STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
WESLEY MANOR, INC., d/b/a WESTMINSTER WOODS OF JULINGTON CREEK,
Respondent.
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) Case Nos. 03-1549
) 03-2568
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RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held in this case on August 20, 2003, in Jacksonville, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Donna Riselli, Esquire
Agency for Health Care Administration
Fort Knox Executive Center, Mail Station 3 2727 Mahan Drive
Tallahassee, Florida 32308-5403
For Respondent: Karen L. Goldsmith, Esquire
Johnathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011
Winter Park, Florida 32790-2011
STATEMENT OF THE ISSUES
Whether Petitioner Agency for Health Care Administration properly assigned conditional license status to Respondent, Westminster Woods on Julington Creek, based upon its determination that Respondent had violated Florida Administrative Code, Rule 59A-4.130, and 42 CFR Section 483.70 via Florida Administrative Code Rule 59A-4.1288, due to the presence of two wide-spread Class I deficiencies cited at the most recent annual licensure survey of January 27-29, 2003.
Whether Petitioner Agency for Health Care Administration properly assessed a $30,000.00 fine against Respondent for violating 42 CFR Section 483.70 via Florida Administrative Code Rule 59A-4.1288, as well as Florida Administrative Code Rule 59A-4.130, due to the presence of two wide-spread Class I deficiencies at the most recent annual survey on January 27-29, 2003.
Whether the Agency for Health Care Administration is entitled to $6,000.00 in costs related to the investigation and prosecution of this case(s), pursuant to Section 400.121(10), Florida Statutes.
PRELIMINARY STATEMENT
These cases arise out of an annual survey of Respondent facility conducted by the Agency for Health Care Administration (AHCA) on January 27-29, 2003.
By an April 8, 2003, Administrative Complaint, AHCA seeks to impose conditional licensure status on the facility, effective February 6, 2003 (AHCA Case No. 2003001801). The case was referred to the Division of Administrative Hearings on or about April 30, 2003, and assigned DOAH Case No. 03-1549.
By a June 10, 2003, Administrative Complaint, AHCA seeks to impose a $30,000.00 fine for two wide-spread Class I deficiencies cited at the January 27-29, 2003, annual survey (AHCA Case No. 2003000867). This case was referred to the Division of Administrative Hearings on or about July 15, 2003, and assigned DOAH Case No. 03-2568.
Pursuant to the Administrative Complaints, AHCA also seeks a total of $6,000.00 in costs for investigation and prosecution.
C.f. Conclusions of Law.
The cases were consolidated by an August 8, 2003, Order.
At the disputed-fact hearing, AHCA presented the oral testimony of Patricia McIntire, R.N., and Nicholas Linardi, Life Safety Inspector. Respondent presented the oral testimony of Don Wilson, John Doran, Scott J. Fogg, and Michael Sweeney and had six exhibits admitted in evidence.
A Transcript was filed on September 8, 2003.
Each party's timely-filed Proposed Recommended Order has been considered in the preparation of this Recommended Order. The parties' Joint Pre-hearing Stipulation also has been utilized, but not word-for-word.
All citations are to Florida Statutes (2002), unless
otherwise indicated.
FINDINGS OF FACT
Pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code (2002), AHCA is the regulatory authority responsible for licensure of skilled nursing facilities and for enforcement of all applicable statutes and rules governing skilled nursing facilities, of which Respondent Westminster Woods at Julington Creek is one.
On January 27-29, 2003, AHCA conducted an annual licensure and re-certification survey of Respondent's facility. As a result of that survey, the facility was cited for two Class I deficiencies related to failure of the facility's fire alarm system. Each of these deficiencies was cited upon the same underlying facts. AHCA represented that one was cited as a Federal "tag" and the other was cited as a State "tag." In the Administrative Complaints, AHCA alleged, in a single Count, two separate Class I deficiencies.
Respondent is a 60-bed skilled nursing facility located in Jacksonville, Florida. Respondent houses more of the "older- old" or "elderly-elderly" residents than the average skilled nursing facility.
Respondent is a second floor facility with two stairwells that provide direct outside egress from the facility and that can be used as fire exits. During the January 27-29, 2003, survey, the facility housed 58 residents. Respondent's 58 residents on those dates were fairly dependent in terms of their physical capabilities. More than one-half of them were over the age of 85, and a couple of the residents were over 100 years old. Only one of the residents on January 27-29, 2003, was independently ambulatory. The remainder of the residents were incapable of independent ambulation. One of the residents was bed-ridden. Thirty-eight residents required extensive assistance in transferring or ambulating. The remainder of the resident population required assistive devices such as canes or walkers to transfer or ambulate. Due to their age, physical condition, and inability to engage in self preservation, these residents were extremely vulnerable in the event of a fire.
The survey team arrived at the facility at 6:00 a.m. on January 27, 2003.
At around 8:00 a.m., the facility's maintenance supervisor, John Doran, conducted his usual rounds of the facility.
Mr. Doran personally checks the fire alarm panel twice daily, and did so that morning. The panel has three lights: A green light which means that the panel is working; a yellow light which means a mechanical failure has occurred; and a red light which signifies an alarm. Mr. Doran noted that no light was on. The fire doors, which close automatically if the alarm is activated, were still open. Except for the absence of any alarm panel light, everything seemed to be normal. Therefore, on the morning of January 27, 2003, Mr. Doran believed that there was a problem with the fire alarm panel, not the fire alarm system.
