vs. ) Case No. 03-2569
HEALTH CARE AND RETIREMENT ) CORPORATION OF AMERICA, d/b/a ) HEARTLAND HEALTHCARE CENTER- ) MIAMI LAKES, )
Respondent. )
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 on October 1, 2003, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
For Petitioner: Nelson E. Rodney, Esquire
Agency for Health Care Administration 8355 Northwest 53rd Street, 1st Floor Miami, Florida 33166
For Respondent: Alfred W. Clark, Esquire
Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what sanctions, if any, should be imposed.
In or around May of 2003, the Agency for Health Care Administration (Agency), following a relicensure survey, filed a two-count Administrative Complaint alleging that Respondent had committed the following violations deemed by the Agency to constitute Class II deficiencies: Count I- "Heartland Health Care Center-Miami Lakes failed to implement policies and procedures to ensure that residents were free from verbal and physical abuse/mistreatment and failed to implement the policy on abuse/mistreatment after its occurrence for one of the 32 sampled residents [in violation of] Title 42 § 483.13(c)(1)(i), Code of Federal Regulations incorporated by Rule 59A-4.1288,
By petition filed by its attorney, Respondent requested a "formal administrative hearing" on the Administrative Complaint. The matter was referred to DOAH on July 15, 2003, for the assignment of an Administrative Law Judge to conduct the hearing Respondent had requested.
On September 23, 2003, the parties filed a Joint Prehearing Stipulation, which read, in pertinent part, as follows:
The Petitioner's position is that Heartland failed to implement policies and procedures to ensure that a resident was free from
verbal abuse and mistreatment. In addition the facility failed to have an accessible call bell for one resident which contributed to that resident being left on a bed pan for a period of time without a way to communicate to staff for assistance.
The Respondent's position is that Heartland did implement policies and procedures to ensure that a resident was free from verbal abuse and mistreatment, that the facts alleged in the Administrative Complaint relating to the so-called verbal abuse are inaccurate and incomplete and that verbal abuse or mistreatment did not occur with regard to the named resident or any other resident. Heartland further contends that the referenced call bell was accessible to the named resident, the call bell was promptly answered and that the named resident did not remain on a bed pan for any inappropriate length of time on the occasion alleged or any other occasion.
As noted above, the final hearing in this case was held on October 1, 2003.
At the outset of the hearing, counsel for the Agency provided the following "clarification" regarding what the Agency was alleging in Count I of the Administrative Complaint:
The Agency is not certain that the abuse occurred because no proper investigation was done by the facility. Therefore, the Agency is not alleging whether an actual abuse occurred or not. We're saying that the more important feature of this problem is that the facility failed to follow [its] own guidelines in assuring that abuse did not occur through a proper investigation.
Respondent did not object to the Agency pursuing such a theory of liability under Count I.
Nine witnesses testified at the hearing: Cindy Goldman, Elizabeth Rojas-Mariaca, Linda Mohammad, Nancy Pobiones, Aida Rodriguez, Jeanette Barrett, Delia Rudio, Lujuana Morales, and Tony Farinella. In addition to the testimony of these nine witnesses, various exhibits (Petitioner's Exhibit 1, pages 3, 81, and 146, Petitioner's Exhibit 3, pages 7 through 9, and
Respondent's Exhibits 1 though 8) were offered and received into evidence.
At the close of the evidentiary portion of the hearing on October 1, 2003, the undersigned established a deadline (45 days from the date of the filing of the hearing transcript with DOAH) for the filing of proposed recommended orders.
A Transcript of the final hearing (consisting of two volumes) was filed with DOAH on November 4, 2003.
On November 5, 2003, Respondent filed an Agreed Motion to Accept Respondent's Late Filed Exhibits 9 and 10. By order issued November 6, 2003, the motion was granted.
The Agency and Respondent filed their Proposed Recommended Orders on December 10, 2003, and December 18, 2003, respectively. These post-hearing submittals have been carefully considered by the undersigned.
Based on the evidence adduced at the final hearing and the record as a whole, including the factual stipulations contained in parties' Joint Prehearing Stipulation,2 the following findings of fact are made:
Respondent operates a Skilled Nursing Facility (Facility) located at 5725 N.W. 186th Street in Hialeah, Florida.
