vs. ) Case No. 06-1131
Respondent. )
Pursuant to notice, a hearing was conducted in this case on May 23, 2006, in Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
For Petitioner: Thomas J. Walsh II, Esquire
St. Petersburg, Florida 33701
For Respondent: Karen L. Goldsmith, Esquire
Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2160 Park Avenue North
Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what sanction(s), if any, should be imposed.
On February 3, 2006, the Agency for Health Care Administration (Agency) filed a one-count Administrative Complaint alleging that Respondent had violated Section 400.102(1)(a), Florida Statutes,1 by "fail[ing] to provide [on January 4, 2006] an environment free from a possible severe even fatal hazard for 24 of 24 cognitively impaired, ambulatory residents [as a result of its] allowing unsupervised access to scalding hot metal chaf[]ing dishes cont[a]ining water with temperatures reaching as high as 190 degrees." The Administrative Complaint contained the following "demand" for relief:
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 30, 2006, for the assignment of an administrative law judge to conduct the hearing Respondent had requested.
On March 2, 2006, the parties filed a Joint Prehearing Stipulation, paragraphs A, B, and D of which provided as follows:
It is the position of Westminster Oaks that it did not violate § 400.102(1)(a), Fla.
Stat. The development, design and operation of the buffet lines was not an intentional act or negligent act that materially affected the health or safety of the residents of the facility. It is the further position of Westminster Oaks that if there is a finding that Westminster Oaks violated § 400.102(1)(a), Fla. Stat. that a Class I classification is not justified.
§ 400.102(1)(a), Fla. Stat. The development, design and operation of the buffet line was an intentional act or negligent act that materially affected the health or safety of the residents of the facility. It is the further position of the Agency that if there is a finding that Westminster Oaks violated § 400.102(1)(a), Fla. Stat. that a Class I classification is justified.
D. STATEMENT OF STIPULATED FACTS
$12,500.00, a six[-]month survey cycle, a survey fee of $6,000.00 and a condition license.
May 23, 2006. Ten witnesses testified at the hearing: Ginnifer Black, Cynthia Pettis, Barbara Alford, Shannon Ewing Sauls, Donald Wilson, April Sawyer, Darlene Rollins Cunningham, Cheryl Smith, Linda DeSue, and Peggy Key. In addition, eleven exhibits
(Petitioner's Exhibits A through F, and Respondent's Exhibits 2 through 6) 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 two volumes) was filed with DOAH on June 13, 2006.
The Agency and Respondent both timely filed their Proposed Recommended Orders on July 12, 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 in Tallahassee, Florida (Facility) pursuant to a license issued by the Agency.
The Facility is part of a "continuing care retirement community" that also includes an assisted living facility (Westminster ALF).
There are residents of the Facility who have "lived [in the community for] up to 20 years."
The Facility has the benefit of a stable workforce.
Its staff "retention rates are very high." As a result, staff
members are generally quite familiar with the residents and their needs.
A 20-bed wing on the second floor of the Facility (referred to as the "240 wing") houses residents in the "middle stage of dementia." Most of these residents come from the Westminster ALF, which has a "memory support floor" set up "very similarly" to the Facility's 240 wing.
The 240 wing is "for residents [who] are very social" and enjoy interacting with others and participating in the many group activities that are available to residents in this wing. It is not for persons who are prone to violent outbursts. The residents in the unit are evaluated on a regular basis to ensure that their placement there remains appropriate. If it is determined that a placement has become inappropriate, the resident will be moved to a more appropriate setting.
The 240 wing provides a "structured" environment for its residents. Activities take place "at the same time every day"; furniture is not moved "so the [residents] know where to go"; and there is the "same staff caring for [the residents]" on a regular basis.
Assigned to the 240 wing during the day shift are: four Certified Nursing Assistants (CNAs), including a team leader, who are responsible for the care and supervision of the units' residents; an "activities person"; and the "unit manager
who oversees the entire wing." There are also others who have occasion to be "on the floor," including "floor nurses," housekeeping and janitorial staff, clergy, and volunteers. In addition, some residents have "sitters" (hired by the residents' families) who stay with them and provide them with extra help in dealing with their day-to-day needs.
The doors to the 240 wing are supposed to remain closed, but they are not locked and residents from other parts of the Facility have access to the unit.
There is a nurses' station, which is open on three sides, located in approximately the center of the second floor of the Facility.
It is an active area usually occupied by "clinical staff," who, from their vantage point at the station, are able to "look straight down" the 240 wing hallway (as well as the 220 wing and 260 wing hallways) and into the second floor dining room, which is approximately ten to fifteen feet away.
