STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. )

) BEVERLY ENTERPRISES, INC., ) FLORIDA, d/b/a VISTA MANOR AND ) VISTA MANOR HEALTH CARE )

ASSOCIATES, LLC, )

)

Respondent. )

Case No. 02-1099

)

RECOMMENDED ORDER

A formal hearing was held before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on June 14, 2002, in Orlando, Florida.

APPEARANCES

For Petitioner: Eileen O'Hara Garcia, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701

For Respondent: R. Davis Thomas, Jr.

Qualified Representative Broad & Cassel

215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300

STATEMENT OF THE ISSUES

Whether Vista Manor should have been issued a Conditional license on November 7, 2001, for the alleged failure to provide services and equipment necessary to avoid physical harm to a resident.

PRELIMINARY STATEMENT

By letter dated December 21, 2001, the Agency for Health Care Administration (Petitioner) alleged that Vista Manor (Respondent) violated provisions of Florida Statutes and the Florida Administrative Code, and provided notice that Petitioner changed Respondent’s license rating from Standard to Conditional. Subsequently, Petitioner filed an Administrative Complaint setting forth the factual allegations supporting its action.

Respondent timely requested an administrative hearing, and this matter was referred to the Division of Administrative Hearings on March 19, 2002.

The Administrative Law Judge (ALJ) set the case for hearing, but Petitioner filed an unopposed motion requesting a continuance of the hearing because its counsel had a scheduling conflict.

The ALJ granted the motion and rescheduled the hearing for June 14, 2002.

Prior to hearing, the parties entered into a Joint Stipulation of Facts. At hearing, Respondent made an ore tenus motion to dismiss. Following argument, the ruling on the motion

was reserved. Being fully advised in the premises, the motion is denied. Petitioner presented the testimony of Theresa DeCanio, an Agency for Health Care Administration surveyor, and submitted five Exhibits into evidence. Respondent presented no live testimony but submitted the deposition transcript of Alice Allen, the director of nursing at Vista Manor, in lieu of her live appearance. Seven Exhibits were submitted with the deposition transcript.

At the conclusion of the hearing, the ALJ directed the parties to submit their respective proposed recommended orders within 15 days of the filing of the transcript or the filing of the deposition of Alice Allen, whichever was later. The Transcript of the hearing was filed on June 27, 2002. On

July 18, 2002, the parties jointly moved for an extension of time to file their proposed recommended orders until

September 13, 2002. The ALJ granted that request, and each party timely filed their proposals. Each party's proposal has been give careful consideration in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes.

2. Respondent is licensed to operate a skilled nursing facility located at 1550 Jess Parrish Court, Titusville, Florida, pursuant to Chapter 400, Part II, Florida Statutes.

3. Petitioner conducted a survey of the nursing facility on November 7, 2001. In its report, it alleged that there was a violation of “Tag F224,” which is a shorthand reference to

   42 Code of Federal Regulations (C.F.R.) Section 483.13(c). This federal standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288, Florida Administrative Code.

4. Petitioner is required to rate the severity of any deficiency identified in a survey with a “class” rating. The surveyor assigned the F224 deficiency a "Class II" rating.

5. A Class II rating means Petitioner believes the deficiency “has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.” Section 400.23(8)(b), Florida Statutes.

6. Based upon the identification of the Class II deficiency, Petitioner changed Respondent’s licensure rating from Standard to Conditional, effective November 7, 2001. The Standard rating was restored effective December 21, 2001.

7. Resident 3 was admitted to Vista Manor on October 18, 2001. He was a large man who weighed 173 pounds. He was

   paralyzed from his waist down and had little or no feeling in his lower extremities as a result of radiation treatments he received for colon cancer. He had scoliosis, or a twisted spine, that required surgical placement of a rod into his spine. He suffered from contractures of his knees and bilateral foot drop, a condition which resulted in his foot being flexed so that his toes pointed toward the floor. He also suffered from osteoporosis and osteopenia, degenerative conditions of his bones that causes them to be extremely fragile.

8. Resident 3 was unable to walk but was able to sit in a motorized cart and drive himself about the facility. Because of his size and immobility, Resident 3 required the assistance of two staff members and use of a lifting device commonly called a Marissa lift for transfers from his bed to his cart and vice versa. To successfully facilitate a transfer using the lift, staff would place the resident on a cloth sling, attach the sling to the lift at three different points on the sling, raise the resident in the sling from his cart or his bed, pivot the lifting device, and lower him to the desired surface. Staff successfully completed daily lift transfers of the resident during the first two and a half weeks of his stay at Vista Manor.

9. On the evening of November 1, 2001, Resident 3 requested staff to transfer him from his cart to his bed. Two certified nursing assistants (CNAs) went into Resident 3’s room to assist

   the resident in that transfer. They moved the lift into place and stationed themselves on either side of the resident. At that time, Resident 3 was seated halfway out of his chair but was being held by the CNA standing on his right side. When the other CNA began to secure the sling on the left side of the resident to the lift, the resident slipped out of the seat of his cart and fell to the floor. After the incident, staff immediately tended to Resident 3. In their initial assessment, it appeared that he had not sustained any injuries.

