The Issue Whether the applicant falsified her application for licensure as an employee-guard by failing to report her arrest and conviction of assault and battery contrary to provisions of Section 493.14(1)(a), Florida Statutes.
Findings Of Fact Susan Jones is an applicant for licensure as an employee-guard. On her application, Jones responded to question 13 on the application regarding whether she had ever been arrested, in the negative. She had been arrested in 1973 for assault and battery. She was subsequently convicted of assault and battery and fined Fifty ($50) Dollars. Jones has been employed since 1978 as a security agent, checking carry- on baggage at the Ft. Lauderdale airports. She is employed by Lincoln Associates. Subsequent to her employment it became necessary for her to obtain licensure as an employee-guard. Her apparent motivation in not revealing her earlier arrest for assault and battery was its adverse affect on her continued employment in the position which she had held for some time and the fact that she had been told by friends that she did not have to report misdemeanors which had occurred over five years prior to her application.
Recommendation Based upon the foregoing findings of fact, conclusions of law, and facts in mitigation, the Hearing Officer recommends that the licensure of Susan Jones as an employee-guard be issued by the Division of Licensing. DONE and ORDERED this 28th day of November, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1978. COPIES FURNISHED: Susan Jones 2601 South West 9th Street Ft. Lauderdale, Florida 33312 Gerald Curington, Esquire Secretary of State's Office Division of Licensing The Capitol Tallahassee, Florida 32304 Marvin Sirotowitz, Bureau Chief Division of Licensing The Capitol Tallahassee, Florida 32304
The Issue The issue in the case is whether sufficient deficiencies existed during the March 3, 1999, inspection of the Lee Convalescent Center by the Agency for Health Care Administration to warrant licensing the facility with a "conditional" rating.
Findings Of Fact Lee Convalescent Center (Center) is a nursing home located in Fort Myers, Florida, and licensed by the Agency for Health Care Administration (AHCA). On March 3, 1999, AHCA conducted an inspection of the Center. At the time of the inspection, the Center had a license rating of "Superior." During the inspection, AHCA identified several alleged deficiencies in the Center's operation. The alleged deficiencies are identified in the inspection report and referenced by "tag" numbers. The inspection report identifies "Tag F241" as a failure to "promote care for 2 of 21 sampled residents and 1 random observation in a manner that maintains resident dignity." Tag F241 is identified in the inspection report as a violation of the regulatory standard set forth at 42 CFR S.483.15(a). Although the inspection report indicates that there was a total of three incidents underlying the alleged failure, only one complaint by one resident was addressed during the hearing. During the inspection, the resident apparently complained to inspectors that her hair was not being washed to her satisfaction. She allegedly complained that it was unclean and that she had dandruff. Inspectors testified that the resident complained that the facility employee who shampooed her hair wore rubber gloves when doing so, and that the gloves pulled the hair and caused her scalp to hurt. The resident told inspectors that she had complained about the situation to the appropriate person at the facility, but that nothing had changed. According to the facility policy as discussed during the hearing, staff members assess the cleanliness of the hair and condition of the scalp prior to shampooing. Shampoos are offered to residents twice weekly. The policy provides that the staff may wear gloves "when appropriate." Although there were no open sores on the resident's head, the resident had dandruff. The assistant who shampooed the resident's hair wore surgical latex gloves. Although the resident who complained of the shampoo was described as "not shy" about complaining, the director of nursing for the facility had not been told of the complaint prior to the resident's discussion with the AHCA inspector. The resident is a 44-year-old quadriplegic, with a history of alcohol dependency. She is fully alert. Facility records suggest the resident is inclined towards manipulation of staff members and attempts to create conflict between persons at the facility. The inspection report notes that even after the resident's hair was shampooed she continued to state that she had excessive dandruff and "felt unclean." The evidence fails to establish that the wearing of gloves to shampoo the resident's hair was a violation of facility policy, or of any state or federal regulation. The evidence fails to establish that the alleged violation set forth at Tag F241 warranted amending the facilities licensure rating to "conditional." The inspection report identifies "Tag F314" as an allegation that two residents "developed avoidable pressure sores." Tag F314 is identified in the inspection report as a violation of the regulatory standard set forth at 42 CFR S.483.25(c). There is no credible evidence, medical or otherwise, that the residents' wounds were "avoidable." It should be noted that none of the AHCA inspectors actually observed the "pressure sores." The sole indication of the "pressure sores" on the residents comes from the facility's records. At hearing, the two residents were identified as Resident 13 and Resident 17. According to the inspection report, Resident 13 suffered from Alzheimer's disease and peripheral vascular disease. She was completely dependent on the facility staff for all "activities of daily living." Shortly after her admission on December 1, 1998, Resident 13 was identified as being at risk for development of pressure sores due to incontinence and inactivity. Persons suffering from peripheral vascular disease are susceptible to development of pressure sores in the extremities of the body. The facility's records establish that employees were conscious of the resident's susceptibility. The facility provided special chairs and mattresses to minimize the potential development for development of pressure sores. The patient was moved frequently, and incontinence care was provided. Despite the facility's efforts, at some point the resident developed a continuing skin rash. As of February 15, 1999, the "nurses notes" state that the certified nursing assistant indicated Resident 13 had an "open area" on her buttocks. A skin assessment dated February 21, 1999, notes the "open area on buttocks" of the resident. The "nurses notes" of February 26, 1999, state that facility personnel were changing the dressing on the "open area in gluteal fold" during each shift. Another "nurses note" dated March 1, 1999, records the "open area on gluteal fold" of Resident 13. The facility's nutritionist noted in the dietary progress note on February 16, 1999, that the resident should receive a multivitamin and additional Vitamin C. In a dietary progress note dated February 19, 1999, the nutritionist again recommended the vitamin supplements and a protein supplement. The recommendations of the nutritionist were not forwarded to the attending physician until March 2, 1999. There is no credible evidence that the nutritionist's vitamin regimen, whatever the impact on the resident's general health, would have caused the open area to heal. There is no medical evidence that the facility's delay in implementing the nutritionist's recommendations caused any effect at all on the resident's condition. The AHCA inspection report also alleges that from 9:00 a.m. until 2:00 p.m. on the date of the survey Resident 13 remained in her wheelchair. The evidence fails to establish the allegation. There is no evidence that an AHCA inspector paid such close attention to the resident as to credibly testify that the resident remained unmoved and unattended in the chair during the cited period. Resident 17 was admitted to the facility on December 10, 1998, and suffers from diabetes, osteoarthrosis, and hypertension. She also suffered from incontinence. As of January 4, 1999, the "nurses notes" noted a "small" Stage II wound on the resident's right buttock. On January 31, 1999, the attending physician recommended Vitamin C and Zinc supplements, and the application of "Replicare" to the wound. On February 15, 1999, a care plan was developed to address the pressure wound. The Center asserts that Resident 17's skin problem was not a "pressure sore" but instead developed from the resident's scratching of a rash resulting from a yeast infection. The greater weight of the evidence fails to support the assertion. The facility asserts that the skin condition was a "stage II" rash. There is no credible evidence that rashes are commonly identified and classified by "stage" description. There was extensive disagreement at the hearing on whether the facility's representatives acknowledged the existence of the allegedly "avoidable pressure sores" during a post-inspection meeting with ACHA representatives. The evidence is insufficient to establish that such admissions by the facility occurred.
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 establishing a "standard" rating for the Lee Convalescent Center. DONE AND ENTERED this 15th day of December, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1999. COPIES FURNISHED: Karel L. Baarslag, Esquire Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Fort Myers, Florida 33901 Donna H. Stinson, Esquire Broad and Cassel Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue In DOAH Case No. 02-1421, addressing a survey concluded on October 23, 2001, the issue is whether Respondent Delta Health Group, doing business as Rosewood Manor (Rosewood), violated Rule 59A-4.1288, Florida Administrative Code and should be assessed a civil penalty and costs. In DOAH Case Nos. 02-1905 and 02-4040, addressing the survey of January 22 through January 25, 2002, the issue is also whether Rosewood violated Rule 59A-4.1288, Florida Administrative Code. In DOAH Case No. 02-1905, the issue is whether a conditional license should issue. In DOAH Case No. 02-4040, the issue is whether civil penalties and costs should be assessed.
Findings Of Fact AHCA is the state agency responsible for licensure and enforcement of all applicable statutes and rules governing nursing homes in Florida pursuant to Sections 400.021 and 400.23(7), Florida Statutes. Rosewood is a skilled nursing facility located at 3107 North H Street, Pensacola, Florida, holding license no. SNF1482096, which was issued by AHCA. Although not found in any rule, an unofficial standard in the industry requires that a resident be observed every two hours. This standard, when complied, is usually not documented. On September 11, 2001, AHCA conducted a survey of Rosewood's skilled nursing facility. During the survey AHCA concluded that the facility failed to ensure that a resident's environment remained as free as possible of accident hazards. Specifically, the AHCA surveyors determined that the door to a bio-hazardous storage area had been, either purposely or inadvertently, propped open instead of being locked, and as a result, a resident entered the area, and injured himself with used hypodermic needles stored therein. Subsequently, on December 6, 2001, AHCA filed a Notice of Intent to Assign Conditional Licensure Status, based on the September 11, 2001, survey. The Notice was dated November 29, 2001. The Notice had attached to it an Election of Rights for Notice of Intent. Prior to December 10, 2001, the Election of Rights for Notice of Intent was returned to AHCA indicating that the factual allegations contained in the Notice of Intent to Assign Conditional Licensure Status were not disputed. On January 30, 2002, ACHA filed its Final Order. This Final Order incorporated the Notice of Intent dated November 29, 2001, and recited, that by not disputing the facts alleged, Rosewood admitted the allegations of fact. However, Rosewood did not admit the facts alleged. Rosewood merely stated that it would not contest the facts. The Survey of September 11, 2001. Resident 1 suffered from dementia, congestive heart failure, and epilepsy. He had a history of psychiatric problems. He was known by the staff to engage in aggressive behavior. Resident 1 was a "wanderer," which, in nursing home jargon, is a person who moves about randomly and who must constantly be watched. On May 24, 2001, Resident 1 attempted to get in another resident's bed and when a staff member attempted to prevent this, he swung at her but missed. On the morning of August 28, 2001, Resident 1 wandered in the biohazard storage room, which was unlocked and unguarded. Resident 1 succeeded in opening a Sharp's container which was used for the storage of used hypodermic needles. His handling of these needles resulted in numerous puncture wounds. These wounds could result in Resident 1 contracting a variety of undesirable diseases. Because he died soon after of other causes it was not determined if he contracted any diseases as a result of the needle sticks. This incident resulted from Rosewood's failure to prevent Resident 1 from wandering and from Rosewood's failure to ensure that harm did not befall their resident. The Survey of October 23, 2001. Resident 1A Resident 1A was admitted to Rosewood on May 31, 2001. At times pertinent he was 87 years of age. He suffered from a urinary tract infection, cardiomyopathy, congestive heart failure, hypertension, degenerative joint diseases, and a past history of alcoholism. He was also a wanderer. On September 7, 2001, this resident engaged in combat with his roommate. Resident 1A was the loser in this contest. When found by staff, his fellow combatant had him in a headlock and was hitting him with a metal bar. The resident suffered facial lacerations as a result. The facility responded to this event by moving Resident 1A into another room. Resident 1A's care plan of September 10, 2001, had a goal which stated that, "Resident will have no further incident of physical abuse toward another resident by next care plan review." On October 4, 2001, the resident entered the room of a female resident and physically abused her. This resulted in this resident's being beaten by the resident with the help of another. Resident 1A suffered cuts and bruises from this encounter. As a result, Rosewood implemented a plan on October 4, 2001, which required that Resident 1A be observed every 15 minutes. Prior to that time he was observed at least every two hours, which is the standard to which Rosewood aspires. Subsequent to this altercation Resident 1A was evaluated by a psychiatrist. The psychiatrist did not recommend additional observation. On October 5, 2001, early in the morning, the resident was physically aggressive to staff and backed a wheelchair into another resident. The other resident struck Resident 1A twice in response. Later in the day, the resident also attempted to touch a female nurse's breasts and to touch the buttocks of a female nursing assistant. The evening of October 21, 2001, Resident 1A was found holding another resident by the collar while another was hitting the resident with his fist. Resident 1A suffered skin tears as a result. There was no documentation that Resident 1A was or was not observed every 15 minutes as required by the care plan of October 4, 2001. He was provided with drugs on October 5, 2001, and October 17, 2001, in an attempt to ameliorate his aggressive behavior; however, the pharmaceuticals provided were unlikely to modify his behavior until four to six weeks after ingestion. On October 31, 2001, Resident 1A was diagnosed by a psychiatrist as having dementia. He was discharged on that date because he was determined to be a danger to others. He died in November 2001. Resident 5 Resident 5 was admitted to Rosewood August 15, 1998. Resident 5 suffered from atrial fibrillation, cardiovascular accident, and pneumonia, among other maladies. Resident 5 was at high risk for accidents. Specifically, he was at risk from falling. In his admissions history dated August 15, 1998, it was noted by Dr. Michael Dupuis that, "If he attempts to stand, he falls." Indeed, the record reveals dozens of falls which occurred long before the survey of October 23, 2001. In response to Resident 5's propensity to fall, Rosewood tried self-opening seat belts while in his wheelchair, placement in a low bed, instituted a two-hour toileting schedule, and attempted to increase the resident's "safety awareness." Rosewood prepared a "Rehabilitation Department Screen" on June 8, 2001, to address the risk. This document indicated that the resident needed assistance with most activities. In the evening of July 28, 2001, Resident 5 was found on the floor of his room. It was believed that he fell when trying to self-transfer from his bed to his wheelchair. He suffered no apparent injury. On August 14, 2001, Resident 5 was found on the floor in the bathroom. He stated that he was trying to get into his wheelchair. He was not injured. On August 29, 2001, Resident 5 was found lying on his side on the floor in a bathroom because he had fallen. He received two small skin tears in the course of this event. On September 12, 2001, Resident 5 was found on the floor holding onto his bed rails. He was on the floor because he had fallen. He told the nurse that he fell while trying to get in bed. He did not suffer any injury during this event. On October 5, 2001, Resident 5 was found lying on the floor in a puddle of blood. He had fallen from his wheelchair. On October 7, 2001, Resident 5 fell in the bathroom while trying to get on the toilet. On October 8, 2001, Resident 5 fell out of his wheelchair and was found by nursing staff lying on the floor in a puddle of blood. This event required a trip to a hospital emergency room. He received three stitches on his forehead and suffered a skin tear on his lower left forearm. On October 14, 2001, Resident 5 was discovered by a nurse to be crawling on the floor. He denied falling and stated that he was just trying to get back in his wheelchair. On October 20, 2001, Resident 5 fell out of his wheelchair. Resident 5's care plan dated September 19, 2001, noted a history of falls and injury to himself and defined as a goal to prevent fall with no report of injury or incidents due to falling by the next review date. Methods to be used in preventing falls included assistance with all transfers, verbally cuing resident not to stand or transfer without assistance, ensurance that a call light and frequently used items were in reach, the provision of frequent reminders, and ensurance that his living areas were kept clean and free from clutter. Rosewood implemented a plan to encourage the resident to ask for assistance when transferring. Subsequent to the June 8, 2001, evaluation, and the September 19, 2001, care plan, which called for a number of interventions, as noted above, Resident 5 continued to experience falls. Resident 5's feisty personality and determination to transfer himself without assistance made it difficult for the facility to guarantee that he did not experience falls. It was noted by Nurse Steele that a care plan requiring one-on-one supervision is not required by AHCA. Nurse Steele, however, opined that perhaps one-on-one supervision would be the only practice which would guarantee that the resident would experience no falls. The Survey of January 22-25, 2002. Resident 12 Resident 12 suffered from osteoporosis, dementia, hyperthyroidism, transient ishemic attacks, urinary tract infection, urinary incontinence, anemia, and hypoglycemia, among other things. Resident 12 was receiving nutrition through a tube so it was necessary to elevate the head of her bed to prevent pneumonia or aspiration. Resident 12, at times pertinent, was immobile and was dependent on facility staff to accomplish all of her transfers and all activities of daily living including turning and repositioning. As evidenced by numerous observations recorded on the "Braden Scale for Predicting Pressure Sore Risk," Resident 12 was at risk for developing pressure sores. Resident 12 was observed by the facility with a pressure sore on the coccyx on December 21, 2001. A care plan had been created on October 12, 2001, providing that she was to be turned every two hours, and was to be provided with a pressure reduction mattress, and was to be kept clean and dry, among other actions. On December 24, 2001, it was noted in a "Data Collection Tool," that the resident's coccyx area was healed. On January 10, 2002, it was noted in Resident 12's care plan that the sore was fully healed. During the January 2002 survey, Nurse Brown on one occasion observed a member of the facility's staff change a dressing over the resident's coccyx, observed the area, and determined that the resident had a pressure sore. A pressure sore is a wound, usually over a bony area, such as the coccyx, which is caused by the weight of the body compressing flesh between the bony area and a bed or chair. Depending on the severity of the sore, pressure sores require a substantial period of time to heal. Pressure sores are graded as Stages I, II, III, or IV, with Stage IV being the most severe. Nurse Brown evaluated Resident 12 as having a Stage II pressure sore during the survey. Nurse Brown observed Resident 12 on two occasions on January 22, 2002; on four occasions on January 23, 2002; on two occasions on January 24, 2002; and on four occasions on January 25, 2002. On each of these occasions Resident 12 was lying on her back with her head elevated. She also observed the resident on several occasions sitting in a wheelchair. A wheelchair does not cause pressure on the coccyx. A "Data Collection Tool" with an assessment date of January 18, 2002, indicated that on January 20, 2002, that there was present on Resident 12, a "coccyx split .25 cm superficial open area, left buttocks 2 cm dark gray rough area." On January 21, 2002, the "tool" noted, "left buttocks 2 cm open area darkened, coccyx split .25 cm remains." A "tool" dated January 25, 2002, noted, "open area on coccyx 2 cm." A "tool" dated February 1, 2002, noted "red area on buttocks" as did a "tool" dated February 8, 2002. A "tool" dated February 15, 2002, noted, "excoriation on buttocks" and on February 22, 2002, the notation was "red area on buttocks." A "Data Collection Tool" dated March 1, 2002, noted, "No open areas." There is nothing in the records maintained by the facility which indicate that subsequent to the healing of the pressure sore on January 10, 2002, another pressure sore developed on Resident 12's coccyx. Nurse Brown was an expert on pressure sores and she saw the area on the coccyx and determined it was a Stage II pressure sore. Thomas Hulsey, also a nurse and also an expert in nursing, observed the wound and concluded that it was merely a skin split or excoriation likely caused by the resident's urinary incontinence. He also observed that after a short passage of time the wound disappeared, which is inconsistent with a pressure sore. Considering the evidence as a whole, it is determined that the redness described subsequent to January 20, 2002, was something other than a pressure sore. The absence of a pressure sore tends, moreover, to indicate that what Nurse Brown observed was not indicative of the general care Resident 12 was typically receiving. Resident 10 Resident 10, a woman 64 years of age, suffered from cardiovascular accident, dysphasia, decubitus ulcers, urinary tract infections, sclera derma, and seizures. She was unable to move any part of her body except for her left arm. Two to three caregivers were required to accomplish transfers. On December 16, 2001, at about 9:45 in the morning, Lula Andrews, a certified nursing assistant, reported finding Resident 10 lying on her side or back on the floor of her room. At 9:10 a.m. Resident 10 had been seen in her bed so she could have been residing on the floor for as long as 35 minutes. Ms. Andrews and two other certified nursing assistants put her back in her bed. Resident 10 weighed about 150 pounds. Ms. Andrews inquired of Resident 10 as to how she came to be resting on the floor and she replied she had, "blackened out." Resident 10 did not receive injuries in connection with this event. The bed was three to four feet above the floor. Ms. Andrews was suspended during an investigation of this incident. Based on the evidence of record it could be deduced that Resident 10 fell from her bed or it could be deduced that Ms. Andrews attempted to transfer Resident 10 without assistance with the result that Resident 10 was dropped or deposited on the floor due to Ms. Andrews' inability to cope with Resident 10's bulk. The evidence of record fails to provide a basis for resolving this question. Neither scenario demands a finding that there was a failure to provide adequate supervision. Resident 16 Resident 16 had a diagnosis of schizophrenia. She also had a seizure disorder, osteoarthritis, and hypothyroidism. She had a care plan addressing her potential to suffer falls. On May 4, 2001, Resident 16 had a grand mal seizure while sitting on a piano stool. The 72-hour report generated by this event noted that she was not injured and refused all medications. On September 29, 2001, Resident 16 had a seizure while sitting on a piano bench. She was playing the piano prior to suffering the seizure. As a result of the seizure she fell backward and bumped her head. She denied experiencing pain from this event. On October 3, 2001, Resident 16 was in the visitor's bathroom, alone, washing her hands. She was upright before the lavatory and when she attempted to sit down in her wheelchair she did not notice that it was not directly behind her. Therefore she missed the seat of the wheelchair and landed on the floor. She sustained no injuries. Nurse Brown opined that had Resident 16 been supervised properly this fall would not have occurred. On December 17, 2001, Resident 16 was sitting on a piano bench when it appeared that she was fainting. One of the staff prevented her from actually falling over. The resident insisted that she was fine. On January 18, 2002, a facility staff person saw Resident 16 about to fall forward from her wheelchair and attempted to catch her before she reached the floor. The staff member was unsuccessful and the resident struck her head on the floor, which resulted in a four-centimeter by four-centimeter bump on her head. Resident 16's care plan required that facility staff closely supervise the resident. Although not an issue involving supervision, it is noted that the facility failed to ensure that she received adequate doses, and properly prepared doses of her anti-seizure medicine. Resident 20 Resident 20, during times pertinent, was a man of 96 years of age. He had a history of seizure disorder, depression, vascular dementia, gastro esophageal reflux disease, peptic ulcer disease, chronic obstructive pulmonary disease, coronary artery disease, and osteoporosis. He entered the facility on January 22, 1995. On September 7, 2001, Resident 20 had a physical encounter with Resident 1A, who was his roommate. Resident 20 was found holding Resident 1A in a headlock and was pounding Resident 1A with a metal seat spine. As a result, Resident 1A received cuts and bruises. The facility staff determined that Resident 20 was very territorial and that the appropriate solution would be to assign him a room so that he could be alone. Nevertheless, on November 10, 2001, a roommate was assigned to Resident 20. The resident complained and the new roommate was moved to another room. Resident 20's care plan was not revised to reflect his territorial nature. On December 28, 2001, another resident was moved into Resident 20's room. On January 2, 2002, Resident 20 told a nursing assistant that the new roommate was wearing his, Resident 20's, clothes. The nursing assistant pacified Resident 20 and left the room. Shortly thereafter Resident 20 attacked his new roommate with a reach/grab device causing the new roommate to receive a cut. One of the surveyors, Nurse Salpetr opined that the nursing assistant was derelict in leaving Resident 20 alone with his new roommate. This opinion based on all of the facts and circumstances, is rejected. As a result of this incident Resident 20, pursuant to the Baker Act, was sent to a psychiatric hospital for evaluation.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing, DOAH Case Nos. 02-1421, 02-1905, and 02-4040. DONE AND ENTERED this 8th day of January, 2003, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2003. COPIES FURNISHED: Lori C. Desnick, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building, III Tallahassee, Florida 32308 R. Davis Thomas, Jr., Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Fort Knox Building III Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue The issue in this case is whether the Respondent’s license as a certified nursing assistant should be revoked or otherwise disciplined because she intentionally violated section 464.204(1)(b), Florida Statutes (2015),1/ by using force against or striking a patient, which Florida Administrative Code Rule 64B9-8.005(13)2/ defined as unprofessional conduct.
Findings Of Fact The Respondent is 25 years old. She is a certified nursing assistant (CNA) who holds Florida license CNA274235. Her license was first issued in December 2012. Her license was renewed in 2015, is clear and active, and was scheduled to expire on May 31, 2017. The Respondent has no history of any past license discipline. On December 27, 2015, the Respondent was employed at Sunnyside Village Retirement Community (Sunnyside Village), located in Sarasota, as a CNA in the skilled nursing unit. Patient A.B. was a patient there. A.B. was 98 years old and was considered frail in that she needed assistance with daily activities, could not move about easily, and used a wheelchair. She suffered from dementia that had worsened to mid-stage, and she was combative with staff at times. Although considered frail, she was a tall and fairly large woman. Her exact weight was not clear from the evidence. Estimates by the witnesses varied widely, from 110-115 pounds, to 130 pounds, to 190-200 pounds. When upset, she sometimes threw pictures, threw patient charts, and tried to bite and hit staff. The skilled nursing unit at Sunnyside Village had a secured area for the protection of patients like A.B. The area was not locked, but the dementia patients had wander guards that triggered an alarm to alert staff if the patients attempted to leave the secured area. A.B. had a wander guard attached to her wheelchair. On the morning of December 27, 2015, the Respondent was helping patients get ready for a church service when A.B. attempted to leave the secured area. Her wander guard triggered the alarm system, and a licensed professional nurse at the facility instructed the Respondent to get A.B. away from the exit doors. As the Respondent began to wheel A.B. away from the doors, the patient indicated that she wanted to go outside. The Respondent testified that she tried to “console” A.B. by saying she would take her outside after she finished getting the other patients ready for church. The patient did not seem to understand or accept what the Respondent was saying. Then, the Respondent started to wheel A.B. towards the T.V. room, which was near the nursing station at the other end of the hallway. A.B. became upset, took her feet off the footrests, planted them on the ground to stop the wheelchair, and attempted to swing her arm behind her to hit the Respondent. There was evidence that Sunnyside Village had policies that staff should back off and re-approach an agitated patient. It was not clear from the evidence how the policy was supposed to be applied in the situation the Respondent faced on December 27, 2015. In any event, it would not necessarily follow that a violation of this policy would result in unprofessional conduct. To get the patient to the T.V. room, the Respondent tilted the wheelchair to lift the patient’s feet off the ground and make it possible to wheel the patient down the hall. To accomplish this, the Respondent had to put her foot on a bar at the bottom of the back of the wheelchair, press down on the hand grips at the top of the