vs. ) Case No. 05-3682
) BROOKWOOD GARDENS CONVALESCENT ) CENTER OPERATIONS, LLC, d/b/a ) BROOKWOOD GARDENS )
Respondent. )
Pursuant to notice, a hearing was conducted in this case on March 10, 2006, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what sanction(s), if any, should be imposed.
In early 2005, the Agency for Health Care Administration (Agency) filed a one-count Administrative Complaint alleging that Respondent had violated "Title 42, Section 483.25(h)(1), Code of Federal Regulations as incorporated by Rule 59A-4.1288, Florida Administrative Code," in that Respondent had "failed to ensure [a sampled] resident's environment was free of hazards during transfers with mechanical lifts leading to [the] injury [of that] resident[]." The Administrative Complaint contained the following Claim for Relief:
WHEREFORE, the Petitioner, State of Florida Agency for Health Care Administration requests the following relief:
4. Grant such other relief as the this Court deems is just and proper.
By petition filed by its attorney, Respondent requested a "formal administrative hearing" on the allegations made in the Administrative Complaint. The matter was referred to DOAH on March 24, 2005, for the assignment of an administrative law judge to conduct the hearing Respondent had requested. The case was docketed as DOAH Case No. 05-1126 and assigned to the undersigned.
The final hearing in DOAH Case No. 05-1126 was set for May 27, 2005. On May 23, 2005, after receiving an unopposed motion to continue the hearing in which Respondent asked for
additional time "to conclude discovery and discuss settlement," the undersigned issued an order closing the file in DOAH Case No. 05-1126, "with leave for either party to request [DOAH] to re-open the case should [a] settlement [agreement] not be finalized."
On October 7, 2005, the Agency filed with DOAH in DOAH Case No. 05-1126 an Unopposed Motion to Reopen Case. By order issued October 11, 2005, the request was granted and the file in DOAH Case No. 05-1126 was reopened as DOAH Case No. 05-3682.
The final hearing in DOAH Case No. 05-3682 was originally scheduled for December 20, 2005, but was twice continued.
On March 2, 2006, the parties filed a Joint Prehearing Stipulation, which provided, in pertinent part, as follows:
As noted above, the hearing in this case was held on March 10, 2006.
At the outset of the hearing, the Agency requested (without opposition), and was granted, leave to amend paragraph 19 of the Administrative Complaint to read as follows:
Based on the foregoing, Brookwood Gardens Rehabilitation and Nursing Center violated Title 42, Section 483.25(h)(1), Code of Federal Regulation as incorporated by Rule 59A-4.1288, Florida Administrative Code, herewith classified as an Class II deficiency[1] pursuant to Section 400.23(8)(c), Fla. Stat., which carries, in this case, an assessed fine of $2,500.00.
This violation also gives rise to a conditional licensure status pursuant to Section 400.23(7)(b).
Four witnesses testified at the hearing: Linda Howell, Isela Palacios, Diane Doyle, and Edwin Coelho. In addition, eight exhibits (Petitioner's Exhibits 1 through 4, and Respondent's Exhibits 1 through 4) were offered and received into evidence.
At the close of the taking of evidence, the undersigned established a deadline (30 days from the date of the filing with DOAH of the hearing transcript) for the filing of proposed recommended orders.
The Transcript of the hearing (consisting of one volume) was filed with DOAH on April 5, 2006.
On April 20, 2006, Respondent filed an unopposed Motion for Extension to File Proposed Recommended Order. By order issued April 20, 2006, the motion was granted and the deadline for filing proposed recommended orders was extended to June 5, 2006.
The Agency and Respondent both timely filed their Proposed Recommended Orders on June 5, 2006.
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
Respondent operates a 120-bed Skilled Nursing Facility located at 1990 S. Canal Drive, Homestead, Florida 33035 (Facility) pursuant to a license issued by the Agency.
At all times material to the instant case, Edwin Coelho was the administrator of the Facility; Linda Howell was the LPN clinical coordinator at the Facility; Diane Doyle was the Facility's staff educator and infection control nurse; and Isela Palacios and Rosa Romero were Certified Nursing Assistants (CNAs) on the Facility's staff.
At all times material to the instant case, E. H. was a resident of the Facility.
