STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4718

) RETIREMENT CENTER OF AMERICA, ) INC., d/b/a INVERRARY RETIREMENT ) CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer assigned by the Division of Administrative Hearings, on April 1, 1987, in Fort Lauderdale, Florida. A transcript of the proceeding was filed April 13, 1987. Proposed findings of fact and conclusions of law were submitted by both parties. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.

For Petitioner: Leonard T. Helfand, Esquire

Miami, Florida

For Respondent: Martin Marenus, M.D.

Qualified Representative Lauderhill, Florida

ISSUE

The issue is whether the Inverrary Retirement Center should be fined

$500.00 for violation of Rule 10A-5.19(5), Florida Administrative Code, as it existed on January 16, 1986?

FINDINGS OF FACT

1. The Inverrary Retirement Center is an adult congregate living facility licensed under Chapter 400, Florida Statutes.

   
   

2. Verna Smith is a certified nursing assistant who was employed by the Inverrary Retirement Center on January 16, 1986. At 4:00 A.M. on that day, Smith found resident A.P. sleeping on the floor in his room. Mr. A.P. was a 75 year old amputee with diabetes and a heart condition which required that he use a pacemaker. Ms. Smith spoke to him, requested that he return to bed, but he refused.

3. Mr. A.P. engaged in unusual conduct because he wished to life at home with his wife, who was no longer able to care for his needs. Mr. A.P. thought that if he were difficult, the Inverrary Retirement Center might ask that he leave, which would allow him to return home.

   
   

4. When Ms. Smith found Mr. A.P. on the floor he was not in obvious distress and offered no complaints. Ms. Smith did not lift Mr. A.P. off the floor and return him to his bed because she was alone during that shift and was not able to lift him. She did not check Mr. A.P.'s pulse or respiration or contact her supervisor.

   
   

5. Ms. Smith held a nursing assistant certificate issued by the Florida Department of Education, certificate number 0585-589329565.

   
   

6. At about 6:30 A.M., Ms. Smith was preparing to dress Mr. A.P., but he found him unresponsive. The day nursing shift arrived at about 6:45 and Ms. Lorna Paisley was called by Ms. Smith. Ms. Paisley checked Mr. A.P. and found neither respiration nor pulse. Ms. Paisley called the emergency medical services team at 6:55 A.M., which arrived at 6:58 A.M. When the EMS personnel arrived, 15 to 20 minutes had elapsed since Ms. Paisley had begun her shift. The EMS team found that Mr. A.P. was dead and obviously had been dead for some time.

   
   

7. Ultimately, Ms. Smith was fired for not handling the matter in accordance with institutional policies. After she was fired, Inverrary Retirement Center obtained proof that Smith had a current Department of Education certification as a nursing assistant while she was employed.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over this matter pursuant to Section 120.57(1), Florida Statutes.

   
   

9. The rule which serves as the basis for this action, according to the Pro-Hearing Stipulation, is Rule 10A- 5.19(5)(a)1, 4, (b), (c), (e), (f), and (g), Florida Administra- tive Code (1986). The Rule sets staffing standards for adult congregate living facilities.

10. Rule 10A-5.1D(5)(a)1, 4, requires the operator to: Employ staff in accordance with Rule

    10A-5.19(6) and based on the following criteria to assure the safety and proper care of residents in the facility:

    1. The physical and mental condition of the residents;

       * * *

       4. Compliance with all the minimum standards in Chapter 10A-5, Florida Administrative Code.

       
       

11. No substantive violation of Rule 10A-5.19(6) is charged, nor is any violation of any minimum standards other than the provisions of Rule 10A-5.19(5) discussed below. Rule 10A-5.19(5((a)(1) is not violated by every threat to the physical or mental condition of a resident. The proposed conclusions of law of the Department treat the Rule as if it requires an operator to "ensure the

    safety and proper care of residents". That phrase merely describes the criteria listed in sub paragraphs 1-4 of (a) of the rule. It does not prescribe a substantive standard which is violated whenever negligent care is provided.

    There has been no violation of Rule 10A-5.19(5)(a), Florida Administrative Code.

