STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Petitioner, )
)
vs. )
)
MARINER HEALTH CARE OF ) TUSKAWILLA, INC., d/b/a MARINER ) HEALTH CARE OF TUSKAWILLA, )
)
Respondent. )
Case No. 03-4511
)
RECOMMENDED ORDER
The final hearing was held in this case before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings in Orlando, Florida, on February 25, 2004.
APPEARANCES
For Petitioner: Gerald L. Pickett, Esquire
Agency for Health Care Administration Sebring Building, Suite 330K
525 Mirror Lake Drive, North St. Petersburg, Florida 33701
For Respondent: Alfred W. Clark, Esquire
117 South Gadsden Street, Suite 201 Post Office Box 623
Tallahassee, Florida 32302-0623 STATEMENT OF THE ISSUES
Whether Respondent committed deficient practices as alleged in violation of 42 C.F.R. Section 483.13(b) and 42 C.F.R. Section 483.13(c)(1)(ii), adopted by reference in Florida
Administrative Code Rule 59A-4.1288; and if so, whether Petitioner should impose a civil penalty in the amount of $5,000 and issue a conditional license to Respondent.
PRELIMINARY STATEMENT
By Administrative Complaint dated September 4, 2004, the Agency for Health Care Administration (Petitioner) proposed to impose a civil penalty in the amount of $5,000 and impose a conditional license for an alleged violation of 42 C.F.R. Section 488.13(b) and 42 C.F.R. Section 483.13(c)(1)(ii), adopted by reference in Florida Administrative Code Rule
59A-4.1288 on Mariner Health Care of Tuskawilla, Inc., d/b/a Mariner Health Care of Tuskawilla (Respondent).
Respondent requested a formal administrative hearing to contest the Administrative Complaint. The request for hearing was referred to the Division of Administrative Hearings (DOAH) on December 2, 2003. Administrative Law Judge Daniel Manry was initially assigned to conduct the proceeding. Discovery was conducted and prior to the hearing, this matter was transferred to the undersigned Administrative Law Judge. On February 16, 2004, the parties filed a Joint Preliminary Stipulation.
At the final hearing, Petitioner presented the testimony of three witnesses: David Douglas Metcalfe, health facility evaluator; Jane Woodson, registered nurse specialist; and Karen Walker, health facility evaluator. Petitioner's Exhibits 1
through 7 were received into evidence. Respondent presented the testimony of Glenda Stanley, licensed practical nurse; Harold L. Jacobson, administrator; and Luiz M. D'Avila, registered nurse and director of nursing. Respondent's Exhibits 1 through 5 were received into evidence.
A Transcript of the hearing was filed with DOAH on March 11, 2004. The parties filed their Proposed Recommended Orders on March 22 and March 19, 2004, respectively. The
parties' proposals have been given careful consideration in the preparation of this Recommended Order.
FINDINGS OF FACT
Petitioner is the state agency charged with licensing and regulating nursing homes in Florida under state and federal statutes. Petitioner is charged with evaluating nursing homes facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, Petitioner is responsible for concluding federally-mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities. Pursuant to the statute, Petitioner must classify deficiencies according to the nature and scope of the deficiency when the criteria established under the statute are not met.
The classification of any deficiencies discovered is determinative of whether the licensure status of a nursing home is "standard" or "conditional."
Respondent is a 98-bed nursing home located at 1024 Willow Springs Drive, Winter Springs, Florida, and is licensed as a skilled nursing facility.
On May 30, 2003, Petitioner's staff conducted an inspection, also known as a survey, at Respondent's facility. Upon completion of the survey, Petitioner issued a document entitled, Center for Medicare and Medicaid Services, CMS Form 2567L, also known as a "2567," which contains a statement of the alleged violations of regulatory requirements, also referred to as "deficiencies," titled "Statement of Deficiencies and Plan of Correction."
The evaluation or survey of a facility includes a resident review and, depending upon the circumstances, may consist of a record, reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings on the 2567 Form, and if violations of regulations are found, the 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, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope
and severity of the noncompliance. Petitioner's surveyors use the "State Operations Manual," a document prepared by the United States Department of Health and Human Services, Center for Medicare and Medicaid Services, as guidance in determining whether a facility has violated 42 C.F.R. Chapter 483.
Count I
In Count I of the Administrative Complaint, Petitioner alleges that Respondent's staff subjected three residents (Resident Nos. 6, 13, and 18) to verbal and mental abuse in violation of 42 C.F.R. Section 483.13(b), which provides that a nursing home resident has the right to be free from verbal and mental abuse.