The Facility is licensed by the Agency under Chapter 400, Part II, Florida Statutes.
Aida Rodriguez has been a Florida-Certified Nursing Assistant (CNA) for the past three or four years.
Ms. Rodriguez was employed as a CNA at the Facility on a part-time basis from November 6, 2002, until March 31, 2003, when she resigned for "family reasons." She worked only Fridays, Saturdays, and Sundays.
Among the residents living in the Facility during the period of Ms. Rodriguez's employment were Residents 16 and 30.3
In accordance with his care plan, when Resident 30 was in the dining room for a meal, "staff [were] supposed to keep an eye on him" and "encourage him and attempt to assist him [if] he stop[ped] feeding himself" and needed help.
Resident 30's daughter was often with her father at mealtime and provided him with whatever assistance he required, thus obviating the need, on these occasions, for staff intervention.
On Saturday, March 15, 2003, Ms. Rodriguez was in the dining room when she observed Resident 30, without his daughter, seated at a table with a plate of uneaten food, that had been served a half an hour earlier, in front of him.
Ms. Rodriguez approached Resident 30 and "offered him help."
Ms. Rodriguez, who is bilingual in Spanish and English,4 spoke to Resident 30 in Spanish.
Resident 16, who was nearby, interjected. She rebuked Ms. Rodriguez by telling her, "Don't touch him because the daughter is coming to assist him with feeding."
Ms Rodriguez replied, in English, to Resident 16, who is not Spanish-speaking, "Let me ask Resident 30."
Ms. Rodriguez then asked Resident 30, "Do you want water? Do you want me to help you?"
Resident 30 responded, "Give me water."
Ms. Rodriguez did as she was asked.
After Resident 30 finished the glass of water
Ms. Rodriguez had given him, Ms. Rodriguez asked Resident 30 if he "want[ed] to eat." When Resident 30 responded in the negative, Ms. Rodriguez left and tended to other business.
At no time did Ms. Rodriguez tell Resident 16 to "shut up" or that Resident 16 should "mind [her] own business."
At no time did Ms. Rodriguez force Resident 30, against his will, to eat or drink.5
Jeannette Barrett is now, and was at all times material to the instant case, a Florida-Licensed Practical Nurse (LPN) employed at the Facility.
Ms. Barrett was in the dining room on March 15, 2003, when Ms. Rodriguez came over to the area where Residents 16 and
30 were seated.
From her vantage point, Ms. Barrett was able to visually observe the encounter.
Ms. Barrett did not "see Resident 30 get upset or aggravated during that meal."
Ms. Barrett was unable to "hear any conversation between [Ms.] Rodriguez and Resident 16."
As Resident 16 was leaving the dining room in her wheelchair, she "calm[ly]" told Ms. Barrett that she did not want Ms. Rodriguez "put[ting] [her] back to bed." When
Ms. Barrett asked her why, Resident 16 responded, untruthfully, that Ms. Rodriguez had told her to "mind [her] own business" when she had suggested to Ms. Rodriguez that perhaps Resident 30 did not want to eat because he was waiting for his daughter to come and feed him.6
Ms. Barrett immediately informed the LPN who supervised the CNAs on Resident 16's "side" of the Facility of Resident 16's request and, in accordance with Facility policy, another CNA was assigned to care for Resident 16.
Delia Rudio was the Director of Nursing at the Facility from February 11, 2002, until July 31, 2003.7
Ms. Rudio was not at the Facility on March 15, 2003.
She was off from work that weekend.
Upon Ms. Rudio's return to the Facility the following Monday, March 17, 2003, Ms. Barrett reported to Ms. Rudio about the conversation she had had with Resident 16 the previous Saturday and asked Ms Rudio to speak with Resident 16 and
Ms. Rodriquez to sort out what had really happened in the dining room. Ms. Barrett brought the matter to Ms. Rudio's attention because it would have been "rude," in Ms. Barrett's opinion, for Ms. Rodriguez to have told a resident to "mind [her] own business."