    
    

12. Under Rule 10A-5.19(5)(f) the operator of the facility must:

    
    

    Assure that there is at least one staff member within the facility at all times who has a certification

    ---in an approved first aid course to include training about bleeding and seizure control, and the care for abrasions, scratches, cuts, and insect bites. A Florida licensed Registered Nurse, licensed Practi- cal Nurse, or certified Nurses Aide or Orderly is not required to be additionally certified in the approved first aid course....

    
    

13. Vera Smith was properly certified as a nursing assistant by the Florida Department of Education, so the facility did not violate that staffing standard.

    
    

14. Rule 10A-5.19(5)(b) requires the operator to:

    
    

    Assure that sufficient staff is on the premises to implement emergency procedures including evacuation of residents, in accordance with the facility's written Disaster Pre- paredness Plan, in the event of fire, disaster, or other threats pertaining to the health, safety, and security of the residents.

    
    

15. Vera Smith failed to take proper action by taking Mr. A.P.'s pulse when she first found him on the floor and spoke with him, or by notifying a supervisor, but the rule involved is a staffing standard. There is no showing that employment of one nursing assistant was insufficient to implement proper procedures.

    
    

16. Rule 10A-5.19(5)(c) is irrelevant. Rule 10A-S.19(5)(e) requires that the operator:

    
    

    Assign to each staff member duties consistent with their level of education, preparation, and experience.

    
    

17. While Vera Smith's actions when she found Mr. A.P. on the floor may not have been entirely appropriate, negligent handling of that situation does not show that her duties were inconsistent with her level of education, preparation or experience.

18. Lastly, Rule 10A-5.19(5)(g), requires that operators:

    
    

    Assure that the staff is mentally and physically capable of performing their assigned duties, and are free of communicable diseases. If any staff member is found to have, or is suspected of having, communicable disease, or is mentally or physically incapable of performing his duties, he shall be removed from duties until the administrator determines that such risk or deficiency no longer exists.

    
    

19. There is no proof that Vera Smith was mentally or physically incapable of serving as a nursing assistant.

    
    

20. Whatever negligence may have occurred at the facility with respect to Mr. A.P., that negligence does not constitute violation of the staffing standards found in Rule 10A-5.19(5), Florida Administrative Code, as promulgated at the time the incident occurred.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Administrative Complaint against Retirement Center of America, Inc., doing business as Inverrary Retirement Center be DISMISSED.

DONE AND ORDERED this day of April, 1987, in Tallahassee, Florida.

WILLIAM H. DORSEY

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4718M

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Sentence 1, rejected as a statement of issues. Sentence 2, covered in Finding of Fact 6.

2. That Ms. Smith was fired is covered in Finding of Fact 7, and the remainder of that proposal constitutes an inference which is rejected.

3. Sentence 1, covered in Finding of Fact 2. Sentences 2-4, rejected as unnecessary.

4. Covered in Finding of Fact 6.

5. Rejected as argument, not a finding of fact.

6. Rejected as unnecessary.

7. Sentence 1, rejected as unnecessary. Sentences 2-4, covered in Finding of Fact 6. Sentence 5, rejected as unnecessary.

8. That Vera Smith was the only employee on duty is covered in Finding of Fact 4, along with the reason Mr. A.P. was not lifted to his bed. The remainder is rejected as unnecessary.

9. Rejected as unnecessary.

10. Covered in Finding of Fact 7.

Rulings on Proposed Findings of Fact Submitted by Respondent

1. Covered in Finding of Fact 1.

2. Covered in Finding of Fact 1.

3(a) Sentences 1 and 2, covered in Findings of Fact 2 and 3. Sentence 3, covered in Finding of Fact 4. Sentences 4-6, covered in Finding of Fact 6.

3(b). Sentence 1, rejected because only Vera Smith was on duty at 4:00

a.m. on January 16, 1986. Her certification by the Department of Education, however, was sufficient to meet staffing standards prescribed by HRS rule. No finding is made with respect to Ms. Paisley's certification because it is irrelevant.

COPIES FURNISHED:

Leonard T. Helfand, Esquire Department of Health and

Rehabilitative Services 5190 North West 167th Street Miami, Florida 33014

Dr. Martin Marenus

5811 North West 28th Street Lauderhill, Florida 33313

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 86-004718

Orders for Case No: 86-004718