As to Resident No. 6, Petitioner contends that this resident stated to a surveyor that the resident had "overheard" a certified nursing assistant (CNA) loudly tell another staff member that the resident was "going to the bathroom 25 times a day."
Petitioner believes the CNA's statement, which was allegedly "overheard," occurred sometime during the month of March 2003, based upon nurses' notes which indicate Resident No. 6 had an episode of diarrhea during this time. However, the nurses notes also reveal that during this time Resident No. 6 was subject to confusion and nonsensical outbursts. Petitioner's belief that Resident No. 6 was a reliable historian
is based on Petitioner's mistaken belief that Resident No. 6 was admitted about March 30, 2003, and was alert and oriented and not confused upon admission. Petitioner's staff exhibited a lack of understanding of the timing and significance of the Multiple Data Set (MDS) forms describing Resident No. 6's mental condition upon which they relied. In fact, Resident No. 6 was admitted in mid-February 2003 and exhibited confused and eccentric behavior. The "overheard" comment was not reported to Respondent until the survey. Therefore, the evidence that this incident occurred as described by Petitioner is unreliable hearsay.
Surveyors reviewed Respondent's records, which contained a complaint from a family member of Resident No. 6 that the same CNA had noticed that the resident had a physical anomaly. The CNA called other CNAs to view this anomaly, which was located in Resident No. 6's genital area. Respondent learned of the allegations relating to Resident No. 6's physical anomaly on April 21, 2003, from a family member of Resident
No. 6. Respondent immediately began an investigation, including an interview with and physical examination of Resident No. 6 and an interview with the CNA. The resident only stated that she did not want this CNA taking care of her any longer. The CNA denied the allegations. The CNA was suspended pending investigation and later terminated based upon directions from
Respondent's corporate office based on additional, unrelated information. The incident was reported to the Department of Children and Families (DCF) Abuse Hot Line on April 22, 2003.
Although Resident No. 6 and her family member had frequent contact and conversation with Respondent's director of nursing (DON), neither had ever complained about the CNA's conduct. Respondent's DON observed no mental distress on the part of Resident No. 6 after Respondent's DON learned of the allegations. Petitioner alleges that this CNA had observed the physical anomaly for the first time. If that is true, it would be expected that the CNA would consult other nursing staff to address potential nursing issues.
As to Resident No. 13, Petitioner alleges verbal abuse based upon the allegation that Resident No. 13 reported to a surveyor that she found a male resident sitting on her bed in her room. When this was reported by Resident No. 13 to one of the Respondent's nurses, the resident alleged that the nurse "laughed at" the resident. This incident was reported by Resident No. 13 to Respondent's DON shortly after it happened. Respondent's DON interviewed the resident and the two nurses who were on duty at the time. The nurses reported that they assured Resident No. 13 that everything was okay, escorted the male resident to his room, and Resident No. 13 went to bed with no complaint or distress. This incident was reported by Resident
No. 13 to Respondent's DON in a joking manner, as an event and not as a complaint. Although Respondent's DON was concerned that the nurses should respond appropriately and was also concerned that the wandering resident be identified, Respondent's DON did not believe that the incident constituted any form of abuse. Respondent's DON did not observe this incident to have any adverse impact on Resident No. 13.
During the survey, Petitioner's surveyor advised Respondent that the incident should have been investigated and reported to the DCF Abuse Hot Line. Respondent's DON completed a written report and called the DCF Abuse Hot Line and related the incident. The incident did not meet the DCF guidelines for the reporting of abuse.
On or about March 30, 2003, two surveyors observed Resident No. 18 in her wheelchair as she approached the nurse's station. One of Respondent's nursing staff spoke in a "curt, loud voice" to Resident No. 18. The resident had approached the nurses' station to ask for her medication, to which the nurse replied: "I told you I will give you your medicine." Resident No. 18 was hearing-impaired and was documented in her medical record as one to whom staff "must speak loudly." This resident did not wear any hearing assistance devices. Respondent's staff credibly described this resident as one to whom staff had to speak loudly and in clipped words for the resident to
understand. Petitioner's surveyors did not speak to this resident after the alleged incident. There is no evidence that this incident had any effect on the resident or even that the resident heard the staff member. The incident does not rise to the level of verbal abuse of the resident.