Tony Farinella is now, and was at all times material to the instant case, the Administrator of the Facility.
On March 17, 2003, Mr. Farinella conducted a department supervisors meeting, at which (as his notes of the meeting, which were offered and received into evidence as Respondent's Exhibit 9, reflect) he was advised, by Ms. Rudio, of the "concerns" that Resident 16 had expressed, over the weekend, to Ms. Barrett regarding Ms. Rodriguez.
That same day, after having received Ms. Barrett's report on the matter, Ms. Rudio spoke with Resident 16,
Ms. Rodriguez, and other CNAs who were on duty at the Facility the previous Saturday with Ms. Rodriguez.
Ms. Rudio asked them if there had been any problems at the Facility over the weekend. They all responded in the negative, indicating that the weekend had been uneventful with no unusual occurrences.
Having talked to these individuals, Ms. Rudio reasonably believed that "nothing had occurred . . . over the weekend" that required her to take any remedial action.
Ms. Rodriguez was not formally suspended pending Ms. Rudio's inquiry; however, Ms. Rudio concluded her inquiry before Ms. Rodriguez was next scheduled to report to work.
Prior to the relicensure survey that led to the filing of the instant Administrative Complaint, Ms. Rudio did not document that she had done anything in response to the report she had received from Ms. Barrett concerning Resident 16's allegations against Ms. Rodriguez.
Ms. Rudio, though, did verbally relate, at a department supervisors meeting conducted by Mr. Farinella on March 18, 2003, that she had looked into the matter and found that, in fact, there had been "no problem[s]" involving Resident
16 the previous weekend (as Mr. Farinella's notes of the meeting, which were offered and received into evidence as Respondent's Exhibit 10, reflect).
The Agency conducted its relicensure survey of the Facility from March 31, 2003, through April 3, 2003.
Elizabeth Rojas-Mariaca, a Health Facility Evaluator II with the Agency, was involved in conducting the survey.
Resident 16 was interviewed during the survey. She alleged that, some time previous, Ms. Rodriguez had "told her to shut up and mind her own business" and that she (Resident 16) had "brought those allegations to the [attention of] the LPN [Ms. Barrett]." Resident 16 indicated that she "fe[lt] bad[ly] because Ms. Rodriguez was nasty and mean to [her]," but "still work[ed] there" at the Facility.
Ms. Rojas-Mariaca spoke to staff at the Facility, including Ms. Barrett and Ms. Rudio, about Resident 16's allegations. She did not communicate, however, with either Ms. Rodriguez or Resident 30.
When Ms. Rojas-Mariaca initially requested "some type of documentation" showing that, in accordance with the Facility's policy, an "investigation [into Resident 16's allegations] had been done" and documented, the Facility was unable to produce any such documentation.
Shortly thereafter, however, the Facility prepared such documentation. Copies thereof were provided to Ms. Rojas- Mariaca and placed in the file the Facility maintained on Resident 16.
The documentation accurately indicated that the Facility's investigation had revealed that Resident's 16's allegations were unfounded.
Cindy Goldman, a Public Health Nutrition Consultant with the Agency, also participated in the survey.
While at the Facility on April 1, 2003, Ms. Goldman went into a room in the sub-acute wing of the Facility shared by Resident 31 and another resident.
Resident 31 was a recent admittee to the Facility.
While she was "able to move her upper extremities" freely, as an amputee with only one leg, she needed assistance moving the lower half of her body. She was unable to, among other things, get on or off a bedpan by herself.
When Ms. Goldman entered Resident 31's room, she observed Resident 31 lying in her bed with a bedpan under her buttocks.
Resident 31 complained to Ms. Goldman that she was "in pain" as a result of having "been on the bedpan since yesterday"8 and she asked if Ms. Goldman could help her.
There was a "call bell" tied to the upper bed rail to the right of Resident 31, which Ms. Goldman asked Resident 31 to "try to reach." Resident 31 moved her arm but not far enough to make contact with the "call bell."
Ms. Goldman then activated the "call bell" to get assistance for Resident 31.
Linda Mohammad, an LPN at the Facility, was in the sub-acute wing of the Facility when she noticed the "call light" outside of Resident 31's room was on.
