STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. )

)

NORTH FLORIDA LIVING ) FACILITIES, d/b/a WILLOW GROVE ) LIVING FACILITY, )

)

Respondent. )

Case No. 01-2503

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, Administrative Law Judge of the Division of Administrative Hearings, on September 12, 2001, in Pensacola, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Christine T. Messana, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Mail Stop No. 3

Tallahassee, Florida 32308-5403

For Respondent: Richard P. Warfield, Esquire

201 East Government Street Pensacola, Florida 32501

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding, concern whether the Respondent facility's license to operate a limited

mental health assisted living facility should be revoked, and an administrative fine imposed, for alleged violations of Sections 400.428(1) and 400.426(8), Florida Statutes; and Rules

58A-5.0181(1)(g), 58A-5.029(3)(c), and 58A-5.0181(1)(b), Florida

Administrative Code.

PRELIMINARY STATEMENT

North Florida Living Facilities, d/b/a Willow Grove ("the facility" or the Respondent) is an assisted living facility in Pensacola, Escambia County, Florida. It is licensed under Chapter 400, Part III, Florida Statutes. The Petitioner, the Agency for Health Care Administration ("the Agency" or the Petitioner) has licensure and regulatory authority over assisted living facilities in Florida pursuant to Chapter 400, Part III, Florida Statutes. Pursuant to Chapter 400.434, Florida Statutes, and Rule 58A-5, Florida Administrative Code, the Agency is authorized to investigate and resolve complaints made about such facilities.

This cause arose when the Agency conducted a complaint investigation survey on April 12, 2001, at the Respondent's facility. The Agency alleged, as a result of its investigation, that the Respondent had inappropriately retained an unstable resident who engaged in high-risk behavior and threats to other residents and was non-compliant with her medication requirements. The Agency also alleges that the Respondent

failed to monitor behaviors of that unstable resident and to notify the mental health case worker of behavioral changes. Additionally, the Agency contends that there were no safe infection control practices operating at the facility, allegedly putting other residents at risk of infection because of Resident No. one's documented diagnosis of Hepatitis "C".

The Administrative Complaint was filed and served, and ultimately the Respondent requested a formal proceeding which culminated in the case being assigned to the undersigned Administrative Law Judge and scheduled for hearing. The cause came on for hearing as noticed. The Petitioner presented two witnesses and Petitioner's Composite Exhibits one and two, which were admitted into evidence. The Respondent presented three witnesses and Respondent's Exhibit one was admitted into evidence. Upon conclusion of the hearing, the parties had the proceedings transcribed and submitted Proposed Recommended Orders. The Proposed Recommended Orders have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. Resident No. one, in the Respondent's facility, had a diagnosis of a bipolar disorder, with psychotic features. She had a history of mania and medication non-compliance as well as having a past diagnosis of Hepatitis "C". The treatment and therapies recorded as being applicable to that resident were

   medication management, intensive case management and out-patient psychiatric management. Resident No. one had been frequently out of compliance with her medication regimen since approximately November 2000. The Agency received a complaint that Resident No. one had made threats against another resident, including threatening to kill that resident, or to maim him, and that Resident No. one had offered another resident money to kill Resident No. two.

2. The Administrator, David Davis, was aware that Resident No. one had occasionally made threats and that on one or two occasions had possession of a knife. When Mr. Davis learned of her possession of a knife, he demanded that it be relinquished to him by Resident No. one, and, on each occasion she had readily complied.

3. Resident No. one, who purportedly made the threats against Resident No. two (A.A.), were "sweethearts." They had known each other for many years. The two of them frequently argued and the occasion of the threats being made was essentially a "lover's quarrel," as essentially described by Mr. Davis. Mr. Davis opined that Resident No. one's threats were not to be taken seriously. She had never made any attempt to harm or kill anyone. The third resident, whom she allegedly solicited and offered money if he would kill Resident No. two (A.A.), denied that she had ever offered him any money to kill

   anyone. Administrator Davis testified that Resident No. one (L.P.) never actually made any attempt to harm or kill anyone and this was corroborated by L.P.'s twin sister (C.H.), who visited L.P. at least five times per week when she was in the Respondent's facility. She stated that her sister had never had any tendency towards violence and had never harmed anyone. She regarded the alleged threats as idle threats, if they occurred.

   C.H. found that the Respondent's facility took good care of her twin sister and she was very pleased with the way they coped with L.P. with regard to her bipolar disorder and her mood swings.

4. In any event, on the same day of the Petitioner's inspection of the facility, L.P., Resident No. one, was committed to an appropriate facility pursuant to the "Baker Act." After the Agency had completed its survey, it sent a moratorium to the Respondent preventing it from accepting new residents. After Resident No. one, L.P., was released from her Baker Act commitment, she returned to the Respondent's facility for a brief period but was given a "thirty day notice" to leave the facility after which she never returned. Thereafter, by letter of May 11, 2001, the Respondent was notified by Petitioner that all deficiencies had been corrected and that the facility was no longer under a moratorium for new admissions. See Respondent's Exhibit 1 in evidence. Since that time, the

   facility has continued its normal, day-to-day operation without incident or violation of record.