In addition to Mr. Doran's twice-daily checks, Respondent's alarm system is monitored by an outside monitoring company which is supposed to call the facility if any problem is detected with its fire alarm system. The monitoring company did not call, which also suggested that the system itself was not malfunctioning, but merely that a light was out on the alarm panel.
Nonetheless, Mr. Doran called his secretary, who contacted "W. W. Gay," the contract repair company for the system, and asked that a technician come to the facility.
Thinking there was no immediate danger, but only that there was a problem with the alarm panel lights, and believing that everything that could be done up to that point had been done, Mr. Doran did not mention the alarm panel/system to surveyor Patricia McIntire, R.N., when she interviewed him about hot water temperatures around 10:00 a.m. on January 27, 2003.
W. W. Gay's technician arrived at the facility about 10:30 a.m. and began trouble shooting the fire alarm system. The first technician could not find the problem, so he called for a second technician. During the course of January 27, 2003, three technicians arrived at Respondent's facility and worked on the panel, in full view of staff and surveyors who were in and around the nurses' station.
During the entire period that the fire alarm panel was not working, which ultimately amounted to at least three days, a large number of staff and other responsible people were around the resident areas.
The January 27, 2003, morning shift had a minimum of
17 staff members directly assigned, with others coming and going from the unit. In all, there were around 25 people circulating in the nursing home during the day shift. After the surveyors had left, the evening shift had nine staff members assigned to the unit, with additional staff overlapping from the day shift. The night shift had six assigned staff members, plus "Ron,"
Respondent's security man, who was assigned to a fire watch, beginning late on the afternoon of January 27, 2003. (See Finding of Fact 32.)
On Tuesday, January 28, 2003, there were 20 staff people directly assigned to the unit on the day shift. Counting the AHCA surveyors and ancillary staff, there were approximately
27 people on the floor. The evening shift had nine specifically assigned staff members, with others overlapping. The night shift had at least six staff members.
On Wednesday, January 29, 2003, the numbers were similar.
During the course of January 27, 2003, Mr. Doran did not tell Respondent's administrators, Don Wilson or Mike Sweeney, about the problem with the fire alarm panel because he thought the fire alarm panel problem was being resolved by the
W. W. Gay technicians and because both administrators were very busy with the AHCA survey.
Around 4:00 p.m., January 27, 2003, Mr. Doran found out that the problem with the fire panel was more serious than he had earlier thought. The AHCA surveyors had already left the facility. Mr. Doran went to Mr. Sweeney and Mr. Wilson. He told them at that time that W. W. Gay's third technician had told him that it would be the next morning before the fire alarm/system panel could be repaired. Mr. Sweeney and
Mr. Wilson advised Mr. Doran that the situation was unacceptable. They instructed Mr. Doran to call W. W. Gay and tell that company to return and fix the panel immediately. Mr. Doran made the phone call, but as it ultimately turned out, the fire panel could not be fixed that night because a part had to be ordered.
The facility had in-place a three-tiered system of evacuation in case of fire. First, residents in the room where the fire is located and those in the two adjoining rooms would be moved to safety. Second, if the fire continued to spread, all residents on the side of the fire doors where the fire was located would be moved to the other side of the doors and the fire doors closed. Third, and only if the fire were still not contained, would the residents be moved out of the building through the stairwells.
The control panel of the fire alarm system is the "brains" of the facility's fire safety system. It has a direct connection to the local fire department and provides the fire department with direct, immediate notification if there is a fire in the facility. It provides immediate notification to the residents and staff of the facility through the sounding of bells, chimes, strobes, etc., of the existence of an emergency. It operates the smoke detectors. It automatically shuts down the air conditioning unit to prevent the spread of carbon
monoxide, smoke, and fumes throughout the facility, and it automatically locks and unlocks the fire doors.
It is the transfer of smoke and toxic gases generated during a fire which is the most common cause of casualty. The continued operation of the air conditioning system during a fire could make the lateral transfer of residents to another compartment on the same floor (tiers one and two of the facility's fire safety plan) ineffective because the continued operation of the air conditioning system could still transfer gases and smoke throughout the facility.
However, in this case, although the facility's air conditioning system does move air, smoke being carried throughout the building was unlikely, since the intakes were located in common areas where smoke would be detected by staff.
Fire drills are held by Respondent at least monthly.
Staff is trained to respond to fires by Scott Fogg, a facility employee who has 23 years' United States Navy experience in training to fight fires, watching for fires, and fighting fires. Mr. Fogg has personally fought over 30 fires. He orients each new employee for at least one and one-half to two hours. He also does annual training of staff. Part of the training provided by Mr. Fogg consists of going step by step through the facility's fire plan. The plan includes contacting the fire department. Once the charge nurse knows of a fire, it is her
responsibility to call "911." The facility's plan requires that the charge nurse notify the fire department, regardless of whether or not the alarm system is functioning.1/
The facility's fire plan is kept at several locations, including in the possession of the charge nurse and at the nurses' station. Every individual who goes through orientation also receives a copy.
There is a sprinkling system for the entire facility.
The sprinkling system is not dependent on the alarm system functioning. Each resident's room has at least two sprinklers, and some rooms have three sprinklers. The bathrooms inside the residents' rooms have an additional sprinkler. The dining room, halls, common area, and stairwells have sprinklers. There are fire extinguishers located at each corner of the building and fire hoses on the walls.