Ms. Mohammad was not "the person who [had] placed [Resident 31] on the bedpan."9
Ms. Mohammad nonetheless went to Resident 31's room and, after knocking on the door and entering the room, asked if she could be of any assistance.
Ms. Goldman, who was standing in between the two beds in the room, responded that, according to what she had been told, Resident 31 had "been on the bedpan since yesterday."
Ms. Mohammad then went to Resident 31's bedside.
Resident 31 was "[i]n a normal position [on the bed] with her head up toward the head of the bed [which was elevated at approximately a 45 degree angle] on the pillow."
As was apparent to Ms. Mohammad, based upon her past experiences with Resident 31, the "call bell" on the upper bed rail was within Resident 31's reach.
On previous occasions, Ms. Mohammad had come to Resident 31's assistance in response to the activation of Resident 31's "call bell" and had found Resident 31 in the same
position in relation to the "call bell" as she was in on this particular occasion.10
After putting on gloves, turning off the "call bell," and closing the privacy curtain around Resident 31's bed,
Ms. Mohammad cleaned Resident 31 and removed and emptied the bed pan that she had been on.
At no time did Resident 31 complain to Ms. Mohammad that she was in pain. When Ms. Mohammad "asked [Resident 31] if she was okay," Resident 31 "stated that she was fine."
Ms. Mohammad re-opened the privacy curtain and left the room (which Ms. Goldman had already vacated), but not before making "sure [that Resident 31] was comfortable" and that "the call bell was still within [Resident 31's] reach."
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
Chapter 400, Part II, Florida Statutes, contains provisions that:
provide for the development, establishment, and enforcement of basic standards for:
The health, care, and treatment of persons in nursing homes and related health care facilities; and
The maintenance and operation of such institutions that will ensure safe,
adequate, and appropriate care, treatment, and health of persons in such facilities.
Among these provisions are those set forth in Section 400.23, Florida Statutes.
Section 400.23(2), Florida Statutes, authorizes the Agency to "adopt and enforce rules to implement [Chapter 400, Part II, Florida Statutes]."
The rules adopted by the Agency pursuant to this grant of statutory authority include Florida Administrative Code Rule 59A-4.1288, which provides, in pertinent part, as follows:
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. . . .
These "certification rules and regulations" referenced Florida Administrative Code Rule 59A-4.1288 include 42 C.F.R. § 483.13 and 42 C.F.R. § 483.15.
42 C.F.R. § 483.13 addresses "[r]esident behavior and facility practices." It provides as follows:
Restraints. The resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms.
Abuse. The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.
Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.
The facility must--
Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;
Not employ individuals who have been--
Found guilty of abusing, neglecting, or mistreating residents by a court of law; or
Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and
Report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry or licensing authorities.
The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency).
The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress.
The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken.
"Quality of life" is the subject of 42 C.F.R. § 483.15, paragraph (1)(e) of which provides as follows:
Accommodation of needs. A resident has the right to--
Reside and receive services in the facility with reasonable accommodation of individual needs and preferences, except when the health or safety of the individual or other residents would be endangered.
Pursuant to Section 400.23(7), Florida Statutes, every
15 months, the Agency is required to "evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under [Chapter 400, Part II, Florida Statutes] as a basis for assigning a licensure status to that facility." This statutory provision further provides that "[t]he agency shall assign a licensure status of standard or conditional to each nursing home" and goes on to describe, as follows, the meaning of "standard licensure status" and "conditional licensure status":
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.
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 licensure status may be assigned.
A "class I deficiency," as that term is used in Section 400.23, Florida Statutes, is defined in subsection (8)(a) of the statute as a "deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility."
A "class II deficiency," as that term is used in Section 400.23, Florida Statutes, is defined in subsection (8)(b) of the statute as 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."
A "class III deficiency," as that term is used in Section 400.23, Florida Statutes, is defined in subsection (8)(c) of the statute as 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 practical physical, mental, or psychosocial well- being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services."
One other class of deficiency, a "class IV deficiency," is described in Section 400.23(8), Florida Statutes. According to subsection (8)(d) of the statute, it is a "deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident."
