vs. )
) EMERALD SHORES HEALTH CARE ) ASSOCIATES, LLC, d/b/a EMERALD ) SHORES HEALTH AND )
Respondent. )
Case No. 04-3799
Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) conducted a final hearing in the above-styled matter on February 22, 2005, in Panama City, Florida. The following appearances were entered:
For Petitioner: Michael O. Mathis, Esquire
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300
The primary issue for determination is whether Emerald Shores Heath Care Associates, LLC, d/b/a Emerald Health Care Associates (Respondent) committed the deficiencies as alleged in the Administrative Complaint dated September 17, 2004.
Secondary issues include whether Petitioner should have changed the status of Respondent's license from Standard to Conditional for the time period of July 16, 2004 until August 13, 2004; and whether Petitioner should impose administrative fines for alleged deficiencies that are proven to be supported by the
evidence.
On September 16, 2004, Petitioner issued an Administrative Complaint alleging that Respondent committed two Class I violations of nursing home regulations. Further, the Administrative Complaints notified Respondent that Petitioner had changed Respondent's license rating from Standard to Conditional, and that Petitioner had proposed two $15,000 administrative fines.
Respondent requested an administrative hearing challenging the Administrative Complaint and Petitioner's actions regarding Respondent’s license. Petitioner referred the matter to DOAH on October 19, 2004, for conduct of formal administrative proceedings.
At the final hearing, Petitioner presented the testimony of three witnesses and submitted five exhibits into evidence.
Respondent presented the testimony of two witnesses and submitted one composite exhibit into evidence. The identity of the witnesses and exhibits and any attendant rulings are set forth in the one-volume Transcript of hearing filed on March 8, 2005.
Both parties timely filed Proposed Recommended Orders, which have been reviewed and considered in the preparation of this Recommended Order. All references to Florida Statutes are
to the 2004 edition.
by law, Class I severity ratings and widespread scope ratings to the two deficiencies or Tags (F224, and F469) at issue in this proceeding.
On July 8, 2004, one of Petitioner’s surveyors observed that a patient in Respondent’s facility had approximately 60 ant bite pustules on her face, arms, neck, and chest. Investigation revealed that the patient had been discovered with fire ants in her bed at about 4 p.m. on July 7, 2004. Personnel of the facility had, at that time, taken appropriate steps to care for the injured patient. That care and treatment is not at issue in this proceeding.
Petitioner initiated another survey of Respondent’s facility on July 16, 2004. A primary objective of that survey team was to ascertain the extent of the ant bite situation in the facility. There had been other incidents in the past involving ants. One incident involved harmless, non-biting “sugar” ants, covering a patient’s sandwich left by the patient on a nightstand. The sandwich was removed, the room sprayed and the patient admonished about leaving food in the room. Later, ants were again discovered in the room, requiring further spraying and maintenance.
In the course of the July 16th survey, dead ants were found in the room of the patient who had been bitten.
Additionally, a couple of ant beds were found in the lawn outside the facility.
As a consequence of the findings of ant nests outside the facility and dead ants inside the facility, coupled with the previous incidents involving the sandwich attacking ants and other ant incidents, Petitioner cited Respondent for “immediate jeopardy” on July 16. The surveyor report found Respondent had not dealt adequately with its pest problem and cited Respondent for violation of Tag F224, abuse and neglect, and Tag F469, pest management.
Before Respondent erected the facility, a contract was executed with A to Z Pest Control to provide a termite barrier effective against termites, as well as other all arthropods, including ants. A to Z Pest Control is a certified, licensed pest control company with certifications in entomology and pest control. Respondent’s continuing contract with the pest control company required that the pest control barrier be renewed in December of every year.
After opening the facility, Respondent entered into a regular pest control contract with A to Z. The contract was for integrated pest control management. Under the integrated pest management approach, the pest control company continually changed its approach to eliminating and preventing insect problems depending on the nature of the problem and its location
within the facility. Monthly routine service and “call-backs” as needed were provided under the contract. The pest control company used EPA approved and laboratory-tested chemicals at the facility.
No adverse incidents occurred at the facility as the result of ants or other insects from 1999 through 2003. From time to time, ant mounds were discovered in the yard to the facility, but were treated by maintenance personnel or the pest control company. Typical of insects in Florida, activity of insects increased in the spring and summer months. In addition to monthly treatment and Friday drop-bys, the pest control company personnel would treat pests at the facility whenever they were called.
The first adverse incident related to ants at the facility occurred in August 2003, concluding a summer of an unusual amount of insect activity. In August, a patient was discovered in her bed with ant bites and pustules. Respondent then asked A to Z for a solution to the problem. The pest control company recommended a “barrier” treatment which involved placing insecticide in all openings in the facility, digging a trench around the building and placing granular insecticide in the trench, and finally spraying the lawn area in a band five to ten feet around the entire building. Despite the extra cost of
such a treatment, Respondent approved the treatment and the additional payment.