On July 8, 2004, prior to her admission to the Facility, E. H. suffered a spiral/oblique fracture of her right distal tibia and fibula. Such a fracture is "usually caused by some sort of torque on the bone."
At the time of her injury, E. H. was an 89-year-old woman with osteoporosis2 who had been "nonambulatory for nine years." Her bones were "very fragile" and "brittle" and "subject to easily be[ing] fractured" as a result of mere "movement."
E. H. was treated by Felix Stanziola, M. D., an orthopedic specialist.
Because of E. H.’s age and condition, Dr. Stanziola treated E. H.'s fracture conservatively by "align[ing] the bones and then put[ting on] a [long leg] cast." No surgery was performed.
In August of 2004, E. H. became a resident of the Facility. Her right leg was still in a "long leg cast" at the time of her admission.
On September 1, 2004, E. H. was transported from the Facility to Dr. Stanziola's office, where Dr. Stanziola removed her "long leg" cast and put her in a "short leg cast."
On September 29, 2004, E. H. was again transported from the Facility to Dr. Stanziola's office. During this visit, Dr. Stanziola determined that the "fracture was healed" and, based on this determination, removed the cast he had put on
E. H.'s leg the previous visit. Because E. H. was experiencing "knee pain" as a result of "severe arthritis," Dr. Stanziola "ordered physical therapy" for her.
Throughout her stay at the Facility, both before and after the cast was removed, E. H. was nonambulatory and bedridden, requiring "total care" except for feeding.3
Facility staff had to reposition her in bed every two hours "because she could not reposition herself."
When she needed to be moved either out of, or back onto, her bed (and the need arose "virtually every day"), Facility staff used a Marisa "sling lift" (Marisa) to make the transfer. This was "the safest way to move her." Other non- weight bearing residents in the Facility were also moved using a Marisa.
A Marisa is a mobile, electric lift consisting of a U- shaped base and an upright post, on which is mounted a curved arm with a "tilting spreader bar." A head and body support sling, which "cradles" and supports the resident above the knees, is attached to the "tilting spreader bar." The operating
controls are located on the back of the upright post. There is also a "remote" device that can be used to operate the lift.
In making a transfer using the Marisa, the curved arm is first positioned over the resident. Then, two Facility staff members, situated in front of the resident, with the aid of a "Maxislide," slide the sling "right up under [the resident's] buttocks so it supports [the resident] from the knees back." To do this, the resident's "legs have to be lifted manually," but "only a very small amount." During the lift, the resident's lower legs (beneath the knee), which are unsupported, can swing freely.
At all times material to the instant case, the Facility had policies and procedures in place that its staff were to follow in making a "patient lift/transfer." These policies and procedures included the following, among others:
Every precaution is used to safeguard the patient when making a mechanical or manual lift, transfer or move.
Plan any lift, transfer or move ahead of time. Have the proper equipment or personnel on hand. Ensure everyone involved in the task understands his or her role in the transfer, lift or move.
Arrange the environment as necessary. Make sure there is appropriate space to maneuver and work in to ensure a safe lift, transfer or move.
* * *
Prior to using a mechanical lifting device the nurse will ensure proper planning for the transfer/lift has been accomplished and will request assistance [when] required for any difficult lift/transfer.
CNAs Palacios and Romero received training in these policies and procedures prior to December 8, 2004.
E. H. received a shower every other day in the shower room, which was two rooms down the hallway from the room E. H. occupied at all times material to the instant case.
In the shower room, she was bathed while seated in a shower chair (which had wheels) by "shower CNAs."
The shower chair that was used did not have a footrest, nor any other device or feature to prevent E. H.'s lower legs from swinging freely when being wheeled in the chair.
The "shower CNAs" had to lift E. H.'s legs to bathe them properly.
On December 8, 2004, CNA Palacios, with the assistance of another CNA, used the Marisa to transfer E. H. from her bed to a shower chair. The transfer was safely accomplished, without incident, like every prior transfer of E. H., since her arrival at the Facility, had been. CNA Palacios then wheeled
E. H. in the shower chair to the shower room, where the "shower CNAs" bathed E. H.
After bathing E. H., the "shower CNAs" placed a "covering" on her and wheeled her into the hallway, where CNA
Palacios was waiting. CNA Palacios then wheeled E. H. back to
E. H.'s room.
E. H. had remained in the shower chair the entire time she had been out of her room.
E. H.'s room (which she shared with another resident) was a "standard" 12-foot by 24-foot semi-private room with a small bathroom (having just a sink and toilet).
When E. H. returned from her shower on December 8, 2004, in her room (taking up floor space) outside the bathroom, were: two beds (eight feet by three feet); two night stands (18 inches by 30 inches); two wardrobe closets (23 inches by 22 inches); two "over the bed" tables; a reclining chair (30 inches by 30 inches); a television stand (24 inches by 14 inches); an oxygen concentrator; a high back chair (22 inches by 26 inches);
E. H.'s wheelchair; and the shower chair in which E. H. was seated. These were the same items that had been present in the room earlier that day when E. H. had been moved (safely, with the Marisa) from her bed to the shower chair. On Respondent's side of the room (the "A" side, which was closest to the door) were one of the beds, one of the nightstands, one of the "over the bed" tables, both of the wardrobe closets, the high back chair, the wheelchair, and the shower chair (with E. H. in it). The remaining items were on the other resident's side of the room (the "B" side).
The high back chair was located against the wall next to the wardrobe closets (which were to the left as one entered the room).
The high back chair was in the room, not for E. H. or her roommate to sit on, but for visitors to use.
After wheeling E. H. back into the room in the shower chair, CNA Palacios went to get the Marisa, which was "right outside the door" to the room.
There, she met CNA Romero, who volunteered to help CNA Palacios transfer E. H., with the Marisa, from the shower chair to E. H.'s wheelchair.
CNA Palacios then went back into E. H.'s room with the Marisa, followed by CNA Romero.
The Marisa was positioned so that its curved arm was over the shower chair in which E. H. was seated.
CNAs Palacios and Romero then secured E. H. in the sling and the lift began, with CNA Palacios at the controls and CNA Romero next to E. H. (who was facing in the general direction of the door).
The wheelchair (into which E. H. was to be placed) was between the shower chair and the high back chair.
During the lift, E. H.'s roommate (who was behind a privacy curtain) asked for CNA Palacios' assistance. CNA Palacios responded that she would "be there in a minute," after
which she continued to focus her attention on operating the Marisa and completing the lift.
Before the lift was completed, CNA Romero advised CNA Palacios that there was blood on the floor directly below
E. H.'s right leg. Up until that point in time, nothing unusual had occurred during the lift, such as E. H. bumping into or hitting something or expressing discomfort.
Upon being told about the blood, CNA Palacios turned off the Marisa.
CNA Romero then removed the covering that the "shower CNAs" had placed on E. H.'s legs. It was apparent that E. H. had suffered a compound fracture (that is, a fracture where "the bone was protruding through the [skin]") of her right lower leg. There was considerable bleeding. The blood was dripping onto the floor in the area beneath the injured leg. There was no blood anywhere else inside or outside the room (other than on
E. H. and CNA Romero's pants).
Once E. H.'s injury was discovered, nurses were summoned to the room. After the nurses had stabilized E. H.'s leg, the Marisa was turned on again and E. H. was moved back onto her bed. It was not until she was on the bed that E. H. first gave "any indication of discomfort."
Emergency rescue workers were called. After they arrived on the scene, E. H. was transported to the hospital by helicopter.
X-rays revealed that that E. H. had a "new" spiral/oblique fracture "just above" where she had fractured her leg on July 8, 2004.
Shortly after E. H. was taken to the hospital, the Facility began an investigation to determine what had happened to cause her injury. LPN Howell was the staff member put in charge of the investigation.
Among the individuals LPN Howell interviewed as part of her investigation were CNAs Palacios and Romero. CNA Palacios was interviewed within an hour of the incident. CNA Romero was interviewed within two and half hours of the incident.4 Both CNAs told LPN Howell that they did not know how
E. H. had been injured.
CNAs Palacios and Romero were subsequently asked to give written statements about the incident.