In addition to assigning conditional licensure status, the Agency has the authority to impose the further sanction of an administrative fine if a surveyed facility is found to have "one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the [A]gency." Such authority is granted by the following provisions of Section 400.23(8)(a)-(c), Florida Statutes:
. . . . A class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. The fine amount shall be
doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine must be levied notwithstanding the correction of the deficiency.
. . . . A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine shall be levied notwithstanding the correction of the deficiency.
. . . . A class III deficiency is subject to a civil penalty of $1,000 for an isolated deficiency, $2,000 for a patterned deficiency, and $3,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. 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.
An "isolated "deficiency," as that term is used in Section 400.23, Florida Statutes, is defined in subsection (8) of the statute as 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," as that term is used in Section 400.23, Florida Statutes, is defined in subsection (8) of the statute as 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 resident 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," as that term is used in Section 400.23, Florida Statutes, is defined in subsection (8) of the statute as 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."
Before imposing any sanction on a noncompliant licensee, the Agency must give the licensee reasonable written notice of the charges and an adequate opportunity to request an administrative hearing pursuant to Chapter 120, Florida Statutes. See Florida League of Cities v. Administration
Commission, 586 So. 2d 397, 413 (Fla. 1st DCA 1991)("Until proceedings are had satisfying [S]ection 120.57, or an
opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person.").
Where "there is a disputed issue of material fact which formed the basis for the proposed final action [to impose the sanction]," the licensee is entitled to an evidentiary hearing held in accordance with Sections 120.569 and 120.57(1), Florida Statutes. Florida Sugar Cane League v. South Florida Water Management District, 617 So. 2d 1065, 1066 (Fla. 4th DCA 1993).
At the hearing, the Agency bears the burden of proving that the alleged deficiencies occurred and that they were of such nature and scope to warrant the sanction(s) the Agency proposes to take.
The parties agree, and the law is clear, that when the Agency seeks to impose an administrative fine, its proof must be clear and convincing. See Department of Banking and Finance, Division of Securities and Investor Protection v Osborne Stern
and Company, 670 So. 2d 932, 935 (Fla. 1996)("[A]n administrative fine deprives the person fined of substantial rights in property. Administrative fines . . . are generally punitive in nature. . . . Because the imposition of administrative fines . . . [is] penal in nature and implicate[s] significant property rights, the extension of the clear and
convincing evidence standard to justify the imposition of such a fine is warranted."). Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . . 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 produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in
conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
The parties differ as to what standard of proof the Agency must meet when it seeks to impose conditional licensure status. The Agency takes the position that the appropriate standard of proof in such a case is preponderance of the
evidence. Respondent, on the other hand, argues that the standard is the same as that required for the imposition of an administrative fine: clear and convincing evidence.
As the Agency points out in its Proposed Recommended Order, the overwhelming majority of DOAH Administrative Law Judges who have addressed the matter have taken the view advanced by the Agency and declined to apply a clear and convincing standard of proof.
Nonetheless, the minority view espoused by Respondent appears to be legally sounder. Like the imposition of a fine, replacing a standard license with a conditional one based on deficiencies found during a survey is "penal in nature and implicate[s] significant property rights." See Golfview Nursing Home v. Agency for Health Care Administration, So. 2d , 2003 WL 22768422 *2 (Fla. 1st DCA November 25, 2003)("The fact that there were different types of sanctions, i.e., civil penalties in the form of administrative fines and a reduction of licensure status, does not transform the licensure proceeding into two completely separate and independent proceedings.); Golfcrest Nursing Home v. Agency for Health Care Administration, 662 So. 2d 1330, 1332 (Fla. 1st DCA 1995)("Failure to correct the deficiencies would have resulted in sanctions against Golfcrest's nursing home license, including administrative fines, a reduction in licensure rating, other civil penalties,
and a reduction in Medicaid reimbursement."); and Heritage Health Care & Rehab Center - Naples v. Agency for Health Care
Administration, No. 99-1892, 1999 WL 1486586 *6 (Fla. DOAH November 12, 1999)(Recommended Order)("The imposition of a Conditional license adversely affects the reputation of a nursing facility with the public, and thus affects its ability to operate. . . . Clearly, the effect of an adverse survey and the Conditional rating emanating therefrom is penal in nature, and can deter consumers from doing business with the facility."11). Such being the case, it would be anomalous to not apply a clear and convincing standard of proof in determining whether the Agency should take such action against a license.
