vs.
Respondent.
Case No. 13-0368
A hearing was held pursuant to notice on April 3, 2013, in St. Augustine, Florida, by Barbara J. Staros, a duly-assigned administrative law judge of the Division of Administrative Hearings.
For Petitioner: Teresita A. Vivo, Esquire
For Respondent: Theodore E. Mack, Esquire
Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
In an Administrative Complaint dated October 5, 2012, the Agency for Health Care Administration (AHCA) alleged a widespread class II deficiency and sought the imposition of an administrative fine of $1,000 against Respondent. Respondent, Stephens Memorial Home, Inc., d/b/a Stephens Memorial Home (Stephens Memorial), requested a formal administrative hearing to contest these allegations. AHCA forwarded the case to the Division of Administrative Hearings on or about January 23, 2013. A hearing was scheduled for April 3, 2013, in
St. Augustine, Florida, and proceeded as scheduled.
Count I of the Administrative Complaint alleges that Stephens Memorial failed to insure that one of four sampled residents was free of physical restraints in violation of section 429.28, Florida Statutes, and Florida Administrative Code Rule 58A-5.0182(6)(h).
At hearing, Petitioner presented the testimony of Julia Dorcey, Julie Fisher, and Keisha Woods. Petitioner's Exhibits numbered 1 and 2 were admitted into evidence. Respondent presented the testimony of Susan Ahrens, Brenda Stephens, and
J.A. Respondent‟s Exhibits numbered 1 through 5 were admitted into evidence.
A one-volume Transcript was filed on April 22, 2013. The parties timely filed Proposed Recommended Orders, which have
been duly considered. All references to Florida Statutes are to the 2012 version, unless otherwise indicated.
AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to chapters 429 and 408, Part II, Florida Statutes.
At all times material hereto, Stephens Memorial held a standard assisted living facility (ALF) license with extended congregate care, which was issued by AHCA. Stephens Memorial is located in St. Augustine, Florida, and operates a 15-bed facility.
Julie Fisher is a registered nurse who was employed by AHCA as a nurse surveyor at all times material to this case. In that capacity, she surveyed nursing homes and ALFs for compliance. She has a total of 30 years‟ experience in nursing, including acting as Director of Health Care Services for an ALF for seven years, working in home health care for 10 years, working in hospital care and public health, and having experience in overseeing dementia care. She is currently employed as a training coordinator for the Georgia Department of Community Health, Health Care Facility Regulation Division.
Julia Dorcey is a health facility evaluator for AHCA. She has been with AHCA for 18 months. For the first year, she surveyed nursing homes. Since her first year, she has been in
training for mental health crisis units, residential treatment facilities for adolescents and adults, as well as ALFs. Her training includes various aspects of health care specifically related to geriatric care.
Keisha Woods is employed by AHCA as a health facility evaluator supervisor. She is responsible for oversight of ALFs and other types of facilities for a seven-county area. She has been employed by AHCA for approximately four years.
May 1 Survey Visit
AHCA conducted an unannounced biennial licensure, Extended Congregate Care monitoring, and complaint survey on May 1, 2012, that gave rise to the Administrative Complaint and to this proceeding.
On May 1, 2012, Ms. Dorcey participated in the survey at Stephens Memorial as a trainee. Her purpose for being at that facility was to observe the surveyor on site, Julie Fisher, who was conducting the survey.
Count I alleges that Stephens Memorial failed to ensure that one out of four (hereinafter Resident 4) sampled residents was free of physical restraints. Specifically, Count I alleges that an activity board was attached to both arms of the wheelchair with duct tape and Velcro fasteners and that
Resident 4 could not remove or avoid the activity board without the assistance of another person.
Ms. Dorcey observed Resident 4 sitting in a wheelchair with an activity board attached to the wheelchair. The resident was moving himself forward by moving his feet on the floor. At the time she observed him, he was not engaged with the activity board, but was grasping the air in a reaching motion beyond the activity board.
At hearing, Ms. Dorcey described the activity board as being attached to the arms of Resident 4's wheelchair and around to the back of the chair with what appeared to her to be multiple wrappings of duct tape.
Ms. Dorcey believed Resident 4 to be in cognitive decline. Because of this, she was concerned with whether Resident 4 had the ability to remove the board without assistance and was concerned with his safety.
Ms. Dorcey walked over to the next building where Julie Fisher, the surveyor assigned to do the survey that day, was with another trainee. Ms. Dorcey told Ms. Fisher about Resident 4 and both of them went back to the building where Resident 4 was seated in his wheelchair.
