Findings Of Fact The Department, a state agency, initiated the underlying proceeding when Redi-Care's request for payment as a Medicaid provider was denied on September 19, 1989. Redi-Care was required to seek review of this governmental action through an administrative proceeding on September 28, 1989. Petitioner, Redi-Care Home Services, Inc. is a corporation which has its principal office in this state. At the time the administrative proceeding was initiated, the corporation had less than 25 full-time employees and a net worth of less than two million dollars. The assets of Redi-Care were sold to Lorinda Crowley on July 31, 1990. The shares of corporate stock and the liability were not transferred. Redi-Care authorized its President, Ms. Ingeborg G. Mausch, Ph.D., to proceed with the corporation's attempts to collect the Medicare claims at issue in the underlying proceeding. A Final Order was entered by the Department in the underlying proceeding on October 4, 1991. This order resolved the dispute in Redi-Care's favor. The claim for reimbursement for services rendered as a Medicaid Provider were to be paid upon the resubmission of the claims. The time for seeking judicial review of that order has expired and the order has become final agency action as a matter of law. Redi-Care timely filed its Petition for Attorney's Fees in this proceeding. The Department disputes portions of the application for fees relating to entitlement and to requested amounts of reimbursement for fees and costs. The underlying proceedings were initiated when the Department denied Redi-Care's claims for reimbursement for home health care services rendered to Richard Mow and Claire Jester beginning February 8, 1989. The reason given by the Department for its denial of the claims on September 9, 1989, was that Redi- Care's "Medicaid Provider" number could be used only for services rendered on or after May 4, 1989 because its certification survey was not completed until then. Although the agency's determination of ineligibility for payment due to the lack of certification would be proper in most cases under Rule 10C- 7.044(3)(a), Florida Administrative Code, it is not appropriate in this case. The Department was supposed to complete the requested survey in November 1988. The survey was not actually completed until May 4, 1989 because the Department's representative confused this entity with a similarly named entity located next door in November 1988. When Redi-Care received the documentation from Consultec assigning it a "Medicaid Provider" number in December 1988, the applicant reasonably believed the certification process had been completed and eligibility granted. The Department has been aware of its error in failing to provide the survey since at least April 18, 1989. Yet, no attempt was made to address this error as it related to the pending reimbursement claims beginning on February 8, 1989. Instead, the agency's involvement in the series of events that operated to prevent the proper application processing was ignored and Redi-Care was expected to suffer the consequences of the confusion created by all of the parties. One very reasonable way the Department could have cured its error would have been to submit Redi-Care's application for certification to Consultec on the day it discovered the error. This would have allowed Consultec to process claims from 90 days prior to the application under the Medical Home Health Agency Services Manual in effect at that time. This action was not taken by agency personnel who knew or should have known of this potential solution to the certification and reimbursement issues. The Department's letter advising Redi-Care of the Medicaid Program's decision to deny payment for services provided before May 4, 1989 was unreasonable governmental action. The possible affect of the agency's errors and the unrelated errors of its successive Medicaid agents for the Florida Medicaid Program on Redi-Care's pending claims were never addressed in spite of the Department's awareness of their existence. Redi-Care was required to pursue its claims through administrative proceeding's in order to prevent the denial of the reimbursement request.