The written statement CNA Palacios provided read as follows:
She came back from the shower on the chair. I put the sling on her back. Rosa help[ed] me. We put the machine Maris[]a [to] get her up. The Mari[]sa pick[ed] her up in the air. Then we put her in the wheelchair.
Then we notice[d] blood on the floor. I
went out to get nurse [G]eorge. Everybody went to help.
I did not hear her foot bump or hit anything.
The written statement CNA Romero gave read as follows:
I, Rosa Romero was assisting Isela Palacios transferring a resident in . . . Room 304 A from the shower chair to the wheelchair with the hoyer l[i]fter and her leg got caught in it. We didn't notice she was hurt until she was s[it]ting in the wheelchair when we saw lot[s] [of] blood on the floor.
Isela and I w[ere] helping each o[ther] and we did everything the right way, the way [it] is supposed to be [done].
Notwithstanding the assertion CNA Romero made in her written statement that E. H.'s "leg got caught in it," there is "nothing [in the Marisa] to get caught in."5
After completing her interviews on December 8, 2004, LPN Howell spoke to her supervisor, Facility Administrator Coelho, who also serves as the Facility's risk manager. Facility Administrator Coelho told LPN Howell that he "was going to check things out himself."
To this end, he participated in several "reenactments" of what had transpired in E. H.'s room after she had come back from her shower on December 8, 2004, in an effort to ascertain how E. H. may have injured herself. The "reenactments" took place in E. H.'s room. "[I]tems [in the room] were placed" where, according to CNAs Palacios and Romero, they had been at
the time of the incident. Facility Administrator Coelho played the role of E. H. "[O]ne of the CNAs" operated the controls of the Marisa and, using the machine, lifted Facility Administrator Coelho out of the shower chair and into E. H.'s wheelchair.
This was done "about three times." At no time did Facility Administrator Coelho come close to "hit[ting] anything inside" the room.
The Facility administration submitted required reports concerning E. H.'s injury.
LPN Howell prepared the "Federal 5-day Report," which Facility Administrator Coelho reviewed and discussed with her before its submission. This report contained the following "findings of facility investigation":
After completion of interviews, the area and equipment involved were checked. It is determined that the area was crowded due to the size of the resident, the size of the shower chair, the size of the w/c, the size of the Marisa lift and the furniture along with the constant request of the other resident in the room distracted the staff when the resident was moved to position the Marisa sling over the w/c.
The procedures in place at the time for safety of both residents and staff were being followed but a lack in focus or concentration led to the injury.[6] There is no evidence of intent to do harm on the part of the staff members involved.
The staff members were suspended without pay for 5 days and have returned to work effective 12-13-04.[7]
Facility Administrator Coelho authored an "Administrative Incident Report," in which he stated that the Facility administrations's investigation revealed "no definitive reason for the accident," but that it "was assumed that in turning the resident while she was on the sling her leg got caught on the high back chair" in the room. He added that the Facility administration was taking action to remove high back chairs from rooms of residents who "ha[d] to be lifted."
The high back chairs were removed from E. H.'s room and the rooms of other residents who "ha[d] to be lifted" on or about December 10, 2006. The Facility administration did so only out of an abundance of caution, not because it had determined with any certitude that the presence of the high back chair in E. H.'s room on December 8, 2004, constituted a hazardous condition that resulted in E. H.'s injury.
Prior to the incident on December 8, 2004, there had never been a problem at the Facility in lifting
E. H. or any other resident in a room with a high back chair.
The lifting of residents in rooms set up like E. H.'s had "happened all the time in [the] building" without any resident getting injured.
At no time during this period had the Facility been cited by the Agency, during any life safety inspection, for
failing to comply with requirements concerning the design and equipping of residents' rooms.8
Having the high back chair in E. H.'s room on December 8, 2004, did not unreasonably expose E. H. to the risk of accidental injury while being lifted with the Marisa.
Even with the high back chair in E. H.'s room on December 8, 2004, there was adequate space for trained Facility staff, acting in a reasonably prudent manner in accordance with Facility policy and procedure, to lift E. H. with the Marisa (as had been done in the past) without E. H.'s bumping into something and injuring herself.