Ms. Fisher observed Resident 4. She described Resident 4 as seated in a wheelchair with a lap board or activity board tied to the wheelchair with duct tape and Velcro. Ms. Fisher attempted to communicate with the resident, who appeared confused to Ms. Fisher. She asked him if he could
remove the board. He did not respond. At hearing, Ms. Fisher acknowledged that she seriously doubted that Resident 4 could understand her.
Ms. Fisher then sought out the owner of the facility, Brenda Stephens. Ms. Fisher told Ms. Stephens that the activity board should not be attached to the wheelchair, because in ALFs residents cannot be restrained with the exception of the use of half side rails on a bed. It was Ms. Fisher's opinion that Resident 4 could not remove the activity board without assistance. Ms. Fisher completed a statement of deficiencies and worksheets while on Respondent's premises.
Ms. Stephens explained to Ms. Fisher and Ms. Dorcey that the activity board was ordered by Resident 4's doctor and supplied by Hospice.
Ms. Fisher then called her supervisor, Ms. Woods, to inform her about Resident 4. Ms. Woods told Ms. Fisher that activity boards should not be used in ALFs. Ms. Woods received the statement of deficiencies and worksheets prepared by
Ms. Fisher and concluded that Ms. Fisher had supporting documentation for the issued citation.
Ms. Woods determined that this was a class II violation because, in her opinion, the use of the activity board was a direct threat to the resident's physical and/or mental well-being. She concluded that this constituted a direct threat
because the resident was unable to demonstrate to the surveyor on site that he was able to remove the board. At hearing,
Ms. Woods acknowledged that if the resident were able to remove the board, it would not be a restraint.
Following the receipt of the deficiency, Ms. Stephens discontinued the use of the activity board for Resident 4.
History of Resident 4
Brenda Stephens is the owner/administrator of Stephens Memorial. She is a registered nurse and has been in the nursing field for approximately 25 years. She has been the owner/administrator of Stephens Memorial for 13 years. She and her late husband opened Stephens Memorial in 2000. She lives on property adjacent to the facility's property.
Resident 4 was diagnosed in 2006 with vascular dementia. His dementia progressed fairly rapidly and he was placed in adult day care in 2007. In 2008, his wife, J.A., who is also a registered nurse, had to quit work to care for her husband full-time. By that time, he had lost his ability to speak and was incontinent.
Resident 4 had been an engineer who worked with mechanical things. He was very strong and it became difficult for his wife to care for him by herself at home, despite her 40 years of nursing experience.
J.A. investigated a number of facilities in the area and chose to place her husband at Stephens Memorial.
When Resident 4 first came to Stephens Memorial, Ms. Stephens had weekly conversations with Resident 4's psychiatrist to determine the best care plan for Resident 4.
The psychiatrist recommended to Ms. Stephens that Resident 4 be placed on a strict routine.
At first, Resident 4 could communicate with affirmative or negative sounds (e.g., “uh-huh” and “uh-uh”). As his dementia progressed, Resident 4 became agitated and began pounding on his chest, hitting himself, banging his head against the wall, and banging his feet on the floor while in the wheelchair.
Ms. Stephens believes strongly that it is better for residents to have the least amount of chemical restraints possible, and residents should be allowed to walk around freely and go outside accompanied by staff. Resident 4 enjoyed going outside.
Resident 4's dementia reached the point where his medications were not managing his behavior. His dementia was progressing and he was placed on Hospice care in 2011, while remaining at Stephens Memorial.
The Activity Board
In an attempt to achieve a means to control Resident 4's behavior, Ms. Stephens, in conjunction with
Resident 4's physician and J.A., came up with the idea of using an activity board as a therapeutic activity. Resident 4's physician wrote a prescription for an activity board to be used while in a wheelchair. The activity board was intended to keep Resident 4 occupied, to give him something to focus on, and to divert his anxiety into a positive experience.
Ms. Stephens was familiar with commercially available activity boards but she did not think these would meet Resident 4's needs. So, she made one to better suit his needs. She obtained a plain wooden board and, because Resident 4 had worked with his hands, she attached hardware such as sliding
latches, metal door handles, and rope. She bolted these things to the board because Resident 4 was so strong that she believed he could break them off.
The activity board was attached to the wheelchair to prevent Resident 4 from knocking it off or throwing it. Based upon his behavior, Ms. Stephens and J.A. felt certain that if the activity board was simply placed on a table, Resident would push it away because he was constantly moving.