Conclusions THE PARTIES resolved all disputed issues and executed a Stipulation and Agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached Stipulation and Agreement. Based on the foregoing, this file is CLOSED. DONEANDORDEREDthis Jf dayof ,2011,in Tallahassee, Leon County, Florida. DUDEK, INTERIM SECRETARY AGENCY F R HEALTH CARE ADMINI RATION A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY, ALONG WITH THE FILING FEE PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED. Filed January 24, 2011 9:09 AM Division of Administrative Hearings Old DOAH Case No. 06-4927MPI AHCA v. Kids Medical Services, Inc. Final Order CERTIFICATE OF SERVICE = , I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was furnished by U.S. Mail, interoffice mail, or email transmission to the persons named below on this of 2011. ==,: ::::::::: D""-,! ncy Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, FL 32308 Telephone No. (850) 412-3630 Copies furnished to: John G. Van Laningham Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Kids Medical Services, Inc. c/o James M. Barclay, Esquire 200 W College Ave Ste 120 Tallahassee, FL 32301-7710 Agency for Health Care Administration Debora E. Fridie, Assistant General Counsel, MS#3 Agency for Health Care Administration Division of Health Quality Assurance Agency for Health Care Administration Home Care Unit, MS #34 Agency for Health Care Administration Bureau of Finance and Accounting, MS#14 Agency for Health Care Administration Bureau of Medicaid Program Integrity, MS#6 ATTN: Mike Blackburn, Bureau Chief Florida Department of Health 2
Conclusions THE PARTIES resolved all disputed issues and executed a Stipulation and Agreement. The parties are directed to comply with the terms of the attached Stipulation and Agreement. Based on the foregoing, this file is CLOSED. DONE AND ORDERED this Me™ aay of jth , 2013, in Tallahassee, Leon County, Florida. dll Vofoll be IZABETH DUDEK, SEGKETARY Agency for Heaith C4re Administration Page 1 of 3 Filed September 20, 2013 11:45 AM Division of Administrative Hearings C.1. No. 12-2365-000 A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Cynthia A. Mikos, Esquire Attorney for Respondent Allen Dell, P.A. 202 S. Rome Avenue, Suite 100 Tampa, Florida 33606-1854 Email address cmikos@allendell.com Agency for Health Care Administration Debora E. Fridie, Assistant General Counsel, MS #3 Agency for Health Care Administration Division of Health Quality Assurance Agency for Health Care Administration Home Care Unit, MS #34 Agency for Health Care Administration Bureau of Finance and Accounting, MS #14 Agency for Health Care Administration Bureau of Medicaid Program Integrity, MS#6 ATTN: Rick Zenuch, Bureau Chief Florida Department of Health Page 2 of 3 C.2r. No. 12-2365-000 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was furnished by United States Mail, interoffice mail, or email transmission to the above-referenced addressees this 2 day of Sgr te , 20438 . Ad ah ency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Telephone No. (850)-412-3630 Fax No. (850) -921-0158 Page 3 of 3
The Issue The issue in this case is whether Respondent, Logan T. Lanham, R.N., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Health, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. The Department is the agency in Florida responsible for regulating the practice of nurses pursuant to Chapters 20, 456, and 464, Florida Statutes (2004).1 Mr. Lanham is and has been at all times material hereto a licensed registered nurse in the State of Florida, having been issued license number 3221312. Mr. Lanham, at the times pertinent, was employed in his capacity as a registered nurse by Palm Gardens of Vero Beach (hereinafter referred to as "Palm Gardens"). Mr. Lanham was employed by Palm Gardens from approximately October 1998 until January 3, 2002. Palm Gardens. Palm Gardens was, at the times pertinent, a Florida licensed residential nursing home facility as defined in Section 400.021(13), Florida Statutes. Palm Gardens' facility included a wing, "A-Wing," which was devoted to the care of residents suffering from various forms of dementia, including Alzheimer's disease. While employed at Palm Gardens, Mr. Lanham was assigned to A-Wing. Due to the tendency of some patients on A-Wing to "wander," A-Wing doors leading to the outside were equipped with alarms which sounded whenever a patient attempted to open them. Whenever an alarm was triggered, employees, including nurses, had to check to ensure that a resident was not leaving the unit. Part of A-Wing consisted of a room which was used as a dining room and day room (hereinafter referred to as the "Day Room"). There were four, floor-to-ceiling, windows at one corner of the Day Room located near an open area of A-Wing, which included a nurses' station. There was a single, heavy, self-closing door providing access to the Day Room. This door was normally propped open. During the pertinent period of time involved in this case, the door to the Day Room was slightly larger at the one corner than the door jam, which caused the door to stick if closed. Although the door could be opened, it took some strength to do so. The condition of the door was known to employees of A-Wing, including Mr. Lanham. Patients M.S. and G.K. Among the patients on A-Wing were M.S. and G.K., both female residents. Both were elderly, suffered from dementia and Alzheimer's disease, and were in relatively poor physical and mental health. M.S., whose date of birth was February 3, 1920, and G.K., whose date of birth was March 21, 1915, were both totally dependant on the facility and employees of Palm Gardens for their care. Both residents were ambulatory, but not capable of providing the daily necessities of life, such as cleaning themselves or dressing. Neither resident was oriented as to time or place, and both lacked the capacity to consent. Both residents, but especially M.S., had a habit of wandering the halls of A-Wing and touching doors equipped with alarms, which would cause the alarms to sound. The Events of December 13, 2001. On December 13, 2001, Mr. Lanham was working the "swing shift" (from 3:00 p.m. to 11:00 p.m.) on A-Wing. During Mr. Lanham's shift, both M.S. and G.K. were wandering the wing, sometimes setting off door alarms. G.K. was agitated and had been found by Mr. Lanham in another resident's room eating food that had been left in the room. Neither M.S. nor G.K. was harming any other residents or causing any harm to themselves. Out of frustration over having to respond every time that M.S. or G.K. set off an alarm, Mr. Lanham took both residents and directed them into the Day Room, closing the door as he left. By closing the door to the Day Room, Mr. Lanham effectively locked M.S. and G.K. into the room. Mr. Lanham left both residents in the Day Room without any supervision; no one was in the Day Room with them and no one was watching them through the windows between the room and the hall. M.S. and G.K., for most of the time they were in the Day Room, were unsupervised by any employee of Palm Gardens. M.S., crying, attempted unsuccessfully to open the door of the Day Room. M.S. and G.K., however, were too weak to open the door. M.S. began to hit on the door when she couldn't open it. M.S. and G.K. were involuntarily confined to the Day Room. At some point after M.S. and G.K. had been placed in the Day Room, Sharon Sullivan, L.P.N., told Mr. Lanham that M.S. and G.K. had to be let out. He was reminded that the door was too difficult for them to open when fully closed, which he already knew. Mr. Lanham, after admitting that he had placed M.S. and G.K. in the Day Room and why, indicated that it was okay to leave them in there as long as he could see them. When Ms. Sullivan told Mr. Lanham that she disagreed, he left the unit. Mr. Lanham left A-Wing to go see Carrie Duprey, L.P.N., the House Supervisor. Mr. Lanham indicated to Ms. Duprey that he had a "hypothetical" question. He then asked Ms. Duprey whether it would be considered abuse if, in order to keep a resident occupied, he placed the resident in the Day Room, with the door closed but not locked, as long as a C.N.A. stayed with the resident.2 Ms. Duprey indicated she did not think that his hypothetical action would constitute abuse.3 Ms. Duprey's answer to Mr. Lanham's hypothetical question did not constitute, in any way, permission for him to either place M.S. and G.K. in the Day Room or to leave them there. Ms. Duprey was unaware that Mr. Lanham had already placed the residents in the Day Room or that he had placed them there unattended and unable to leave on their own. After speaking with Ms. Duprey, Mr. Lanham returned to A-Wing where he spoke to Ms. Sullivan again. Mr. Lanham again told Ms. Sullivan that placing M.S. and G.K. in the Day Room was okay. Ms. Sullivan continued to disagree. When Ms. Sullivan persisted, Mr. Lanham opened the door to the Day Room and allowed the residents to leave. M.S. and G.K. had been left in the Day Room with the door closed, unable to leave on their own and with no one else present in the room for somewhere between more than 20 minutes and less than an hour.4 While they were not actually injured, M.S. and G.K. could have been because they were unsupervised. Unprofessional Conduct. Mr. Lanham's conduct fell below the minimum standards of acceptable and prevailing nursing practice. By placing M.S. and G.K. in the Day Room, unsupervised and unable to leave without assistance, Mr. Lanham failed to protect the welfare and safety of those residents. Mr. Lanham's conduct constituted unprofessional conduct for a nurse. Involuntary Seclusion. Placing M.S. and G.K. in the Day Room, unsupervised and unable to leave without assistance, constituted involuntary seclusion. Based upon the length of time that Mr. Lanham left M.S. and G.K. in the Day Room constituted an "extended" involuntary seclusion. Mr. Lanham's Explanation. Mr. Lanham testified at hearing that he had directed a C.N.A. to stay with M.S. and G.K. when he left them in the Day Room. This testimony is not been credited. Mr. Lanham's version of events is inconsistent with other, more credible witnesses. Additionally, when first asked to give a written statement, Mr. Lanham failed to indicate that he had left anyone in the Day Room with the residents. It was not until he added an addendum to his statement a few days later that he first suggested that others were in the Day Room. Mr. Lanham's testimony at hearing as to whether he placed M.S. and/or G.K. in the Day Room, while not clear, is not credited to the extent that he stated that the did not place them in the Day Room. This testimony conflicts with his admission to Ms. Sullivan and his written statement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Dismissing Count I of the Administrative Complaint; Finding that Logan T. Lanham, R.N., violated Section 464.018(1)(h), Florida Statutes, as alleged in Count II of the Administrative Complaint; and Imposing discipline as suggested in this Recommended Order. DONE AND ENTERED this 9th day of March, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 9th day of March, 2005.
Findings Of Fact 1. The Agency issued a Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review on the Petitioner, Global Services Home Care Corp., an applicant for a home health agency license. 2. The Petitioner requested a formal hearing, but failed to pursue its litigation. 3. The Division of Administrative Hearings (‘DOAH”) issued an Order to Show Cause on the Petitioner, and when the Petitioner failed to respond to the Order, the DOAH issued an Order Closing Case (Ex. 2). ; 1 Filed May 10, 2010 4:23 PM Division of Administrative Hearings. Based on the foregoing findings of fact and conclusions of law, it is ORDERED: 1. The Petitioner’s application for home health agency licensure is deemed incomplete and withdrawn from further review. 2. The Petition for Formal Hearing is dismissed. 3. The above-styled case is hereby closed. DONE and ORDERED this / day of Lhag , 2010, in Tallahassee, Leon County, Florida. Thomas W. Arnold, Secretary EEL t— Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY-CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Harrison Becerra, President Carlton Enfinger, Esq. Global Services Home Care Corp. Office of the General Counsel 9510 Ormsby Station Road Agency for Health Care Admin. 1790 West 49" Street, Suite 305-10 | (Interoffice Mail) Hialeah, Florida 33012 (U.S. Mail) Anne Menard, Unit Manager Jan Mills Home Care Unit Facilities Intake Unit Agency for Health Care Admin. Agency for Health Care Admin. (Interoffice Mail) (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the ZS method designated, on this the Z day of LEY , 2010. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
Conclusions Having reviewed the Notice of Intent to deem application incomplete and withdrawn from further review dated October 4, 2009, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration (“Agency”) finds and concludes as follows:
The Issue The issue in this case is whether the Petitioner's license rating for all or some of the time between February 26 and June 1, 1998, should be conditional or standard.
Findings Of Fact When surveyed by AHCA on February 24 through 26, 1998, Spanish Gardens had a license which would expire and have to be renewed on May 31, 1998. The facility had a license rating of superior. For the preceding year (from June 1, 1996, through May 31, 1997), the facility had a license rating of standard. During the survey, a disabled resident told a surveyor that the resident recently had complained to a nurse at the facility that a certified nurse assistant (CNA) had roughly handled the resident while transferring her into her bed, causing redness on the resident's arm, but that the facility did nothing about it. The surveyor viewed the resident's arm to verify the alleged incident. The surveyor also found a nurse's note for February 18, 1998, which mentioned the resident's complaint. On inquiring, the surveyor found that neither the administrator of the facility nor the director of nursing knew about the complaint and that the facility had not telephoned the Central Abuse Registry Hotline (the abuse hotline.) The "Guidance to Surveyors - Long Term Care Facilities" defined "abuse," in pertinent part, as "the willful infliction of injury . . . with resulting physical harm or pain." The surveyor decided to report the alleged incident to the facility's administration and to telephone the abuse hotline herself. The nurse's note stated that the resident first alleged that incident occurred on February 16, 1998; when the CNA, who also was present at the time the complaint was made, stated that he was not working on that day, the resident alleged that the incident had occurred the following day or, directing her comment to the CNA, "whenever you were here." The nurse noted a small red area on the inside of the resident's arm. The resident denied having any complaint of pain. The resident then told the nurse, "I just wanted to tell on him (the CNA)," and laughed. The survey team did not interview the nurse although she was on-duty during part of the time the survey team was at the facility. In fact, the nurse had made a professional judgment that the evidence before her did not give her reason to believe that any abuse had occurred. The survey team also interviewed a group of residents, several of whom complained that the staff at Spanish Gardens was slow to answer the call button located in residents' rooms. It was difficult if not impossible for Spanish Gardens to defend itself against the specific allegations that it had ignored residents' calls for assistance. AHCA never identified the residents who had made the complaints. However, AHCA presented no evidence that any resident was harmed or suffered medically in any way from staff's response time when called for assistance. Slow response to calls for assistance is a common complaint in nursing homes and does not in itself prove neglect. There are a number of reasons why the speed of staff's response may not satisfy a resident. Often, unbeknownst to the resident, staff is attending to the call of another resident whose needs are judged to be a higher priority. Other times, again unbeknownst to the resident, the resident's call for non- emergency assistance may require the attention of a particular staff member who may not be available at the time. The evidence was that Spanish Gardens responds reasonably quickly to residents' calls for assistance. Subject to