Mr. Fogg evaluates the monthly fire drills. If he notes a problem, he writes it up and does follow-up training.
The building is made of concrete, and nonflammable paint is used.
Smoking is not permitted in the facility building.
Staff are required to smoke in a designated smoking area behind another building.
Residents are not allowed to keep combustible materials in their rooms.
The kitchen and laundry are located in another building.
Evacuation routes are posted throughout the building.
Upon learning at approximately 4:00 p.m. January 27, 2003, that the fire alarm/system could not be fixed that night, Messrs. Wilson and Sweeney instructed Mr. Doran to institute a one-hour fire watch. A fire watch involves dedicating an individual to go around the building at stated intervals (in this case, hourly) looking for potential fire, smoke, or fire risk. Mr. Sweeney is the facility's Executive Director. He is also a licensed nursing home administrator. Based on his 25 years of experience in health care and his knowledge of the properties of the facility's physical plant, he thought a one- hour fire watch was reasonable and appropriate. Mr. Wilson, the facility's Health Services Administrator, concurred.
Respondent's security man, Ron, was instructed to perform the hourly fire watch. Mr. Doran walked Ron around the area and told him to use his eyes, ears, touch, and sense of smell to look for any signs of fire. Ron carried a cell phone so that he could quickly communicate with Messrs. Doran, Wilson, Sweeney, or the fire department, if necessary.
There is no evidence that Ron failed in his instructed duties for an hourly fire watch.
Most of the survey team returned about 7:00 a. m., on January 28, 2003. At approximately 8:30 a.m., another team member, Nicholas Linardi, AHCA's Life Safety Inspector, arrived at the facility for the first time.
Mr. Doran met with Mr. Linardi in the administrative conference room at around 9:00 a.m. There is no dispute that the first order of business was Mr. Linardi's review of all of the facility's service and safety logs. Mr. Fogg was also present at that time. After this point, there are significant differences among the witnesses' respective testimonies as to the chronology of events and the time span involved.
However, having weighed the credibility of the respective witnesses, it is found that no later than their arrival on the second floor skilled nursing unit at approximately 9:30 a.m., January 28, 2003, Mr. Doran told Mr. Linardi that there was a problem with the fire alarm
panel/system. How clear Mr. Doran was in this first explanation of the extent of the problem or how much or how little of
Mr. Doran's explanation Mr. Linardi appreciated at that time is not clear from the record, but Mr. Linardi inquired concerning what the facility was doing about solving the problem, and
Mr. Doran told him. Mr. Linardi requested that Mr. Doran call
W. W. Gay again. Mr. Linardi did not require that the facility shut off the air-conditioning, pending repair of the fire alarm
system. He did not offer any immediate suggestions as to additional actions the facility staff should take to protect its residents. He did not state that the facility should increase the frequency of the fire watch. There also is no clear evidence that he told anyone at that time that the facility must notify the local fire department that the panel/system was inoperative.
Mr. Linardi's testimony was clear that when he is on a facility's premises, he is one of the appropriate persons or entities to whom AHCA expects the facility will report a fire alarm/system malfunction, but he was also adamant that rigid enforcement of "tags and fire standards," means that the facility is required to report any malfunction to the local fire authority, in this case, to the St. Johns County Fire Department. It is Mr. Linardi's practice to issue a survey citation, regardless of the reason a fire alarm is out of commission.
The rest of AHCA's survey team first became aware of the extent of the problem with the fire alarm system at approximately 2:45 p.m., on January 28, 2003, when Mr. Linardi conducted a fire drill in the facility for purposes of AHCA’s survey. During the fire drill, it became evident to the AHCA survey team that the alarm did not sound and the fire doors did not automatically close. During the fire drill, staff members
had to yell out information to alert other staff members that there was a fire drill and to identify the location of the "pretend" fire. If the fire alarm system is working, it automatically closes the correct doors. If it is not working, staff members do not know which doors to close until told where the fire or pretend fire is, but during the fire drill, it took facility staff only four and one-half minutes to realize that the correct fire doors had not closed and to go to the north corridor to manually shut them.
In general terms, Mr. Linardi felt that an incipient fire can start and be transferred throughout a facility within four minutes. He did not specifically discuss Respondent's facility. No one testified to what the response time should have been if an alarm had sounded.
Beyond what could at most have been a half-minute response delay due to the absence of a functioning alarm, AHCA apparently found no fault with the staff's response to, and conduct of, the fire drill. Mr. Linardi was, in fact, complimentary of the results.
After the fire drill on January 28, 2003, Mr. Linardi personally called W. W. Gay and verified that the part necessary to fix the panel/system was on order. Still later in the afternoon, Mr. Linardi notified the St. Johns Fire Marshal that Respondent's fire alarm system was not in service. The
St. Johns Fire Marshal directed that the facility institute a 15-minute fire watch.
Respondent immediately instituted the 15-minute fire watch on January 28, 2003.
Mr. Linardi testified that he was concerned that the Fire Marshal's assigned fire watch frequency of 15 minutes was too liberal and that a fire watch perhaps should have been instituted at even shorter intervals, but since the regulations presume that the local authority shall set the protocol for fire watches, he said nothing.
