STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
CASSELBERRY ALF, INC., d/b/a EASTBROOKE GARDENS,
Respondent.
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) Case Nos. 01-4491
) 01-4492
) 01-4648
) 01-4658
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RECOMMENDED ORDER
A formal hearing in the above-styled case was held before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on May 15 and 16, 2002, in St.
Petersburg, Florida.
APPEARANCES
For Petitioner: Michael P. Sasso, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Suite 310-G
St. Petersburg, Florida 33701
For Respondent: Theodore E. Mack, Esquire
Powell & Mack
803 North Calhoun Street Tallahassee, Florida 32303
STATEMENT OF THE ISSUES
Whether Respondent, Casselberry ALF, Inc., d/b/a Eastbrooke Gardens, violated Section 400.28(1)(a), Florida Statutes, and
Rule 58A-5.0182, Florida Administrative Code, as cited in the four AHCA Administrative Complaints, based on four consecutive AHCA surveys of Respondent's assisted living facility (ALF), alleging failure to provide care and services appropriate to the needs of its residents.
Whether the facts alleged constitute Class I or Class II deficiencies.
Whether, if found guilty, a civil penalty in any amount or the imposition of a moratorium is warranted pursuant to the cited statutes.
PRELIMINARY STATEMENT
From June 1, 2001 through August 17, 2001, Petitioner conducted four separate surveys of Respondent's ALF. As a result of the first two of those surveys, Petitioner issued an Order of Immediate Moratorium on July 24, 2001, stopping Respondent from admitting any new patients until the moratorium was lifted. The Order of Immediate Moratorium did not give Respondent a point of entry for a formal administrative hearing, but notified Respondent that it could seek review from the district court of appeal pursuant to Section 120.68, Florida Statutes.
Respondent appealed the Order of Immediate Moratorium to the Fifth District Court of Appeal. In its Order dated
October 19, 2001, the Fifth District directed Petitioner to provide Respondent with an expedited formal administrative hearing. By that time the moratorium had already been lifted, based on two monitoring visits conducted by Petitioner on September 27 and 28, 2001. During this same period, Petitioner filed its four complaints, dated October 1 and 15, 2001, that are the basis of this consolidated hearing. The first two of those complaints are based on the same allegations that formed the basis for the Order of Immediate Moratorium. The second two are based on allegations stemming from follow-up surveys conducted before the moratorium was lifted.
Respondent timely filed petitions seeking a formal administrative hearing on all four complaints. These cases were referred to the Division of Administrative Hearings on
November 13, 2001, and were consolidated for hearing. Respondent addressed the issuance of the moratorium in those petitions, even though the moratorium was not mentioned in the complaints. Petitioner never forwarded a request for hearing to Division of Administrative Hearings based on the District Court's order for expedited review on the moratorium, but instead, took the position that because the facts in the complaints were the same as those that formed the basis for the moratorium, there was no need to refer the matter to the Division of Administrative Hearings and that the requirements of
the court's order were being met by the instant pending cases. Respondent disagreed that the issue of the moratorium was actually before the Division of Administrative Hearings in the instant proceedings since it was not mentioned in the complaints, and filed a Motion to Enforce Mandate with the District Court. Petitioner responded to that motion, stating in part that, "the factual allegations underlying the Emergency Order (and therefore the Emergency Order itself) are now subject to further review through the administrative complaints arising therefrom and based on the same underlying factual allegations." Based on Petitioner's representation, the court denied Respondent's Motion to Enforce.
Respondent thereupon filed a Notice of Filing Order of Immediate Moratorium in this matter, based on Petitioner's representation that the Emergency Order of Moratorium was subject to further review through it's action in filing the complaints. At hearing, Petitioner took the position that, while the underlying facts surrounding the moratorium were at issue in this proceeding, the issuance of the moratorium itself was not before the Division of Administrative Hearings.
While the Motion to Enforce Mandate was pending before the Fifth District Court of Appeal, this proceeding was continued. Final hearing was held on May 15 and 16, 2002, in St.
Petersburg, Florida. At the final hearing, Petitioner presented
the testimony of one witness, Vilma R. Pellot, registered nurse specialist, and Petitioner's Exhibits 1 through 9 were received in evidence. Respondent presented the testimony of Lois Bosworth, director of operations, Homestead Health Management Group, expert in gerontological nursing and ALF operations, and Respondent's Exhibits 1 through 3 were received in evidence.
The Transcript of the final hearing was filed on June 14, 2002. On June 18, 2002, Petitioner filed an Agreed Upon Motion for Extension of Time. Each party filed its proposed recommended order on July 23, 2002, following a second Order Granting Extension of Time. Each party's proposal has been given careful consideration in the preparation of this Recommended Order.
