The Issue Should the certificate of registration of Petitioner, Professional Pain Management, Inc., License No. PMC 296, as a privately-owned pain management clinic, be revoked?
Findings Of Fact Petitioner, Professional Pain Management, Inc., License No. 296, is a pain management clinic (PMC) subject to the requirements of sections 458.3265 and 459.0137, Florida Statutes (2010).1/ PMC 296 is not wholly-owned by medical doctors (M.D.s), osteopathic physicians (D.O.s), or a combination of M.D.s and D.O.s. PMC 296 is not a health care clinic licensed under chapter 400, part X, Florida Statutes. PMC 296 has three equity shareholders. Their names and percentages of ownership interests are: Robert Ciceles (20 percent); Terra Hom (40 percent), and Erez Cohen (40 percent). None of the three equity shareholders is a physician, M.D. or D.O. Erez Cohen is, and at all pertinent times, has been president of PMC 296. He is not an M.D. or a D.O. Since at least August 2010, the owners and officers of PMC 296 were aware of the requirement that it be wholly physician-owned, effective October 1, 2010. PMC 296 was, at all times pertinent to this proceeding, not wholly-owned by physicians, M.D.s, D.O.s, or a combination of M.D.s and D.O.s. A dispute among the shareholders arising out of a dissolution of marriage proceeding has prevented PMC 296 from establishing ownership by a M.D., a D.O. or a combination of M.D.s and D.O.s. Management of PMC 296 plans to transfer ownership to physicians at an unspecified future date once the shareholder dispute is resolved. There was no evidence of any exemption from the operation of sections 458.3265 and 459.0137 presented at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Department of Health issue a final order revoking the certificate of registration of Professional Pain Management, Inc., License No. PMC 296. DONE AND ENTERED this 30th day of September, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 30th day of September, 2011.
Findings Of Fact Petitioner, Richard W. Merritt, D.C. is a chiropractic physician licensed under Chapter 460, Florida Statutes, and is actively practicing chiropractic in the State of Florida. By this action Petitioner challenges the validity of Rule 61F2- 17.007(6)(a), F.A.C.. The pertinent portions of the challenged Rule purport to define several terms to be utilized by the peer Review Committee in evaluation of chiropractor performance as brought before it. Specifically in issue are provisions of Rule 61F2-17.007: (6)(a) "Appropriate medical treatment" as used in Section 460.4104, Florida Statutes, is defined as a determination made of treatment and other services performed, which by virtue of a substantiated and properly diagnosed condition, appears to be of a type consistent with that diagnosis as reviewed by the peer review committee. "Properly utilized services" as used in Section 460.4104, Florida Statutes, means a determination made of appropriate medical treatment services rendered including frequency and duration which are substantiated as being necessary and reasonable by clinical records and reports of the provider as reviewed by the peer review committee. "Appropriate costs" as used in Section 460.4104, Florida Statutes, mean a determination made of charges submitted for properly utilized services performed which appear to be necessary and reasonable charges for similar provider services in the judgement of the peer review committee. As a licensed chiropractic physician subject to Chapter 460, Florida Statutes, Petitioner is substantially affected by the challenged rule because: he is a "health care provider" as defined by Section 460.403(5), Florida Statutes, and as used in Section 460.4104, the specific authority for and statute implemented by the challenged rule; the challenged rule expressly applies to health care providers and establishes definitions of statutory standards applicable to the peer review of the practice of chiropractic by chiropractic physicians including Petitioner; and the rule, when applied in conjunction with Section 460.4104, Florida Statutes, may subject chiropractic physicians, including Petitioner, to potential penal sanctions for the practice of chiropractic which violates the definitions incorporated in the challenged rule applied consistent with the statutory standard. The Respondent, Department of Business and Professional Regulation, (now Agency for Health Care Administration), Board of Chiropractic, (Board), promulgated the challenged rule and has the responsibility for implementing it as well as the whole of Chapter 460, Florida Statutes and Chapter 61F2, F.A.C..
The Issue Whether Petitioner, A Place Called Home (“APCH”), committed three Class II deficiencies and an uncorrected Class III deficiency at the time of the survey conducted on January 20 through 27, 2015, so as to justify Respondent, Agency for Health Care Administration (“AHCA”), denying the licensure renewal application of APCH to continue to operate an eight-bed assisted living facility (“ALF”) located in Miami, Florida.