back of the wheelchair, and elevate the front wheels enough to balance the chair on two wheels as she proceeded down the hallway. This was not easy to do, especially because the patient was considerably larger than the Respondent. The Respondent weighed about 100 to 105 pounds. She testified that she is “five feet, five.” However, she appeared to be closer to five feet tall than to five feet, five inches tall. The Respondent thought it was only necessary to raise the front wheels two or three inches, but it does not seem plausible that she could maintain that position for long while pushing the wheelchair down the hallway. Witnesses who saw the Respondent perform the maneuver later thought the front wheels were closer to 12 inches off the ground, creating close to a 45- degree angle of recline. The Respondent thought this wheelchair maneuver was acceptable under the circumstances. There was testimony that it would be acceptable to raise the front wheels to prevent a patient who planted his or her feet on the ground from pitching forward and falling out of a wheelchair, but not to wheel a patient a long distance on two wheels. The Respondent was not charged with the use of force against the patient by wheeling her on two wheels for a long distance, and there was no evidence doing so constituted the use of force against the patient. The Respondent left A.B. in the T.V. room and went back to the other patients getting ready for the church service. Almost immediately after being left in the T.V. room, A.B. left the room and wheeled herself back down the hallway to the same exit doors, again setting off the alarm. When she heard the alarm, the Respondent walked back down the hallway to the exit doors to get A.B. and return her to the T.V. room. The Respondent repeated her attempt to console the patient and began to wheel her back to the T.V. room. The Respondent was speaking in a loud voice in order to be heard by A.B., who had removed her hearing aids. The patient was agitated and combative and also very loud. The loud commotion drew the attention of a physical therapy assistant named Megan Campbell, who was in the patient room closest to the exit door, and by another physical therapy assistant named Mr. Thomas Wilson, who was in the second patient room from the exit door. At approximately the same time, an occupational therapist named Rebecca Cirillo was walking towards the exit door from the nursing station about 50 feet away. Mr. Wilson thought the Respondent sounded “pretty angry.” Ms. Campbell thought the Respondent was speaking loudly and seemed frustrated. Ms. Cirillo heard the patient “hollering” and the Respondent “yelling” and sounding “irritated” and “agitated.” None of them were aware that the patient was not wearing her hearing aids and that the Respondent had to speak loudly just to be heard by the patient. Mr. Wilson was kneeling on the floor putting footrests on a wheelchair as the Respondent and her patient passed by the door of the room he was in. He looked up and saw them from their left sides. By the time Ms. Campbell reached the doorway of the patient room she was in, the Respondent already had passed. Her view of the Respondent and her patient was from their back and left side. Ms. Cirillo’s view was from the front. All three witnesses thought they saw the Respondent angrily and intentionally strike the patient with her right hand and jerk the front wheels of the wheelchair up and down. Mr. Wilson and Ms. Campbell saw the Respondent’s right arm and hand swing quickly forward towards the patient’s right side. Ms. Campbell described an intentional and forceful “slap-like” motion across the Respondent’s body towards the right side of the wheelchair. Mr. Wilson thought the Respondent’s hand landed in the area of the patient’s head, neck, or shoulder. Mr. Wilson and Ms. Campbell admitted that they did not have a clear view and could not see actual physical contact. Mr. Wilson said he heard the patient make a grunt-like noise and flinch from what he thought was a hand-strike. Ms. Campbell did not hear the patient make a noise or flinch. Ms. Cirillo said she had a clear view and saw the Respondent slap the patient on her right arm. Ms. Cirillo and Ms. Campbell saw the Respondent move laterally to the left to avoid the patient’s arms and hands, which she was flailing over her head in an attempt to hit the Respondent. All three witnesses saw the Respondent jerk the front wheels of the wheelchair up twice, the second time after they had dropped back down hard. Mr. Wilson and Ms. Cirillo thought the front wheels were six to twelve inches off the ground, closer to twelve. Ms. Campbell could not give an estimate in inches but said saw the Respondent “very roughly jerk” the front wheels up “a good amount.” The way the wheelchair “snapped back” made Ms. Cirillo concerned for the patient’s safety. As she passed the Respondent in the hallway, Ms. Cirillo said, “you can’t do that.” The Respondent testified that she told Ms. Cirillo the patient’s hearing aids were out and that Ms. Cirillo replied, “whatever.” The Respondent testified that she actually was not angry at the patient because she understood the patient could not help her dementia. She explained that she was not speaking loudly in anger, but only to be heard by the patient, who had taken her hearing aids out. She also explained that she was not striking the patient but trying to prevent the patient from hitting her in the face. She said she tried to defend herself by moving to the left and holding her right arm out to block the patient’s hand and arm. Finally, she explained that she lifted the front wheels of the wheelchair to keep the patient from injuring herself by pitching forward and falling out of the chair. She claimed she was able to softly lower the front wheels by quickly moving her right hand back to the wheelchair’s hand grip after removing it to block the patient’s arms and hands, which seems improbable. After the incident, the three therapists briefly discussed what they had witnessed. All three thought the Respondent’s actions were inappropriate. When Mr. Wilson and Ms. Campbell returned to the physical therapy section of the facility, they reported to their supervisor, who said they should file a report. There were no report forms in the therapy area, so Mr. Wilson got some from the nursing area. The therapists filled out the reports and filed them. The reports were brought to the attention of the facility’s director of