The second floor dining room is not ordinarily visited by residents except at "eating time," when its doors are opened and residents are invited in. It has one of the four "wheelchair buffets" located in the Facility. There is also a "wheelchair buffet" in the first floor dining room,2 one in the
140 wing hallway (on the first floor), and another in the 240 wing hallway.3 The 140 wing and 240 wing hallways are
sufficiently wide4 to provide ample room for the "wheelchair buffets," as well as for the tables and potted plants that have been placed there. The "wheelchair buffets" in these hallways are positioned near (but not flush against) the wall so they do not impede hallway traffic.
The instant case involves allegations of "unsupervised access" of "24 cognitively impaired, ambulatory [Facility] residents,"5 on January 4, 2006, to the "wheelchair buffets" in the second floor dining room and in the 140 wing and 240 wing hallways. The discussion that follows concerns these three "wheelchair buffets" (Three Wheelchair Buffets), as they existed on and leading up to the date in question.
At all material times to the instant case, each of the Three Wheelchair Buffets consisted of a "pretty thick" and relatively sturdy rectangular folding table on which four large (approximately a foot wide, a foot and a half long, and six inches deep), metal chafing dishes (with electric heating elements, temperature control knobs,6 and two-inch high, handled lids) were set side-by-side the length of the table. The table was "very low to the ground" to accommodate residents in wheelchairs. Running the length of the "tray line" side (or front) of the table was a "sneeze guard," beneath which was an additional Plexiglas barrier (Lower Barrier) that extended up to the height of the rims of the chafing dishes. There was a space
of four inches between the bottom of the sneeze guard and the top of the Lower Barrier. It would have been extremely difficult, if possible at all, for a resident, standing or in a wheelchair in the front of the table, to reach through this four-inch space and "get the lid off" any of the chafing dishes (and there is no record evidence that any resident ever attempted to do so). Neither the rear nor the ends of the table had a "sneeze guard" or a Lower Barrier.
At meal times, food prepared in the Facility's kitchen was brought to the table on aluminum pans having depths from approximately two and quarter inches to three and half inches. The pans, with the food on them, were placed in the "wells" of the chafing dishes, suspended over no more than two inches of water lying at the bottom of the dishes. The chafing dishes' heating elements, when turned on, heated the water, producing steam, which kept the food at appropriate serving temperatures.
Residents (both wheelchair-bound and non-wheelchair bound) went down the "tray line," observed the food items in the unlidded chafing dishes, made their selections, and then communicated their choices to the Facility staff members (Buffet Staff), who were manning the buffet from their positions on the opposite side (or rear) of the table (which they were able to get to without difficulty given the distance the table was away from the wall).7 The Buffet Staff removed the selected food
items, in appropriate portions, from the chafing dishes and placed them on plates. They then put the plates on trays and gave them to the residents.8 Residents were frequently accompanied to their seats by Facility staff, who carried the residents' trays. During the entire process, there was careful monitoring of the residents' movements.
The "wheelchair buffets" were the product of considerable study and planning. They were borne out of desire on the part of Respondent, as a step in the development and implementation of a "person-centered [overall] care model"9 for the Facility, to move from the "institutional model" of food service ("where the trays are assembled and plated in another location and brought to the floor and then given to each resident") to a "more homelike model where residents could see the food [and] smell the food" and have the opportunity to select, from among the available choices, what they wanted to eat.
The Facility's nutrition committee "submitted a request back in 2002" that such a change be made.
It took Respondent quite a while to work out the details of implementing this change. Input was sought and obtained from the residents, their families, Facility staff, and outside consultants, as well as the Agency. Safety issues, including those relating to the placement of the "wheelchair
buffets," were considered. The Agency was consulted regarding these matters, and it expressed no concerns about the planned locations of the "wheelchair buffets."
As part of the planning process, Respondent set up a non-operational, unmanned "wheelchair buffet" (with empty chafing dishes) in the 240 wing hallway to see what the residents' reaction to it would be. The residents did not "seem interested in it at all." "They [simply] walked past it." Similar "trial runs" were conducted at the other three planned locations, with similar results.
The "wheelchair buffet" in the 240 wing hallway was the first of the Facility's four "wheelchair buffets" to go into service. It became operational in 2004.
Later that year, the Agency surveyed the Facility and found no deficiencies related to this "wheelchair buffet."
"[P]leased that there were no concerns stated" with respect to this "wheelchair buffet," Respondent "moved forward with placing the other ones into service."
