STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

EMERALD POINTE MEDICAL, INC., d/b/a EMERALD POINTE,

Respondent.

)

)

)

)

)

) Case No. 04-0528

)

)

)

)

)

)

RECOMMENDED ORDER

A formal hearing was held in the above-styled cause pursuant to notice on July 27, 2004, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, in Shalimar, Florida.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403

For Respondent: Karen L. Goldsmith, 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 the Agency should levy a $6,000 fine on the Respondent.

PRELIMINARY STATEMENT

This case arose from the Administrative Complaint filed by the Petitioner against the Respondent alleging that the Petitioner failed to ensure the resident environment remained as free of accident hazards as possible, Tag F323, and imposing a survey fee of $6,000 pursuant to Section 400.19(3), Florida Statutes (2003).

The Respondent requested a formal hearing, and the matter was referred on February 12, 2004, to the Division of Administrative Hearings to conduct a formal hearing on the allegations. On February 13, 2004, an Initial Order was issued, and, after the response of the parties, a formal hearing was set for April 8, 2004, by a Notice of Hearing dated February 19, 2004. The parties jointly requested a continuance of the scheduled hearing on April 1, 2004, and the hearing was re-set for June 9, 2004. Thereafter, the Respondent requested a continuance, and the case was re-set for July 27, 2004. The case was heard as noticed on that date.

At formal hearing, the Petitioner presented the testimony of Glenda McLeod, Debbie Wussler, and Jacqueline Klug together with the deposition testimony of Barbara Alford. In addition, the Petitioner submitted a Composite Exhibit 1, which was reviewed by the Respondent and attached to Petitioner's Amended Proposed Recommended Order, consisting of various records

related to the violation. The Respondent presented the testimony of Debbie Wussler, Kevin Hopkins, and Mary Martha Winn. The Respondent introduced into the record Respondent's Exhibits 1, 2, and 3.

After the hearing, a transcript was ordered consisting of one volume. Both parties submitted proposed findings on or about September 22, 2004, that were read and considered. All references to statutes are to the Florida Statutes 2004 unless otherwise noted.

FINDINGS OF FACT

1. The Petitioner, Agency for Health Care Administration, is responsible for the licensing, inspection, and regulation of skilled nursing facilities in Florida. The Respondent is a skilled nursing facility licensed to operate a 90-bed facility in Niceville, Florida.

2. As the result of the physical injury of a resident (Resident 9), the Petitioner conducted a complaint investigation of the licensed facility. At the time of this investigation, Debbie Wussler was the administrator of the licensed facility. Wussler had conducted, pursuant to the facility's standard operating procedures, an inquiry into the incident in which the resident was injured. Although she had no personal knowledge of the incident, as the administrator she determined that the injury occurred when Resident 9 attempted to crawl into a

   freestanding wardrobe in another resident's room during the middle of the night.

3. Resident 9 suffered from senile dementia, and it could not be determined why he crawled into the wardrobe; however, one theory was that, in his confused state, he thought it was the way out. Notwithstanding his motivation, Resident 9's attempt to crawl into the wardrobe caused it to tip over on him bruising and scraping him. He was hospitalized for observation, and, based upon a reassessment of his mental condition, he was not returned to the facility.

4. The facility's procedures required an assessment of accidents, a determination of the cause(s), repair of deficient or defective equipment, and other interventions necessary to prevent a reoccurrence of any injury. Wussler heard from her nursing supervisor and maintenance supervisor regarding the incident and its causes.

5. It was concluded that the injury occurred because of the Resident 9's acts, the wardrobe was in good repair, no remedial action was required to the wardrobe, and his transfer to a more appropriate facility would eliminate a reoccurrence of such an incident.

6. Although a member of the injured resident's family testified, the individual had no personal knowledge of the facts leading to the resident's injury. The administrator's

   determination of the cause is deemed the most credible set of facts surrounding Resident 9's injuries.

7. As a result of the aforementioned complaint investigation, the Petitioner conducted a facility survey of the licensed facility. Jackie Klug, a Public Health Nutrition Consultant, testified. Klug's duties include surveying various health care facilities. She was familiar with the licensed facility and participated in the survey that followed the complaint investigation.