FINDINGS OF FACT
Petitioner is the State of Florida, Agency for Health Care Administration. Petitioner is responsible for licensing and regulating adult living facilities pursuant to Section
400.401 et seq., Florida Statutes, and Chapter 58A-5, Florida Administrative Code.
Respondent is Casselberry ALF, Inc., d/b/a Eastbrooke Gardens, an assisted living facility located at 201 North Sunset Drive, Casselberry, Florida, which is licensed and regulated pursuant to Section 400.401 et seq., Florida Statutes, and Chapter 58A-5, Florida Administrative Code.
On June 1, 2001, Petitioner's employee, Vilma Pellot, whose duties include surveying ALFs for compliance with licensure statutes and rules, conducted a survey of Respondent's facility based on an abuse complaint received by Petitioner.
That same day, Pellot discussed her findings with the facility administrator, and later prepared AHCA form 3020. In her report, Pellot found that the facility was not in compliance with Rule 58A-5.0182, Florida Administrative Code, which states, in pertinent part:
Resident Care Standards. An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility.
Pellot determined that the standard was not met because "the facility failed to take proactive measures to prevent patient to patient abuse and to minimize potential for falls resulting in injuries." The deficiency was classified as a Class II deficiency and a prospective $2,500 fine was imposed.
At hearing, Petitioner did not produce the records that Pellot reviewed, nor did it present the testimony of any of the people with whom Pellot spoke. Other than Pellot's direct observations of the residents' bruises and dressings, the only other direct evidence offered by Petitioner regarding the
June 1, 2001 survey was the AHCA form 3020, which Petitioner acknowledged was not being entered for proof of the facts stated
therein. Pellot did not print or send the AHCA form 3020 to the facility and she does not know if the facility received the form 3020 when she made a subsequent visit to the facility.
On July 16, 2001, Pellot conducted a follow-up visit to Petitioner's facility. She again observed residents with bruises or dressings and reviewed their records. She also observed two residents sleeping in the wrong beds. In addition, Pellot determined that based on an interview and incident reports review, the facility failed to submit to Petitioner a preliminary report of all adverse incidents within one business day after occurrence.
Pellot discussed her findings with the new administrator and concluded that there was still patient wandering, resulting in injury, and patient-to-patient abuse. Following her visit, Pellot drafted another AHCA form 3020, finding a continued violation of Rule 58A-5.0182, Florida Administrative Code. The continued deficiencies of June 1, 2001, were upgraded to Class I and a prospective fine of $5,000 imposed. In addition, a Class III deficiency was found for the failure to report adverse incidents within one day.
At hearing Petitioner did not introduce the records that Pellot reviewed on her second visit, nor did it present the testimony of any of the people with whom Pellot spoke. Other than Pellot's direct observations of the residents' bruises and
dressings and her observation that two residents were in the wrong beds, the only other direct evidence offered by Petitioner regarding the July 17, 2001 survey was the AHCA form 3020, which contained hearsay statements.
In regard to the Class III deficiency for failure to report adverse incidents within one day, there was no testimony or records presented by Petitioner to support the allegation set forth in the AHCA form 3020, dated July 16, 2001. Petitioner acknowledged, in its Order of Immediate Moratorium, that an incident report had been submitted regarding a kicking incident involving Resident number 6. Other incidents noted in the AHCA form 3020 did not require incident reports because they did not meet the definition of "major incident" as defined by rule.
Following the surveys on June 1, 2001, and July 17, 2001, Petitioner made an administrative determination that "conditions in the facility present an immediate or direct threat to the health, safety or welfare of the residents . . ." and issued an Order of Immediate Moratorium against Respondent's ALF. Respondent was not permitted to admit any new residents until the moratorium was lifted.
On August 8, 2001, another follow-up survey to the ALF was made, and Pellot observed bruises on residents and one resident wandering into another resident's room. Another AHCA form 3020 was prepared finding a continued violation of the
rule. The continued deficiencies of June 16, 2001, were classified as Class I and a prospective fine of $5,000 imposed. In addition, a Class III extended congregate care (ECC) deficiency was found for the alleged violation of not admitting a resident who required ECC services, total help with activities of daily living (ADL), or discharging her.
At hearing, Petitioner did not produce the records reviewed by Pellot, nor did it present any of the people with whom she allegedly spoke. Other than Pellot's direct observations of the residents' bruises and dressings and her observation of a resident wandering into another resident's room, the only other direct evidence offered by Petitioner regarding the August 8, 2001 survey was the AHCA form 3020, which contained hearsay statements.