By February 2005, the other three "wheelchair buffets" were up and running. Along with the "wheelchair buffet" in the
240 wing hallway, they have remained in service through the present. By all appearances, the Facility's transition to buffet-style dining has been a success.
The Facility's "management services" office developed
the following written "guidelines" for "[b]uffet [s]tyle [d]ining" at the Facility" (Buffet Guidelines):
All residents will be offered an opportunity to partake of buffet meals in their dining rooms. This will provide choices to our residents, as well as offer a more interesting meal time environment.
Residents will be asked if they would like to go through the buffet line, or if they would like nursing staff to tell them what is on the buffet.
Diet will be liberalized as much as possible. See liberalized diets for long term care.
There will be a choice of 2 entrees at all meals for all therapeutic diets and consistency types as well as a selection of starches and vegetables. We also provide a soup, and selection of salads, and 2 dessert choices for lunch and dinner.
The Dining Services Director/dining services department will be responsible for maintaining standard operating procedures at remote dining locations:
There must be a system in place to keep hot foods above 140° and cold foods below 40°F.
Temperature logs must be maintained on foods and refrigeration units designated for resident use.
Sneeze guards must be utilized on hot food tables and salad bars, etc.
Residents that choose not to or are unable to eat in dining room will be served in their room by nursing staff.
Room trays will be assembled from the
steam table in the main floor dining room in accordance with physician ordered diet and delivered in closed food carts to assure maintenance of safe food temperatures.
Operating Hot Food Tables
Plug-up steam table
Be sure table is free of crumbs, etc.
Turn on switch.
Select desired temperature setting
Place pans in steam table bins
Serve
Clean steam table daily Cleaning Hot Food Table IMMEDIATELY AFTER USE
Turn off steam table
Cover all pans on steam table
Replace all guards
Empty and clean all pans daily
Buffet staff were trained, in accordance with the Buffet Guidelines, to "turn [the chafing dishes] on in the morning, serve breakfast, turn [them] off after use, turn [them] back on before lunch, and then off, and then on before dinner." They did not always, however, in practice "turn [the chafing dishes] off after use." "[W]hen they were having problems keeping the food at hot temperatures, they would leave them on
throughout the day periodically."10 That they did so was not common knowledge among the Facility's non-food service employees.
At no time prior to the Agency's conducting the survey that led to the issuance of the instant Administrative Complaint had the Facility experienced any problems with residents making, or attempting to make, contact with the chafing dishes on any of the buffet tables, nor had the residents shown any interest in the buffet tables unless there was a meal being served. Furthermore, no resident had ever [accidentally] "fallen in close proximity to [a] buffet table."
The survey referenced in the preceding paragraph was an annual survey that was conducted by the Agency from
January 3, 2006, to January 6, 2006. The alleged deficiency that is the subject of the instant controversy was observed on January 4, 2006.
On the morning of January 4, 2006, after breakfast had been served, Agency survey personnel observed the activity at and around the Three Wheelchair Buffets. At the time of these observations, there were no Buffet Staff manning the tables and the lidded chafing dishes on the tables were turned on and had hot water (with temperatures of 149 degrees Fahrenheit or more11) in them.12 Agency survey personnel found the lids of the chafing dishes too hot for them to hold in their bare hands when they
went to take the lids off.13 Although there were residents in the vicinity of the buffet tables during these observations, no residents were seen going up to the tables to examine or touch the chafing dishes.
The activities at and around the "wheelchair buffet" in the second floor dining were observed from approximately 9:09 a.m. to 9:37 a.m. (Dining Room Observation Period). Residents 26 and 27 (both of whom had transitioned to the Facility from the Westminster ALF) were in the dining room this entire time.
Resident 26 used a wheelchair and, according to the records maintained by the Facility, had mild cognitive impairment, although his impairment was "not particularly obvious." He was someone who "stay[ed] in his wheelchair." Although he "could move himself," there was no reason to believe, based on prior experience, that he would attempt to approach the buffet table in the dining room between meals.
Resident 27 also used a wheelchair. She was deaf, blind, and mute. According to the records maintained by the Facility, she had severe cognitive impairment. When she was sitting in her wheelchair in the dining room and wanted to leave, she would "tap[] her foot" and a Facility staff member would come and wheel her out. She did not "move about the unit unaccompanied." There was no reason to believe, based on prior
experience, that she would at any time attempt to approach the buffet table.