8. Klug identified the complaint investigation form, Petitioner's Composite Exhibit 1 (PCE1), Item 1, and the survey form 2567, PCE1, Item 2. This form contains a deficiency, Tag F323, which relates to the wardrobe falling on the resident.

9. Klug's survey revealed that earlier in the year, a similar incident had occurred. In that incident, a resident (Resident 13), who was wheelchair bound, used the open door of the wardrobe to attempt to pull herself up out of her chair. This caused the wardrobe to fall over on her. Klug's inquiry revealed that the staff also had reviewed that incident.

10. It was concluded that the injury occurred because of the Resident 13's acts, that the wardrobe was in good repair and that no remedial action was required to the wardrobe.

11. Klug determined that the staff concluded that the wardrobe did not need to be anchored to the wall. Her inquiry revealed that the staff found that anchoring the wardrobe would prevent housekeeping from being able to clean behind them as required and prevent residents from arranging the furniture in their room to suit themselves and their needs.

12. The wardrobes in both cases were similar and were pieces of furniture built for use in hospitals and nursing homes.

13. Klug concluded from a review of the records that Resident 13 had suffered various bruises from the incident and hurt her back. She found from a review of the facility's actions after the first incident that the facility failed to anchor the wardrobes and concluded that this constituted a deficient practice and there was no assurance that the facility had done anything to try to prevent such an incident from recurring. Klug concluded that this was a significant event because it had re-occurred.

14. Ms. Barbara Alford testified. Ms. Alford is the area supervisor for certification and licensure of licensed facilities. She directed that the survey in question be conducted. She also determined that the failure to secure the wardrobes was a deficiency and was an immediate jeopardy. In sum, she determined that the facility did not take any measures

    to either assess residents who were at risk or assess whether the wardrobes were a danger. Her determination was contrary to the facts as presented at the formal hearing.

15. Kevin Hopkins, the facility's Director of Maintenance, testified. Following both incidents, there was a formal staffing of the accidents by department directors. The wardrobes were inspected and determined to be in good repair. The staff determined that Resident 13 misused the door of the wardrobe as a pull bar causing it to fall over. The staff determined that Resident 9 attempted to crawl into the wardrobe causing the wardrobe to fall over. In the case of Resident 13, who did not suffer dementia, the staff worked with her to educate her and assist her in getting her out of her wheel chair. In the case of Resident 9, he was transferred to another facility upon a determination that the licensed facility could not meet his needs because of his increasing dementia.

16. Hopkins stated that the wardrobe could be affixed to the wall; however, this would limit how residents arranged their rooms and create problems in cleaning the room adequately.

17. Ms. Alford stated that no bulletin or notice was published by the Department alerting licensed facilities to the dangers of wardrobes falling on residents as a result of the Agency's findings in this case.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this case pursuant to Chapters 120 and 400, Part II, Florida Statutes.

19. Subsection 400.23(2), Florida Statutes, provides:

    
    

    (2) Pursuant to the intention of the Legislature, the agency, in consultation with the Department of Health and the Department of Elderly Affairs, shall adopt and enforce rules to implement this part, which shall include reasonable and fair criteria in relations to:

    
    

    * * *

    
    

    (d) The equipment essential to the health and welfare of the residents.

    
    

    * * *

    
    

    (f) The care, treatment, and maintenance of residents, and measurement of the quality and adequacy thereof, based on rules developed under this chapter and the Omnibus Budget Reconciliation Act of 1987 (Public Law No. 100-203)(December 22, 1987), Title IV (Medicare, Medicaid, and Other Health- Related Programs), Subtitle C (Nursing Home Reform), as amended. (Emphasis supplied.)

    
    

20. Subsection 400.23(8), Florida Statutes, provides:

    
    

    (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:

    
    

    1. 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.

    2. 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.

       
       

    3. 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. (Emphasis supplied.)