See Agency for Health Care Administration v. Beverly Enterprises- Florida, Inc., d/b/a Beverly Gulf Coast-Florida,
Inc., d/b/a Washington Manor Nursing and Rehabilitation Center, No. 00-4035, 2001 WL 489881 *10 (Fla. DOAH May 7,
2001)(Recommended Order)("The rationale for requiring clear and convincing proof of facts alleged to warrant the levy of a fine appears to apply with equal force when the goal is to downgrade a nursing home's licensure status."12). Furthermore, applying the less stringent preponderance of the evidence standard of proof would be inconsistent with Section 120.57(1)(j), Florida Statutes, which provides, in pertinent part, that "[f]indings of fact shall be based on a preponderance of the evidence, except
in penal or licensure disciplinary proceedings or except as otherwise provided by statute. ").
In determining whether the Agency has met its burden of proof, it is necessary to evaluate the Agency's evidentiary presentation in light of the specific allegations made in the charging instrument. Due process prohibits an agency from taking penal action against a licensee based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental
Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill
v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
In Count I of the Administrative Complaint issued in the instant case, as clarified by counsel for the Agency at the outset of the final hearing, the Agency alleges that a Class II deficiency occurred at the Facility, in the form of a violation of 42 C.F.R. § 483.13(c)(1)(i), as a result of there not having been a "proper investigation" conducted in response to the
allegations Resident 16 had made against Ms. Rodriguez upon exiting the dining room on March 15, 2003.13
The Agency failed to prove this alleged deficiency by even a preponderance of the evidence.
The record evidence affirmatively establishes that Resident 16's allegations were promptly and adequately investigated, and correctly determined to be without merit, by the Facility's Director of Nursing, Ms. Rudio, who reported the results of her investigation to the Administrator of Facility, Mr. Farinella, three days after Resident 16 first complained about Ms. Rodriguez. Resident 16's ability to maintain or reach her highest practicable physical, mental, and psychosocial well- being was not in any way compromised by the Facility's response to Resident 16's unfounded allegations against Ms. Rodriguez. It is true that, although Mr. Farinella documented, in his notes of the March 18, 2003, department supervisors meeting, the results of Ms. Rudio's investigation of Resident 16's allegations, no documentation detailing how Ms. Rudio conducted her investigation was prepared until after the surveyors arrived at the Facility to conduct their relicensure survey, approximately two weeks following the completion of the investigation; however, even assuming, without deciding, that this delay in preparing such documentation was a violation of the "certification rules and regulations found in 42 C.F.R.
483," and further assuming that Respondent had been charged with such a violation, there would be still be no Class II deficiency inasmuch as Resident 16's ability to maintain or reach her highest practicable physical, mental, and psychosocial well- being was in no way compromised by the delay.
In view of the foregoing, Count I of the instant Administrative Complaint, as clarified, should be dismissed.
In Count II of the Administrative Complaint issued in the instant case, the Agency alleges that a Class II deficiency occurred at the Facility, in the form of a violation of 42
C.F.R. § 483.13(e)(1), as a result of the Facility's failure, during the relicensure survey, to provide Resident 31 with an "accessible call bell."
The Agency also failed to prove this alleged deficiency by even a preponderance of the evidence.
Respondent, through the credible testimony of
Ms. Mohammad, affirmatively established that, on the date in question, the "call bell" tied to the upper rail on right side of Resident 31's bed was within her reach, although it may have appeared otherwise to Ms. Goldman.
Accordingly, Count II of the instant Administrative Complaint should also be dismissed.
RECOMMENDED that the Agency issue a final order dismissing the instant Administrative Complaint in its entirety.
DONE AND ENTERED this 22nd day of December, 2003, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2003.
1/ Unless otherwise indicated, citations to Florida Statutes in this Recommended Order are to Florida Statutes (2003).