During the Dining Room Observation Period, approximately five other persons that Agency survey personnel believed to be Facility residents (but did not identify by resident number or otherwise) went "[i]n and out of the dining room" (the doors to which were unlocked). No Facility staff member took any action to "redirect" these individuals.
For a portion of the Dining Room Observation Period, Jim Gagnon, Ph.D., a "contract" licensed clinical social worker, was seated facing Resident 26 and engaging in a conversation with him.
"[T]here were [also Facility] staff in and out of the dining room periodically [during the Dining Room Observation Period, but] there was no continuous supervision." In addition, there were Facility staff "at the nurses' station intermittently" and they could "see into the dining room" (albeit not the entire dining room).
The activities at and around the "wheelchair buffet" in the 240 wing hallway were observed from approximately 10:10 a.m. to 10:37 a.m. (240 Wing Observation Period).
During the 240 Wing Observation Period, there were persons that Agency survey personnel believed to be Facility residents (but did not identify by resident number or otherwise)
who passed by (but did not stop at) the buffet table. Some were walking. Others were in wheelchairs. Though there were Facility staff in the hallway (one engaged in an activity with approximately 12 residents, and others entering and exiting the resident rooms off the hallway), no staff member was "continuous[ly]" within twenty feet of the table.
The activities at and around the "wheelchair buffet" in the 140 wing hallway were observed from approximately 11:10 a.m. to 11:16 a.m. (140 Wing Observation Period).
During the 140 Wing Observation Period, there were approximately six persons that Agency survey personnel believed to be Facility residents (but did not identify by resident number or otherwise) who were "just sitting or walking around [and] chatting" in the hallway. No Facility staff member was nearby providing supervision.
It was not until 1:00 p.m. that Agency survey personnel first brought to the attention of the Facility's administration that they believed that the conditions that they had observed with respect to the Three Wheelchair Buffets constituted a deficiency requiring immediate corrective action.
Respondent timely took action to eliminate these conditions.
The Facility was deemed by the Agency to be in
substantial compliance with all regulatory standards on February 20, 2006.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
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.
Section 400.19(3), Florida Statutes, provides, in pertinent part, as follows:
The [A]gency shall every 15 months conduct at least one unannounced inspection to determine compliance by the licensee with statutes, and with rules promulgated under the provisions of those statutes, governing minimum standards of construction, quality and adequacy of care, and rights of residents. The survey shall be conducted every 6 months for the next 2-year period if the facility has been cited for a class I deficiency . . . . In addition to any other fees or fines in this part, the [A]gency shall assess a fine for each facility that
is subject to the 6-month survey cycle. The fine for the 2-year period shall be $6,000, one-half to be paid at the completion of each survey. The [A]gency may adjust this fine by the change in the Consumer Price Index, based on the 12 months immediately preceding the increase, to cover the cost of the additional surveys. The [A]gency shall verify through subsequent inspection that any deficiency identified during the annual inspection is corrected. . . .
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 [A]gency 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 Chapter 440, Part II, Florida Statutes, is defined in Section 400.23(8)(a), Florida Statutes, 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 Chapter 440, Part II, Florida Statutes, is defined in Section 400.23(8)(b), Florida Statutes, 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 Chapter 440, Part II, Florida Statutes, is defined in Section 400.23(8)(c), Florida Statutes, 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."
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 are also in agreement that the standard of proof the Agency must meet when it seeks to impose conditional licensure status is preponderance of the evidence.
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 imposing sanctions 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, by "fail[ing] to provide [on January 4, 2006] an environment free from a possible severe even fatal hazard for 24 of 24 cognitively impaired, ambulatory residents [as a result of its] allowing unsupervised access to scalding hot metal chaffing dishes cont[a]ining water with temperatures reaching as high as
190 degrees," Respondent violated Section 400.102(1)(a), Florida Statutes, which provides as follows:
Any of the following conditions shall be grounds for action by the agency against a licensee:
An intentional or negligent act materially affecting the health or safety of residents of the facility.
