STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

HEBREW HOME OF SOUTH BEACH, INC., d/b/a HEBREW HOME OF SOUTH BEACH,

Respondent.

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) Case No. 04-0524

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on July 8, 2004, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Nelson E. Rodney, Esquire

Agency for Health Care Administration Spokane Building, Suite 103

8350 Northwest 52nd Terrace Miami, Florida 33166

For Respondent: Karen L. Goldsmith, Esquire

Jonathan Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011

Winter Park, Florida 32790-2011

STATEMENT OF THE ISSUE

Whether Respondent, a nursing home, committed the violation alleged in the one-count Administrative Complaint and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

Petitioner conducted a re-certification and licensure survey of Respondent’s facility on October 27–30, 2003.

Following that survey, Petitioner filed an Administrative Complaint against Respondent pertaining to its care of an elderly female patient who will be referred to as Patient 11. Patient 11 eloped from Respondent’s facility, once on August 25, 2003, and again on September 9, 2003. Succinctly stated, Petitioner charged that Respondent’s failure to take adequate measures to prevent the resident from eloping for the second time constituted a class II violation within the meaning of Section 400.23(8)(b), Florida Statutes (2004),1 that warrants a fine in the amount of $5,000.00 and the imposition of a conditional license. Respondent timely requested a formal administrative hearing, the matter was referred to DOAH, and this proceeding followed.

Petitioner presented the testimony of Glenn Boyles (Petitioner’s surveyor) at the final hearing and offered seven exhibits, each of which was admitted into evidence. Respondent presented the testimony of Jesse Dunwoody (Respondent’s

administrator), Rhodora Pelobello (Respondent’s director of nursing), and Maria Jover (a certified nursing assistant employed by Respondent). Respondent offered two composite exhibits, which were admitted into evidence.

A transcript of the proceedings was filed July 20, 2004.

On July 30, 2004, the undersigned entered an Order Granting Motion for Extension of Time that extended the deadline for the filing of proposed recommended orders to close of business on August 6, 2004. Each party filed a post-hearing submittal, which has been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the agency of the State of Florida charged with the responsibility of licensing and regulating nursing homes in Florida.

2. Pursuant to a license issued by Petitioner, Respondent operates a skilled nursing home with 104 beds at 320 Collins Avenue, Miami Beach, Florida. Respondent’s facility is located in a four-story building that is surrounded by busy streets.

3. Petitioner conducted a re-certification and licensure survey of Respondent’s facility on October 27-30, 2003.

4. Mr. Boyles, a senior pharmacist employed by Petitioner’s health quality assurance division, conducted the survey.2 As part of his survey, Mr. Boyles reviewed all the

   records pertaining to Resident 11, an 87-year-old Hispanic female who was admitted to Respondent’s facility on August 13, 2003. Resident 11 eloped from Respondent’s facility on

   August 25 and on September 9, 2003. She did not return to Respondent’s facility after her second elopement.

5. During a typical day, Resident 11 had periods of clarity and periods of confusion. She was on various medications that exacerbated her confusion and made her more susceptible to falls, thereby impacting her ability to safely ambulate. Her cognitive skills were moderately impaired and her decision-making was poor. It was unsafe for Resident 11 to be outside of Respondent’s facility without supervision.

6. At all times relevant to this proceeding, Resident 11 was known to wander the halls of Respondent’s facility and to be at risk for falls.

7. Resident rooms are on the fourth and third floors of Respondents’ facility. These floors are accessible by stairwells and an elevator. Each stairwell door and each emergency exit door has an alarm that alerts the nursing staff when someone has opened the door. However, the elevator can be operated by staff and residents alike, and it has no alarm system.

8. An activity area, a dining room, patio, storage rooms, and a conference room are located on the second floor.

9. Administrative offices, a receptionist area, and a parking garage are on the first floor. The parking garage is open to the street.

10. The lobby door, a door leading to a fenced maintenance area, and a door to the parking garage exit the building from the first floor. The stairwell doors on the third and fourth floors and the door to the parking garage have restraints that are referred to as “kiddy knobs.” The main lobby door and the door to the enclosed maintenance area do not have an alarm or a kiddy knob.

11. To open a door equipped with a kiddy knob, one has to squeeze and then turn the knob. Ms. Dunwoody, Respondent’s administrator, referred to the kiddy knobs as being “a very good deterrent” and testified that staff members sometimes have problems turning kiddy knobs because of the hand strength required. There was no direct evidence as to whether Resident

    11 had the hand strength to open a door equipped with a kiddy knob.

12. A receptionist is usually stationed at a desk on the first floor seven days a week between the hours of 8:30 a.m. and 5:00 p.m.3 The main lobby door is located in plain view of the receptionist’s desk. The elevator opens on the first floor near the door that exits into the parking garage. Neither the

    elevator nor the door that exits into the parking garage are in view of anyone sitting at the receptionist’s desk.