Count II
Count II of the Administrative Complaint alleges a violation of 42 C.F.R. Section 483.13(c)(1)(ii), which provides that a nursing home must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse; and that the nursing home must not employ individuals who have been found guilty of abuse or neglect or are listed in the state nursing aide registry with a finding of abuse, neglect, or mistreatment. Count II is based on the allegation that Respondent failed to report to Petitioner (the appropriate "state agency") the incidents involving Resident No. 13 and 18 and other allegations of abuse or neglect, which the surveyor allegedly identified in Respondent's log of grievances.
Respondent has in place written policies and procedures regarding abuse and neglect and its staff receive regular training regarding these policies and procedures. Petitioner has offered no evidence that these written policies and procedures or the staff's knowledge of these policies and procedures is inadequate.
With regard to Resident No. 13, when Respondent's DON learned of the incident from the resident, Respondent's DON made inquiries of nursing staff who were on duty at the time, in addition to interviewing the resident. Respondent's DON did not consider any aspect of the incident to constitute abuse or neglect. Later, after Petitioner alleged, during the survey, that the incident should have been reported to DCF, Respondent's DON prepared a written report of the incident and called and related the incident to the DCF Abuse Hot Line. Respondent's DON was advised by DCF that the incident did not meet DCF's requirements for reporting.
Respondent is required to report all allegations of abuse and neglect to the DCF's Abuse Hot Line. Petitioner does not dispute this fact. Instead, Petitioner contends that Respondent is also required to report allegations of abuse and neglect to the "state agency" and that Respondent failed to do so. The "state agency" for the purpose of federal regulations is Petitioner. Petitioner's allegations are based upon its review of Respondent's grievance log, which Petitioner's surveyors say allegedly records 18 incidents of alleged abuse, none of which was reported to the state agency.
At the time of the survey, Respondent was a part of the Mariner Corporation. It has since disassociated from that corporation and changed its name to Tuskawilla Nursing and
Rehabilitation Center, effective October 1, 2003. At the time of the survey, all reporting of abuse allegations were done by the corporate regional risk management department, and it is not known if they reported any of the incidents cited by the surveyors to Petitioner. However, the document received in evidence, which has many more than 18 entries in summary style, is almost completely illegible. Petitioner's witness was unable to identify any entries on this document which could be identified as alleged abuse and which had not been properly reported. Understanding this document requires substantial explanation, which was never provided. Standing alone, this document is not probative of any fact.
Petitioner offered no evidence that Respondent employed any individuals who had been found guilty of or who had been listed on the nurse aide registry of abusing, neglecting, or mistreating residents.
Even if it is assumed that Respondent should have reported but did not report to Petitioner the 18 alleged incidents or the incident regarding Resident No. 13, Petitioner offered no evidence that reporting this information to DCF, but not to Petitioner, had any impact on any resident or prevented a resident from maintaining or achieving the resident's highest practicable physical, mental, or psychosocial well-being.
Count III
Since there is no proof of Class II deficiencies, there is no basis for imposing a conditional license status on Respondent for the period May 30, 2003, until July 8, 2003.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003), to conduct a de novo formal hearing involving disputed issues of material fact.
Petitioner is the state agency charged with the responsibility for evaluating nursing home facilities to determine their degree of compliance with established rules and for conducting federally mandated surveys of long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements made applicable to Florida nursing home facilities, pursuant to Florida Administrative Code Rule 59A-4.1288.
Petitioner conducts surveys and classifies deficiencies according to the nature and scope of the deficiency to determine whether the licensure status of a nursing home is "standard" or "conditional," pursuant to Section 400.23, Florida Statutes (2002).
Chapter 400, Part II, Florida Statutes (2002), contains provisions that:
[P]rovide for the development, establishment, and enforcement of basic standards for:
The health, care, and treatment of persons in nursing homes and related health care facilities; and
The maintenance and operation of such institutions that will ensure safe, adequate, and appropriate care, treatment, and health of persons in such facilities.
Among these provisions are those set forth in Section 400.23, Florida Statutes (2002). Section 400.23(2), Florida Statutes (2002), authorizes Petitioner to "adopt and enforce rules to implement [Chapter 400, Part II, Florida Statutes]."
The rules adopted by Petitioner pursuant to this grant of statutory authority include Florida Administrative Code Rule 59A-4.1288, which provides in pertinent part, as follows:
Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. Non-certified facilities must follow the contents of this rule and the standards contained in the Conditions of Participation found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference with respect to social services, dental services, infection control, dietary and the therapies.
These "certification rules and regulations" referenced in Florida Administrative Code Rule 59A-4.1288 include a manual prepared by the federal agency found at 42 C.F.R. Chapter 483.