This statutory provision does not require a licensee to guard against risks that are too remote to be reasonably foreseeable. Only where a risk, based on the information available to the licensee, is reasonably foreseeable must the licensee take
reasonable precautions to protect against it. See Agency for Health Care Administration v. Haven of Our Lady of Peace, Inc., 2005 Fla. Div. Adm. Hear. LEXIS 1055 *15, 25 (Fla. DOAH June 24,
2005)(Recommended Order)("A facility cannot be held strictly liable for every incident that occurs. It must take steps to prevent accidents and provide assistive devices where appropriate when the incident is foreseeable. . . . [A] nursing home provider is not an insurer that an accident will not happen; rather, . . . the nursing home must exercise reasonable precautions in protecting its residents."). Such reasonable precautions may involve providing an at-risk resident with needed supervision. "[T]here is a failure to provide [such] adequate supervision when there is knowledge of a pattern of events or behaviors by a resident which could adversely affect the resident, and there is a failure by the provider or the facility to take steps to prevent accidents. [In determining whether there was a lack of adequate supervision,] [t]he question is whether there [was] pre-existing behavior which would have alerted the facility to tighten its procedures related to that particular resident or whether [there was no] precedent." Id. at *26
The Agency failed to prove by even a preponderance of the evidence that Respondent committed the violation of Section
400.102(1)(a), Florida Statutes, specifically alleged in the Administrative Complaint.
The record evidence is insufficient to establish that any of the 24 "cognitively impaired, ambulatory residents" referenced in the Administrative Complaint had "unsupervised access" to the chafing dishes on the Three Wheelchair Buffets on the morning of January 4, 2006, as alleged in the Administrative Complaint. While the Agency did prove that, at the times in question, the chafing dishes on the Three Wheelchair Buffets were turned on and contained "scalding" hot water, no Buffet staff members were present, and there were residents in the vicinity of the buffets who were unattended, it did not establish that any these unattended residents were among the 24 "cognitively impaired, ambulatory residents" referenced in the Administrative Complaint. Where these 24 residents were and the extent to which they were being supervised, if at all, during the relevant time periods, the evidentiary record does not reveal. The only residents in the vicinity of the buffets during these time periods whose identities were established by the Agency's proof were Residents 26 and 27, neither of whom was among the 24 "cognitively impaired, ambulatory residents" referenced in the Administrative Complaint. Moreover, it does not appear, from the credible evidence presented by Respondent concerning these two residents' individual characteristics and
"pattern[s] . . . of behaviors," that the conditions existing during the Dining Room Observation Period in the second floor dining room, where these two residents were seated, exposed either of them to any reasonably foreseeable risk of material harm to their health or safety. As to the other, unidentified residents who were observed by Agency survey personnel in the vicinity of the Three Wheelchair Buffets, the record is devoid of evidence as to what their individual characteristics and "pattern[s] . . . of behaviors" were, and it therefore cannot be said that the proof is sufficient to support a finding that these residents failed to receive the supervision they needed to protect them against foreseeable harm.
In view of the foregoing, 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 28th day of July, 2006, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2006.
1 All references to Florida Statutes in this Recommended Order are to Florida Statutes (2005).
2 This "wheelchair buffet" was paid for by monies from a grant that the Agency helped Respondent obtain.
3 The Westminster ALF's "memory support floor" also has buffet- style dining.
4 They are approximately 20-feet wide.
5 These "24 cognitively impaired, ambulatory [Facility] residents" were identified, by resident number, in the Administrative Complaint as Resident Nos. 1, 8, 10, 12, 13, 24, 28, 29, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, and 47.
6 These temperature control knobs had four settings: off, low, medium, and high.
7 Typically, there were no more than two Buffet Staff at the table at any one time.
8 These were not self-serve buffets.
9 Such a model involved grouping residents in neighborhoods according to their needs.
10 This finding concerning the Buffet Staff's deviation from the Buffet Guidelines is based on hearsay statements made by two Buffet Staff members to an Agency surveyor. See Castaneda v. Redlands Christian Migrant Association, 884 So. 2d 1087, 1091 (Fla. 4th DCA 2004)("Statements of employees within the scope of their employment and during its existence are admissible in Florida . . . . [T]he statements of the Redlands employees are admissions within the meaning of section 90.803(18)(d) as the statements concerned matters regarding this specific accident arising from their employment and were made while the deponents were still employees of Redlands.").
11 The temperature of the water in one of the chafing dishes on the table in the 240 wing hallway was measured at 180 degrees Fahrenheit. The lid on this dish was not on securely and was rattling. Steam was escaping from the dish and the tablecloth around it was wet.
12 This was of concern to Agency survey personnel inasmuch as the elderly are particularly susceptible to injury, including serious burns, from scalding water because of their thin skin.
13 The record does not establish what the temperatures of the lids were; nor is there any evidence that these survey personnel sustained any injuries requiring treatment as a result of their touching the lids with their bare hands.
Thomas J. Walsh II, Esquire
St. Petersburg, Florida 33701
Karen L. Goldsmith, Esquire Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2160 Park Avenue North
William Roberts, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431
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.