When activity boards are used on wheelchairs, they are attached to the wheelchair in some way, such as with the use of
clamps. While there was inconsistent testimony regarding whether Velcro was attached only to the arms of the wheelchair or attached to the back of the wheelchair, Ms. Stephens,
Ms. Ahrens, and J.A. consistently testified that the activity board was held in place with Velcro, not duct tape.1/ Velcro could be removed easily and duct tape would have left a residue. The Velcro straps used on Resident 4's activity board were produced at hearing, and examined by the undersigned. The Velcro straps are black on one side, with silver on the back.
The silver side did not have the Velcro on it and would be the visible side. The surveyors, at the time of the survey, thought the straps were held down by duct tape. While the silver side of the Velcro straps may have appeared to the surveyors to be duct tape, the evidence simply does not support this. The evidence established that the activity board was held in place by Velcro straps, not by duct tape, as charged in the Administrative Complaint.
The activity board was placed on Resident 4's wheelchair twice a day, once after breakfast and again after lunch. Typically, it was on his chair two hours each time, for a total of four hours a day. While using the activity board, Resident 4 did not attempt to get up from the wheelchair. After the activity period was over, the board would be removed, and
Resident 4 would stay in the wheelchair or be assisted in taking a walk.
Typically, when the activity board was attached to his wheelchair, Resident 4 would engage in its activities, such as sliding the slide locks. According to J.A., the use of the activity board had the effect of calming him and reducing his agitation. He was able to take less medication when he was able to use the activity board.
Susan Ahrens is a registered nurse with Hospice. She has worked for Hospice for two years and has been going to Stephens Memorial since she began working for Hospice. She is familiar with most of the facilities in St. Johns County, and thinks very highly of Stephens Memorial. She confirmed
Ms. Stephens' testimony that the purpose of the activity board was to give Resident 4 something to focus on. She also confirmed J.A.'s testimony that use of the board kept his mind busy, resulting in a decrease in his repetitive motion and abnormal behavior, such as banging his head against the wall or beating on a desk or his wheelchair.
The Administrative Complaint charges that Resident 4 was unable to respond to interview questions or to demonstrate ability to self-release the activity board.
According to Ms. Stephens, Resident 4 removed the activity board by himself at least five times, at which times
she then had to replace the Velcro. Both Ms. Stephens and J.A. confirmed that Resident 4 would rock the board from side to side, which ripped the Velcro. The testimony of Ms. Stephens, J.A., and Ms. Ahrens, all experienced registered nurses, was consistent in that Resident 4 was extremely strong and his dementia did not diminish his physical strength. All three were certain that he was strong enough to pull the board off the wheelchair if he wanted to do so. Their testimony was also consistent that he was never harmed while the activity board was attached to the wheelchair, and that the board would not cause him to tip the wheelchair over.
Since the board has been removed, Resident 4 whistles constantly, screams, yells, and beats on things. His medications have been increased to calm him down. Ms. Ahrens and Ms. Stephens are of the opinion that the removal of the activity board has been detrimental to Resident 4. J.A. very much wants her husband to be able to resume use of the board.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.
§§ 120.569 and 120.57, Fla. Stat. This proceeding is de novo.
§ 120.57(1)(k).
Respondent‟s request for an administrative hearing to resolve the disputed issues of material fact pursuant to
section 120.57(1) initiated “a de novo proceeding intended to formulate agency action.” Beverly Enters. v. Dep‟t of HRS, 573 So. 2d 19, 23 (Fla. 1st DCA 1990); see also Dep‟t of Transp. v.
J.W.C. Co., 396 So. 2d 778, 785 (Fla. 1st DCA 1981)(“The
petition for a formal 120.57(1) hearing . . . commences a de novo proceeding. Section 120.57(1) proceedings „are intended to formulate final agency action, not to review action taken earlier and preliminarily.‟”)(citations omitted).
The burden of proof in this proceeding is on the agency. Because of the proposed penalties in the Administrative Complaint, the agency is required to prove the allegations against Respondent by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
The clear and convincing standard of proof has been described by the Florida Supreme Court:
Clear and convincing evidence requires that 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 Slomowitz
v. Walker, 429 So. 2d 797,800 (Fla. 4th DCA 1983)).
Count I of the Administrative Complaint alleges a violation of Florida Administrative Code Rule 58A-5.0182, which reads in pertinent part as follows:
58A-5.0182 Resident Care Standards
An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility.
(6) RESIDENT RIGHTS AND FACILITY PROCEDURES. Facilities shall offer personal supervision, as appropriate for each resident, including the following:
* * *
(h) Pursuant to section 429.41, F.S., the use of physical restraints shall be limited to half-bed rails, and only upon the written order of the resident's physician, who shall review the order biannually, and the consent of the resident or the resident's representative. Any device, including half- bed rails, which the resident chooses to use and can remove or avoid without assistance shall not be considered a physical restraint.