Notably, Respondent conducted a complaint survey in response to the August 2003 ant bite incident and determined that no deficient practices had occurred to cause the incident. Respondent assumed its pest control practices were adequate and continued to use the same pest control company, A to Z until the conclusion of July 2004.
The barrier treatment, or grounds treatment, provided after the 2003 ant bite incident remained effective, in conjunction with the annual termite treatment, through the fall of 2003 and into the winter and spring of 2004. After that, it might have started breaking down due to rain and exposure to the elements.
As previously noted, the afternoon of July 7, 2004, presented the patient with fire ants in her bed and approximately 60 ant bites on her head and upper body. The patient was removed from the room and thorough treatment for ants applied to the room while the patient was being treated. A survey was made of all of the rooms in the facility to determine if there were ants anywhere else. The grounds were inspected and all ant beds were treated. A to Z Pest Control was called, but couldn’t get out to the facility until the next day. On the following day, A to Z treated the entire inside of the building,
but could not treat the grounds because it was raining. Personnel of A to Z returned and treated the outside of the facility on the following day, July 9.
Thereafter, the “sugar” ant sandwich attack occurred.
The room was immediately sprayed with pesticide. Several days later, the ants were again found in the same room and the room was cleaned and sprayed again.
At this point, Respondent sought more aggressive treatment of ants to ensure that everything possible was being done to keep patients safe. Further, facility management created an “Action Plan” on July 7 to deal with this issue. This plan included daily rounds of the grounds; inspections of every resident’s room for signs of ants three times per shift (nine times per day); educating residents and staff of the necessity of keeping all food items tightly sealed; and implementation of a pest control log.
Respondent also began the process of reevaluating its contract with A to Z after this incident. Several other local pest control operators were contacted and asked for a plan of treatment. The proposal to include an annual barrier treatment as a part of regular pest control services was made to Respondent for the first time. Shortly thereafter, Respondent terminated its routine pest control contract with A to Z (although A to Z retains the termite contract), and hired Panama
Pest Control to provide both interior and exterior treatment with regular barrier treatment. Patients of Respondent’s facility were not at risk or in “immediate jeopardy” from insects on July 16, 2004.
Petitioner requires nursing home facilities to adopt specific policies and procedures. Fla. Admin. Code
R. 59A-4.106. Although pest control is not one of the required policies and procedures, Respondent has had since 2002, a policy and procedure on pest control. Respondent followed those policies and procedures. Among the pest control activities of Respondent before either ant bite incident were daily checks of every room, so-called “Angel Rounds," and regular monitoring of the grounds.
Pest control is not part of the curriculum for Nursing Home Administrators. Neither Petitioner nor the Centers for Medicare and Medicaid Services have issued any regulations, guidance, or advisories with regard to pest control. The term “effective” as is used in the regulation requiring “effective pest control” isn’t defined anywhere.
It is impossible to be certain that fire ants will not enter any building. The owner of A to Z Pest Control Company, bearing certifications in entomology and pest control, opined that no matter what you are doing to prevent ant bites, you can still do more. Even then, you cannot be sure of success
“because you are trying to control something that is based in nature.” You can only provide pest “control” as opposed to pest
“elimination.”
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and subject matter of this cause pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Florida Administrative Code Rule 59A-4.1288, Exception, states in relevant part:
Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference.
While the burden of proof is on Petitioner, the assignment of licensure status may be proven by a preponderance of the evidence. 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).
Petitioner's Administrative Complaint contains two counts of alleged violations committed by Respondent's facility as a result of the findings of the July 16 Survey. Count I of the Amended Administrative Complaint is based on 42 CFR Section 483.13(c)(1)(i). This regulation requires that “The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property”. Petitioner charged Respondent committed this violation because it failed, in Petitioner’s view, to protect the residents from the threat of ant bites.
Count II of the Amended Administrative Complaint is based upon 42 CFR Section 483.70(h)(4), which provides, that “The facility must maintain an effective pest control program so that the facility is free of pests and rodents”. Petitioner charged that Respondent violated this requirement because pests entered the facility and bit one of the residents.
Petitioner has charged Respondent under two tags for the same set of circumstances. The state agency cannot charge one set of events under two different deficiencies. (See, e.g., AHCA v. American Medical Associates, Inc. DOAH Case No. 01-4128 (Recommended Order June 5, 2002)(Final Order February 7, 2003))
Petitioner has misapplied the standard in Tag F224, abuse and neglect. That citation requires Respondent to have
and to implement policies and procedures preventing abuse and neglect. Respondent did have those policies and did implement them. (See, e.g, AHCA v. Plantation Bay Rehabilitation Center, DOAH Case No. 01-1983; Beverly Health and Rehabilitation Center
– Coral Trace v. AHCA, DOAH Case No. 01-1606; AHCA v. Beverly Health and Rehabilitation Services – Palm Bay, DOAH Case No 01- 1605).
In Life Care Center of Hendersonville v. Health Care Financing Administration, DAB CR542 (1998), 1998 WL 479301 (H.H.S.), the ALJ stated:
In evaluating a long-term care facility’s compliance with the regulation, the questions that must be answered are: (1) has the facility developed written policies and procedures that prohibit abuse, mistreatment or neglect of residents; and
(2) have those policies been implemented?
The question [regarding 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 CFR §483.13] is to
assure that the facility has in place an effective system that . . . prevents mistreatment, neglect, and abuse of residents.
. . . However, such a system cannot guarantee that a resident will not be abused; it can only assure that a facility does whatever is within its control to prevent mistreatment, neglect and abuse of residents.
Neither Petitioner nor the Centers for Medicare and Medicaid Services have any standards, regulations, guidance, advisories, or any other related material that establishes standards for pest control in nursing homes. Petitioner has listed 29 specific areas that require Policies and Procedures in Florida Administrative Code Rule 59A-4.106, but pest control is not among the required policies. Given the absolute lack of standards, Respondent should not be faulted for placing its pest control management in the hands of a licensed and certified pest control operator. Respondent had adopted policies and procedures prohibiting abuse and neglect of residents and, as established by the evidence, those policies and procedures were followed. One adverse incident does not constitute a violation of Tag F224.
The citation that governs pest control does not have a strict liability standard. (See Washington Manor Nursing and Rehabilitation Center v. AHCA, Case No. 00-4035 (DOAH May 7, 2001)(Final Order September 13, 2001); Lake Mary Health Care
Associates, LLC, v. AHCA, Case No. 04-0335 (DOAH June 8, 2004)(Final Order August 11, 2004)). The question is not whether the adverse incident involved fire ants, but whether the facility’s pest control management program is reasonable under the circumstances (See Washington Manor and Lake Mary, supra).
It is not possible to prevent ants from getting into a building no matter what steps are taken. In addition, no matter what one’s pest control system is, it is always possible to do more. In the famous words of Louise Heath Leber, “[t]here’s always room for improvement, you know--it's the biggest room in the house.”¹/ Leber’s axiom, however, under facts determined in this matter does not equate to a failure to have a pest control system, but whether the actual pest control system that exists is reasonable given the circumstances. Such an understanding is underscored by the essence of the testimony of the owner of A to Z Pest Control Company, certified in entomology and pest control, that one can never assured of success in dealing with insect pests because of the vagaries of nature.
No less an authority than Eric Bonabeau, Ph.D., a leader in the field of swarm intelligence who has focused on applying these concepts to real world problems such as factory scheduling and telecommunications routing has drawn upon the complexity of social insects such as ants and commented:
In social insects, errors and randomness are not "bugs"; rather, they contribute very strongly to their success by enabling them to discover and explore in addition to exploiting. Self-organization feeds itself upon errors to provide the colony with flexibility (the colony can adapt to a changing environment) and robustness (even when one or more individuals fail, the group can still perform its tasks).
With self-organization, the behavior of the group is often unpredictable, emerging from the collective interactions of all of the individuals. The simple rules by which individuals interact can generate complex group behavior. Indeed, the emergence of such collective behavior out of simple rules is one the great lessons of swarm intelligence.[2/]
Finally, we should remember the words of Robert Frost that “[a]nts are a curious race.3/
Petitioner has failed to establish by clear and convincing evidence or by a preponderance of the evidence that Respondent’s pest control system was deficient.
Even assuming that Respondent’s pest control system could have been viewed as being deficient, it was error for Petitioner to issue a “Conditional” license on July 16 and to extend it through August 13, 2004. The ant bite occurred on July 7, 2004, and an immediate corrective action plan was put into place. Residents were not placed at any significant risk on July 16, much less as late as August 13. All necessary corrective action was complete within a day or two of the July 7 incident.
That Petitioner enter a final order dismissing the Administrative Complaint and issuing a standard rating to Respondent’s facility, and further finding that no deficiencies stemming from the survey of July 16, 2004, as described under the tags and regulations cited and discussed above, have occurred.
DONE AND ENTERED this 16th day of May, 2005, in Tallahassee, Leon County, Florida.
DON W. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2005.
2/ Swarm Intelligence: An Interview with Eric Bonabeau by Derrick Story, 02/21/2003
3/ Robert Frost (1874–1963), U.S. poet. The Poetry of Robert Frost; Edward Connery Lathem, ed. (1979) Henry Holt.
Michael O. Mathis, Esquire
Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive
William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431
Agency for Health Care Administration Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
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.