There was some surveyor commentary to the effect that laundry carts "stored" in Respondent's hallway near one of the exits to the stairs violated survey criteria and aggravated danger to residents, but Mr. Linardi conceded that laundry carts could legitimately be rolled through hallways as linen goods were transported in them from the linen closet to each resident's room. It was his opinion such carts should have been parked in residents' rooms for any extended period of time. No accurate measurements of acceptable time or unacceptable time that these carts remained in the hallways was advanced by any witness, so this survey criticism is not indicative of a citable flaw.
A chair was found on the landing at the top of one of the two exit stairwells. The landing and stairwell are large.
The chair was not blocking the door leading onto the second floor landing from the skilled nursing unit. The chair's location would not have prevented an ambulatory person or a person on a cane, assisted by another, from descending via the stairs. The only obstruction the chair might have represented would have been if a patient had to be carried on a stretcher or litter and the stretcher or litter had to be turned by two people on the landing. Mr. Linardi commented that actual egress was not at issue, but because survey criteria specifically prohibit furniture or any other object from being there, the chair's presence on the landing was still a citable offense.
Renovations were ongoing in the facility during this period, and construction workers had temporarily stored some of the construction materials that they were using in the bottom recess of an exit stairwell. These supplies were stored without permission or knowledge of facility staff. The bottom of the stairwell is a large open area, 22 feet long by 10 feet wide. Most of the construction materials were stored beneath the stairs and were not blocking either a step down from the stairs or access to the outside exit door. However, one piece of flat molding protruded in front of the exit door, and had the potential of impeding egress. Although there was testimony that this molding could have been easily stepped over, the photographs make clear that this item could have impeded the
speed of an evacuation of the above-described frail, elderly and non-ambulatory population if an evacuation had been necessary.
There is no persuasive evidence that a hinge on any exit door prevented its being opened or that any exit door was otherwise unreachable or otherwise out of commission.
During the 15-minute fire watch on the third day of the survey, January 29, 2003, Ron (See Findings of Fact 13, 32, and 42) found a tray on top of the juice machine in the beverage area of the facility’s dining room and removed it. This area is within three feet of a sprinkler head and within six feet of a fire extinguisher. The juice machine has thermal overload protection to prevent electricity going to the motor if the motor gets hot. In short, if the motor gets hot, the machine cuts off. When the surveyors arrived on that date, a number of residents and staff members were in the dining room. The surveyors noted an odor similar to that of a burning motor in the vicinity of the juice machine. At that time, the tray had already been found and removed as part of the 15-minute fire watch. When a motor overheats, the smell lingers for a long time. There is no evidence that the incident did more than produce an unpleasant odor.
AHCA gave Respondent a written mandated correction date of February 6, 2003, but before the survey team finally exited on January 29, 2003, the facility had changed the fire
watch to every 15 minutes and had advised that the fire alarm system would be operational on January 30, 2003. Therefore, AHCA removed the "immediate jeopardy" classification on January 29, 2003, prior to the end of the survey, when it determined that fire watches were being conducted every 15 minutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
AHCA has jurisdiction to survey facilities and impose sanctions arising from violations of Chapter 400 Part II, Florida Statutes.
It is ACHA's position herein that the failure of the control panel of the fire alarm system at some time during the night of Sunday, January 26, 2003, or early in the morning of Monday, January 27, 2003, resulted in a situation that was likely, in the event of a fire, to cause serious injury, harm, or death to all residents of the facility because there could be no automatic, immediate notification to the fire department of the existence of a fire in the facility; because there was no notification to residents and staff of the existence of an emergency situation and of a need to take safety measures and/or evacuate; because there was no means of initiating an audible alarm to alert staff and residents of the existence of a fire;
because there were no means of automatically unlocking and releasing exit doors for safety and for closing and locking compartment doors to enable lateral movement of residents; and because there was no automatic shut-down of the air conditioning system to prevent the spread of smoke and toxic carbon monoxide fumes throughout the facility.
Petitioner further maintains that Respondent has offended Federal and State laws requiring notification to specific fire safety authorities within four hours of the system malfunctioning and, derivatively, failing to institute a 15- minute fire watch within those four hours.
However, AHCA is limited to the allegations within the four corners of its Administrative Complaints herein. Tampa Health Care v. Agency for Health Care Administration, DOAH Case No. 01-0734 (August 22, 2001); Vista Manor v. Agency for Health Care Administration, DOAH Case No. 00-0547 (September 27, 2000).
Herein, the factual basis alleged in both Administrative Complaints, for the fine and for the "conditional" rating of Respondent's license, are the same:
The fire alarm was nonfunctioning;
One emergency exit stairwell was obstructed, preventing safe egress from the nursing unit;
The metal door at the bottom of the stairwell did not close completely; and
The motor of the juice machine had burned out. (See the respective Administrative Complaints)
Respondent asserts that because there were no allegations in the Administrative Complaints specifically listing the air conditioning system, the chair found in the second stairwell, Respondent's failure to notify the correct authorities regarding the problems with the fire alarm panel, the presence of linen carts in the corridors, and the nature of the fire drills, these facts, even if proven, cannot support a fine or conditional licensure. AHCA, while conceding that malfunction of the fire alarm/fire system alone is sufficient to constitute a Class I deficiency,2/ asserts that all the foregoing subjects are appropriate for consideration because they constitute the totality of the circumstances by which the Agency is entitled to determine that a situation is an "immediate jeopardy" or that a deficiency is "widespread" or is "likely to cause serious injury, harm, impairment, or death to a resident," as those terms are used in the statutes and rules.