Part I of chapter 429, Florida Statutes, is entitled “The Assisted Living Facilities Act.” Count I of the Administrative Complaint also alleges a violation of
section 429.28, Florida Statutes, which reads as follows:
429.28 Resident bill of rights.-
No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to:
Live in a safe and decent living environment, free from abuse and neglect.
Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy.
The Administrative Complaint seeks to impose a fine in the amount of $1,000. Section 429.19 authorizes the imposition of administrative fines against ALFs and reads in pertinent part as follows:
429.19 Violations; imposition of administrative fines; grounds.-
In addition to the requirements of part II of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the actions of
any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.
Each violation of this part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification
on the written notice of the violation as follows:
* * *
Class "II" violations are defined in
s. 408.813. The agency shall impose an administrative fine for a cited class II violation in an amount not less than $1,000 and not exceeding $5,000 for each violation.
Class "III" violations are defined in
s. 408.813. The agency shall impose an administrative fine for a cited class III violation in an amount not less than $500 and not exceeding $1,000 for each violation.
Section 408.813(2), Florida Statutes, sets forth four classifications of deficiencies and defines them in pertinent part as follows (emphasis added):
(2) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients. The scope of the violation may be cited as an isolated, patterned, or widespread deficiency. An isolated deficiency is a deficiency affecting one or a very limited number of clients, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a limited number of locations. A patterned deficiency is a deficiency in which more than a very limited number of clients are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same client or clients 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 provider. A widespread deficiency is a deficiency in which the problems causing the
deficiency are pervasive in the provider or represent systemic failure that has affected or has the potential to affect a large portion of the provider's clients. . . .
* * *
Class "II" violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A fine shall be levied notwithstanding the correction of the violation.
Class "III" violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of clients, other than class I or class II violations. The agency shall impose an administrative fine as provided in this section for a cited class III violation. A citation for a class III violation must specify the time within which the violation is required to be corrected. If a class III violation is corrected within the time specified, a fine may not be imposed.
Section 429.02 defines "physical restraint" as follows:
(17) "Physical restraint" means a device which physically limits, restricts, or deprives an individual of movement or mobility, including, but not limited to, a half-bed rail, a full-bed rail, a geriatric chair, and a posey restraint. The term
"physical restraint" shall also include any device which was not specifically manufactured as a restraint but which has been altered, arranged, or otherwise used for this purpose. The term shall not include bandage material used for the purpose of binding a wound or injury.
AHCA has alleged that the violation more fully described above falls under the classification of "class II."
The entire statutory scheme is based on a classification of deficiencies, with the deficiencies being classified according to the level of harm that might or did result from the deficiency. . . . Accordingly, the Agency has the burden to prove harm or the potential for harm upon a resident in order to substantiate its classification of any deficiency.
Beverly Healthcare of Kissimmee v. Ag. For Health Care Admin, 870 So. 2d 208, 212 (Fla. 5th DCA 2004).
Count I of the Administrative Complaint alleged that Respondent failed to ensure that one of four sampled residents, Resident 4, was free of physical restraints in violation of Florida Administrative Code Rule 58A-5.0182(6)(h) and
section 429.28, Florida Statutes. The Administrative Complaint classified this as a widespread class II violation.
The evidence established through the testimony of three persons, all registered nurses, that Resident 4 was physically able to remove the activity board. Further, the evidence established that the activity board was prescribed by Resident 4's Hospice physician for therapeutic purposes.
Applying the definition of physical restraint found in section 429.02(17), the use of the activity board did not constitute a restraint in that it was not intended to restrain him. Therefore, AHCA did not prove a violation of rule 58A- 5.0182(6)(h).
Moreover, even if the attachment of the activity board to Resident 4's wheelchair did meet the definition of restraint, applying the language in section 408.813(2), and considering the "nature of the violation and the gravity of its probable effect on clients," it would not constitute a widespread class II violation in that any perceived threat to Resident 4 was potential in nature and isolated.
AHCA seeks to impose a fine of $1,000. Since no violation was found, the fine should not be imposed.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint against Respondent, Stephens Memorial Home, Inc.
DONE AND ENTERED this 6th day of June, 2013, in Tallahassee, Leon County, Florida.
BARBARA J. STAROS
Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2013.
1/ The Administrative Complaint charged that the activity board "was attached to both arms of the wheelchair with duct tape and Velcro fasteners." The Administrative Complaint did not allege that it was fastened to the back of the chair.
Theodore E. Mack, Esquire Powell and Mack
Teresita A. Vivo, Esquire
Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Richard J. Shoop, Agency Clerk
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.