It is unclear exactly what caused E. H. to suffer a compound fracture of her right lower leg on December 8, 2004.9 What is clear is that this injury was not the result of her having gotten her leg "caught" in the Marisa or on the high back chair while being lifted from the shower chair. During the lift, her leg did not hit against any object in the room.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.10
Chapter 400, Part II, Florida Statutes, contains provisions that:
provide 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.
§ 400.011, Fla. Stat.
Among these provisions are those set forth in Section 400.23, Florida Statutes.
Section 400.23(2), Florida Statutes, authorizes the Agency to "adopt and enforce rules to implement [Chapter 400, Part II, Florida Statutes]."
The rules adopted by the Agency 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. . . .
These "certification rules and regulations" referenced in Florida Administrative Code Rule 59A-4.1288 include 42 C.F.R.
§ 483.25.
42 C.F.R. § 483.25 addresses "[q]uality of care." It provides, in pertinent part, as follows:
Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.
* * *
Accidents. The facility must ensure that --
The resident environment remains as free of accident hazards as is possible
* * *
Pursuant to Section 400.23(7), Florida Statutes, every
15 months, the Agency 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 [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, is defined in Subsection (8)(a) of the statute as a "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, 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, 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."
One other class of deficiency, a "class IV deficiency," is described in Section 400.23(8), Florida Statutes. 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, the Agency 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:
. . . . 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 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 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, 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, 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, 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."
Before imposing any sanction on a noncompliant licensee, the Agency 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. See Florida League of Cities v. Administration
Commission, 586 So. 2d 397, 413 (Fla. 1st DCA 1991)("Until proceedings are had satisfying [S]ection 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. Florida Sugar Cane League v. South Florida Water Management District, 617 So. 2d 1065, 1066 (Fla. 4th DCA 1993).
At the hearing, the Agency bears the burden of proving that the alleged deficiencies occurred and that they were of such nature and scope to warrant the sanction(s) the Agency proposes to take.
The parties agree, and the law is clear, that when the Agency seeks to impose an administrative fine, its proof must be clear and convincing. See Department of Banking and Finance,
Division of Securities and Investor Protection v Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996)("[A]n administrative fine deprives the person fined of substantial rights in property. Administrative fines . . . are generally punitive in nature. . . . Because the imposition of administrative fines . . . [is] penal in nature and implicate[s] significant property rights, the extension of the clear and convincing evidence standard to justify the imposition of such a fine is warranted."); Diaz de la Portilla v. Fla. Elections Commission, 857 So. 2d 913, 917 (Fla. 3d DCA 2003)("We agree
with the administrative law judge that the standard of proof in a case seeking fines under chapter 106 is clear and convincing evidence."); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal . . . proceedings "). Clear
and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id.
For proof to be considered "'clear and convincing' the
evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler
Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
The parties have stipulated that the standard of proof the Agency must meet when it seeks to impose conditional licensure status is preponderance of the evidence. While this stipulation is not binding on the undersigned11 and a persuasive argument can be made that the standard should be the same as that required for the imposition of an administrative fine (that is, clear and convincing evidence),12 the undersigned will assume that the appropriate standard is the one the parties have stipulated to: the less stringent preponderance of the evidence standard.
In determining whether the Agency has met its burden of proof, it is necessary to evaluate the Agency's evidentiary presentation in light of the specific allegations made in the charging instrument. Due process prohibits an agency from taking penal action against a licensee based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental
Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
In the lone count of the Administrative Complaint issued in the instant case, the Agency alleges that Respondent
violated "Title 42, Section 483.25(h)(1), Code of Federal Regulations as incorporated by Rule 59A-4.1288, Florida Administrative Code," in that Respondent "failed to ensure
[E. H.'s] environment was free of hazards during transfers with mechanical lifts leading to [the] injury [of E. H.]."
The Agency failed to prove this alleged deficiency by even a preponderance of the evidence.
The record evidence affirmatively establishes that, contrary to the position taken by the Agency in this proceeding, there was enough space in E. H.'s room on the day she suffered her injury to safely transfer her from the shower chair to her wheelchair, notwithstanding the presence of the high back chair in the room.
Inasmuch as the Agency failed to prove by even a preponderance of the evidence that E. H.'s room was not "as free of accident hazards as is possible," as required by 42 C.F.R. § 483.25(h)(1), the Administrative Complaint should be dismissed in its entirety.
