vs.
LAKE MARY HEALTH CARE ASSOCIATES, INC., d/b/a LAKE MARY HEALTH & REHABILITATION CENTER,
Respondent.
) Case No. 04-0335
Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing in this proceeding on behalf of the Division of Administrative Hearings (DOAH) on April 16, 2004, in
Sanford, Florida.
For Petitioner: Gerald L. Pickett, Esquire
525 Mirror Lake Drive, North St. Petersburg, Florida 33701
For Respondent: R. Davis Thomas, Jr.
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300
The issues are whether Respondent violated regulatory requirements to maintain and to implement a written policy that prohibits the neglect of nursing home residents; whether Petitioner should have changed the status of Respondent's license from Standard to Conditional; and whether Petitioner should fine Respondent $2,500 and recover investigative costs.
On December 24, 2003, Petitioner issued an Administrative Complaint alleging that Respondent committed two Class I violations of nursing home regulations involving a resident who suffered ant bites. In relevant part, the Administrative Complaint notified Respondent that Petitioner had changed Respondent's license rating from Standard to Conditional; alleged that Respondent had failed to maintain an effective pest control system; proposed two administrative fines of $12,500 each; proposed a six-month survey cycle and a $6,000 survey fee; and sought to recover investigative costs.
Respondent timely requested an administrative hearing.
Petitioner referred the matter to DOAH to conduct the hearing. On April 4, 2004, Respondent filed a motion seeking attorney's fees pursuant to Section 57.105, Florida Statutes (2003).
At the hearing, Petitioner withdrew allegations of an ineffective pest control system, with prejudice; reduced the
classification of the alleged violation from a widespread Class I deficiency to an isolated, Class II deficiency; and limited the proposed agency action in this proceeding to a
$2,500 fine, recovery of investigative costs, and a change in license status from Standard to Conditional. Thereafter, Respondent withdrew its motion for attorney's fees.
The parties stipulated to some facts alleged in the Administrative Complaint. Petitioner presented the testimony of two witnesses and submitted two composite exhibits for admission into evidence. Respondent presented the testimony of one witness and submitted one composite exhibit.
The identity of the witnesses and exhibits and any attendant rulings are set forth in the two-volume Transcript of the hearing filed on April 28, 2004. Pursuant to an Order granting a joint request for an extension of time to file proposed recommended orders (PROs), the parties timely filed their respective PROs on May 10, 2004.
Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Subsection 400.23(7), Florida Statutes (2003). Respondent is licensed to operate a nursing home located at 710 North Sun Drive, Lake Mary, Florida 32746 (the facility).
The facility admitted Resident 1 on November 20, 2000.
Resident 1 was immobile and could not communicate verbally. She depended on a feeding tube for nourishment.
On August 10, 2003, facility staff found ants in Resident 1's room. The ants had not bitten Resident 1. Staff sprayed the room with bug spray and then called the pest control company responsible for providing pest control at the facility (the pest control company).
On August 12, 2003, the pest control company treated all of the rooms on the affected wing of the facility with ant bait gel and noted in the facility's pest control log that the problem in the affected area was "resolved." On the same day, another company treated the grounds outside the facility.
During the early morning of August 20, 2003, facility staff found Resident 1 in her bed with ants and ant bites on her body. Staff immediately removed Resident 1 from her bed, showered her, called her doctor, and obtained orders for medications to treat the ant bites. Facility staff also treated the room and removed any ants that staff observed. Resident 1 went to the hospital briefly and then returned to the facility.
Respondent notified Petitioner of the incident, and Petitioner sent two surveyors to the facility on August 22, 2003. Thereafter, Petitioner charged that the facility
committed a Class II violation of 42 C.F.R. Section 483.13(c)(1).
The relevant federal regulatory requirements are also set forth in what is identified in the record as Tag F224. Tag F224 requires the facility to maintain and to implement written policies and procedures that prohibit the neglect, abuse, and mistreatment of residents (an anti-neglect policy).
Respondent does not dispute that the ant bites to Resident 1 on August 20, 2003, constituted harm sufficient to support a Class II violation, if Respondent violated the requirements to maintain and to implement an anti-neglect policy. The preponderance of evidence does not show that Respondent violated those requirements.