2/ The undersigned has accepted these assertions of fact made in the parties' Joint Prehearing Stipulation as true and accurate. See Gunn Plumbing, Inc. v. The Dania Bank, 252 So. 2d 1, 4 (Fla. 1971)("A stipulation properly entered into and relating to a matter upon which is appropriate to stipulate is binding upon the parties and the Court."); Johnson v. Johnson, 663 So. 2d 663, 665 (Fla. 2d DCA 1995)("[T]o foster the legal policy of encouraging stipulations to minimize litigation and expedite resolution of disputes, the law provides that '(s)uch
stipulations should be enforced if entered into with good faith and not obtained by fraud, misrepresentation, or mistake, and not against public policy.'"); EGYB, Inc. v. First Union National Bank of Florida, 630 So. 2d 1216, 1217 (Fla. 5th DCA 1994)("Unless grounds for recission or withdrawal are shown, the trial court is bound to strictly enforce the agreement between the parties."); and Robertson v. Robertson, 106 So. 2d 590, 593 (Fla. 2d DCA 1958)("It is undisputed that a court must accept as true facts which are undisputed ").
3/ Residents of the Facility will be referred to by number, rather than by name, in this Recommended Order to protect their privacy interests. See Delta Health Group, Inc. v. Williams, 780 So. 2d 337, 339 n.1 (Fla. 5th DCA 2001)("[S]ection
400.022(1)(m), Florida Statutes, creates a zone of personal privacy for residents confined in nursing homes, including confidentiality of personal and medical records.").
4/ Ms. Rodriguez, nonetheless, testified through an interpreter at the final hearing.
5/ These findings concerning what was said and done during this encounter involving Ms. Rodriguez and Residents 16 and 30 are based on Ms. Rodriguez's credible testimony, which was unrebutted by testimony from anyone else having personal knowledge of what transpired. See The Florida Bar v. Clement, 662 So. 2d 690, 696 (Fla. 1995)("[A] fact-finder should not arbitrarily reject unrebutted testimony.").
6/ In her conversation with Ms. Barrett, Resident 16 did not allege that Ms. Rodriguez had told her to "shut up."
7/ Ms. Rudio is currently the Director of Residents' Clinical Services at the Facility.
8/ There is insufficient record evidence upon which to base a finding as to the actual length of time Resident 31 was on the bedpan. See Strickland v. Florida A&M University, 799 So. 2d
276 (Fla. 1st DCA 2001)("[A]lthough hearsay is admissible in administrative proceedings, determinations of the Administrative Law Judge may not be based on hearsay alone."); and Section 120.57(1)(c), Florida Statutes ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.").
9/ The evidentiary record does not reveal the identity of that person or where that person was physically located at the time Ms. Goldman walked into Resident 31's room.
10/ Unlike Ms. Mohammad, Ms. Goldman had had no prior contact with Resident 31 and was not familiar with Resident 31's physical capabilities. Ms. Goldman did not "know anything about this resident other than what [she] observed." Because of
Ms. Mohammad's greater familiarity with Resident 31, the undersigned has credited her testimony, over Ms. Goldman's testimony to the contrary, that, on the date in question in the instant case, the "call bell" was accessible to Resident 31.
11/ The Agency, in its Final Order in Case No. 99-1892, "rejected" the Administrative Law Judge's characterization of the "downgrading [of] the quality rating of a nursing home" to conditional as being "penal in nature."
12/ In its Final Order in Case No. 00-4035, the Agency stated that it did not "concur" with this observation made by the Administrative Law Judge in his Recommended Order and concluded, instead, that "[t]he rating of a nursing home as conditional is a regulatory measure, not a penal sanction, and the appropriate standard of proof is the preponderance standard." The Agency's conclusion, however, appears to at odds with the language in the Golfview Nursing Home and Golfcrest Nursing Home appellate court opinions recited above.
13/ A nursing home's failure to properly investigate an allegation of "mistreatment" or "abuse" of a resident actually constitutes a violation of 42 C.F.R. § 483.13(c)(3).
Alfred W. Clark, Esquire
Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3
Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive
Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive
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.