nursing, Deborah Harcup, R.N., when she arrived at the facility at about noon that day. Nurse Harcup investigated by talking to the patient, the Respondent and the reporters, and by viewing a surveillance video of the hallway. A.B. did not respond when asked about the incident. There was no physical evidence that the patient had been struck or injured in any way, nor any emotional or psychological evidence that she had been abused by the Respondent. Nurse Harcup testified that the surveillance video was taken from a fisheye-lens camera that was in the hallway about where Ms. Cirillo was when she witnessed the incident. The video was grainy and indistinct, and it was impossible to discern anything from it. Nurse Harcup testified that the complaints against the Respondent were surprising to her. She knew the Respondent to be a good nursing assistant and not the kind who would become angry at a patient, much less use force or violence against a patient. Ultimately, Nurse Harcup decided to terminate the Respondent’s employment, not because of any conclusion she reached as to what actually happened, but simply because she was unable to determine with certainty from the various witness statements what actually had happened. The Respondent seemed to suggest that she might have been the victim of a conspiracy and falsely accused by the therapists because of workplace acrimony at Sunnyside Village. She testified that she previously had some kind of a problem with Ms. Cirillo that required the intervention of supervisors. There was no evidence as to what the problem was. Another indication of possible problems between the nursing staff and the therapy staff was Mr. Wilson’s concern that there would be repercussions from the nursing staff if it was made known to them that the therapists were filing abuse reports on an employee of the nursing staff. However, the Respondent’s conspiracy theory is rejected. The evidence, taken as a whole, was clear and convincing that the Respondent intentionally slapped at A.B.’s flailing arm, and did not just defensively hold her right arm out to block the patient’s arm and hand. However, the therapists misinterpreted the loudness of the Respondent’s voice as anger and frustration because they did not know the patient had removed her hearing aids, and they misinterpreted the force of the hand- slap and the reason for the abrupt movement of the wheelchair. The wheel chair movement was not as smooth as the Respondent thought and testified, but it was not the intentional use of force against the patient. The hand-slap was intentional, but it was not intended to be, and was not, violent or hard enough to harm or punish the patient. As Nurse Harcup testified, that would have been completely out of character for the Respondent. Both actions happened quickly, while the Respondent was dodging to the left and simultaneously raising the front wheels of the wheelchair to prevent the patient from pitching forward and hurting herself by falling out the front of the wheelchair onto the floor when she planted her feet. The entire incident was over very quickly, and the Respondent went about the business of returning the patient to the T.V. room without any further incident. The Respondent did not try to hide anything. It all happened out in the open in the middle of the hallway, where anyone around could see it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a final order: finding the Respondent guilty of unprofessional conduct, as defined by rule 649B-8.005(13), for intentionally striking the patient A.B. on the arm; suspending her license for 60 days, followed by probation for one year; requiring her to take a relevant course of continuing education; and requiring her to pay the costs related to the investigation and prosecution. DONE AND ENTERED this 3rd day of July, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 3rd day of July, 2017.
Findings Of Fact By stipulation of fact, the parties agree that: On July 14, 1983, FHC mailed its letter of intent to file an application for a certificate of need to establish a psychiatric hospital near Orlando. This letter of intent was for an application to be considered in the August 15, 1983, batching cycle. The DHRS deadline for a letter of intent for the August 15, 1983, batching cycle was July 18, 1983. The FHC letter of intent was received by DHRS on July 18, 1983. In mailing a copy of the letter of intent to the Local Health Council of East Central Florida ("Local Health Council") on July 14, 1983, FHC inadvertently and unintentionally failed to enclose a copy of the letter of intent; the Local Health Council therefore received an empty envelope from FHC on July 18, 1983. The handwritten notes on the empty envelope are the notes of Clifton R. Carter, who is the Executive Director of the Local Health Council. Mr. Carter called FHC on July 18, 1983, and indicated that FHC should send to the Local Health Council a copy of its letter of intent by Federal Express. FHC sent a copy of its letter of intent to the Local Health Council via Federal Express on July 18, 1983. The Local Health Council reviewed a copy of FHC's letter of intent on July 19, 1983. DHRS acknowledged receipt of FHC's letter of intent and gave FHC instructions as shown in a letter dated July 20, 1983, from DHRS' Porter to FHC's Jones. Executive Director Carter sent a letter to HRS dated August 2, 1983, where he states that the Local Health Council did not timely receive FHC's letter of intent. FHC timely submitted its certificate of need application on or before August 15, 1983. Other competing applications were also timely filed and are not being processed by DHRS. DHRS' Thomas Porter sent a letter to FHC's Stanley Jones dated September 7, 1983, which advised FHC that its application was being returned and would not be processed in the August 15, 1983, batching cycle. The parties presented evidence which supports the following supplementary findings: At approximately 11:00 a.m. on July 18, 1983, after receiving the empty envelope from FHC, Clifton Carter, Executive Director of the Local Health Council, called FHC and spoke with Betty T. Genereux, the secretary to Stanley G. Jones, Vice President for Development of FHC. Mr. Carter advised her that the envelope from FHC had been received without a letter of intent. Ms. Genereux expressed concern, and asked whether the Local Health Council had telecopier equipment. Mr. Carter had told her that none was available. He also told her that the deadline was that day, but if she would "Federal Express" the letter to him and if he received it the next day, the filing equipment would be met. Pursuant to his instructions, she "Federal Expressed" the letter; the Local Health Council received it at approximately 9:00 a.m. the next day. FHC had an aircraft available to it on July 18, 1983, which could have been used to deliver the letter of intent to the Local Health Council that day. If Mr. Carter had not led Ms. Genereux to reasonably conclude that the filing requirement would be met if the letter was received by Mr. Carter the next day, it is likely that FHC would have used its aircraft or some other means (such as a telegram) to assure delivery on July 18, 1983. FHC reasonably, and in good faith, relied upon the representation made by Mr. Carter to Ms. Genereux on July 18, 1983, concerning the filing requirement. 