Respondent maintained an anti-neglect policy that satisfied the requirements in Tag F224. In relevant part, the policy sets forth the standards and processes for identifying potential incidents of neglect of residents; investigating those incidents; and reporting them to appropriate agencies.
Petitioner was unable to identify any component of Respondent's anti-neglect policy that violated the requirements of Tag F224. Petitioner also was unable to identify any other required policy that Respondent failed to maintain.
Respondent implemented its anti-neglect policy.
Facility staff identified the potential risk of harm,
investigated the risk, implemented professional pest control treatments to all rooms on the same wing of the facility as the affected room, and treated the lawn outside the facility. The facility reported the incident to Petitioner. Petitioner was unable to identify any component of the anti-neglect policy, or that of any other policy, that Respondent did not implement to prevent the incident involving Resident 1.
Irrespective of the anti-neglect policy that Respondent maintained and implemented, Petitioner sought to prove at the hearing that Respondent violated quality of care requirements. The Administrative Complaint does not allege that Respondent violated a quality of care requirement. If it were determined that the ALJ has authority to find Respondent guilty of violating a quality of care requirement not alleged in the Administrative Complaint, the preponderance of evidence does not show that the quality of care exercised by facility staff after they discovered ants on August 10, 2003, was deficient.
Petitioner sought to prove that Respondent violated quality of care requirements by failing to provide adequate pest control service to the affected room. Petitioner did not identify any additional pest control procedures that applicable law required the facility to provide. Nor did Petitioner identify any pest control treatment or service that the facility
could or should have provided to prevent the ant bites to Resident 1 on August 20, 2003.
Petitioner also sought to prove that Respondent violated quality of care requirements by failing to increase monitoring of Resident 1. Petitioner failed to cite any legal standard that required facility staff to increase their monitoring of Resident 1 between August 10 and 20, 2003.
The standard of practice in nursing homes is to monitor residents every two hours. No standard required a higher level of monitoring after August 10, 2003. There was no evidence that Respondent failed to monitor Resident 1 every two hours between August 10 and 20, 2003.
Strict liability is not the appropriate standard for determining whether Respondent is responsible for the harm suffered by Resident 1 on August 20, 2003. The preponderance of evidence does not show that Respondent failed to provide any required goods or services to Resident 1. The ant bites on August 20, 2004, occurred despite the reasonable care undertaken by Respondent to prevent the ant bites.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2003). DOAH provided the parties with adequate notice of the administrative hearing.
If the factual allegations in the Administrative Complaint were deemed proven, they would not violate the requirements in Tag F224 to maintain and to implement an anti- neglect policy. The requirements in Tag F224 are substantially the same as those found in 42 C.F.R. Section 483.13(c)(1)(i). In relevant part, the regulation provides that a facility:
[M]ust develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property.
Administrative appeals board decisions from the agency responsible for promulgating the federal regulation at issue
in Tag F224, hold that a single incident of neglect, if proven, does not violate the requirements to maintain and to implement an anti-neglect policy. In Life Care Center of Hendersonville v. Health Care Financing Administration, Department of
Health and Human Services, Departmental Appeals Board Decision No. CR542 (July 22, 1998) (available at http://www.os.dhhs.gov/progorg/dab), the federal ALJ stated:
In evaluating a long-term care facility’s compliance with the regulation, the questions that must be answered are:
has the facility developed written policies and procedures that prohibit abuse, mistreatment or neglect of residents; and
have those policies been implemented?
The question [regarding implementation] cannot be answered simply by identifying random episodes of abuse, mistreatment or neglect which may have occurred at a
facility. A conclusion that a facility has failed to implement anti-abuse, mistreatment or neglect policies does not necessarily follow from evidence of an isolated episode or episodes of abuse, mistreatment or neglect. A facility may be found to have implemented the required policy even if an isolated instance of abuse, mistreatment or neglect occurs at the facility despite the facility’s best efforts.
That is underscored by the guidance which HCFA gives to State survey agency Surveyors. The State Operations Manual provides that: the intent of . . . [42 C.F.R. §483.13] is to assure that the facility has in place an effective system that . . . prevents mistreatment, neglect, and abuse of resident . . . However, such a system cannot guarantee that a resident will not be abused; it can only assure that a facility does whatever is within its control to prevent . . . neglect and abuse. . . .