On August 17, 2001, another follow-up survey of the ALF was conducted, and bruises on residents were observed and a band-aid was seen on one resident. Another AHCA form 3020 was prepared, finding a continued violation of the rules. The continued deficiencies were classified as Class I and a prospective fine of $5,000 imposed. In addition, the Class III ECC deficiency previously determined in the August 8, 2001 survey was found to have been corrected.
At hearing, Petitioner did not produce the records reviewed by Pellot, nor did it present any of the people with
whom she spoke. Other than Pellot's direct observations of the residents' bruises and dressings, the only other direct evidence offered by Petitioner regarding the August 17, 2001 survey was the AHCA form 3020, which contained hearsay statements.
Pellot returned to the facility on September 27, 2001, for a monitoring visit and on September 28, 2001, for a follow- up survey. At that time she concluded that the alleged deficiencies had been corrected and recommended that the moratorium be lifted.
Petitioner recognizes that ALF residents do fall. The rule does not require that a facility be "fall free." There is no rule or regulation concerning falls, and there are no guidelines set forth in AHCA complaint investigation guidelines.
Lois Bosworth, a certified gerontological nurse, is Director of Operations for Homestead Health Management Group which operates Respondent's ALF. Homestead Health Management Group operates nine ALFs in Florida, all of which have ECC licenses. ECC stands for Extended Congregate Care which is a higher level of care than a standard ALF license.
All of Respondent's ALF residents are memory impaired to some extent. Most are in their 60s or older, some have early Alzheimer's, others have dementia for other reasons. Because they suffer from dementia, the residents' physical abilities are declining. Some are not ambulatory and use wheelchairs, some
are able to use walkers to some degree, most can still feed themselves. In the evening, ALF residents with dementia have to be cued over and over to perform the activities of daily living (ADLs) more often than in the daytime because while they're up during the day, they become very tired and their processes decline. Some residents have the same levels all day, but over the course of weeks, to months, to years, they will decline, needing more hands-on personal services as their disease progresses.
ECC has established criteria and retention criteria which Respondent is required to follow. With the dementia clients, it is gauged on their ability to transfer with minimal assistance. They may need help becoming steady because sitting for any length of time makes them unsteady or off balance when they first stand up. Retention criteria is also based on how much cuing a resident needs in feeding themselves. With Alzheimer's patients, it is typical that feeding is one of the last of the physical needs that they can do themselves.
When residents are no longer able to ambulate or feed themselves, they are more prone to physical ailments that require nursing home care. If there is a question concerning appropriate placement, Respondent will have the Department of Children and Family Services (DCF) CARES team become involved. The CARES team consists of nurses that make the official
determination of the appropriate level of care required for a resident. Many times it is necessary to involve the CARES team because the family is reluctant to have their loved one transferred from the ALF to a nursing home.
In a facility such as Respondent's where there are many residents with dementia, it is not unusual for the residents to get into confrontations with one another. Often they will shout at each other before they touch each other. Alzheimer residents will sit next to each other touching each other, shoulder to shoulder, knee to knee. They'll even hold hands walking down the hallway. There are other times they need to have the comfort of someone touching them. But they have periods of time when they don't want people touching them at all and for no apparent reason.
Of the residents identified in the June 6, 2001 survey, Resident number 1 was ambulatory. She would wander at night time up until midnight before she would settle down and go to sleep. This is typical Alzheimer's type activity. She was a lady who had very large bags under her eyes constituting soft tissue which can continue to bleed from a bruising into both eyes. Such an injury is typical of people with glasses, or people who get hit over the bridge of the nose, making it quite common to have two black eyes with one injury. A small bruise over the eye one day may be extremely massive the next because
there will be continued leaking of blood under the skin and the tissues that cause the bruise.
This resident was allegedly struck by another resident who was not known to be aggressive, but did not recognize people all the time. One of the defenses that Alzheimer's people have, if they can't process the thought and recognize someone, is to make someone the bad person because they don't remember what happened. Often they will respond verbally ordering the person to go away, even though the person may be a roommate. In the earlier stages of Alzheimer's, a person may recognize that he or she is forgetting things and have a tendency on some occasions to be more resistant, not necessarily aggressive. The resident who allegedly struck Resident number 1 was not known to be aggressive to other residents, even after this alleged incident. The alleged incident could not have been foreseen.
Resident number 2 in the June 1, 2001 survey was receiving therapy for her falls. There was a recommendation that a different wheelchair with a seat which slightly tilts back be tried. After the June 1, 2001 survey, this resident was placed in a nursing home which could use restraints in a wheelchair.