42 C.F.R. Section 483.13, which addresses "[r]esident behavior and facility practices." It provides in pertinent part, as
follows:
Abuse. The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.
Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.
The facility must--
Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;
Not employ individuals who have been--
Found guilty of abusing, neglecting, or mistreating residents by a court of law; or
Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and
Report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry or licensing authorities.
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).
The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress.
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.
Pursuant to Section 400.23(7), Florida Statutes (2002), every 15 months, Petitioner is required to "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 [Chapter 400, Part II, Florida Statutes] as a basis for assigning a licensure status to that facility." This statutory provision further provides that "[t]he agency shall assign a licensure status of standard or conditional to each nursing home" and goes on to describe, as follows, the meaning of "standard licensure status" and "conditional licensure status":
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.
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.
A "class I deficiency," as that term is used in Section 400.23, Florida Statutes (2002), is defined in subsection (8)(a) of the statute as a "deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility."
A "class II deficiency," as that term is used in Section 400.23, Florida Statutes (2002), is defined in subsection (8)(b) of the statute 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 III deficiency," as that term is used in Section 400.23, Florida Statutes (2002), is defined in subsection (8)(c) of the statute as 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."
On other class of deficiency, a "class IV deficiency," is described in Section 400.23(8), Florida Statutes (2002). According to subsection (8)(d) of the statute, it is a "deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident."
In addition to assigning conditional licensure status, Petitioner has the authority to impose the further sanction of an administrative fine, if a surveyed facility is found to have "one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the [A]gency." Such authority is granted by the following provisions of Section 400.23(8)(a)-(c), Florida Statutes (2002):
A class I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective
action is necessary because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. A class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine must be levied notwithstanding the correction of the deficiency.
A class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of
$2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine shall be levied notwithstanding the correction of the deficiency.
A class III deficiency is a deficiency that the agency determines will result in no more than minimal physical,
mental, or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class III deficiency is subject to a civil penalty of
$1,000 for an isolated deficiency, $2,000 for a patterned deficiency, and $3,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed.
An "isolated deficiency," as that term is used in Section 400.23, Florida Statutes (2002), is defined in subsection (8) of the statute as a "deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations."
A "patterned deficiency," as that term is used in Section 400.23, Florida Statutes (2002), is defined in subsection (8) of the statute as a "deficiency where more than a very limited number of residents are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same resident or residents
have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the facility."
A "widespread deficiency," as that term is used in Section 400.23, Florida Statutes (2002), is defined in subsection (8) of the statute as a "deficiency in which the problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility's residents."
Section 400.147, Florida Statutes (2002), states in relevant part:
Every facility shall, as part of its administrative functions, establish an internal risk management and quality assurance program, the purpose of which is to assess resident care practices; review facility quality indicators, facility incident reports, deficiencies cited by the agency, and resident grievances; and develop plans of action to correct and respond quickly to identified quality deficiencies. The program must include:
* * *
The development and implementation of an incident reporting system based upon the affirmative duty of all health care providers and all agents and employees of the licensed health care facility to report adverse incidents to the risk manager, or to his or her designee, within 3 business days after their occurrence. . . .
Section 415.101(2), Florida Statutes (2002), Adult Protective Services Act, which is enforced by the DCF, states in relevant part:
The Legislature recognizes that there are many persons in this state who, because of age or disability, are in need of protective services. Such services should allow such an individual the same rights as other citizens and, at the same time, protect the individual from abuse, neglect, and exploitation. It is the intent of the Legislature to provide for the detection and correction of abuse, neglect, and exploitation through social services and criminal investigations and to establish a program of protective services for all disabled adults or elderly persons in need of them. It is intended that the mandatory reporting of such cases will cause the protective services of the state to be brought to bear in an effort to prevent further abuse, neglect, and exploitation of disabled adults or elderly persons. In taking this action, the Legislature intends to place the fewest possible restrictions on personal liberty and the exercise of constitutional rights, consistent with due process and protection from abuse, neglect, and exploitation. Further, the Legislature intends to encourage the constructive involvement of families in the care and protection of disabled adults or elderly persons.
Section 415.102, Florida Statutes (2002), states in relevant part:
"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.
"Alleged perpetrator" means a person who has been named by a reporter as the person responsible for abusing, neglecting, or exploiting a vulnerable adult.
"Capacity to consent" means that a vulnerable adult has sufficient understanding to make and communicate responsible decisions regarding the vulnerable adult's person or property, including whether or not to accept protective services offered by the department.