Another appeals board decision has reached a similar result. In Haverhill Care Center v. HCFA, Departmental Appeals Board Decision No. CR522 (March 10, 1998) (available at http://www.os.dhhs.gov/progorg/dab), the federal ALJ stated:
This regulation is directed against medically unnecessary use of restraints, abuse, corporal punishment, involuntary seclusion, mistreatment, neglect and misappropriation of property. This regulation is not meant to address every type of policy or procedure which addresses resident care.
Department Appeals Board decisions are persuasive.
They are final decisions of the Secretary of the Department of Health and Human Services; the federal agency responsible for
promulgating the regulation that is the standard by which violations of Tag F224 are measured. Because these decisions are final decisions of an agency addressing the interpretation and application of its own regulations, the decisions are entitled to substantial deference. South Valley Health Care Center v. Health Care Financing Administration, 223 F.3d 1221, 1223 (10th Cir. 2000) (courts give substantial deference to agency's interpretation of its own regulations).
Petitioner has incorporated the relevant federal regulation by reference in Florida Administrative Code Rule 59A-4.1288. Petitioner's application of a different
requirement in this proceeding is inconsistent with Petitioner's own Rule. Subsection 120.68(7)(e)2., Florida Statutes (2003), requires an appellate court to remand to Petitioner any action that is inconsistent with Petitioner's ruling. In construing federal regulations incorporated in the state Rule, courts give substantial deference to the federal agency's interpretation of its own regulation. South Valley, 223 F.3d at 1223.
In a separate DOAH proceeding, the ALJ concluded that one incident of alleged neglect does not violate the requirements in Tag F224 to maintain and to implement an anti- neglect policy. AHCA v. Beverly Health and Rehabilitation
Services – Palm Bay, Case No. 01-1605 (DOAH March 4, 2002) (Final Order March 14, 2003). In relevant part, the ALJ cited
the same two Department Appeals Board decisions that the ALJ has cited in the instant proceeding. Petitioner adopted the Recommended Order in toto in its Final Order. Petitioner is bound by the doctrine of administrative stare decisis to follow its previous final order because no factual or legal basis exists to exclude this proceeding from Petitioner's legal conclusion in the previous matter that a single act of neglect, if proven, is not a violation of the requirements to maintain and to implement an anti-neglect policy. Gessler v. Department of Business and Professional Regulation, 627 So. 2d 501, 503-504 (4th DCA 1993). See also Caserta v. Department of Business and Professional Regulation, 686 So. 2d 651, 653 (5th DCA 1996) (the statutory requirement for subject-matter indexing of final agency orders begins on March 1, 1992, when the Legislature amended the statute).
Neither DOAH nor Petitioner can find Respondent guilty of violating the anti-neglect requirements in Tag F224 based on evidence of facts not alleged in the Administrative Complaint. To do so would negate the right to an administrative hearing to contest the allegations in an Administrative Complaint, and it would eviscerate fundamental principles of due process. Cotrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). See also Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000);
Lusskin v. State of Florida Agency for Health Care Administration, Board of Medicine, 731 So. 2d 67, 68 (Fla. 4th DCA 1999); Ghani v. Department of Health, 714 So. 2d 1113, 1115 (Fla. 1st DCA 1998); Arpayoglou v. Department of Professional Regulation, 603 So. 2d 8 (Fla. 1st DCA 1992); Board of Trustees of the Internal Improvement Trust Fund of the State of Florida
v. Barnett, 533 So. 2d 1202, 1206 (Fla. 3d DCA 1988); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v.
Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984); Wray v. Department of Professional Regulation, Board of Medical Examiners, 435 So. 2d 312, 315 (Fla. 1st DCA 1983).
Allegations of a single act of neglect are relevant to quality of care requirements rather than requirements in
Tag F224 to maintain and to implement an anti-neglect policy. In Haverhill, the federal administrative law judge stated:
[This] Resident’s . . . situation is actually a question of compliance with a general nursing standard of care, which is better addressed under 42 C.F.R. §483.25 Quality of Care.
