STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 02-4247

) 02-4248

) DELTA HEALTH GROUP, INC., ) d/b/a BERKSHIRE MANOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these cases on January 24, 2003, in Miami, Florida, before Florence Snyder Rivas, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nelson Rodney, Esquire

Agency for Health Care Administration 8355 Northwest 53rd Street

Miami, Florida 33166

For Respondent: R. Davis Thomas, Jr.

Qualified Representative Broad & Cassel

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

STATEMENT OF THE ISSUE

Whether Petitioner was legally justified in issuing a conditional license rating to Respondent.

PRELIMINARY STATEMENT

By Administrative Complaints dated October 3rd and 10th, 2002, Petitioner (Petitioner or AHCA) notified Respondent (Respondent or Berkshire) of its intent to change Respondent's license rating from standard to conditional effective April 5, 2002; to impose a fine of $12,500; and to impose a six-month survey cycle and survey fee of $6,000 based upon AHCA's finding that Berkshire had violated provisions of the state fire safety code.

Respondent timely requested administrative hearings on both Administrative Complaints, which were consolidated for hearing by Order dated November 12, 2002.

At hearing, AHCA presented the testimony of one witness and submitted five exhibits into evidence. Berkshire presented the testimony of one witness, submitted one exhibit into evidence and, by stipulation of the parties, submitted a deposition post- hearing. The identity of the witnesses and exhibits and any attendant rulings are set forth in the one-volume transcript of hearing filed on March 7, 2003.

The parties timely filed Proposed Recommended Orders which have been carefully considered.

FINDINGS OF FACT

1. AHCA is the state agency responsible for licensing and regulating nursing homes in Florida. Respondent Berkshire is a licensed nursing home located in North Miami, Florida.

2. On April 2, 2002, AHCA conducted a survey of Berkshire and identified the violations which give rise to this proceeding.

3. Specifically, at the time of the survey, several magnetic door locks--the record does not reveal precisely how many, although the parties agree that the number was no less than three and no more than seven out of a total of fifteen fire exit doors--did not immediately unlock upon activation of the fire alarm system.

4. The purpose of the door locks is to prevent cognitively impaired residents from wandering away from the facility. When the magnetic lock system is working properly, the doors unlock immediately upon activation of the fire alarm.

5. In response to the AHCA survey finding, Berkshire immediately summoned an alarm system repair person. On April 2, this individual was located somewhere in Florida's Panhandle. He left north Florida and proceeded immediately to Berkshire.

6. The repairman determined that two wires and a circuit were reversed, most likely due to an error by Berkshire's on- site maintenance director. By the next day, April 3, the

   problem had been corrected and all door locks were deactivating simultaneously with the activation of the fire alarm system.

7. Based upon the April 2 survey, AHCA issued a conditional license to Berkshire effective April 5, 2002, and imposed an administrative fine of $12,500. AHCA also placed the facility on a six-month survey cycle and assessed a survey fee of $6,000. These penalties, particularly the conditional license status, have a substantial adverse impact upon the reputation and the business interests of a nursing home.

8. AHCA's decision to impose a conditional license status was predicated upon the opinion of its inspectors that the mechanical failure identified in the survey was, in fact, likely to cause serious injury, harm, impairment or death to a resident receiving care in the facility, and must therefore be deemed a Class I deficiency which warrants, as a matter of law, the penalties imposed.

9. At the time of the survey, Berkshire had no history of fires, had passed its most recent annual inspection by the local fire marshal, and had a sprinkler system and fire extinguishers throughout the facility. The survey itself revealed no fire hazards.

10. AHCA cites no statute, rule, or case which supports its view that the mechanical problem identified constitutes a Class I deficiency. Instead, it offers opinion testimony that

    as a result of this problem, residents were in danger on the date of the survey. That opinion testimony is based solely upon speculation. For example, AHCA's life safety inspector who participated in the survey said, ". . . we always look at, inspect the facilities under a worst case scenario type situation. In the event of a fire, we could have a situation we would have residents where the fire alarm system would activate and we would have residents attempting to exit the building.

    They would find that those doors, affected doors, would not be openable. They would not be able to exit the building. "

11. In fact, the evidence established that the ability of residents to vacate the building in a safe and timely manner in the event of a fire, or fire drill, was not significantly impacted on April 2 by the mechanical problem identified.