* * *
(8) "Facility" means any location providing day or residential care or treatment for vulnerable adults. The term "facility" may include, but is not limited to, any hospital, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, or mental health treatment center.
* * *
"Lacks capacity to consent" means a mental impairment that causes a vulnerable adult to lack sufficient understanding or capacity to make or communicate responsible decisions concerning person or property, including whether or not to accept protective services.
"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.
* * *
"Victim" means any vulnerable adult named in a report of abuse, neglect, or exploitation.
"Vulnerable adult" means a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, physical, or developmental disability or dysfunctioning, or brain damage, or the infirmities of aging. . . .
The CMS, State Operations Manual, Appendix P, Guidance for Surveyors, states in relevant part:
Intent: §483.13(b)
Each resident has the right to be free from abuse, corporal punishment, and involuntary seclusion. Residents must not be subjected to abuse by anyone, including, but not limited to, facility staff, other residents, consultants or volunteers, staff or other agencies serving the resident, family members guardians, friends, or other individuals. . . .
Section 400.022, Florida Statutes (2002), Residents' Rights, reads in pertinent part:
(1) All licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities
of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the following:
* * *
(m) The right to have privacy . . .
* * *
(o) The right to be free from mental and physical abuse, . . . .
Before imposing any sanction on a noncompliant licensee, Petitioner must give the licensee reasonable written notice of the charges and an adequate opportunity to request an administrative hearing pursuant to Chapter 120, Florida Statutes (2003). See Florida League of Cities v. Administration Commission, 586 So. 2d 397, 413 (Fla. 1st DCA 1991)("Until proceedings are had satisfying section 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person.")
Where "there is a disputed issue of material fact which formed the basis for the proposed final action [to impose the sanction]," the licensee is entitled to an evidentiary hearing held in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2003). Florida Sugar Cane League v. South
Florida Water Management District, 617 So. 2d 1065, 1066 (Fla. 4th DCA 1993).
At the hearing, Petitioner bears the burden of proving that the alleged deficiencies occurred and that they were of such nature and scope to warrant the sanction(s) Petitioner proposes to take. Therefore, the burden of proof in this case is on Petitioner. See Beverly Enterprises - Florida v. Agency for Health Care Administration, 745 So. 2d 1133 (Fla. 1st DCA 1999). The burden of proof for the assignment of a licensure status is by a preponderance of the evidence. See 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). The burden of proof to impose an administrative fine is by clear and convincing evidence. Department of Banking and Finance v.
Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); See discussion of the burden of proof standard in Agency for Health Care and Retirement Corporation of America, Case No. 03-2569 (DOAH December 22, 2003), at pp. 24 through 28.
Section 120.57(1)(c), Florida Statutes (2003), provides that hearsay evidence shall not be sufficient in itself to support a finding of fact unless it would be admissible over objection in civil actions. Durall v. Unemployment Appeals Commission, 743 So. 2d 166, 168 (Fla. 4th DCA 1999). See also
Arnold v. State, 497 So. 2d 1356, 1357 (Fla. 4th DCA 1986), for the unrelated but analogous case of a probation revocation
proceeding in which hearsay is admissible but must be supported by other competent non-hearsay evidence; and L. R. v. State, 557 So. 2d 121, 122 (Fla. 3rd DCA 1990).
Pursuant to Section 400.23(7)(b), Florida Statutes (2002), to assign a conditional licensure status to a facility, Petitioner must show that, at the time of the survey, the facility was not in substantial compliance with the criteria established under Part II of Chapter 400, Florida Statutes (2002). Substantial compliance is not defined in this part. It can be argued that substantial compliance with a particular statute, rule, standard, or requirement under the part would mean assuring that a particular known and identified hazard, such as verbal or mental abuse by nursing home staff, that causes, or may cause injury to the residents, would be closely monitored and steps taken to prevent injury to the residents from that known and identified hazard.
42 C.F.R. Section 483.301 is instructive in defining substantial compliance to mean:
A level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.
Except for Petitioner's direct observation regarding Resident No. 18, Petitioner relies exclusively upon hearsay and hearsay within hearsay to support the claimed violations. This
hearsay evidence is not reliable or sufficient to support a finding of fact. § 120.57(1)(c), Fla. Stat. (2003); Excellence
Medical Laboratory, Inc. v. Agency for Health Care Administration, Case No. 02-1442 (DOAH October 19, 2002). Petitioner's survey reports, even if admissible under some exception to the hearsay rule, themselves simply recite hearsay information. Respondent's investigation reports show that the details of the alleged incidents are disputed by those who were present at the event. None of those persons testified.