1/ Since the question concerned the requirement for filing a document with the Local Health Council, Ms. Genereux was reasonable in believing that Mr. Carter, Executive Director of the Local Health Council, had authority to make such a representation; and she was reasonable in acting on such belief. Pursuant to its letter of intent, DHRS sent FHC the required application forms. FHC thereafter devoted substantial resources to preparing its application and filing it on or before August 15, 1983, in order to assure that its application would be reviewed in the August 15, 1983, application batching cycle. FHC was notified of the rejection of its application (because an untimely letter of intent) by letter from Thomas F. Porter, a DHRS Medical Facilities Consultant Supervisor, dated September 7, 1983, postmarked September 13, 1983, and received on September 20, 1983. This rejection was transmitted after the time specified for DHRS to determine the completion of an application. See, Rule 10-5.08(3). Within two days after receiving the rejection, FHC filed its request for a hearing, resulting in this proceeding. No evidence was presented that DHRS or the Local Health Council were prejudiced as a result of FHC's omission of the letter of intent from its July 18, 1983, filing with the Local Health Council, and its follow-up delivery of the missing letter on the next morning.
Recommendation Based on the foregoing, it is RECOMMENDED: That DHRS accept First Hospital Corporation's application (for a certificate of need) as part of the August 15, 1983, application review cycle. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of October, 1983. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1983.
Findings Of Fact At all times material hereto, Respondent has been licensed as a practical nurse in Florida with license number 28131-1. Respondent's license was previously suspended for a two year period from 1975 to 1977 but has been active since that time. On or about February 7, 1975, Respondent entered a plea of guilty to a charge of grand larceny in Case No. 74-3162, Circuit Court, Pinellas County. Adjudication of guilt and imposition of sentence were withheld, but the Court ordered Respondent to be placed on probation for five years. On or about March 24, 1977, Respondent was arrested and charged with grand larceny, to which she plead nolo contendere in Case No. 77-1689, Circuit Court, Pinellas County. On April 15, 1977, Respondent's probation officer executed an affidavit of probation violation as a result of the March 24, 1977 grand larceny charge, and Respondent subsequently entered a plea of guilty to the charge of violation of probation. Respondent was adjudicated guilty of the crime of grand larceny and also violation of probation on September 21, 1977, and was sentenced to one year in jail, with all but sixty days suspended and with credit for six days already spent in jail. Respondent was also placed on probation for three years. On August 16, 1978, Respondent completed an employment application for a nursing position at Beverly Manor Convalescent Center. In response to a question on the application, "Have you been convicted of a crime in the past ten (10) years?", Respondent checked the box for "No". Respondent was employed at Beverly Manor from the Fall, 1978, until May 15, 1984, when she was terminated for her failure to reveal her prior conviction of a crime on her employment application. Respondent's performance evaluations while at Beverly Manor were generally "satisfactory" to "very good", although she did receive four written warnings and a three day suspension during 1983 and 1984. On her employment application, Respondent also falsely indicated she was employed at Sunshine Nursing Home in 1975 and 1976 during a time when her license was suspended. The only evidence presented concerning the charge that Respondent diverted Tylenol #2 and Tylenol #3 for her own use from 1982 to May, 1984 was the "post test statement" contained in the polygraph examination report, Exhibit P-7. Respondent denies making the statement contained therein. She testified that at the end of the examination she answered what she understood to be a hypothetical question from the examiner about whether it was possible for a nurse to divert controlled substances. Her response was that it was possible, hypothetically, for nurses to do this, but she denies ever having actually taken these controlled substances for her own personal use. However, she did admit to taking Tylenol #2 and Tylenol #3 for other employees of Beverly Manor and giving it to them when they were not feeling well on particular days at work. Respondent's testimony on this point was very credible and convincing, and having weighed the evidence, it is the finding of the undersigned Hearing Officer that Respondent did not take controlled substances for her own personal use, but she did divert Tylenol #2 and #3 for other employees.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued suspending Respondent's license for a period of three years. DONE and ENTERED this 29th day of July, 1985 at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 480-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1985. COPIES FURNISHED: Judie Ritter, Executive Director Board of Nursing Room 504 111 East Coastline Drive Jacksonville, Florida 32202 Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Darryl Ervin Rouson, Esquire 556 1st Avenue North St. Petersburg, Florida 33701 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street_ Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