Findings Of Fact The Parties Since 2013, APCH has been licensed by AHCA to operate an eight-bed ALF located in a duplex at 80-82 Northeast 68th Terrace, Miami, Florida. APCH is licensed to provide limiting nursing and mental health services. Tory Mays has been the Administrator of APCH since its inception in 2013. His wife, Linda Mays, is a Florida licensed advanced registered nurse practitioner, and the contracting nursing care consultant for APCH. AHCA is the state agency responsible for licensing and monitoring assisted living facilities in this state. The October 21, 2014, Survey On October 21, 2014, AHCA conducted a standard biennial survey at APCH. The October 21, 2014, survey was conducted by Judith Calixte-Joasil, who has conducted thousands of surveys during the past nine years she has been employed by AHCA. Ms. Calixte-Joasil, who is employed by AHCA as a health facility evaluator no. 2, has no nursing background, and she is not a physician. During this survey, Ms. Calixte-Joasil found and cited APCH with seven Class III deficiencies. Ms. Calixte-Joasil issued seven separate “tags” to explain the deficiencies. The following is a summary of the seven Class III deficiencies found by Ms. Calixte-Joasil during the October 21, 2014, survey: Tag A026–-Resident Care-–Social & Leisure Activities: Failure to provide scheduled activities posted in the common area and failure to encourage the residents to participate in social, recreational, educational, and other activities within the facility and community. Tag A078–-Staffing Standards: Failure to ensure that a staff member had documentation verifying proof of an annual tuberculosis test result. Tag A079–-Staffing Standards: A staff schedule showed an individual listed on the work schedule for the month of October 2014, but that individual no longer worked at the facility. Tag A081–-Staff In-Service Training: Failure to have proper training hours that are not over the time limits in one day of training (two out of four sampled staff). Tag A152–-Physical Plant–-Safe Living Environment/Other: Broken and rotten wood around an air conditioner unit in an outside window area of one of the rooms. Also, peeling paint in front of the air conditioner was observed in this room. Peeling paint was also observed on the ceiling in both common areas. Finally, in another room, there were missing dresser knobs and a broken door with peeling paint. Tag A160–-Records: Failure to have resident elopement response policies and procedures. Tag AL243–-Training: Failure to have documentation ensuring that a staff member completed the minimum six hours of continuing education. The Incident Involving Resident M.R. M.R. is a current resident at APCH. M.R. became a resident of APCH on December 29, 2014, after transferring from another ALF called Ashley Gardens. Upon transferring to APCH, Ms. Mays examined M.R. and completed AHCA’s Form 1823, titled Resident Health Assessment for Assisted Living Facilities.1/ At the time of her transfer to APCH on December 29, 2014, M.R. was 80 years old, 4’9” inches tall, and weighed 107 pounds. Her medical history and diagnoses were positive for hypertension, Alzheimer’s disease, and psychosis. At that time, M.R. had an “unsteady gait.” She needed “hands on” assistance for bathing and assistance choosing clothing, but she could independently ambulate, eat, care for herself, and use the toilet. Her cognitive or behavioral status was “impaired mental status.” No nursing, treatment, psychiatric or therapy services were required. No special precautions were necessary, and she was not an elopement risk. From December 29, 2014, until January 14, 2015, M.R. resided at APCH without incident. However, on January 14, 2015, at 4:15 p.m., M.R. fell at the entrance of APCH and suffered injury. Mr. Mays learned of M.R.’s fall shortly after it occurred, when he received a telephone call from Glasna Sterling, a caregiver at APCH. Mr. Mays then called his wife to let her know of the fall. Mr. Mays also called Ben Johnson, M.R.’s guardian, to let him know of the fall. In the meantime, a caregiver at the facility applied some ice to M.R.’s face shortly after the fall. Ms. Mays arrived at APCH on January 14, 2015, and conducted a thorough “face-to- face,” “head-to-toe” examination and nursing assessment of M.R. at 7:30 p.m. M.R.’s chief complaint at that time was that her forehead hurt. Upon examination, Ms. Mays observed a two-inch circumference closed hematoma above M.R.’s right eye, which was tender to the touch.2/ Ms. Mays’ examination and nursing assessment of M.R. on January 14, 2015, included checking M.R.’s mentation from her baseline, which was forgetfulness. Ms. Mays examined M.R.’s cognitive abilities and was able to determine her level of orientation and mental status. Ms. Mays observed that M.R.’s eyes were open; she could speak, move, and respond appropriately to voice commands. Ms. Mays examined M.R.’s pupils to see if they were reactive to light and accommodating. Ms. Mays checked the movement of M.R.’s limbs. She checked her lung and bowel sounds. Ms. Mays performed a Glasgow Scale test, which is a test designed to determine a patient’s neurological status and any type of neurological change. