STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

W. FRANK WELLS NURSING HOME, Petitioner,

vs.

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

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) Case No. 10-1119

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RECOMMENDED ORDER

A final hearing was conducted in this case on June 9, 2010, in Jacksonville, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John D. Buchanan, Esquire

Post Office Box 14079 Tallahassee, Florida 32317-4079

For Respondent: Richard Joseph Saliba, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

The issue is whether Respondent properly cited Petitioner for violating Section 400.0225(11), Florida Statutes, by taking a resident to the emergency room for a mental health evaluation without complying with the requirements outlined in Section 394.463, Florida Statutes, for an involuntary examination.

PRELIMINARY STATEMENT

On or about September 5, 2006, Respondent Agency for Health Care Administration (Respondent), conducted a complaint investigation involving allegations that Petitioner W. Frank Wells Nursing Home (Petitioner) had violated the Baker Act requirements set forth in Section 394.463(2), Florida Statutes (2006). As a result of the investigation, Respondent issued a Statement of Deficiencies containing a citation for violation of Tag N-509, a class-three deficiency under Section 400.23(7), Florida Statutes (2006). The citation did not contain a point of entry for an administrative hearing.

On February 27, 2007, Petitioner filed a petition with Respondent requesting a formal hearing. Respondent denied the petition with prejudice on March 20, 2007, holding in a Final Order that a Tag N-509 citation is not an agency action.

On April 19, 2007, Petitioner appealed Respondent's Final Order to Florida's First District Court of Appeal. In W. Frank Wells Nursing Home v. State of Florida, Agency for Health Care Administration, 979 So. 2d 339 (Fla. 1st DCA 2008), the court ruled that Petitioner had to be allowed to amend its petition to make sufficient allegations of substantial injury and Respondent had to be afforded another opportunity to reconsider the request.

On May 15, 2008, Petitioner filed an Amended Petition for Formal Administrative Hearing. Respondent once again issued a Final Order of Dismissal with Prejudice. In W. Frank Wells Nursing Home v. State of Florida, Agency for Health Care

Administration, 23 So. 3d 73 (Fla. 1st DCA 2009), the court reversed and remanded the case for an administrative hearing.

On March 3, 2010, Respondent referred Petitioner's Amended Petition for Formal Administrative Hearing to the Division of Administrative Hearings. The undersigned issued an Initial Order on March 4, 2010.

On March 4, 2010, Respondent filed a Motion to Dismiss and Motion to Strike. Petitioner filed a response in opposition to the motions on March 10, 2010. The undersigned denied the motions in an Order dated March 15, 2010.

A Notice of Hearing dated March 15, 2010, scheduled the hearing for June 9, 2010.

On May 11, 2010, Respondent filed a Motion to Relinquish Jurisdiction, alleging that a disputed issue of material fact no longer existed. Petitioner filed a response to the motion on May 19, 2010. The undersigned issued an Order Denying Motion to Relinquish Jurisdiction on May 20, 2010.

On May 26, 2010, Respondent filed a Motion for Order Determining Petitioner has the Burden of Proof. Petitioner filed a response in opposition to the motion. An Order dated

June 3, 2010, stated that Respondent had the burden of proof on the issue referenced above.

During the hearing, Respondent presented no witnesses.

Respondent's Exhibits R1 and R4-R21 were accepted without objection as evidence. Respondent's Exhibits R2-R3 are hereby accepted over objection. Respondent's Exhibits R2-R3 and R19- R21 are depositions in lieu of live testimony.

Petitioner presented the testimony of four witnesses.

Petitioner offered six exhibits that were accepted as evidence. Petitioner's Exhibit P6 is a deposition in lieu of testimony.

The Transcript was filed on July 9, 2010. The parties timely filed their Proposed Recommended Orders on August 9,

2010.

Except as otherwise noted, reference shall be to Florida

Statutes (2006).

FINDINGS OF FACTS

1. Respondent is the agency responsible for licensing and regulating nursing home facilities under Chapter 400, Part II, Florida Statutes.

2. Petitioner is a nursing home facility in Baker County, Florida. Petitioner is located in the same building as Ed Fraser Memorial Hospital (Ed Fraser). The distance from Petitioner to Ed Fraser's emergency room is approximately 300 feet.

   
   

3. Petitioner and Ed Fraser have separate licenses.

   
   

   However, they are operated by the same parent organization.

   
   

4. At all times material here, Resident E. E. was one of Petitioner's residents. Resident E. E. had a history of psychological problems but did not require psychiatric inpatient care. Resident E. E. was well enough to be a resident at the nursing home under the care of her attending physician and Petitioner's Medical Director, Angelito Tecson, M.D.

5. Resident E. E., at 72 years-of-age, suffered from Alzheimer's and chronic schizophrenia, paranoid type. Her medications included Fosamax, eye drops, Seroquel, Zoloft, Risperdal, and Namenda.

6. Resident E. E. received treatment from a consulting psychiatrist for her psychiatric condition. Her psychiatrist usually visited the nursing home once a month. The psychiatrist lived in Jacksonville.

7. Dr. Tecson is a family practitioner who maintains an office in Baker County, Florida. Because he lives in Jacksonville, Florida, Dr. Tecson usually is not at his office after 5:00 p.m.

8. Around the first of August 2006, Resident E. E. began to exhibit troublesome behaviors that did not respond to redirection or a change in medication. On August 14, 2006, after 5:00 p.m., Resident's E. E.'s escalating behaviors

   
   

   included the following: (a) trying to eat food out of the garbage can; (b) taking her clothes off; (c) taking soiled laundry out of the basket; (d) drinking coffee creamer; and

   (e) hitting Petitioner's Director of Nursing, Phyllis Rhoden, R.N., who was trying to redirect her.

9. Ms. Rhoden knew Resident E. E. was being treated for a urinary tract infection (UTI) and was concerned that the medicine was not controlling the infection. Ms. Rhoden was aware that a UTI can do "really wicked things" to elderly people such as causing mental status changes.

10. Petitioner usually tested for and treated UTIs in the nursing home. However, Ms. Rhoden did not initiate any procedure in the nursing home to determine whether Resident

    E. E. continued to suffer from a UTI.

    
    

11. Instead, Ms. Rhoden directed one her nurses, Samantha Godwin, L.P.N., to call Dr. Tecson on the telephone. Ms. Godwin told Dr. Tecson that Resident E. E. was combative and creating concerns about her own safety and the safety of others.

12. Dr. Tecson gave Ms. Godwin a verbal order to transfer Resident E. E. to Ed Fraser's emergency room for a mental evaluation. On August 14, 2006, at 5:30 p.m., Ms. Godwin wrote and initialed the following physician's order in Resident

    E. E.'s medical chart: "Send to ER for mental eval., V. O.

    
    

    Dr. Tecson." Dr. Tecson initialed the order on August 30, 2006.

    
    

13. Petitioner had a part-time social worker, Rosa Williams, who happened to be at the nursing home. Ms. Williams witnessed Resident E. E.'s behavior. Ms. Rhoden and

    Ms. Williams walked Resident E. E. down the hall to the emergency room. Ms. Williams stayed with Resident E. E. and Ms. Rhoden returned to the nursing home.

14. Petitioner's staff did not follow the procedure set forth in Section 394.463, Florida Statutes, before involuntarily transferring Resident E. E. to the emergency room for a mental evaluation. Petitioner's staff transferred Resident E. E. without a certificate from a designated professional, without an ex-parte order, and/or without law enforcement involvement.

15. The emergency room medical records indicate that Resident E. E.'s major complaint was an "altered mental status." The diagnosis was "decompensated schizophrenia." The emergency room medical records do not refer to any other medical problem being evaluated and/or ruled out.

16. The emergency room doctor called for an emergency screening assessment by an evaluator from the Northeast Florida State Hospital (NEFSH) Community Behavioral Healthcare Services. The evaluation resulted in a disposition plan that called for stabilization and admittance to the least restrictive facility.

17. A deputy sheriff transported Resident E. E. from the emergency room to the NEFSH Receiving Facility on August 14,

    
    

    2006, sometime after 8:30 p.m. She was subsequently admitted to that facility.

18. On August 14, 2006, at 8:40 p.m., Dr. Tecson gave Ms. Godwin another verbal order over the telephone. The order was to transfer Resident E. E. to NEFSH. Dr. Tecson initialed the order in Resident E. E.'s medical chart on August 30, 2006.

19. Resident E. E.'s medical record contains two nursing progress notes for August 14, 2006. The first one states that Resident E. E. was sent to the emergency room for a mental evaluation. The second one states that Resident E. E. was sent to NEFSH for treatment of mental status.

20. Ms. Williams, the social worker, also made the following notation in Resident E. E.'s medical record on August 14, 2006:

    It was reported upon this S.W.'s arrival that resident's behavior is getting progressively worse by the day. On today she attempted to leave the facility and staff tried to re-direct her but she struck the person. She continues to come out of her room nude and when she is not totally nude, she pulls her dress up to show that there is no underwear. She also became aggressive (physically) with the ladies who deliver the [washed] clothes to the nursing home. She wanted to take all of the clothes and began hitting them when they refused to give them to her. She cursed them, which is totally out of character for her. At this point it was felt that resident now needs to be evaluated by the local mental health CSU. The resident has been evaluated by her attending psychiatrist on 8/8/06, but there

    
    

    has been very little improvement. In fact, there has been no improvement and resident's condition continues to get worse. Also, from reviewing her records, the resident appears to have been decompensating since May 2006. In addition to above stated inappropriate behaviors, the resident has been refusing her medication or was observed spitting them out. This S.W. called the local mental health office and requested assistance from the emergency service department by dialing two numbers. A response was not received, but in the message on voice mail it was stated that if someone needed their emergency services they should go to the jail or nearest ER (emergency room of a hospital). This resident was taken to ER at Fraser Hospital, evaluated by doctor on duty, an MH evaluator was called and later responded to the call. It was decided by the MH evaluator that residential treatment was needed. The resident was transported to Northeast Florida State Hospital by the Sheriff Dept. Upon arriving, she was accepted, bathed, and hopefully given something to eat. The resident should remain at NEFSH for at least

    3 days for an evaluation. Hopefully, after being evaluated, she may be able to return back to the nursing home. If not stable in three days, NEFSH should consider long term treatment at their facility. It should be noted that this resident has a long psychiatric history. She resided at NEFSH for four years and G. Pierce Woods for almost eight years. Her first hospitalization occurred at the age of 14. This S.W. will continue to check on resident's status.

    
    

21. In a memorandum dated August 15, 2006, Kevin D. Harris, Petitioner's Administrator, stated as follows:

    Approximately @ 1:50 p.m., I refused the readmission of [Resident E. E.]. This refusal was based on the recommendation of

    
    

    the Medical Director, Dr. Angelito Tecson, the Director of Nursing, Phyllis Rhoden, R.N., and Rosa Williams, Social Worker. [Resident E. E.] was transported here via Century ambulance without a 300B transfer sheet.

    
    

    Prior to this onsite refusal of readmission, the readmission was denied by Phyllis Rhoden, R.N., to NEFSH discharge personnel.

    
    

    The readmission was refused due to the fact that [Resident E. E.] had been Baker Acted on the evening of August 14, 2006, by Ed Fraser Memorial Hospital Emergency Room physician. Her ER visit was precipitated by a mental status change whereby [Resident

    E. E.] was combative and a danger [to] staff, residents and perhaps herself.

    
    

    Readmission would be reconsidered, after appropriate stabilization of [Resident

    E. E.] on a medication protocol that is appropriate for her needs and can be regulated in a nursing home environment.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2009).