5. Despite the threat or threats made by Resident No. one, Mr. Davis of the administrative staff, was not overly concerned about the threats because of his extensive experience with this resident and his knowledge of the fact that she had no history of violent behavior. He was aware that she had refused her psychotropic medications and, according to the pertinent rules, had reported that fact to the mental health case manager for Resident No. one.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

7. Class I deficiencies are those conditions or occurrences that the Agency determines present an imminent danger or a substantial probability that death or serious physical or emotional harm could result therefrom. Fines may be levied for such deficiencies notwithstanding the correction of the violations. See Section 400.419(1)(a), Florida Statutes (2000). The Agency may revoke a license for one or more Class I violations or for a negligent act that seriously affects the

   health, safety or welfare of the residents of the facility. Section 400.419(1)(a) and (e), Florida Statutes (2000).

8. In accordance with Rule 58A-5.0181(1)(g), Florida Administrative Code, an individual must not be a danger to self or others as determined by a physician or mental health practitioner licensed under Chapters 490 or 491, Florida Statutes, in order to be admitted to a facility holding a standard limited nursing or limited mental health license. It has not been demonstrated by preponderant evidence that Resident No. one was actually a danger to herself or others, in view of the testimony of Mr. Davis and Ms. Hartshorn. There was shown to be no determination by a physician or mental health practitioner licensed under the above-cited Chapters of the Florida Statutes finding that she was a danger to self or others.

9. The Respondent did, however, violate Rule 58A-5.0181(1)(g), by failing to observe and re-assess

   Resident No. one's behavior and functioning in the facility to ascertain the appropriateness of her continued residency, in the sense that it failed to timely re-assess her behavior and functioning. No formal re-assessment was done until after she was the subject of the deficiencies charged by the Agency and after she was returned to the facility after her Baker Act placement, when she was given a notice to vacate. Moreover, the

   Respondent violated Section 400.426(8) and Section 400.428(1)(k), Florida Statutes, by failing to proceed with discharge plans for Resident No. one upon learning that her behavior and her physical health (Hepatitis "C") were no longer appropriate for residency in the Respondent's facility. In fairness to the Respondent, the totality of the evidence reveals that it only became aware of the need to proceed with any discharge plans for this resident at about the time the survey and investigation were initiated by the Agency because it had believed, up to that time, that Resident No. one's verbal threats were idle ones and would not be carried out, and certainly it was justified in that belief by the fact that over twenty-five to thirty years of mental illness, Resident No. one had no history of violent behavior at all. Moreover, the Respondent had acted on each occasion when it learned that the resident may have a knife or other weapon to confiscate those items, in protection of the resident and her fellow residents.

10. In this context it is thus determined that the facility did not violate Section 400.428(1), Florida Statutes, by failing to comply with the Resident Bill of Rights (neglecting to provide a safe and decent living environment free from abuse). In fact, it did provide a safe and decent living environment free from abuse. The Respondent and its staff made itself well aware of Resident No. one's mental and behavioral

    propensities, monitored them closely enough to prevent harm to any other residents, including making sure that any weapons were confiscated; in consideration of the fact that this is not a close confinement facility and Resident No. one and the other residents, in such a facility, are free to, and did venture out into the community on a daily basis. There was thus no preponderant evidence to show that the Respondent failed to maintain a safe, decent living environment, free from abuse.

11. Likewise, it has not been established that Rule 58A- 5.029(3)(c), Florida Administrative Code, was violated because it has not been demonstrated that the Respondent and its staff failed to observe resident behavior and functioning in the facility, with regard to Resident No. one in particular, and to record and communicate observations regarding that resident's mental health to the mental health case manager or mental health care provider regarding any significant behavioral or situational changes. In fact, as established by Mr. Davis, the refusal of Resident No. one to appropriately take her medications was communicated to the mental health case manager and the Respondent was in appropriate communication as to its observations of Resident No. one, with the Lakeview Mental Health facility. Further, the resident in question was not shown to have been unsuitable or inappropriate for residency in the facility, within the knowledge and reasonable determination

    of the Respondent, for any unreasonably lengthy period of time before she was "Baker Acted" and later notified of the need to vacate. Indeed, the Respondent could not be said to be reasonably aware that the resident was not longer appropriate for residency in its facility before the time that the Agency initiated the investigation. Immediately, upon the same day, the Respondent helped to ensure that the resident was committed under the Baker Act and later followed-up by notifying the resident of the necessity to vacate its premises and facility. Thus Rule 58A-5.029(3)(c), has not been violated.

12. It has not been demonstrated that Section 400.426(8), Florida Statutes, has been violated in terms of any significant failure to protect health, safety and welfare of the residents in the facility. It has not been demonstrated by preponderant evidence that the residents have been placed in immediate danger or imminent danger with any "substantial probability that death or serious physical harm" would result, nor has any significant threat to public health, safety and welfare been demonstrated. Accordingly, it is determined that the facility in the above particulars violated Sections 400.426(8), and 400.428(1)(k), as concluded above, regarding the non-timeliness of its discharge plans and Rule 58A-5.0181(1)(g), concerning the non-timeliness of its reassessment of Resident No. one's behavior and

functioning. In the other particulars charged by the Agency preponderant evidence of violations has not been established.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Agency for Health Care Administration establishing the two violations referenced in the above-concluded particulars and imposing a

$500.00 fine. It is further RECOMMENDED that in all other particulars the Administrative Complaint be dismissed.

DONE AND ENTERED this 28th day of December, 2001, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings this 28th day of December, 2001.

COPIES FURNISHED:

Christine T. Messana, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Mail Stop No. 3

Tallahassee, Florida 32308-5403

Richard P. Warfield, Esquire

201 East Government Street Pensacola, Florida 32501

Diane Grubbs, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building, Suite 3431 Tallahassee, Florida 32308

William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building, Suite 3431 Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-002503

Orders for Case No: 01-002503