higher priorities, the nearest staff member responds and assists when able; sometimes, another staff member with special expertise, knowledge, or skills must be summoned. Spanish Gardens does not ignore residents' complaints regarding staff response time. The evidence was that meetings have been held to allow residents to raise complaints of various kinds. Predictably, these included complaints regarding staff response time. Spanish Gardens has attempted to address these as well as the other complaints raised in these meetings. The survey team could not find the abuse hotline telephone number posted anywhere in the facility. When the survey team asked to see the facility's written policies on prevention of abuse and neglect, they were shown a document entitled "Suspected Abuse/Neglect of Residents." The document stated the facility's policy: "Any or suspected abuse/neglect of residents shall be referred immediately to the Administrator for investigation." It also stated the facility's procedures: Any staff, family member, friend, who suspects possible abuse/neglect of a resident shall report to the Administrator and Director of Nursing Services immediately. An incident report shall be completed to include all pertinent information of the alleged abuse/neglect. The Director of Nurses or the Administrator will notify the Abuse Hotline (1-800-96-ABUSE). An in house investigation with concerned parties and action to be taken will be conducted. Since the facility is charged with the responsibility of protecting the resident it will be necessary to terminate employee(s) that may be involved if allegations are found to be substantiated. If it is found that it is a family member, or friend who is responsible for the abuse/neglect, such finding shall be turned over to area adult protection agency. It may be necessary to report any substantiated abuse/neglect to appropriate regulatory agencies in accordance with their established policy regarding abuse/neglect. The survey team was not satisfied with the written policy and procedure presented because it did not require staff to report and call in all allegations or complaints of abuse or neglect but rather only known abuse, "suspected" abuse, or "suspected possible" abuse. In an attempt to satisfy the survey team, the facility produced a document entitled, "Adult Abuse Public Law No. 299 Policy," which related to a law prohibiting: battery; placing a dependent in danger to life or health; abandoning or cruelly confining a dependent; and exploiting a dependent by misuse of the dependent's resources. The facility also produced a document entitled, "Grievance Procedure," which informed residents and their family and friends to express concerns to the Charge Nurse, the Director of Nursing, the Department Supervisor, and the Executive Director. It also included two telephone numbers for the Ombudsman, neither of which was the abuse hotline telephone number. The survey team did not review any employee or resident files for additional documentation; nor did the facility produce any for the survey team's review. In accordance with normal procedure, the survey team reported the results of the survey on a federal Health Care Financing Administration (HCFA) form 2567 (the 2567). Under the Statement of Deficiencies "Tag" F224, the 2567 alleged violations of 42 C.F.R. Section 483.13(c)(1)(i) for failure to "develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property" and for "use [of] verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion." For purposes of the 2567, the survey team gave the alleged deficiency a federal scope and severity rating of "G." The federal scope and severity ratings range from "A" (for the least serious) to "L" (for the most serious). A deficiency with a rating of "G" is not considered "substandard quality of care" under the federal scope and severity rating system. For purposes of the 2567, the survey team also gave the alleged deficiency a state classification of Class II. The state classifications are from Class I (for the most serious) to Class III (for the least serious). See Conclusion of Law 28, infra. Based on the 2567, AHCA replaced the facility's superior license with a license having a conditional rating from February 26 through May 31, 1998, when the license would expire and have to be renewed. In response to the 2567 and conditional rating, Spanish Gardens requested a formal administrative hearing, as well as an informal dispute resolution (IDR) conference. At the IDR, the facility's new administrator informed the IDR panel that, since at least 1994, all employees (including himself when he began his employment, coincidentally, during the survey conducted February 24 through 26, 1998,) were required to sign an "Abuse, Neglect, and Exploitation Policy." It states: It is the policy of this facility to protect it's [sic] residents from abuse, neglect, and exploitation by providing a safe and protected environment. Any person who knows or has reasonable cause to suspect that a resident is an abused, neglected or exploited person shall immediately report such knowledge or suspicion to the Control Abuse Registry (Toll Free Telephone Number 1-800-342-9152) and to the Facility Administrator. The statewide toll-free telephone number for the Control Abuse Registry shall be posted on the Facility Bulletin Board and in each Employee Lounge. Employees who commit acts of abuse, neglect, and/or