23. Respondent has the burden of proving that Petitioner violated the requirements for involuntary examinations set forth in Section 394.463, Florida Statutes. See Beverly Enterprises - Florida v. Agency for Health Care Administration, 745 So. 2d 1133 (Fla. 1st DCA 1999); 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 1979; Agency for Health Care Administration v. Beverly Healthcare Lake Mary, Case No. 01-3143 (Fla. DOAH March 5, 2002); and Edgewater at Waterman Village v. Agency for Health Care Administration, Case No. 02-0698 (Fla.

    DOAH November 20, 2002).

    
    

24. The short title for "The Florida Mental Health Act," Sections 394.451-394.4789, Florida Statutes, is "The Baker Act." See § 394.451, Fla. Stat.

25. Respondent has authority to pursue a sanction against a licensee for non-compliance with the Baker Act.

    See § 400.102, Fla. Stat.

    
    

26. Section 394.463, Florida Statutes, states as follows in pertinent part:

    1. CRITERIA.--A person may be taken to a receiving facility for involuntary examination if there is reason to believe that the person has a mental illness and because of his or her mental illness:

       
       

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       2. The person is unable to determine for himself or herself whether examination is necessary; and

       
       

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       2. There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or

       
       

       herself or others in the near future as evidenced by recent behavior.

    2. INVOLUNTARY EXAMINATION.--

       1. An involuntary examination may be initiated by any one of the following means:

          1. A court may enter an ex parte order stating that a person appears to meet the criteria for involuntary examination, giving the findings on which that conclusion is based. . . .

          2. A law enforcement officer shall take a person who appears to meet the criteria for involuntary examination into custody and deliver the person or have him or her delivered to the nearest receiving facility for examination. . . .

          3. A physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and family therapist, or clinical social worker may execute a certificate stating that he or she has examined a person within the preceding 48 hours and finds that the person appears to meet the criteria for involuntary examination and stating the observation upon which that conclusion is based. . . .

       2. A person shall not be removed from any program or residential placement licensed under chapter 400 or chapter 429 and transported to a receiving facility for involuntary examination unless an ex parte order, a professional certificate, or a law enforcement officer's report is first prepared. If the condition of the person is such that preparation of a law enforcement officer's report is not practicable before removal, the report shall be completed as soon as possible after removal, but in any case before the person is transported to a receiving facility.

       
       

27. In this case, Resident E. E.'s doctor and Petitioner's staff determined that Resident E. E. needed an involuntary mental evaluation or examination and transported her to the

    
    

    emergency room for that purpose. Petitioner's staff failed to follow the requirements of Section 394.463(2), Florida Statutes, when it removed Resident E. E. from her residence in the nursing home to the emergency room without a certificate from a designated professional, without an ex-parte order, or without law enforcement involvement.

28. Petitioner argues that Petitioner's nurses are required to follow physician orders. However, with proper training regarding the Baker Act, Petitioner's staff could have followed Dr. Tecson's verbal order and complied with the involuntary examination procedures at the same time.

29. Petitioner asserts that Resident E. E. needed medical clearance relative to a UTI before being transported to NEFSH, making the emergency room stopover necessary. This argument is contrary to the most persuasive evidence, including but not limited to Resident E. E.'s medical record, indicating that

    Dr. Tecson's order related solely to the need for an involuntary mental evaluation.

30. Respondent has met its burden of proof. To find otherwise under the facts of this case would be inconsistent with the Baker Act procedures. Those procedures require a certificate from a designated professional, an ex-parte order, or law enforcement involvement before a resident is removed from

a nursing home to ensure that the resident meets the criteria for an involuntary examination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Agency for Health Care Administration enter a final order finding that Petitioner violated Section 394.463(2), Florida Statutes, and confirming the imposition of the class- three citation.

DONE AND ENTERED this 31st day of August, 2010, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2010.

COPIES FURNISHED:

Laura Beth Faragasso, Esquire Henry, Buchanan, Hudson,

Suber & Carter, P.A. Post Office Box 14079

Tallahassee, Florida 32317

Richard Joseph Saliba, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Building 3, Mail Station 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Justin Senior, General Counsel

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Thomas W. Arnold, Secretary

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 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.

Docket for Case No: 10-001119

Orders for Case No: 10-001119