Resident number 5 in the June 1, 2001 survey would sit on the side of the bed to put her slippers on. She would pitch forward because she was short and the bed was too tall for her
to sit on. Her mattress was placed on the floor to alleviate the problem which was resolved. Resident number 5 had a tendency to bruise easily. It was determined that she had a bleeding disorder, so that even a slight bump would cause her skin to bruise. She continued to have skin tears and bruising following June 1, 2001, which required her to go to the emergency room. When she returned her skin tear had not healed and she had very massive bruising from use of an IV in the emergency room. The patient eventually went back to the hospital and did not return to the facility.
Resident number 4 in the June 1, 2001 survey was the resident who allegedly had an altercation with Resident number 1. She had no other problems such as this. Resident
number 4 apparently alleged that Resident number 1 came into her room and grabbed her arm. Then she hit that resident for coming into her room, to defend herself. This is the only event that occurred with this resident.
A person with dementia is usually not credible. It is not uncommon for people with dementia to blame something that happened to them on someone else. Due to memory impairment, they do not want people to think that something is wrong with them, so they blame someone else for something that happened to them. The material available, publications and educational offerings for Alzheimer's encourage allowances for wandering for
Alzheimer's clients, because it is part of the disease process and part of their need. They are not able to sit quietly; in fact, the literature states that it's important that they be permitted to wander. At Respondent's ALF wandering is allowed throughout the facility, which is open. Respondent is barrier- free to permit the wandering, allowing a resident to pace up and down the hallways or common areas. The option to participate in activities is always the right of the resident. Alzheimer's clients can't always make that decision, and so they're encouraged to participate in activities to keep them distracted to a degree. They cannot be forced to participate if they choose to continue to walk up and down the halls.
Respondent tries various techniques to deter wandering into the wrong room, from posting photographs on residents' doors to decorating rooms with personal items. Respondent tries hard to keep the residents in common areas when they wander and tries to keep doors to residents' rooms closed. But wandering is still a problem with Alzheimer's residents.
There are no publications on how to prevent falls.
Falls can be minimized in number and by the severity of injuries. The facility needs to be able to provide what the resident needs; if that means they need to go barefoot, then they should be allowed to go barefoot without neglect being alleged.
While Respondent cannot prevent falls, it tries to minimize them by providing appropriate care and services to meet the residents' needs within the standards set by the state. Respondent has a procedure in place to minimize falls. Fall assessments were done by the therapy department. When someone had a first fall, therapy would do a screening and assessment to see if they had a need for therapy services to increase their functionality of ambulating. The administrative staff would also review the circumstances of the fall to see if it was preventable or non-preventable. The resident would be evaluated to determine if there was a medical condition that had arisen that was contributing to the fall. There would be a general assessment of the different environmental issues as well as clinical issues. The resident would be watched for any possible decline.
Resident number 3 in the June 1, 2001 survey is a tall gentleman who walks around with a stuffed dog. He is friendly and takes direction easily. He is not aggressive, and he does not have a tendency to walk into other peoples' rooms.
Other than the two residents seen napping in other residents' beds, the incidents cited in the July 16, 2001 survey, which led to the issuance of a repeat citation and a moratorium, consisted of the actions of one resident identified in that survey as Resident number 6. Resident number 6 was a
48-year-old lady who was brought to Respondent by DCF through an emergency placement under a court order to place her in an ALF for supervision of her care needs. She was a younger resident than normal for the facility because she had a diagnosis of Huntington's Chorea, which is a type of dementia which does not progress as quickly as Alzheimer's but strikes adults earlier in life.
Respondent has an agreement with DCF which provides for emergency placements for persons who do not need to go into nursing homes, for those with memory impairment, including after-hour placement, and weekend placement. Respondent does not require that DCF bring with them a medical assessment. Regulations allow Respondent to have one completed within
30 days following the emergency placement.
Resident number 6 was at a table and another resident reached for her purse. Resident number 6 picked up a cup of coffee that was sitting on the table and threw the coffee on the other resident's lap. The other resident involved was not injured because the coffee served was not hot coffee.
Resident number 6 came to the facility in early June 2001. The coffee incident occurred on June 30th and was the first indication that there might be a problem. Respondent did not interpret the action of Resident number 6 to mean that Resident number 6 was going to hurt anyone. Resident number 6
did not come with a history of hurting anyone, and there was no documentation that she had tried to hurt anyone in the past.
She calmed down after the incident and didn't seem to be a problem. Resident number 6 was quite settled in and was doing well. This was a DCF placement to see how she did and whether or not she would be able to return home or go to a different living arrangement.