As to the necessity for specificity of factual allegations within the four corners of the charging documents herein: A "chair" can constitute an "obstruction," as alleged, and the chair will be discussed hereafter. As asserted by AHCA, issues concerning the air conditioning go to aggravation or mitigation of the degree of danger from fire used to classify
the deficiency and to assign the scope thereof, according to the specific language of the State statutes, and these issues will be considered only in that respect. Whether or not AHCA adequately alleged as facts flaws with the laundry carts and the fire drill need not be decided because those issues are moot, based upon the facts as found.
The Administrative Complaints do not cite any Federal or State statute which requires a 15-minute fire watch or which mandates reporting of the malfunctioning fire alarm/system to anyone within four hours of discovery.
With regard to the issue of whether Respondent timely notified the appropriate authorities that the system was malfunctioning or whether Respondent timely instituted the appropriately sequenced fire watch (15-minute intervals versus
one-hour intervals), the charges were couched in specific terms in the respective Administrative Complaints as follows:
First Class I Deficiency
12. Based on all of the foregoing, Westminster Woods violated: (a) 42 CFR 483.70(a) via Rule 59A-4.1288, Florida Administrative Code, and (b) 59A-4.130(2),
F.A.C. [sic.], by failing to be in compliance with the requirements of NFPA 101 Life Safety Code and NFPA-72 National Fire Alarm Code by failing to have a functional fire alarm system at all times and by, upon becoming aware the fire alarm system was not functional, failing to immediately institute
15-minute fire watches and to make arrangements for the immediate repair of the non-functioning alarm system.
* * *
Second Class I Deficiency
15. Based on all the foregoing, Westminster Woods violated: (a) 42 CFR 483.70(a) via Rule 59A-4.1288, Florida Administrative Code, and (b) 59A-4.130(2), F.A.C. [sic.] through its failure to ensure that the facility was equipped and maintained to protect the health and safety of residents, personnel and the public by failing to be in compliance with the requirements of NFPA 101 Life Safety Code and NFPA-72 National Fire Alarm Code by failing to have a functional fire alarm system at all times and by, upon becoming aware that the fire alarm system was not functional, failing to immediately institute 15-minute fire watches and to make arrangements for the immediate repair of the non-functioning alarm system.
The two Administrative Complaints then go on to allege, respectively, in slightly different language, the Agency's authority under Sections 400.23(7)(b) and 400.23(8)(a).
Therefore, it is concluded that because Respondent had notice via the legal authorities cited in the Administrative Complaints, Respondent also had notice that it was charged under Federal law, at least, with delay in notifying the correct authorities that the fire alarm/system was not functioning and was further charged with failure to timely institute a fire watch that comported with those authorities' instructions.
However, the undersigned is not satisfied that Respondent was ever put on notice via the Administrative Complaints that timely notifying the correct authorities and instituting a 15-minute fire watch was an issue pursuant to any State statutes or rules, for the reasons discussed below.
That said, it was up to AHCA to prove the violations actually charged in the Administrative Complaints.
In DOAH Case No. 03-1549, the conditional licensure case, AHCA has the burden of proving, by a preponderance of the evidence, the existence of the alleged violations of the referenced regulatory provision(s). Dept. of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 620 So. 2d 932 (Fla. 1996). In DOAH Case No. 03-2568, the fine case, AHCA has the burden of proving, by clear and convincing evidence, violations sufficient to support the fine. See Osborne Stern and Co., supra.
A widespread Class I deficiency carries with it a fine of $15,000.00. AHCA seeks a $15,000.00 fine for the Federal tag and a $15,000.00 fine for the State tag.
The Administrative Complaints would be more simple to to interpret and apply if, in each, one count had been used to allege the Federal violation under 42 CFR Section 483.70(a) and a second count had been used to allege the State violation under Sections 400.23(7)(b) and 400.23(8)(a) (including Section
633.022, and Florida Administrative Code Rules 4A-3.012 and 4A- 53.004), but that is not the case.
The law would be easier to apply to the facts, if the standard nursing home survey form, equating State tags to Federal tags, had been introduced in evidence, but it was not.
The first and second deficiency in Count I (the sole count) of each Administrative Complaint is based on purported violations of 42 CFR Section 483.70(a) and Florida Administrative Code Rules 59A-4.1288 and 59A-4.130(2). Sections 400.23(7)((b) and (8)(a), and Florida Administrative Code Rule 59A-104.6(4)(n),3/ are also cited.
In each Administrative Complaint, the allegations of the first Class I deficiency hinge on the non-functioning fire alarm, lack of timely repair, and lack of notice and institution of 15-minute fire watches. The second Class I deficiency of both Administrative Complaints hinges on these items and adds the issue of alleged obstruction of one or more stairwells with construction and building equipment and flammable materials (a chair) which "prevent[ed] a safe and timely evacuation . . . in the event of fire." Further, in the single count of each Administrative Complaint, it is alleged that the door hinge at the bottom of the stairs was damaged, so that the door did not close completely. This count also includes the allegations
regarding the tray left on top of the juice machine and the smell of a burning motor.
