STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

SHERWOOD HOUSE, INC.,

Respondent.

/

Case No. 16-4197

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on November 10, 2016, in Viera, Florida, before J. D. Parrish, a designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Thomas J. Walsh, II, Esquire

Agency for Health Care Administration Suite 330

525 Mirror Lake Drive North St. Petersburg, Florida 33701

For Respondent: Charles Georges, Qualified Representative Sherwood House, Inc.

830 Cardinal Road

Cocoa, Florida 32926 STATEMENT OF THE ISSUES

The issues are whether Respondent, Sherwood House, Inc., failed to maintain the standards required of assisted living facilities; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 21, 2016, Petitioner, Agency for Health Care Administration (ACHA or Petitioner), issued an Administrative Complaint against Respondent, Sherwood House, Inc. (Sherwood or Respondent), that alleged the facility had failed to comply with rules pertaining to the operation of assisted living homes.

More specific, Petitioner alleged Respondent had failed to ensure the provision of care, services, and supervision appropriate to the needs of a resident. Petitioner claimed Respondent had failed to recognize, intervene to provide care for and services to, and appropriately document the significant changes of a resident’s condition to that resident’s detriment. Over the course of the resident’s stay with Respondent, Sherwood allegedly had failed to document the resident’s pressure ulcers, the resident’s refusal to eat accompanied by significant weight loss, and the resident’s refusal to follow appropriate hygiene practices. Additionally, Respondent allegedly failed to maintain documents regarding the resident’s medications, the deteriorating condition of the resident, and the potential threats to the resident’s physical health, emotional health, and safety or security. Petitioner sought to impose an administrative fine regarding the failures and to impose a survey fee incidental to the inspections of the facility.

Respondent timely opposed the allegations of the complaint and requested an administrative hearing. The case was forwarded to the Division of Administrative Hearings on July 25, 2016.

At the hearing, Petitioner presented the testimony of Jamal Divens, a caretaker at Respondent’s assisted living facility; Mary Moore, also a caretaker at the facility; Lorienda Crawford, a health facility evaluator for the Agency; and Michelle Dillelay, a surveyor supervisor employed by the Agency.

Petitioner’s Exhibits A through D were admitted into evidence by stipulation of the parties.

A Transcript of the proceedings was filed on November 29, 2016. The parties filed proposed orders that have been considered in the preparation of this Order. Petitioner’s request to strike the untimely proposal from Respondent is denied. References to information not a part of the evidential record in this case have not formed the basis for a finding of fact or conclusion of law.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the responsibility of regulating licensed assisted living facilities to assure that they conform to the laws, rules, and regulations pertaining to such homes.

   
   

2. At all times material to the allegations of this case, Respondent was a licensed assisted living facility doing business in Brevard County, Florida.

3. All allegations in this case pertain to one individual, a resident at Respondent’s home, who is identified in the record as Client 7. Client 7 may also be referred to as “the resident.” Since all claims relate to the same individual, it should be presumed all findings also relate to that person.

4. Client 7 was admitted to Respondent’s facility on October 1, 2015. Upon admission to Respondent’s home, Client 7 did not have a medications list and medications were not delivered to the home. Although the resident was presented by his daughter to the home, the client was left without identification or physician information. The admission paperwork denoted relevant information including diagnoses, needs for assistance or care, and a medications list.

5. Client 7 was diagnosed as “dementia and altered mental status.” Although the admission form clearly referenced medications, a medications list was not made a part of the resident’s record and medications were not provided to Respondent for Client 7’s treatment.

6. Although Respondent’s staff asserted they attempted to obtain information from Client 7’s daughter and a hospital that had treated the resident, such communications are not clearly

   
   

   documented in the records. Moreover, Respondent did not provide a credible explanation for why the facility would have accepted a resident without proper identification, medications, and pertinent physician information.

7. Admissions records are to explain the resident’s care and service needs, as well as the frequency services are to be provided to meet a client’s needs. In the case of Client 7, the plan for care and services was not maintained as part of the resident’s record.

8. Upon admission to the facility, Client 7 exhibited defiant and combative behaviors. Client 7 refused to follow hygiene protocols and steadfastly resisted bathing, toileting, and other daily living activities, as that term is defined by rule. Client 7 urinated and defecated without control. Whether such behavior was due to incontinence or defiance is not known. Regardless, such behaviors are not acceptable and resulted in the usage of adult diapers, which the resident also resisted.