On July 11, 2001, the survey indicated that Resident number 6 had an altercation with Resident number 1 over a cigarette lighter and pushed him down and kicked him, requiring him to be admitted to the hospital with a fractured hip.
On July 14, 2001, Resident number 6 allegedly grabbed the arm of Resident number 3 who was in her room and created a skin tear to Resident number 3 as she was pulling her down the hall to the nursing station.
During the July 16, 2001 survey, Respondent was directed to remove Resident number 6 immediately from the facility. DCF declined to help. Respondent placed Resident number 6 on one-to-one supervision until the next day when DCF refused to remove her. Respondent could not Baker Act Resident number 6 to a mental facility because she did not meet the criteria. Respondent was finally able to get Resident number 6 to agree to a voluntary psychiatric placement.
Resident number 4, a 98-year-old female, identified in the August 8, 2001 survey, apparently had been found on the floor of her room in April with no injuries. She appeared to fall because she was trying to dress herself and the blanket got wrapped up in her legs. In June, she fell into the soda machine with no injuries. And then on July 18th and 20th she fell in the evening.
Evening is when some Alzheimer's residents have what is called "sundown syndrome," simply meaning that as the sun sets, they have become so tired they've exhausted all their physical resources and will have a decline.
Resident number 4 was receiving physical therapy to keep her ambulating at the highest level possible. She reached her highest potential in therapy because she couldn't remember safety factors that she was taught. The purpose of physical therapy was to help Resident number 4 in her ability to ambulate and minimize her falls. The only way to actually prevent her from falling was to restrain her, which is not permitted at an
ALF.
On August 1st, Resident number 4 aparently stood up
from a bench that was in the hallway and literally ran down the hallway, running to the point that a therapist and the nursing assistant could not catch her. Resident number 4 only stopped because she fell forward and hit her nose on the floor. She was
in a dementia state, and did not reach her hands out to catch herself. There was no way anyone could have prevented such an accident, especially since Resident number 4 did not take off running all the time and she was under direct supervision when this happened.
Resident number 3 in the August 8, 2001 survey, apparently fell in the TV room and the corner of her chin hit the table. While the injury did cause a massive bruise on her chest, there was no way of knowing the fall would occur since the resident did not have a history of falls.
Resident number 6 identified in the August 8, 2001 survey, was non-verbal. During the survey she followed the staff and held hands with a staffer. She is a person who was always reaching for someone. She had a habit of patting another resident on the head, but she was not aggressive. She merely liked to touch, kiss, hold hands, or hug people. Respondent tried to keep her hands busy by giving her something to hold but that did not stop her need to touch people.
During the surveyor's tour of the facility on August 8, 2001, a resident mistakenly walked up to a room and
asked if it was hers. She was redirected before she entered the room. The resident who claimed to be missing glasses and spools of thread has a mild dementia. She was wearing glasses and the facility supplied her with spools of thread when she ran out.
Resident number 2, in the August 17, 2001 survey, was totally ambulatory and did not have a history of falling. She was steady but very confused. She was walking to dinner in the dining room in an open area, no barriers, and apparently when she made a step, she stepped on the shoe of her other foot and fell down, striking her head on the piano. She had a tendency when she sat down to constantly shake her leg or cross her legs back and forth. She was in continuous motion, which is not unusual with Alzheimer's type of dementia. Apparently when she first came back from the hospital, she was able to stand up, help herself to bed with some assistance. Through the night she was having more difficulty and returned to the emergency room where they discovered that she in fact had a fractured hip from the fall.
Resident number 1, in the August 17, 2001 survey, was approximately 97 years old, very frail and very thin. He had a recent diagnosis of cancer that was a progressive non-Hodgkins type lymphoma. He had good days and he had bad days, as far as his physical health, which is typical of the disease process.
He also had confusion from memory impairment disorder that may or may not have been Alzheimer's. There were days when Resident number 1 could walk using a cane, on other days he could walk with a walker, and there were days when he was so tired he used a wheelchair. With his demented state he wasn't always sure
which appliance to use for the day and had to be reminded. Resident number 1 was a smoker, so he would go out on the patio frequently. Sometimes he would reach for things and, being frail, would fall. He was in end stage with his cancerous process and one of his goals was to stay out of a nursing home.
Resident number 1 did have a series of falls which created skin tears because his skin was very thin, but nothing that was more of a serious nature than that, and he was adamant that he stay at the ALF. He was able to be maintained at Respondent's ALF and did not have any fractures while he was there. Toward the end of his life, he determined that he did not want to be involved with the hospice group that came to visit. He did eventually go to a different level of care.