12. The automatic unlock feature which was not operating on less than half of Berkshire's fire exit doors is just one part of Berkshire's fire safety plan. State and federal law and Berkshire's own operating procedures provide that staff be given detailed training regarding what to do in the event of a fire; fire safety plans must be approved by the local fire marshal, and most include back up plans for system failures which can reasonably be anticipated.

13. With reference to each of the door locks identified in the April 2 survey, the evidence established that each of these

    doors could be opened manually, and that there was an adequate number of able bodied staff members who could open each of the doors as may be necessary had a real fire or a fire drill occurred on April 2.

14. Berkshire's fire safety procedures provide that when the fire alarm activates, an announcement is made over the public address system to inform all present of the fire's location. Depending upon the fire's location, staff members will respond in various appropriate ways. Within each department, various individuals are assigned to perform various functions, including, most importantly, assuring that each resident is safely escorted from the building and protected while outside.

15. State law requires monthly tests of the fire alarm system, but Berkshire exceeds this standard with weekly tests. Fire drills are conducted for staff members who work on all three shifts, and staff are trained in evacuating residents in a manner appropriate to their individual circumstance. No matter where one is located in the building, there are multiple means of egress, and each exit door has multiple means by which it can be opened in a timely manner in the event of fire or other emergency.

16. Monthly unannounced fire drills are conducted at Berkshire on all three shifts in an effort to ensure that staff can safely and quickly evacuate residents should the need arise. There is no evidence that staff could not have done so had a fire or fire drill occurred on April 2.

17. Thus, AHCA's finding that the mechanical problem which existed on April 2 and which was remedied by April 3 posed a likelihood of serious injury, impairment, or death to residents in Berkshire's care is not supported by any competent evidence.

    CONCLUSIONS OF LAW

    
    

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

19. In these cases, AHCA has the burden of proving the basis for changing Berkshire's licensure rating to conditional and the basis for imposing an administrative fine. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 789 (Fla. 1st DCA, 1981); Balino v. Department of Health

    and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977).

20. The record is insufficient to support conditional licensure status and related sanctions. There is no competent evidence that anyone's safety, let alone life, was at risk on April 2. To the contrary, the evidence established that in the

    unlikely event of a fire, or had a fire drill occurred, the doors affected by the mechanical problem identified by AHCA in the April 2 survey could have been manually opened by staff in a timely fashion to facilitate an orderly exit from the building.

21. AHCA does not contend that Berkshire knew or should have known of the problem with the lock-release mechanism and failed to address the matter. In fact, there is no evidence that such a mechanism was even required.

22. Conditional license status can be upheld only if the record supports a finding that Berkshire's residents were in fact endangered during the period of time in which the lock- release mechanism was not in full working order.

23. Instead, the record as a whole demonstrates that residents could in fact have been safely evacuated, notwithstanding the mechanical failure identified in the April 2 survey.

24. AHCA cites AHCA v. Gene Grier, d/b/a El-Amin Shelter and Care Inc., 2001 WL 729124 (Fla. Div. Admin. Hrgs.) for the proposition that a potential hazard can be cited as a Class I deficiency. There, the presence of unsafe electrical receptacles, broken light fixtures, exposed wiring, and melted insulation were deemed Class I deficiencies, even in the absence of evidence that anyone had suffered actual harm by reason of these violations. Here, by contrast, there is no evidence that

the cited mechanical deficiency posed any potential to harm residents, in light of the redundancies in Berkshire's ability to evacuate residents in the event of a fire or fire drill.

RECOMMENDATION

Based upon the foregoing, it is hereby RECOMMENDED that AHCA issue a final order dismissing the Administrative Complaints in these cases.

DONE AND ENTERED this 26th day of March, 2003, in Tallahassee, Leon County, Florida.

FLORENCE SNYDER RIVAS

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 26th day of March, 2003.

COPIES FURNISHED:

Nelson Rodney, Esquire

Agency for Health Care Administration 8355 Northwest 53rd Street

Miami, Florida 33166

R. Davis Thomas, Jr. Qualified Representative 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, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building, Suite 3431 Tallahassee, Florida 32308

Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building, Suite 3116 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: 02-004247

Orders for Case No: 02-004247