13. At the times relevant to this proceeding, Respondent had a monitoring program for those residents who had been determined to be at risk for falls or for elopement by Respondent’s interdisciplinary risk management team. In theory, each of these at-risk patients would be monitored at least once each 30-minute period by a certified nursing assistant (CNA). Ms. Dunwoody testified that she looked at several systems to protect those at-risk residents and decided that the 30-minute monitoring system was the best based on the physical layout of the facility.4

14. According to Respondent’s protocol, the names of all at-risk residents were supposed to be listed daily on a one-page form that assigns personnel to each 30-minute monitoring period. For ease of reference, the list of residents who were to be monitored will be referred to as the “at-risk list.” While the personnel assignment lists were made daily, the at-risk list was not always generated on a daily basis. Resident 11 was on Respondent’s at-risk list prior to August 25 because she was subject to falls. Respondent’s records reflect that Resident 11 was on the at-risk list on August 25 and on September 9, the two dates she eloped from the facility.5

15. Resident 11 eloped from Respondent’s facility on August 25, 2003. She was found walking unsupervised along a busy street in the vicinity of Respondent’s facility. Although Resident 11 was returned unharmed to Respondent’s facility within forty-five minutes of her elopement, her elopement on August 25 exposed her to danger.

16. In response to her elopement on August 25, Respondent’s staff developed a care plan for Resident 11 on August 26. Pertinent to this proceeding, the plan was designed to reduce Resident 11’s level of frustration and to provide more supervision. To reduce her level of frustration, the plan provided for simpler explanations of procedures using one-word commands, verbal reminders to assist her in orientation, and greater cueing and prompting for personal care. To provide greater supervision, Resident 11 was kept on the at-risk list, staff was advised that Resident 11 was an elopement risk in addition to being a fall risk, her photograph was given to the receptionist, and she required to wear a red wrist band denoting her status as being at risk to fall and to elope.

17. The pivotal issue in this proceeding was whether Respondent’s precautions against elopement in general as augmented by Resident 11’s August 26 care plan adequately protected Resident 11 from eloping a second time. That issue is resolved by finding that Respondent’s precautions were not

    adequate. Resident 11’s elopement on August 25 established that Respondent’s system (including the monitoring system, the alarms, and kiddy locks) was inadequate to prevent Resident 11 from eloping. Respondent took little action following Resident 11’s first elopement to prevent a second elopement.

    Respondent’s care plan for Resident 11 dated August 26 continued to rely on the same key elements of the system in place when she first eloped. There was no evidence that Respondent attempted to determine whether Resident 11 used the stairs or the elevator to reach the first floor from the third floor. There was no evidence that Respondent attempted to determine whether Resident

    11 used the garage door (equipped with the kiddy lock) or the front door to exit the facility. There was no evidence that Respondent attempted to determine whether the receptionist was at his or her station when Resident 11 eloped. There was no evidence that Respondent made any effort to ensure that all alarms and kiddy knobs were in proper working order following Resident 11’s first elopement.

18. Respondent’s failure to determine the route Resident 11 followed in eloping on August 25 resulted in its

    failure to determine the weaknesses in its system that enabled her to elope. Without having determined these weaknesses, Respondent was unable to strengthen its system or prevent the second elopement. The credible evidence established clearly and

    convincingly that Respondent’s efforts were not adequate to prevent a second elopement following the first elopement.6

19. The following events took place on September 9, 2003: Resident 11 was sitting in front of the nurses’ station on the third floor of Respondent’s facility prior to 11:25 a.m. At the request of Resident 11, Ms. Jover escorted Resident 11 from the area in front of the nurses’ station to her room, which was also on the third floor. At approximately 11:25 a.m., Ms. Jover left Resident 11 in her room. Resident 11 was resting in her bed when Ms. Jover left the room. At approximately 11:40 a.m.

    Ms. Jover noticed that Resident 11 was not in her room. A search of the facility followed, which determined that Resident 11 had eloped from the facility.

20. Resident 11 was found by a police officer in the general vicinity of Respondent’s facility on a busy street. She had fallen and had suffered cuts and other injuries. At approximately 11:55 a.m., a police officer notified Respondent’s staff as to the whereabouts of Resident 11 and what had happened to her. Her injuries required hospitalization and she did not return to Respondent’s facility. Her elopement on September 9 exposed her to danger and resulted in actual injuries to her person.

21. There was no direct evidence as to the route taken by Resident 11 to elope on September 9.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

23. Petitioner has the burden to establish the allegations that would warrant the imposition of an administrative fine or a conditional license. Beverly Enterprises-Florida v. Agency for

    Health Care Administration, 745 So. 2d 1133 (Fla. 1st DCA 1999). Petitioner must show by a preponderance of the evidence that there existed a basis for imposing a conditional rating on Respondent’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). Petitioner must show by clear and convincing evidence that an administrative fine should be imposed. 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).