Resident number 3, identified in the August 17, 2001 survey, fell in the shower when she was being assisted in May of 2001. She apparently fell and hit the back of her head on a shower stall, but she was receiving assistance at the time. This was an unusual occurrence, Resident number 3 was not a resident who fell frequently or had a great history of falls. On August 12 the survey notes that she had redness under both her eyes and a cut or scratch on her nose. This was another resident who had very large bags under her eyes and rubbed her eyes frequently. There was no documentation that this resident had received an injury or a fall that would create this redness
around her eyes or the yellowish, purplish hematomas. There was no indication that this resident had had a fall and she was not prone to falls.
Resident number 6, identified in the August 17, 2001 survey, was a resident who was required to wear shoes because it is considered inappropriate for our elders to walk around barefoot. She would take her shoes off frequently. When she did wear them, she had a difficult time picking her feet up high enough to walk without someone with her. Resident number 6 apparently tripped with no apparent injuries, but later that day her right hand showed bruising and swelling. There was no indication as to the cause of the swelling and an X-ray indicated no fracture. Resident number 6 apparently tripped again while walking, tried to catch herself and held onto a chair; she had a skin tear on her shin. Resident number 6 although ambulatory, would often catch herself from falling.
Resident number 4, identified in the August 17, 2001 survey, scratched his arm because he has dry skin. It began bleeding and an aide administered a bandage. There was no need for documentation.
The facts alleged in the four surveys at issue do not indicate any conditions or occurrences relating to the operation and maintenance of this facility, or the personal care of the residents which directly threatened the physical or emotional
health, safety or security of the facility residents. At no time during any of her surveys that are at issue in this proceeding did Pellot find Respondent's ALF to be short-staffed.
The facts alleged in the four surveys at issue do not indicate any conditions or occurrences relating to the operation and maintenance of the facility or the personal care of the residents which would have been an imminent danger to the residents or guests of the facility, or a substantial probability that death or serious physical or emotional harm could result therefrom.
Respondent was providing appropriate care for the needs of the residents that were identified in the statements of deficiencies at issue in this proceeding. None of the patients who were involved in these incidents cited in the four surveys had the mental capacity to form a willful intent to harm someone. Nor could the patient's actions be interpreted, under the facts, to be anything more than defensive reactions or touching incidents of persons with mental impairments.
The relevant facts showed that Respondent took appropriate steps to address wandering problems and protect residents in its facility. The events surrounding Resident number 6, in the July 16 survey were an anomaly and could not have been foreseen by the staff at the facility. Respondent had a right to rely on the assertion by DCF that Resident number 6
was appropriate for placement in an ALF. The incident with the coffee was not significant enough to precipitate the resident's removal from the facility. When it became apparent that the resident was aggressive at times, Respondent took appropriate steps to have her placed elsewhere. In addition, this isolated incident was not similar to those for which Respondent was cited in the first survey of June 1, 2001. This was a problem created by a particular patient and not incidents of falls or wandering. As such, it should not have triggered a repeat offense nor a moratorium.
The evidence produced by Petitioner was primarily hearsay in nature without corroboration. Respondent presented none of the patients, staff or other witness to the incidents referred to, and none of the records referred to or relied on by the surveyor were produced. Under these circumstances, Petitioner failed to meet its burden to produce clear and convincing evidence that Respondent committed the violations alleged in Petitioner's form 3020s, the Administrative Complaints, or the Order of Immediate Moratorium.
Respondent's witness was credible and its explanation surrounding each incident was plausible.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and parties to this
proceeding pursuant to Subsections 120.569 and 120.57(1), Florida Statutes.
As set forth in Chapter 400, Part III, Section 400.401 et seq., Florida Statutes, Chapter 58A-5, Florida Administrative Code and the Health Care Finance Administration (HCFA) complaint investigation guidelines, Petitioner is empowered to license and regulate ALFs in Florida.
The imposition of a moratorium and prospective fines against the facility are actions that are penal in nature against the facility's license. State ex rel Vinning v. Florid
Real Estate Commission, 281 So. 2d 487 (Fla. 1973), and must be construed strictly in favor of the one against whom the penalty would be imposed. Munch v. Department of Professional Regulation, Division of Real Estate, 592 So. 2d 1136 (Fla. 1st DCA 1992). The standard of proof required in this matter is that relevant and material findings of fact must be supported by clear and convincing evidence of record. Section 120.57(1)(h), Florida Statutes (2001); Department of Banking and Finance v.
Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
The definition of "clear and convincing" evidence is adopted from Solmowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), which provides:
Clearing 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 produced in the mind of the trier of fact firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
See also Smith v. Department of Health and Rehabilitative Services, 522 So. 2d 965 (Fla. 1st DCA 1999).
Subsection 120.57(1)(c), Florida Statutes, provides that hearsay evidence shall not be sufficient in itself to support a finding of fact unless it would be admissible over objection in civil actions. Durall v. Unemployment Appeals Commission, 743 So. 2d 166, 168 (Fla. 4th DCA 1999). See also Arnold v. State, 497 So. 2d 1356, 1357 (Fla. 4th DCA 1986) for the unrelated but analogous case of a probation revocation proceeding in which hearsay is admissible but must be supported by other competent non-hearsay evidence; and L. R. v. State, 557 So. 2d 121, 122 (Fla. 3rd DCA 1990).
The Moratorium
Petitioner's assertion that the Moratorium is not at issue in this proceeding is incorrect. The Fifth District Court of Appeal has ordered Petitioner to hold a fact-finding hearing on the moratorium and Petitioner has indicated that this is the
hearing on those facts. Petitioner cannot take a penal action against a facility it regulates and then refuse to grant the facility a point of entry to contest the factual allegations regarding the agency's actions. Under the Administrative Procedure Act (Chapter 120, Florida Statutes), every agency action is subject to review in a Section 120.57 hearing where the party against whom the action is taken is substantially affected and there are disputed issues of material fact.
McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977). In Stock v. Department of Banking and
Finance, 584 So. 2d 112 (Fla. 5th DCA 1991), the court recognized an aggrieved party's right to a hearing on an emergency order. Petitioner argues that this would lead to two separate hearings, one on the emergency order and one on the complaint. Such an argument is not compelling, especially here, where the two issues can be heard in one proceeding. In Stock the two proceedings were combined because the agency issued its emergency order and its complaints simultaneously. If a party were denied a fact-finding hearing on the emergency order alone, it would be possible that an agency could issue an emergency order and then never issue a complaint. The two are separate and each require a clear point of entry. If there are two requests, the proceedings can easily be combined for hearing.
Petitioner's assertion that the hearing on the complaints is the hearing on the facts and that the determination of the correctness of the moratorium will necessarily follow the decision in this case is not compelling. The statute section and rule under which the moratorium was issued is distinctly separate from the statute section and rule under which Petitioner issued the complaints, and there are different criteria for each. It is, therefore, necessary to make a separate factual determination as to whether the requirements for imposing a moratorium existed when the moratorium was imposed.
Petitioner is authorized to impose a moratorium on admissions to an ALF pursuant to Section 400.415, Florida Statutes. Pursuant to its authority under that section, Petitioner has promulgated rules indicating when it is appropriate to impose a moratorium.
Rule 58A-5.033(6), Florida Administrative Code, states:
(6) MORATORIUMS.
An immediate moratorium on admissions to the facility shall be placed on the facility when it has been determined that any condition in the facility presents an immediate or direct threat to the health, safety, or welfare of the residents in the facility. The following conditions are examples of threats constituting grounds for a moratorium:
Presence of residents who stage 3 or
4 pressure sores;
The presence of residents who require 24-hour nursing supervision;
Food supply inadequate to provide proper nutrition to residents;
Lack of sufficient staff to supervision or meet immediate residents' need;
Notification by the fire marshal or the county health department that conditions exist which pose an imminent threat to residents; or
Failure to provide medications as prescribed.
Petitioner presented no testimony other than opinion testimony to justify its imposition of a moratorium against Respondent. There was no evidence that would indicate that there was an immediate or direct threat to the health, safety, or welfare of the residents in the facility. Of the examples given in Rule 58A-5.033(6), Florida Administrative Code, only lack of sufficient staff would appear to be relevant to the issues raised by Petitioner in this proceeding. Petitioner's own witness acknowledged that Respondent was not short-staffed.
Deficiency Allegations and Proof
The statutory criteria for imposition of fines against an ALF is set forth in Section 400.419, Florida Statutes, which states, in pertinent part:
400.419 Violations; administrative fines.--
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 "I" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines present an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. A class I violation is subject to an administrative fine in an amount not less than $5,000 and not exceeding $10,000 for each violation. A fine may be levied notwithstanding the correction of the violation.
Class "II" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines directly threaten the physical or emotional health, safety, or security of the facility residents, other than class I violations. A class II violation is subject to an administrative fine in an amount not less than $1,000 and not exceeding $5,000 for each violation. A citation for a class II violation must specify the time within which the violation is required to be corrected.