Petitioner asserts a violation of 42 C.F.R. Section 483.13(b) in that three residents were subjected to verbal or mental abuse. The Guidance to Surveyors relied upon by Petitioner's surveyors defines "verbal abuse" as:
Oral, written, or gestured language that willfully includes disparaging and derogatory terms to residents . . . or within their hearing distance . . . .
and defines "mental abuse" to include:
Humiliation, harassment, threats of punishment or deprivation.
There is no clear and convincing or preponderance of evidence which supports Petitioner's claim that a CNA willfully used disparaging or derogatory terms within the hearing of Resident No. 6 or that this CNA subjected Resident No. 6 to humiliation due to Resident No. 6's physical anomaly. Even if it is assumed that these two events occurred, there is no clear
and convincing evidence which reveals what impact, if any, the incidents had on the resident.
There is no clear and convincing or preponderance of evidence that nursing staff laughed at Resident No. 13 after a wandering male resident was found in Resident No. 13's room or that any aspect of the incident had any negative impact on Resident No. 13. Direct observation by Respondent's DON reveals a lack of any negative outcome.
There is no clear and convincing or preponderance of evidence that the way Respondent's staff addressed Resident No. 18 was disparaging, derogatory, or humiliating. Resident No. 18's documented hearing deficit, ignored by Petitioner in its allegations, adequately explains the need for Respondent's staff to address this resident in a loud, distinct voice. Again, Petitioner offered no evidence of any impact of this event on the resident.
Petitioner claims that Respondent failed to report allegations of abuse in violation of 42 C.F.R. Section 483(c)(1)(ii), which provides:
(c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.
(1) The facility must--
Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;
Not employ individuals who have been--
Found guilty of abusing, neglecting, or mistreating residents by a court of law; or
Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; . . . .
Petitioner does not contend that Respondent failed to develop or implement its written policies and procedures. Petitioner never contended that Respondent had employed any individuals prohibited by the above provisions. The above-cited federal requirements do not require any reporting of allegations of abuse or neglect. The federal regulation imposing such a requirement is 42 C.F.R. Section 483.13(c)(4), which requires that the results of all investigations of abuse and neglect 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 five working days of the incident. Petitioner has not alleged a violation of this regulation.
Even if Petitioner had alleged a violation of 42
C.F.R. Section 483.13(c)(4), Petitioner has not submitted any
convincing evidence supporting such violation. It is undisputed that Respondent investigates and notifies the administrator of the results of investigations and reports allegations of abuse and neglect to DCF. Whether Respondent did or did not simultaneously notify Petitioner has not been the subject of any proof. Petitioner offered neither testimony nor documentary evidence that Respondent had failed timely to file any required reports to Petitioner.
Finally, even if it is assumed that Respondent was required by 42 C.F.R. Section 483.13(c)(4) to notify Petitioner at the same time it notified DCF and that Respondent did not undertake such notification, there is a complete lack of proof of any impact which this lack of notification had upon any resident at Respondent's facility. Therefore, there is no basis for any finding or conclusion that the failure of notification prevented any resident from maintaining or reaching his or her highest practicable physical, mental, or psychosocial well- being.
A conditional license and the proposed monetary penalty are warranted only if a Class II deficiency existed. Petitioner has failed to prove that any Class II deficiency existed, under either standard of proof.
As such, Petitioner's allegation of a Class II deficiency by Respondent is without merit, and Petitioner should
assign a standard licensure status to Respondent for the period May 26, 2003, and ending July 28, 2003.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that a final order of dismissal of the Administrative Complaint be entered in this case.
DONE AND ENTERED this 31st day of March, 2004, in Tallahassee, Leon County, Florida.
S
DANIEL M. KILBRIDE
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 31st day of March, 2004.
COPIES FURNISHED:
Alfred W. Clark, Esquire
117 South Gadsden Street, Suite 201 Post Office Box 623
Tallahassee, Florida 32302-0623
Gerald L. Pickett, Esquire
Agency for Health Care Administration Sebring Building, Suite 330K
525 Mirror Lake Drive, North 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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 02, 2004 | Agency Final Order | |
| Mar. 31, 2004 | Recommended Order | Petitioner failed to prove Respondent committed Class II violations; talking sharply to a hard-of-hearing resident is not abuse nor is proof that a certified nursing assistant humiliated resident; failure to report abuse not proven. Recommend dismissal. |