Section 400.23(8), requires the Agency to classify alleged deficiencies "according to the nature and the scope of the deficiency" and to cite the scope as "isolated, patterned or widespread", as follows:
Section 400.23(8) . . . An isolated deficiency is a deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations. A patterned deficiency is a deficiency where more than a very limited number of residents are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same residence or residents have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the facility. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility's residents.
Section 400.23(8) also requires AHCA to classify every alleged deficiency in terms of a "class" in accordance with statutory definitions of classes, the first three of which are set forth below:
A class I deficiency is a deficiency that presents a situation in which immediate corrective action is necessary because the facility's non-compliance is caused, or is
likely to cause, serious injury, harm, impairment to a resident receiving care in a facility. The condition or practice constituting a Class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the Agency, is required for correction. A Class I deficiency is subject to a civil penalty of $10,000.00 for an isolated deficiency,
$12,500.00 for a patterned deficiency, and
$15,000.00 for a wide spread deficiency. A fine must be levied notwithstanding the correction of the deficiency.
A class II deficiency is a deficiency that Agency determines has compromised the resident's ability to maintain his/her highest practicable physical, mental, and psychosocial well-being as defined by an accurate and comprehensive resident assessment, plan of care and provisions of services. A Class II deficiency is subject to a civil penalty of $2,500.00 for an isolated deficiency, $5,000.00 for a patterned deficiency, and $7,500.00 for a widespread deficiency. A fine shall be levied notwithstanding the correction of the deficiency.
A class III deficiency is a deficiency that the Agency determines will result in no more than minimal physical, mental or psychosocial discomfort to the resident or has the potential to compromise 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. A Class III deficiency is subject to a civil penalty of $1,000.00 for an isolated deficiency, $2,000.00 for a patterned deficiency, and $3,000.00 for a wide spread deficiency. A citation for a Class III deficiency must specify the time within which the deficiency is required to
be corrected. If a Class III deficiency is corrected within the time specified, no civil penalty shall be imposed.
AHCA's authority as to State violations is governed by Rule 59A-4.128, which provides:
59A-4.128 Evaluation of Nursing Homes and Licensure Status.
The agency shall, at least every 15 months, evaluate and assign a licensure status to every nursing home facility. The evaluation and licensure status shall be based on the facility's compliance with the requirements contained in this rule, and Chapter 400, Part II.
The evaluation shall be based on the ost recent licensure survey report, investigations conducted by the AHCA and those persons authorized to inspect nursing homes under Chapter 400, Part II.
The licensure status assigned to the nursing home facility will be either conditional or standard. The licensure status is based on the compliance with the standards contained in this rule and Chapter
400 Part II. Non-compliance will be stated as deficiencies measured in terms of scope and severity.
The Federal regulations are addressed by Florida Administrative Code Rule 59A-4.1288, which provides:
59A-4.1288 Exception. Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. 483, Requirement for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. Non- certified facilities must follow the contents of this rule and the standards contained in the Conditions of Participation
found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference and with respect to social services, dental services, infection control, dietary and the therapies.
"Immediate jeopardy" is the term used in 42 CFR Section 488.301 to define a Federal Class I deficiency. It reads:
. . . a situation in which a provider's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. 42 CFR 488.301.
Respondent argues that since the Agency removed the immediate jeopardy finding before the alarm was fully repaired, the Agency, in essence, removed the Class I finding since the definitions are identical. Petitioner has not made argument on this point.
42 CFR Section 483.70(a), cited in the Administrative Complaints as the Federal basis for the deficiency, requires that:
The facility must be designed, constructed, equipped, and maintained to protect the health and safety of residents, personnel, and the public.
(a) Life safety from fire. Except as provided in paragraph (a)(1) or (a)(3) of this section, the facility must meet the applicable provisions of the 1985 edition of the Life Safety Code of the National Fire Protection Association. (emphasis supplied)
AHCA also cited Florida Administrative Code Rule 59A- 4.130, as a basis for the citation. Florida Administrative Code Rule 59A-4.130, requires that a licensee comply with the safety code requirements and building code standards applicable at the time of departmental approval of the facility's Third Stage-- Construction Documents.
AHCA put on no evidence of the 1985 Life Safety Code or of the standards applicable at the time AHCA or its predecessor agency approved Respondent's Third Stage Construction. This amounts to abandonment of Rule 59A-4.130 as a basis for the fine or conditional license.
However, Respondent has apparently provided, with its Proposed Recommended Order, a copy of some parts of the 1985 Code, and Petitioner has not objected.
80. NFPA 101-31-1.3.1 provides:
Every required automatic sprinkler system, fire detection and alarm system, smoke control system, exit lighting, fire door, and other item of equipment required by this Code shall be continuously in proper operating condition.
Respondent puts forth that the foregoing provision must be read in conjunction with NFPA 101-31-1.3.6, which contemplates that equipment will break down, and states:
Fire alarm signaling equipment must be restored to service as promptly as possible after each test or alarm and shall be kept
in normal condition for operation. Equipment requiring rewinding or replenishing shall be rewound or replenished as promptly as possible after each test or alarm.
The Administrative Complaints allege that the stairwells were obstructed in violation of the 1985 Life Safety Code. Two provisions of that year's Code apply to stairwells:
5-1.3.2 No exit enclosure shall be used for any purpose which would interfere with its use as an exit, such as for storage or similar purposes.