RECOMMENDED that the Agency issue a final order dismissing the instant Administrative Complaint in its entirety.
DONE AND ENTERED this 19th day of June, 2006, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2006.
1 Paragraph 19 of the Administrative Complaint, as originally drafted, classified the violation described therein as an "uncorrected Class III deficiency."
2 It is not unusual for an 89-year-old woman to have osteoporosis.
3 E. H. "could feed herself somewhat with a tray set up for her."
4 CNA Romero had gone home to change her bloodstained pants before her interview.
5 CNA Romero did not testify at the final hearing. In a deposition she gave on May 17, 2005 (the transcript of which was offered and received into evidence, without objection, as Respondent's Exhibit 4), CNA Romero explained that she "didn't really see" E. H.'s leg "g[e]t caught in it" and that, when she
reported in her statement that this had happened, she was just "guessing" inasmuch as she had not "see[n] anything" nor "hear[d] anything" that would shed light on how E. H. had broken her leg.
6 Following the December 8, 2004, incident, Facility staff were given refresher training on these "procedures."
7 The "two [suspended] staff members" referred to in these findings were CNAs Palacios and Romero. Their suspensions were subsequently rescinded after the Facility administration reconsidered and determined that these CNAs had done nothing wrong.
8 These requirements are found in 42 C.F.R § 483.70(d), which provides as follows:
9 Due to E. H.'s osteoporotic condition, the mere "movement" of her leg (by the "shower CNAs when they were bathing her, by CNAs Palacios and Romero when they were getting her into the sling, or as a result of the leg swinging freely when she was being wheeled in the shower chair or lifted in the sling) could have caused it to break.
10 All references to Florida Statutes herein are to Florida Statutes (2005).
11 See Diaz de la Portilla, 857 So. 2d at 917 ("While it is true that the parties had entered into a pretrial stipulation that the case would be governed by the preponderance of the evidence standard, that stipulation on a question of law was not binding on the administrative law judge and he was free to disregard it.")
12 Like the imposition of a fine, replacing a standard license with a conditional one based on deficiencies found during a survey appears to be "penal in nature and implicate significant property rights." See Golfview Nursing Home v. Agency for Health Care Administration, 859 So. 2d 581, 583 (Fla. 1st DCA 2003)("The fact that there were different types of sanctions, i.e., civil penalties in the form of administrative fines and a reduction of licensure status . . . ."); Golfcrest Nursing Home v. Agency for Health Care Administration, 662 So. 2d 1330, 1332 (Fla. 1st DCA 1995)("Failure to correct the deficiencies would have resulted in sanctions against Golfcrest's nursing home license, including administrative fines, a reduction in licensure rating, other civil penalties, and a reduction in Medicaid reimbursement."); and Heritage Health Care & Rehab Center - Naples v. Agency for Health Care Administration, No. 99-1892, 1999 Fla. Div. Adm. Hear. LEXIS 5550 *16-17 (Fla. DOAH November 12, 1999)(Recommended Order)("The imposition of a Conditional license adversely affects the reputation of a nursing facility with the public, and thus affects its ability to operate. . . . Clearly, the effect of an adverse survey and the Conditional rating emanating therefrom is penal in nature, and can deter consumers from doing business with the facility."). Such being the case, it seemingly would be anomalous to not apply a clear and convincing standard of proof in determining whether the Agency should take such action against a license. See Agency for Health Care Administration v. Beverly Enterprises- Florida, Inc., d/b/a Beverly Gulf Coast- Florida, Inc., d/b/a Washington Manor Nursing and Rehabilitation Center, No. 00-4035, 2001 Fla. Div. Adm. Hear. LEXIS 2409 *25-26 (Fla. DOAH May 7, 2001)(Recommended Order)("The rationale for requiring clear and convincing proof of facts alleged to warrant the levy of a fine appears to apply with equal force when the goal is to downgrade a nursing home's licensure status."). Furthermore, applying the less stringent preponderance of the evidence standard of proof would appear to be inconsistent with Section 120.57(1)(j), Florida Statutes, which provides, in
pertinent part, that "[f]indings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute. ").
Christa Calamas, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
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.