Haverhill, supra (available at http://www.os.dhhs.gov/progorg/dab).
The Administrative Complaint does not allege that Respondent violated quality of care requirements. Neither DOAH nor Petitioner can find Respondent guilty of violating quality
of care requirements not referred to in the Administrative Complaint. To do so would negate the right to an administrative hearing to contest the violations alleged in the Administrative Complaint, and it would eviscerate fundamental principles of due process. B.D.M. Financial Corporation v. Department of Business and Professional Regulation, 698 So. 2d 1359, 1362 (Fla. 1st DCA 1997); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1990); Celaya v.
Department of Professional Regulation, 560 So. 2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State, Division of
Licensing, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Federgo Discount Center v. Department of Professional Regulation, Board of Pharmacy, 452 So. 2d 1063, 1065 (Fla. 3d DCA 1984).
Relevant judicial decisions preclude the ALJ from reaching issues concerning the burden of proof, standard of proof, and sufficiency of evidence in this proceeding. As previously stated, the factual allegations in the Administrative Complaint, if proven, do not violate requirements in Tag F224 to maintain and to implement an anti-neglect policy; and the ALJ cannot find Respondent guilty of violating Tag F224 based on evidence of facts not alleged in the Administrative Complaint. If the factual allegations were sufficient to prove a violation of quality of care requirements, the ALJ cannot find that
Respondent violated quality of care requirements not alleged in the Administrative Complaint.
This Recommended Order discusses issues concerning the burden of proof, standard of proof, and sufficiency of evidence only as an alternative analysis. Petitioner has the burden of proving each violation that Petitioner asserts is at issue. Beverly Enterprises-Florida v. Agency for Health Care Administration, 745 So. 2d 1133, 1136 (Fla. 1st DCA 1999).
Petitioner must satisfy its burden of proof in this proceeding by two separate evidentiary standards. Petitioner must prove by a preponderance of evidence that Respondent committed the deficiencies alleged as a basis for sustaining the change in Respondent's license rating from Standard to Conditional. Florida Department of Transportation v. J.W.C.
Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner must show by clear and convincing evidence that Respondent committed the deficiencies alleged as a basis for the proposed administrative fine.
Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996).
The preponderance of evidence does not prove that Respondent violated the requirements in F224 to maintain and to
implement an anti-neglect policy. Rather, Respondent maintained and implemented the requisite anti-neglect policy.
The preponderance of evidence does not prove that Respondent violated any quality of care requirements. For purposes of Tag F224, 42 C.F.R. Section 488.301 defines the term "neglect" to mean the "failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness." Petitioner did not provide evidence that Respondent failed to provide required goods and services to Resident 1.
Strict liability does not apply in this proceeding.
See Washington Manor Nursing and Rehabilitation Center v. AHCA, Case No. 00-4035 (DOAH May 7, 2001) (Final Order September 13, 2001) [Subsection 483.70(h), Florida Statutes (2001), is not intended to impose absolute or strict liability, but is intended to require reasonable care]. Respondent is not responsible for the harm suffered by Resident 1 unless Petitioner shows that Respondent failed to use reasonable care. The evidence shows that Resident 1 suffered ant bites despite Respondent's best efforts to prevent them.
Petitioner did not prove a Class I or II deficiency, or an uncorrected Class III deficiency, within the meaning of Subsection 400.23(7)(a), Florida Statutes (2003). Nor did Petitioner prove a violation for which Subsection 400.23(8), Florida Statutes (2003), authorizes an administrative fine.
RECOMMENDED that Petitioner enter a final order deleting the disputed deficiencies from the Survey Report for August 20, 2003; replacing the Conditional rating from August 22, 2003, until October 15, 2003, with a Standard rating; finding Respondent not guilty of the remaining allegations in the Administrative Complaint; and denying the proposed fine and recovery of investigative costs.
DONE AND ENTERED this 8th day of June, 2004, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2004.
Gerald L. Pickett, Esquire
525 Mirror Lake Drive, North St. Petersburg, Florida 33701
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300
R. Davis Thomas, Jr. Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300
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 Fort Knox Building, Suite 3431
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.