5-2.2.3.4 . . . nor shall any open space within the enclosure, including stairs and landings, be used for any purpose, such as storage. . ., which could interfere with egress. . . (emphasis added)
Assessing the Federal charges, it is concluded: AHCA has demonstrated its authority to cite a facility with a Federal violation during a State survey, but it has demonstrated no authority permitting it to collect a fine therefor or "conditionalize" a nursing home license solely on the basis of a Federal tag or violation. Traditionally, at least, both a Federal tag and a State tag are cited in the same State survey documents and the State fine and license case(s) is prosecuted on the State tag. The Federal tag has funding implications between AHCA and the corresponding Federal Agency, but traditionally, the Federal Agency is left to pursue its own fines and license discipline against facilities participating in
Federal programs. For this reason alone, AHCA should not be permitted to prevail on the charges brought against Respondent under the Federal tag. Beyond that, in basic fairness, since both deficiencies allege violations of the same regulations and the second deficiency incorporates the same issue as the first, the malfunctioning fire alarm/system, the Federal charge should be dismissed. "A single transaction that simultaneously violates several statutes does not permit discipline to be aggregated as though several unlawful transactions took place. Instead, the discipline should be derived from the statute that most particularly describes the unlawful transaction." See Dept. of Insurance v. Dillingham, DOAH Case No. 93-5393 (Recommended Order May 25, 1994; Final Order September 2, 1994.) The State Agency should not be permitted to put the facility in "double jeopardy," as it were, by including some facts it contends violate a regulation in one allegation and other facts it contends violate the same regulation in a second allegation, simply to double the monetary liability of the provider. Also, because of its "abandonment" of Rule 59A-1.30, discussed above, in Conclusions of Law 77-78, and because of its removal of the "immediate jeopardy" status (see Conclusion of Law 75), AHCA cannot prevail against Respondent on the Federal theories as enunciated.
The State’s requirements are another matter. Here, a return to normalcy at the earliest possible moment is contemplated by the statute, so that the removal of the "immediate jeopardy" label does not abandon the State charges.4/ Also, pursuant to Section 633.022(1)(b), the Legislature mandated that the Department of Insurance establish uniform fire safety standards to apply to new or existing nursing homes. In accordance with that legislative mandate, the Department of Insurance, via Florida Administrative Code (2002) Rule 4A-3.012, adopted the standards of the National Fire Protection Association, NFPA-1 and NFPA-101 (2000), and made them applicable to nursing homes. The Department of Insurance also promulgated Florida Administrative Code (2002) Rule 4A-53.004, which mandates that the NFPA standards for life safety from fire, as adopted via Rule 4A-3.012, would be the Uniform Fire Safety Standards for Hospitals and Nursing Homes in Florida. Section 9.6.1.8 of the NFPA-101 Life Safety Code mandates that where a required fire alarm system is out of service for more than four hours in a 24-hour period, the authority having jurisdiction shall be notified and the building shall be evacuated or an approved fire watch shall be provided for all parties left unprotected by the shutdown until the fire alarm system has been returned to service.
The Administrative Complaints allege the facility's failure to institute a 15-minute fire watch as a flaw, pursuant to Federal regulations, but nowhere in either of its Administrative Complaints did AHCA cite Respondent with violating Section 633.022, or Florida Administrative Code Rules 4A-3.012 and 4A-53.004.
Accordingly, it is concluded that herein, AHCA may not use Respondent's delay in reporting the alarm/system malfunction to the St. Johns County Fire Marshal and putting his protocol of 15-minute fire watches into action as a violated standard.
These facts may only, if at all, be used generically as part of the totality of the circumstances to determine the scope and classification of the State deficiency tag.
It is noted that AHCA is on record that the facility's failure to notify the St. Johns Fire Marshal within four hours does not aggravate the situation above a Class I deficiency, nor is it necessary to create a Class I deficiency.
Since no persuasive evidence was presented with regard to the door hinge at the bottom of one stairwell, it is not necessary to discuss that allegation. The long-lingering odor of the juice machine's burning motor also should not subject the facility to a fine or conditional license when even any potential danger was immediately addressed by the machine's automatic cutoff feature and by staff.
The fire alarm/system was not functioning for at least
30 hours before a fifteen-minute fire watch was instituted, but it was not working for only about eight hours (8:00 a.m. to 4:00
p.m. on January 27, 2003) before a one-hour fire watch was put into effect by the facility.
A non-functioning fire alarm/system is always "life- threatening", and therefore it is most probably a Class I violation, unless some significant mitigation is shown. The chair and molding in the stair wells might seem to only mildly aggravate the danger to residents in case of a need to evacuate, but where the majority of residents cannot independently ambulate and some have to be carried from a second floor to the outside, even minor inconveniences, like a chair or a single piece of molding become formidable obstacles. The administrators' lack of knowledge about the presence of the construction materials and chair is not to their credit, but there also is no evidence how long or short a time these items were present for administrators to have found out about them.
Upon the previous conclusions, Respondent's failure to notify the St. Johns Fire Marshal within four hours does not aggravate the situation, but the St. Johns Fire Marshal’s protocol/instruction and Mr. Linardi’s testimony, not to mention that the juice machine incident was discovered and dealt with on a 15-minute fire watch (not a one-hour fire watch) convince the
undersigned that the one-hour fire watch selected by Respondent was not appropriate. However, the juice machine never had any real potential of causing a fire, either. It must also be considered that Respondent reported the fire alarm/system problem to Mr. Linardi, the appropriate Agency representative, almost as soon as he came on the premises, and at that point, he offered no guidance to increase the frequency of fire watches.