10. The following day, Resident 3 was sent to the hospital where he was diagnosed with non-displaced fractures to both of his femurs.

11. Sometime between November 1 and November 7, 2001, Petitioner received a complaint regarding the incident and sent a surveyor to investigate it. The surveyor first went to the hospital where she reviewed medical records, interviewed caregivers and interviewed the resident. She then went to the nursing home where she reviewed several resident files and interviewed staff while she was in the facility. The surveyor also obtained written statements from the two CNAs who were involved in the transfer of Resident 3 and a written statement from a nurse who came into the room immediately after Resident 3 slipped on the floor. Based upon her investigation, she concluded that the CNAs could have prevented Resident 3 from

    falling, and their failure to do so constituted neglect of the resident.

12. It does not appear that Resident 3 can accurately recount past events, in light of the implausible sequence of events he described. Therefore, Resident 3's statement to the surveyor that the CNAs neglected him is not credible. Even if credible, the resident's statement is hearsay that was not corroborated by any other evidence.

13. The decision as to whether a resident is properly positioned to begin a transfer rests ultimately in the judgment of the caregiver. If the caregiver believes that the resident is balanced in his seat or that the transfer can be safely completed, it is appropriate to begin a transfer. Nothing in the CNAs’ statements indicates or suggests that either CNA believed that it was unsafe to transfer the resident.

14. Respondent demonstrated that the CNAs attempted to transfer Resident 3 appropriately in light of the conditions they faced when they approached him. Resident 3’s lower body paralysis, his curved spine, his contractures of his knees and his bilateral foot drop made it impossible for him to be perfectly positioned in the seat of his cart. Both his physical limitations and his size prevented the CNAs from pushing him back in his seat.

15. The CNAs used a technique that was consistent with their training and the resident’s care plan. Prior to attempting the transfer, they stationed themselves on either side of the resident. One CNA held him while the other attempted to hook up the sling. This technique would have allowed them to secure the resident even if he was unbalanced, and would have further allowed them to lessen the impact of a fall if he slid out of the chair. Because they used proper transfer techniques with Resident 3, there is no basis upon which to find that the CNAs’ decision to continue with the transfer of Resident 3 in the position they found him was neglect or even poor judgment. Unfortunately, the incident and the attendant injury occurred in spite of staff’s compliance with accepted standards of care

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

17. Petitioner has the burden of proving the basis for the deficiencies and their ratings by a preponderance of the evidence. Florida Department of Transportation v. J.W.C., Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

18. "F" Tags are Center for Medicare and Medicaid Services (CMS) (formally Health Care Administration (HCFA)) data tags assigned to each of the Federal regulatory requirements for long

    term care facilities in 42 C.F.R. Chapter 483. Interpretive guidelines are found in the State Operations Manual (SOM) required of the States in conducting surveys for Medicare and Medicaid certification. In conducting a survey, the Agency's surveyors rely on these guidelines in determining whether a facility has violated 42 C.F.R. Chapter 483.

19. Petitioner asserts that there was a violation of

    
    

    42 C.F.R. Section 483.13(c) based upon a single alleged incident of neglect involving Resident 3. 42 C.F.R. Section 483.13(c) provides that “the facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.”

20. The guidelines for 42 C.F.R. Section 483.13(c), Guidelines to Surveyors - Long Term Care Facilities is instructive in furnishing a definition of "neglect" in stating in relevant part:

    "Neglect" means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.

    
    

21. In relevant part Section 400.23(7), Florida Statutes (2001), provides:

    The agency shall assign a licensure status of standard or conditional to each nursing home.

    
    

    1. A standard licensure status means that a facility has no class I or class II deficiencies and has corrected all class III

       deficiencies within the time established by the agency.

       
       

    2. A conditional licensure status means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part or with rules adopted by the agency. If the facility has no class I, class II, or class III deficiencies at the time of the followup survey, a standard license status may be assigned.

       
       

22. Section 400.23(8)(b), Florida Statutes (2001), states in relevant part:

    A class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.

    
    

23. Rule 59A-4.1288, Florida Administrative Code, Exception, states in relevant part:

    Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. 483, Requirements For Long Term Care Facilities, September 26, 1991, which is incorporated by reference.

    
    

24. Petitioner has not alleged that Respondent failed to develop any policy required by the regulation. Instead, the surveyor interpreted the regulation as prohibiting neglect of residents, and alleged that staff neglected Resident 3 by failing

    to properly transfer him from his motorized chair to his bed so as to cause him to slip and fracture both of his femurs.