exploitation are subject to criminal prosecution and/or fines. Employees who witness acts of abuse, neglect, and/or exploitation are required to report them immediately. Failure to report can also result in criminal prosecution and/or fines. * * * No employee of this facility will be subjected to reprisal for reporting abuse, neglect or exploitation. . . . Any employee who has been reported for abuse, will be suspended from work until any and all investigations have been completed. If the investigation confirms the employee committed an act of abuse, neglect, or exploitation, that employee shall be terminated immediately. . . . All employees of this facility will be inserviced on this policy and the consequences of abuse, neglect and exploitation during their initial orientation and alt least once annually. A complete copy of the Florida law on Abuse, Neglect, and exploitation [sic](Section 415, Florida Statutes) [sic] is on file in the Administrator's office and available for inspection upon request. Spanish Gardens also produced at the IDR conference a copy of a Resource Contact List that included a telephone number for the abuse hotline. The facility's administrator testified at final hearing that the list was given to all residents at the time of admission. However, he was not employed at the facility prior to the survey, and it is not clear from his testimony that the list was in use as described at the time of the survey. Notwithstanding the additional information presented to it, the IDR panel declined to rescind the Petitioner's conditional rating. The panel did not believe that the "Abuse, Neglect, and Exploitation Policy" was in effect at the time of the survey; in fact, it was. The IDR panel also decided that, even if the policy had been in effect, it did not require employees to report and call in all allegations or complaints of abuse or neglect but rather only known abuse, reasonably suspected, or suspected abuse. Finally, the panel decided that, if construed to require employees to report and call in all allegations or complaints of abuse or neglect, the "Abuse, Neglect, and Exploitation Policy" was not being followed since the resident's complaint was not either reported to the facility's administration or telephoned to the abuse hotline. The "Guidance to Surveyors - Long Term Care Facilities" states in part: The intent of this regulation [42 C.F.R. § 483.13(1)(c)] is to assure that the facility has in place an effective system that regardless of the source (staff, other residents, visitors, etc), prevents mistreatment, neglect and abuse of residents, and misappropriation of resident's property. Over the years, Spanish Gardens has reported eighteen incidents of suspected abuse or neglect to the abuse hotline. No abuse or neglect has been substantiated in any of these incidents. Never before has Spanish Gardens been cited in a survey for any deficiency relating to abuse or neglect of residents. As required, regardless whether a facility agrees with the Statement of Deficiencies in a 2567, Spanish Gardens submitted a Plan of Correction. The facility's Plan of Correction stated that it does not constitute an admission or agreement with the alleged deficiencies. The Plan of Correction reported that Adult Protective Services had investigated the alleged abuse called in by the surveyor on February 26, 1998, and had concluded that the allegation was unfounded. Otherwise, the Plan of Correction essentially stated that written policies for prevention of abuse, neglect, and exploitation were in place and that the facility's administration would conduct inservices with staff and conferences with residents and the Resident Council to ensure that the policies were understood and followed. The Plan of Correction also stated that it had again posted the abuse hotline telephone number in four different places, one behind the locked glass bulletin board. The Plan of Correction stated that it would be completed by March 26, 1998, and the evidence was that the Plan of Correction was completed by the time promised. On May 1, 1998, a team from AHCA re-surveyed Spanish Gardens and satisfied itself that the Plan of Correction had been completed and that the alleged deficiency had been corrected. On May 13, 1998, AHCA notified Spanish Gardens of the results of the re-survey. However, AHCA took no action with respect to the facility's license until June 1, 1998, when AHCA renewed the license with a standard rating for the period from June 1, 1998, through May 31, 1999. Although the Petitioner's license rating had been superior, it only requests that its license rating for the period from February 26 through May 31, 1998, be made standard. See Petition for Formal Administrative Hearing and Proposed Recommended Order of Spanish Gardens.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding a Class III deficiency and assigning a standard rating to the Petitioner's license for the time period from February 26 through May 31, 1998. DONE AND ENTERED this 18th day of September, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 18th day of September, 1998. COPIES FURNISHED: Donna Stinson, Esquire R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 Karel Baarslag, Esquire Agency for Health Care Administration Regional Services Center 2295 Victoria Avenue, Room 309 Fort Myers, Florida 33901 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