Even assessing the foregoing aggravations, AHCA’s perception that this is a widespread Class I deficiency is not substantiated by the evidence as a whole. Nursing homes do not usually keep alarm technicians on the premises. The system encourages facilities to rely on outside alarm experts, which this Respondent did. There was no proof of intentional wrongdoing, negligence, or lack of due diligence in connection with repair of the alarm system. Respondent began immediate steps to correct the problem, made no attempt to conceal the problem from surveyors, and did all that it could do to get the system repaired as rapidly as possible. Mechanical failures occur. It takes time to fix them.
The construction and sprinkling features of Respondent's physical plant and its fire safety features are designed to work with the fire alarm/system to protect life, but they are also a feature which can be considered in assessing if any resident was in any real-world danger, and here, they
mitigate the danger of not having a working fire alarm. Furthermore, the success of the fire drill must be factored into the equation. Despite Mr. Linardi’s “by the book” approach to citing any alarm malfunction, his fire drill proved that even with its fire alarm/system malfunctioning, Respondent's staff were fully prepared to act, were able to quickly close the correct compartment doors manually, and that only one-half minute of jeopardy with regard to smoke containment due to the air conditioning could have occurred, if that.
In both the fine and the classification cases, the evidence is clear and convincing that this was an isolated Class III deficiency, ". . . a situation that occurred only occasionally . . . " and one which " . . has the potential to compromise the resident's ability to reach his or her highest practicable physical, mental, and psychosocial well-being . . . ". (Emphasis supplied.) Accordingly, a conditional license should not be imposed under Section 400.23(7)(b), and only a fine of $1,000.00 should be imposed under Section 400.23(8)(c).
The Administrative Complaints sought only $6,000.00 for investigation and prosecution of these cases, pursuant to Section 400.121(10).5/
The Agency's Proposed Recommended Order prays for a
$6,000.00 "survey fee," apparently based upon there being two
widespread Class I deficiencies. No legal authority is cited for this prayer.
The Agency's Proposed Recommended Order further prays, as did the Administrative Complaints, for "costs related to the investigation and prosecution of the case pursuant to Section 400.121(10)," but the proposal waivers between requesting that the record be left open so this amount can be proven-up in a hearing on costs and proposing that the undersigned recommend that the Agency enter a final order in which the Agency shall assess these costs.
Section 400.121(10) provides, in pertinent part:
In addition to any other sanction imposed under this part, in any final order that imposes sanctions, the agency may assess costs related to the investigation and prosecution of this case.
Two widespread Class I deficiencies were not proven.
How the requested amount of $6,000.00 was calculated or how it relates to a "survey fee" has not been demonstrated. No specific authority for a "survey fee" has been cited. The amount of any "costs related to the investigation and prosecution," pursuant to Section 400.121(10), has not been proven-up, but AHCA is entitled to a hearing on that issue in the event the parties are unable to agree on the amount.
Based on the foregoing Findings of Facts and Conclusions of, it is
RECOMMENDED that the Agency for Health Care Administration enter a final order
Finding Respondent guilty of a single, isolated Class III deficiency, fining Respondent $1,000.00 therefore, and removing Respondent's conditional licensure status; and
Remanding to the Division of Administrative Hearings the issue of the amount of any costs related to the investigation and prosecution of these cases, pursuant to Section 400.121(10), in the event the parties cannot stipulate to those costs.
DONE AND ENTERED this 13th day of November, 2003, in Tallahassee, Leon County, Florida.
S
ELLA JANE P. DAVIS
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 13th day of November 2003.
ENDNOTES
1/ Mr. Linardi, on behalf of AHCA, maintained that rules forbid a facility to notify 911 if a direct notification fire alarm is operative. No rule was cited to this effect.
2/ Ms. McIntire testified to this position, factually, provided it included the sequelae of non-working doors, and AHCA's counsel confirmed this as the Agency's legal position at the hearing and in AHCA's Proposed Recommended Order.
3/ The Administrative Complaints' citations to Rule 59A- 104.6(4)(n) are apparently a typographical errors.
4/ See Section 400.23(8)(a), quoted for other purposes, supra, and reading, in part," . . . The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. . . A fine must be levied notwithstanding the correction of the deficiency."
5/ Each of the Administrative Complaints seeks $6,000.00 in costs, but because AHCA's Proposed Recommended Order only seeks
$6,000.00, it is presumed that the use of two deficiencies within one count of each of two Administrative Complaints was only intended to seek an aggregate of $6,000.00 in costs.
COPIES FURNISHED:
Donna Riselli, General Counsel Agency for Health Care Administration
Fort Knox Executive Center, Mail Station 3 2727 Mahan Drive
Tallahassee, Florida 32308-5403
Karen L. Goldsmith, Esquire Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011
Winter Park, Florida 32790-2011
Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431
2727 Mahan Drive
Tallahassee, Florida 32308
Leland McCharen, Agency Clerk
Agency for Health Care Administration 2626 Mahan Drive, Mail Station 3
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 24, 2004 | Agency Final Order | |
| Nov. 13, 2003 | Recommended Order | National Fire Protection Agency`s Fire Safety codes are discussed in relation to federal and state authority and rule adoptions. The necessity of notice pleading but less than explicit pleading is involved. State and federal authority are distinguished. |