Class "III" violations are those conditions or occurrences related to the
operation and maintenance of a facility or to the personal care of residents which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or class II violations. A class III violation is subject to an administrative fine of not less than $500 and not exceeding $1,000 for each 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, no fine may be imposed, unless it is a repeated offense.
In determining that Class I and II violations had occurred, Petitioner found Respondent to be out of compliance with Section 400.428(1), Florida Statutes, which allows every resident of an ALF the right to live in a safe and decent living environment, free from abuse and neglect; and the resident care standards set forth in Rule 58A-5.0182, Florida Administrative Code, which requires an ALF to provide care and services appropriate to the needs of residents accepted for admission to the facility. Under these broad principles, Petitioner determined Respondent to be in violation of the statutes and rules based upon its failure to prevent resident-to-resident abuse and to minimize the potential for falls resulting in injuries. While the issue of resident wandering was identified as a problem by the surveyor, it was not cited in the complaint as a separate violation but is assumed to be part of the resident-to-resident abuse allegation.
As a matter of law, under the facts alleged, there can be no resident-to-resident abuse under the facts alleged in this case. Testimony regarding the mental state of the residents involved in altercations indicates that they do not have the mental capacity to form a willful intent to harm someone. Section 400.423(2)(a)6(b), Florida Statutes, refers to Section 415.102, Florida Statutes, for a definition of abuse as it applies to ALFs. Section 415.102(1), Florida Statutes, defines abuse as, "any willful act or threatened act that causes or is likely to cause significant impairment to a vulnerable adult's physical, mental, or emotional health." Clearly the definition requires a willful intent to harm on the part of the perpetrator, which the residents involved in the alleged incidents do not have the ability to form. A willful act is defined in Black Law Dictionary as one done, "intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly, or inadvertently." Not only did the residents who allegedly abused other residents not have the mental capacity to form a willful intent, the testimony regarding their mental conditions indicated that any harm done was the result of the resident striking out in self defense of what he or she believed to be a threat.
In addition, the evidence presented showed that Respondent took proactive steps to prevent interactions between residents that might lead to confrontations and subsequent injury. In an open facility where residents cannot be restrained, it is logical to assume that there will be some adverse interactions among residents. Considering the small proportion of such incidents in comparison to the population size of the facility, interacting in a single building, the number of alleged incidents cannot be considered significant enough to justify the allegation of abuse.
Regarding the potential for falls resulting in injury, there was no clear and convincing evidence that the number and severity of the falls at Respondent's ALF was unusual, considering the mental and physical characteristics of the facility's residents. Petitioner acknowledged that falls were not totally preventable and that a facility was not required to be "fall free." In addition, Petitioner's regulations and HCFA guidelines offer no guidance as to how falls are to be considered in surveying a facility. There being no criteria for an acceptable incidence of falls in an ALF, the determination of compliance can only be made based on the actions of the facility in its attempts to minimize the number of falls. The evidence presented at hearing showed that Respondent has policies and
procedures in place to address the issue of falls and it utilizes those policies in caring for its residents.
In regard to the Class III deficiency, cited in the August 8, 2000 survey, for failure to report a major incident within one day, the definition "major incident" is defined by Rule 58A-5.0131(19), Florida Administrative Code, which reads:
(19) "Major incident" means:
Death of a resident from other than natural causes;
Determining that a resident is missing;
An assault on a resident resulting in injury;
An injury to a resident which requires assessment and treatment by a health care provider; or
Any event, such as a fire, natural disaster, or other occurrence that results in the disruption of the facility's normal activities.
No evidence was presented to support the allegation that Respondent failed to report a major incident within the
time required.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Agency for Health Care Administration enter a final order determining that:
The deficiencies in the AHCA form 3020s are unfounded and must be withdrawn;
The Administrative Complaints be dismissed against Respondent; and
The Order of Immediate Moratorium be revoked.
DONE AND ENTERED this 3rd day of September, 2002, in Tallahassee, Leon County, Florida.
COPIES FURNISHED:
Theodore E. Mack, Esquire Powell & Mack
803 North Calhoun Street Tallahassee, Florida 32303
DANIEL M. KILBRIDE
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 the Clerk of the Division of Administrative Hearings this 3rd day of September, 2002.
Michael P. Sasso, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Suite 310-G
St. Petersburg, Florida 33701
Virginia A. Daire, 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.
| Issue Date | Document | Summary |
|---|---|---|
| May 14, 2003 | Agency Final Order | |
| Sep. 03, 2002 | Recommended Order | Based on four consecutive surveys, Petitioner failed to prove by clear and convincing evidence that Respondent`s assisted living facility for memory impaired residents failed to provide appropriate care and services. |