9. Client 7’s cognitive function appeared to be limited as he did not know or use the names of staff at Respondent’s home and never meaningfully communicated verbally with the staff. In fact, Client 7 was resistant to staff’s efforts to incorporate Client 7 into the daily routines followed by other residents at the home. The resident’s primary expressive communication was a desire to return to his home. To that end, Client 7 successfully

   
   

   eloped from Respondent’s facility on or about October 25, 2015. Client 7 was located and returned to the facility without injury or further incident.

10. Client 7 remained at Respondent’s facility but continued to resist daily living activities, began to refuse food and liquids, and lost mobility to the point where he refused to get out of bed. His medical and mental health declined substantially. Upon admission to the facility, Client 7 had been able to ambulate around the home. The longer he remained at the facility, the less he was willing to get out of bed. Staff at the facility noted Client 7’s behavior and, on or about

    November 8, 2015, obtained an appointment for Client 7 with the Veterans’ Administration (VA) medical facility. Client 7’s appointment was to be December 29, 2015.

11. The resident continued to spit and defecate on the floor. By November 26, 2015, Client 7 was not walking and continued to refuse food and liquids.

12. Eventually, on November 27, 2015, staff from the facility called 911, and Client 7 was transported to the hospital where he later expired.

13. Upon admission to the hospital, it was determined that Client 7 had a stage 2 pressure ulcer, had sloughing of the skin on his buttocks, had blood in the stool of his diaper, had lost approximately 50 pounds, and was unable to speak. All of these

    
    

    conditions developed during the month of November 2015. None of the conditions were fully documented by Respondent’s records.

14. On or about February 8, 2016, in response to a complaint regarding the care and services provided to Client 7, Petitioner initiated a survey of Respondent’s operation regarding the treatment of the resident. A survey is the term used by Petitioner to review the records maintained by a facility to verify compliance with all rules and regulations pertinent to the care and treatment of residents. Rules pertaining to assisted living facilities regulate the types of records a licensed home must maintain regarding its residents.

15. In this case, at all times pertinent to the allegations, Respondent employed two caregivers to reside at the licensed facility with the clients served at the home. Each caregiver stayed on site for a 24-hour period and rotated with the other caregiver every three to four days. Thus, one would be responsible for documenting care and services for a three- or four-day period, then the other caregiver would come on duty and take over the supervision and care of the clients and assume responsibility for the residents.

16. After reviewing the records maintained by Respondent for Client 7, the Agency determined Sherwood had not met the minimum standards for care and services. Respondent had failed to document the significant changes in Client 7’s behavior.

    
    

    Respondent had failed to timely notify a health care provider regarding Client 7’s significant changes. Finally, Respondent had failed to notify and demand that a responsible party be required to deal with Client 7’s progressive deterioration.

17. Client 7 was not a hospice admission to Respondent’s facility.

18. Client 7 was allowed to worsen without timely medical intervention.

19. Respondent’s omissions in care constituted a direct threat to Client 7’s physical safety. The lack of nutrition, hydration, and mobility all contributed to Client 7’s decline. Client 7 did not present with sufficient mental acuity to decline care and services. Client 7 did not have a medical surrogate who declined care and services on his behalf.

20. Respondent knew or should have known that the resident’s cognitive status limited his ability to make appropriate decisions. Impairment was demonstrated by the resident’s behaviors.

21. Respondent knew or should have known that Client 7’s refusal of food and liquids would adversely impact his health.

22. Respondent knew or should have known that Client 7’s refusal to get out of bed could lead to dangerous skin conditions.

    
    

23. Instead of taking steps to timely obtain medical care for the resident, Respondent made an appointment with the VA too far out to do the resident any good; tried to contact the resident’s relative, who failed to take any action to protect Client 7’s interests; and only after the resident “did not look too good,” called for emergency assistance.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. § 120.57(1), Fla. Stat. (2015). All references to statutes will be to this version of the Florida Statutes.

25. Section 429.26, Florida Statutes, provides, in part:

    
    

    Appropriateness of placements; examinations of residents.—

    
    

    1. The owner or administrator of a facility is responsible for determining the appropriateness of admission of an individual to the facility and for determining the continued appropriateness of residence of an individual in the facility. A determination shall be based upon an assessment of the strengths, needs, and preferences of the resident, the care and services offered or arranged for by the facility in accordance with facility policy, and any limitations in law or rule related to admission criteria or continued residency for the type of license held by the facility under this part. . . .

       
       

       * * *

       
       

       (4) If possible, each resident shall have been examined by a licensed physician, a

       
       

       licensed physician assistant, or a licensed nurse practitioner within 60 days before admission to the facility. The signed and completed medical examination report shall be submitted to the owner or administrator of the facility who shall use the information contained therein to assist in the determination of the appropriateness of the resident’s admission and continued stay in the facility. The medical examination report shall become a permanent part of the record of the resident at the facility and shall be made available to the agency during inspection or upon request. An assessment that has been completed through the Comprehensive Assessment and Review for Long-Term Care Services (CARES) Program fulfills the requirements for a medical examination under this subsection and

       s. 429.07(3)(b)6.

       
       

       * * *

       
       

       (7) The facility must notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment. The notification must occur within 30 days after the acknowledgment of such signs by facility staff. If an underlying condition is determined to exist, the facility shall arrange, with the appropriate health care provider, the necessary care and services to treat the condition.

       
       

26. Petitioner bears the burden of proof in this matter to establish Respondent violated the standard alleged in the Administrative Complaint. Petitioner must prove the allegations by clear and convincing evidence. 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). The clear and convincing standard requires evidence that is credible, facts must be distinctly remembered, testimony must be precise and explicit, and witnesses must be clear and unambiguous. See In re

    Davey, 645 So. 2d 398 (Fla. 1994). To meet this burden the evidence must be of such weight that it produces in the mind of the trier-of-fact a firm belief as to the truth of the allegations sought to be established. See Slomowitz v. Walker,

    429 So. 2d 797 (Fla. 4th DCA 1983). When evidence is ambiguous, this standard is not met. Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986 (Fla. 1st DCA 1991). In this

    case, Petitioner has met the burden.

    
    

27. Florida Administrative Code Rule 58A-5.0182 (effective since 2014) sets forth the resident care standards that must be observed in a licensed assisted living facility. The rule provides, in pertinent part:

    An assisted living facility must provide care and services appropriate to the needs of residents accepted for admission to the facility.

    
    

    1. SUPERVISION. Facilities must offer personal supervision as appropriate for each resident, including the following:

       
       

       1. Monitoring of the quantity and quality of resident diets in accordance with Rule 58A-5.020, F.A.C.

          
          

       2. Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional well-being of the resident.

          
          

       3. Maintaining a general awareness of the resident’s whereabouts. The resident may travel independently in the community.

          
          

       4. Contacting the resident’s health care provider and other appropriate party such as the resident’s family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident’s family, guardian, health care surrogate, or case manager if the resident is discharged or moves out.

          
          

       5. Maintaining a written record, updated as needed, of any significant changes, any illnesses that resulted in medical attention, changes in the method of medication administration, or other changes that resulted in the provision of additional services.

          
          

28. In this case, the Agency has demonstrated, by clear and convincing evidence, Respondent failed to comply with the standards of care for Client 7. Petitioner has established that Respondent committed a Class II violation in the lack of appropriate care for Client 7. Respondent’s acts and omissions directly threatened the physical health and safety of the resident. Accordingly, Respondent is subject to an appropriate administrative fine. An administrative fine for a Class II violation may range from an amount not less than $1,000.00 to an amount not to exceed $5,000.00. See § 429.19(2), Fla. Stat.

    
    

29. Section 429.19 authorizes a survey fee when it is determined an investigated complaint results in an administrative fine. In this case, Petitioner seeks a survey fee in the amount of $394.73.

30. Having considered the matter in its entirety, the record does not justify the admission of Client 7 to Respondent’s facility. Client 7 was impaired. He could not knowingly refuse care. He could not knowingly refuse food and liquids. His presenting conditions mandated a higher level of care than was provided. Respondent admitted the resident without the minimum information needed to make a meaningful assessment of the resident’s service needs. Thereafter, instead of seeking an alternate placement for the resident, Respondent allowed the resident to elope, refuse food and liquids, develop skin issues, and resist hygiene measures necessary for healthy daily living. Client 7 grew weaker by the day until his condition was so compromised, he did not recover. Without concluding Respondent’s omissions resulted in the resident’s demise, it is clear that allowing a client to waste 50 pounds, without seeking immediate medical care, was unconscionable. Therefore, the violations in this cause justify a significant administrative fine.

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 Respondent violated the standards of care for an assisted living facility, and imposing an administrative fine in the amount of $5,000.00 together with a survey fee in the amount of $394.73.

DONE AND ENTERED this 2nd day of March, 2017, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 2nd day of March, 2017.

COPIES FURNISHED:

Charles Georges Qualified Representative Sherwood House, Inc.

830 Cardinal Road

Cocoa, Florida 32926 (eServed)

Thomas J. Walsh, II, Esquire

Agency for Health Care Administration Suite 330

525 Mirror Lake Drive North St. Petersburg, Florida 33701 (eServed)

Justin Senior, Secretary

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Richard J. Shoop, Agency Clerk

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

Tallahassee, Florida 32308 (eServed)

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: 16-004197

Orders for Case No: 16-004197