyor conducted the February 12, 2002, survey.
Respondent also admitted that on June 4, 2002, a resident (admitted December 16, 2000) was sitting in a wheelchair in locked position against the dining table. Respondent further admitted that a resident (admitted April 19, 2002) had half-rails elevated in the middle of the bed.
Tag E602
As to Tag E602, Respondent failed to notate in the resident record that the service plan had been developed in
conjunction with, and agreed upon by the resident or resident representative.
Although Respondent contends that he developed each of the service plans in conjunction with and agreed by the respective resident and/or the resident's representative, Respondent had insufficient documentation.
The ECC program is a nursing services program for residents to participate in up to four activities of daily living.
During the survey conducted on February 12, 2002, at Grace Manor, there was no documentation to verify that an ECC service plan had been developed and agreed upon by the resident or resident representative for a resident (admitted October 2001).
During the survey conducted on June 4, 2002, at Grace Manor, there was no documentation to verify that an ECC service plan had been developed and agreed upon by the resident or resident representative for residents who were admitted July 14, 1996; September 17, 1999; December 16, 2000; and April 19, 2002.
For a resident admitted July 14, 1996, the ECC service plan is dated September 3, 2002, clearly after the June 4, 2002, survey.
For a resident admitted September 17, 1999, the ECC service plan was reviewed and signed on June 5, 2002, the day
after the June 4, 2002, survey date. The deficiency remained uncorrected long after the March 12, 2002, correction deadline.
During the June 4, 2002, survey, Ms. Pellot reviewed the residents' records and Respondent's ECC book to locate documentation that the residents' service plans had been discussed with them or their representative. Respondent was unable to provide any documentation during the June 4, 2002, survey.
Tag E712
As to Tag E712, Respondent failed to ensure that nursing services were ordered by a health care provider pursuant to a plan of care, and recorded in nursing notes.
Specifically, when Ms. Spivey conducted the survey of Grace Manor on February 12, 2002, a record review revealed that a resident admitted December 16, 2000, had a service plan that had been updated June 2001, and it shows catheter care twice a week and laceration care twice a week, but there was no physician's order for catheter care.
During Respondent's direct examination, he admitted to the February 12, 2002, deficiency.
Ms. Pellot's survey of Grace Manor on June 4, 2002, revealed an order for treatment and evaluation of open wounds on a resident's buttocks (resident admitted April 19, 2002). The order did not address the frequency of the treatments.
Respondent informed the surveyor that the nurse had treated this resident approximately seventeen times, however provided ten nurses' notes to the surveyor.
Respondent admitted that he was unaware of the seven missing nurses' notes and agrees that this deficiency was not corrected until after June 4, 2002, 12 weeks after the March 12, 2002, correction deadline. Although it was later corrected, it remained uncorrected at the June 4, 2002, survey. The Agency has the authority to impose an administrative fine for an uncorrected Class III deficiency.
The Agency cited Grace Manor for four uncorrected Class III deficiencies and imposed the $500.00 minimum fine for each deficiency, totaling $2,000.
In sum, Respondent: (1) failed to provide two residents a list of available services and fees not included in the daily, weekly, or monthly rate, or provide reference to a separate fee schedule, which is included in the admission contract; (2) failed to limit the use of physical restraints;
failed to ensure that the ECC service plan was developed and agreed upon by the resident, or resident representative; and (4) failed to ensure that nursing services are authorized by a health care provider's order and pursuant to a plan of care, and recorded in nursing progress notes.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57(1), Fla. Stat. (2002).
Petitioner has the burden of proof in this proceeding.
Beverly Enterprises-Florida v. Agency for Health Care
Administration, 745 So. 2d 1133 (Fla. 1st DCA 1999). The burden of proof to impose an administrative fine is by clear and convincing evidence. Dept. of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).
By clear and convincing evidence, Petitioner has established that Respondent violated Florida Administrative Code Rules 58A-5.025(1)(c), 58A-5.0182(6)(h), 58A-5.030(7)(c), and 58A-5.030(8)(c), and Section 400.407(3)(b), Florida Statutes (2002), as charged in the Administrative Complaint.
As to Tag A312 (Count I), Grace Manor was cited and fined for violating Florida Administrative Code Rule 58A- 5.025(1)(c), which states in relevant part:
Pursuant to Section 400.424, F.S., each resident or the resident's legal representative, shall, prior to or at the time of admission, execute a contract with the facility which contains the following provisions:
* * *
(c) A list of any additional services and charges to be provided that are not included
in the daily, weekly, or monthly rates, or a reference to a separate fee schedule which shall be attached to the contract.
As to Tag A724 (Count II), Grace Manor was cited and fined for violating Florida Administrative Code Rule 58A- 5.0182(6)(h), which states in relevant part:
RESIDENT RIGHTS AND FACILITY PROCEDURES.
* * *
(h) Pursuant to Section 400.441, F.S., the use of physical restraints shall be limited to half-bed rails, and only upon the written order of the resident's physician, who shall review the order biannually, and the consent of the resident or the resident's representative.
As to Tag E602 (Count III), Grace Manor was cited and fined for violating Florida Administrative Code Rule 58A- 5.030(7)(c), which states in relevant part:
SERVICE PLANS.
* * *
(c) Pursuant to the definitions of "shared responsibility" and "managed risk" as provided in Section 400.402, F.S., the service plan shall be developed and agreed upon by the resident or the resident's representative or designee, surrogate, guardian, or attorney-in-fact, the facility designee, and shall reflect the responsibility and right of the resident to consider options and assume risks when making choices pertaining to the resident's service needs and preferences.
As to Tag E712 (Count IV), Grace Manor was cited and fined for violating Florida Administrative Code Rule 58A- 5.030(8)(c), which states in relevant part:
EXTENDED CONGREGATE CARE SERVICES. All services shall be provided in the least restrictive environment, and in a manner which respects the resident's independence, privacy, and dignity.
* * *
(c) Licensed nursing staff in an extended congregate care program may provide any nursing service permitted within the scope of their license consistent with the residency requirements of this rule and the facility's written policies and procedures, and the nursing services are:
Authorized by a health care provider's order and pursuant to a plan of care;
Medically necessary and appropriate for treatment of the resident's condition;
In accordance with the prevailing standard of practice in the nursing community;
A service that can be safely, effectively, and efficiently provided in the facility;
Recorded in nursing progress notes; and
In accordance with the resident's service plan.
Section 400.419(1)(c), Florida Statutes (2002), states in relevant part:
Class III violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the Agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents,
other than class I or class II violations. A class III violation is subject to an administrative fine of not less than $500 and not exceeding $1,000 for each violation. A citation for a class III violation must specify the time within which the violation is required to be corrected. If a class III violation is corrected within the time specified, no fine may be imposed, unless it is a repeated offense.
Based upon the evidence, Petitioner has proven by clear and convincing evidence that Respondent committed the acts or omissions alleged in Tags A312, A724, E602, and E712, which are uncorrected Class III deficiencies, and should be fined $500 each deficiency, for a total fine in the amount of $2,000.
RECOMMENDED that a final order be entered imposing a $2,000 civil penalty against Grace Manor for the uncorrected Class III deficiencies (Tags A312, A724, E602, and E712) cited against Grace Manor at the June 4, 2002, survey.
DONE AND ENTERED this 6th day of January, 2004, in Tallahassee, Leon County, Florida.
WILLIAM R. PFEIFFER
Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2004.
Hafeez R. Ali
Katrina D. Lacy, Esquire
St. Petersburg, Florida 33701
Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3
Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive
Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive
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.