    
    

21. The Agency cites 42 Code of Federal Regulation 483.25(h), as authority for this deficiency and levying the fine. This provisions states:

    1. Accidents. The facility must ensure that--

       
       

       1. The resident environment remains as free of accident hazards as is possible; and

          
          

       2. Each resident receives adequate supervision and assistance devices to prevent accidents.

    
    

22. The Agency has cited no rule it has adopted requiring that furniture and equipment be secured to prevent it from falling in facilities. The Agency proceeds on the basis of the general statement contained in the Code of Federal Regulations cited above.

23. The Petitioner seeks to fine the Respondent on the basis that the Respondent allegedly failed to "ensure that the resident environment remained as free of accident hazards as is possible" by failing to anchor the wardrobe in residents' rooms contrary to the cited provision of the Code of Federal Regulation. It appeared that this conclusion was reached upon a determination that no action had been taken by the facility, and upon a determination the wardrobes should have been anchored after the first incident.

24. The evidence revealed that both accidents were staffed and various actions to prevent a reoccurrence of the specific accident were considered. It was determined that anchoring the wardrobes was not the best solution to the problem because it limited the ability of housekeeping to clean the rooms and the ability of residents to arrange their rooms.

25. Evidence was received from witnesses for both sides that these two accidents were the only ones of which the witnesses were aware involving falling wardrobes. Based upon their experiences, it is concluded that such incidents are extremely isolated events.

26. The wardrobes in question were in good repair and would not tip over in the course of normal usage. The cause of the first accident was Resident 13 trying to use the door in the wardrobe of her room as a pull bar to raise herself from her wheel chair. The facility assessed Resident 13's accident and its causes and concluded that it was an isolated event that could be prevented by staff interventions with resident to prevent her from using the door as a pull-up bar.

27. The standard for assessing compliance in cases of this sort is the foreseeability of the next occurrence based upon the first occurrence and interventions. As the judge in one case put it, "A facility is not required to assure its residents never sustain accidents. Rather, the regulations require that

    the facility provide adequate supervision and assistance devices to its resident as a safeguard against accidents. A facility satisfies the requirements . . . if it takes reasonable precautions to protect the health and safety of its residents against accidental injuries." See Lineville Nursing Facility, DAB CR 947 (August 30, 2002) citing Hermina, DAB CR 757 (2001).

28. The courts look at the efforts of the facility to intervene in preventing accidents based upon the prior behavior of specific residents and specific events. Anticipating misuse of an item is difficult, if not impossible, as demonstrated by the facts of the second incident in which Resident 9 attempted to crawl into the wardrobe in another resident's room.

29. This bizarre behavior was completely different from that of Resident 13. No evidence was presented that would indicate that the licensed facility should have anticipated Resident 9's behavior. The wardrobe that he tipped over was not his own, but in another room. The facts reveal that he was hospitalized for observation and assessment after the incident, which resulted in his transfer to another more appropriate facility, but no evidence was presented that his conduct was foreseeable.

30. The Petitioner is required to prove a violation by clear and convincing evidence. The proof it presented is something of a res ipsa loquiture approach, i.e., it reoccurred,

    therefore, the facility was deficient. However, this is not the standard required because the cause of the accident must have been foreseeable. The cause of the accident was the action of the residents upon the wardrobe, not the failure to anchor the wardrobe. In this case, the Petitioner would have to show that it was foreseeable, based upon the first incident, that a resident would try to crawl into the wardrobe. It failed to show this.

31. In the absence of a specific rule requiring the furniture and equipment to be anchored, the standard is whether the cause of the accident was reasonably foreseeable and whether the licensee failed to respond to it in an appropriate manner under the circumstances. The Petitioner failed to show this by clear and convincing evidence.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Agency for Health Care Administration enter its final order finding that Resident 9's actions were unforeseeable that the licensee's interventions after Resident 13's accidents were sufficient and dismissing the administrative complaint.

DONE AND ENTERED this 18th day of October, 2004, in Tallahassee, Leon County, Florida.

S

__ STEPHEN F. DEAN

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 18th day of October, 2004.

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

Michael O. Mathis, Esquire

Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive

Tallahassee, Florida 32308

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

Tallahassee, Florida 32308

Alan Levine, Secretary

Agency for Health Care Administration 2727 Mahan Drive, Suite 3116

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: 04-000528

Orders for Case No: 04-000528