25. Although a single fall in a nursing home might constitute a violation under Chapter 400, Florida Statutes, see St. Angelo v. Healthcare and Retirement Corporation of America, d/b/a Heartland Healthcare-Prosperity Oaks, 27 Fla. Law W. D1944a (Fla. 4th DCA August 28, 2002), United States Department of Health and Human Services Departmental Appeal Board decisions are helpful in interpreting the regulation at issue. In Life Care Center of Hendersonville v. Health Care Financing Administration, Department of Health and Human Services, Departmental Appeals Board Decision No. CR542 (July 22, 1998) available at http://www.hhs.gov/dab/decision/cr-542, the ALJ stated:

    In evaluating a long-term care facility’s compliance with the regulation, the questions that must be answered are: (1) has the facility developed written policies and procedures that prohibit abuse, mistreatment or neglect of residents; and

    (2) have those policies been implemented?

    
    

    * * *

    
    

    [The] question [regarding whether a facility has implemented its anti-neglect policies] may not be answered simply by identifying random episodes of abuse, mistreatment or neglect which may have occurred at a facility. A conclusion that a facility has failed to implement anti-abuse, mistreatment or neglect policies does not necessarily follow from evidence of an isolated episode or episodes of abuse, mistreatment or neglect. A facility may be found to have

    implemented the required policy even if an isolated instance of abuse, mistreatment or neglect occurs at the facility despite the facility’s best efforts.

    
    

    That is underscored by the guidance which HCFA gives to State survey agency Surveyors. The State Operations Manual provides that: The intent of . . . [42 C.F.R. Section 483.13(c)] is to assure that the facility has in place an effective system that . . . prevents mistreatment, neglect, and abuse of residents . . . . However, such a system cannot guarantee that a resident will not be abused; it can only assure that a facility does whatever is within its control to prevent mistreatment, neglect and abuse of residents.

    
    

    This approach to the interpretation of the regulation has been followed by Petitioner in one Final Order, and has been followed by at least two additional ALJs in Recommended Orders which have not yet been adopted by a Final Order. (See AHCA v. Plantation Bay Rehabilitation Center, DOAH Case No. 01-1983; Beverly Health

    and Rehabilitation Center – Coral Trace v. AHCA, DOAH Case No. 01-1606; AHCA v. Beverly Health and Rehabilitation Services – Palm Bay, DOAH Case No 01-1605). This is the better approach.

26. Assuming that the regulation can be interpreted as an anti-neglect statute, Petitioner failed to prove that Resident 3 was neglected. "Neglect" is defined as the failure to provide "goods and services necessary to avoid physical harm, mental anguish or mental illness." 42 C.F.R. Section 488.301. Petitioner alleged that Resident 3 did not receive proper

    services when he was transferred from his cart to his bed on the evening of November 1, 2001. The surveyor concluded that the CNAs neglected Resident 3, in part, because of a statement the resident made to the surveyor while she was at the hospital conducting her investigation. The resident purportedly stated that he told the CNAs that he was beginning to slip out of his chair, and they ignored his plea and simply allowed him to continue his descent to the floor. The resident’s statement suggests that the incident occurred in a sufficiently slow sequence that he could express to the CNAs that he was slipping, and continue to hold his position in his seat long enough for the CNAs to catch him and prevent his descent to the floor. It is implausible that events would have moved that slowly. The resident was only two feet above the floor in his seat. Once he began to slip, his size would have caused his descent to be quick and virtually unstoppable. Moreover, the evidence demonstrated that there were significant questions as to Resident 3’s ability to accurately recount past events. While Resident 3 was being treated at the hospital, his attending physician documented in the resident’s medical record that the resident was a poor historian. Even the surveyor acknowledged that the resident could have been confused because of the trauma he experienced. She further acknowledged that the resident told her that he had been dropped while suspended in the air in the

    sling, but that she could not find any evidence during her investigation to support that account of the incident. That is why the resident's statement is found not to be credible.

    Ultimately Petitioner’s surveyor acknowledged that she was speculating about what happened that evening, and that it was possible that Resident 3 was balanced in his seat prior to the attempted transfer. Therefore, the evidence failed to prove that the CNAs who transferred him did not use appropriate techniques in that attempted transfer.

27. The resident's injury was an accident, not a product of neglect.

28. Petitioner failed to prove that there was any deficiency at Respondent's facility on November 7, 2001. It was, thus, inappropriate for Petitioner to issue Respondent a conditional rating on that date.

RECOMMENDATION

It is, therefore,

RECOMMENDED that the Director enter a final order revising the November 7, 2001, survey report by deleting the deficiency described under Tag F224, and issue a Standard rating to Respondent's facility.

DONE AND ENTERED this 2nd day of October, 2002, in Tallahassee, Leon County, Florida.

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 2nd day of October, 2002.

COPIES FURNISHED:

Eileen O'Hara Garcia, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701

R. Davis Thomas, Jr. Broad & Cassel

215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300

Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian 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: 02-001099

Orders for Case No: 02-001099