    
    

24. Petitioner’s Administrative Complaint charged Respondent with failing to ensure that Resident 11 received necessary care and services to avoid physical harm as required by the provisions of 42 Code of Federal Regulations Section 483.13(c), which are applicable to Respondent as provided by Florida Administrative Code Rule 59A-4.1288.

25. Petitioner proved by clear and convincing evidence that Respondent failed to address Resident 11’s risk of elopement in a comprehensive manner, thereby failing to provide her the necessary care and services to avoid physical harm as alleged in the Administrative Complaint.

26. Petitioner alleged that Respondent’s violation constituted a class II deficiency, which is defined by Section 400.23(8)(b), Florida Statutes, as follows:

    (8) The agency shall adopt rules to provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature and the scope of the deficiency. The scope shall be cited as isolated, patterned, or widespread. An isolated deficiency is 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 is 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 is 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. The agency shall indicate the classification on the face of the notice of deficiencies as follows:

    
    

    * * *

    
    

    (b) 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. . . .

    
    

27. Petitioner established by clear and convincing evidence that Respondent was guilty of a class II deficiency and that an administrative fine should be imposed against it. Although Petitioner alleged that an administrative fine in the amount of $5,000.00 should be imposed against Respondent for the class II deficiency, Petitioner did not allege and it did not prove that the deficiency should be construed to be “patterned” or “widespread” as opposed to “isolated” as those terms are defined by the applicable statute. Consequently, the undersigned finds that the minimum fine for the class II deficiency, in the amount of $2,500.00, should be imposed instead of the fine in the amount requested by Petitioner.

28. Section 400.23(7)(b), Florida Statutes, requires Petitioner to classify a nursing home’s license as “standard” or “conditional” as follows:

    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.

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

    2. A conditional licensure status means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part or with rules adopted by the agency.

       If the facility has no class I, class II, or class III deficiencies at the time of the follow-up survey, a standard licensure status may be assigned.

       
       

29. Petitioner established by the requisite standard that Respondent’s license should be rated “conditional.”

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that finds Respondent guilty of a class II deficiency, imposes an administrative fine in the amount of $2,500.00 against Respondent, and places its license on a conditional status.

DONE AND ORDERED this 26th day of August, 2004, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 26th day of August, 2004.

ENDNOTES

1/ All references to statutes in this Recommended Order are to Florida Statutes (2004). All references to rules are to the version in the Florida Administrative Code as of the date of this Recommended Order.

2/ Mr. Boyles has been employed by Petitioner (or its predecessor agency) for the past ten years and has conducted between 250 to 300 surveys during that time. Mr. Boyles is found to be highly qualified and his testimony credible.

3/ The two elopements at issue in this proceeding occurred during the middle of the work day. Petitioner has after-hours security that is not relevant to this proceeding.

4/ In deciding methods to protect residents who were at-risk to elope, Ms. Dunwoody considered that Respondent could not lock the exit doors to the facility due to fire regulations, and Respondent could not provide one-to-one supervision for the residents. In making the findings set forth in this Recommended Order, the undersigned has considered the testimony of all the witnesses, including that of Ms. Dunwoody. The undersigned has also considered that there was no adequate explanation why

Ms. Dunwoody did not consider time-delayed locks on exit doors, which were permitted by fire regulations, or why she did not consider making the elevator less accessible to patients by requiring a key of some type to operate the elevator.

5/ Substantial questions were raised as to the effectiveness of Respondent’s monitoring system. Respondent’s records reflect that Resident 11 was on the at-risk list only on the following dates: August 15, 20, 21, 25, 28, 31, and September 2, 3, 4, 8, and 9, 2003. There was a question as to how the CNAs knew what residents needed to be monitored each day. It appeared that on some days they relied on a written list and on other days they relied on verbal instructions from nurses. It was not clear what the signature of the CNA on the assignment form signified since they could sign the form at any time during the 30-minute period. It was also not clear how each CNA carried out his or her assignments since some apparently visually monitored each resident on the at-risk list while others depended on other staff to tell them the whereabouts of at-risk residents who were not seated in front of the nurses’ station. Those questions do not need to be resolved in this Recommended Order because the findings that follow assume that Respondent’s 30-minute monitoring system was operating as designed on August 25 and September 9, 2003.

6/ Ms. Dunwoody and Ms. Pelobello testified that Respondent had taken reasonable steps to prevent Resident 11 from eloping while balancing the rights of Resident 11 and the other residents to reside in the least restrictive appropriate placement. Their testimony in that regard is contrary to the greater weight of the evidence.

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

Nelson E. Rodney, Esquire

Agency for Health Care Administration Spokane Building, Suite 103

8350 Northwest 52nd Terrace Miami, Florida 33166

Charlene Thompson, Acting Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Alan Levine, Secretary

Agency for Health Care Administration Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 04-000524

Orders for Case No: 04-000524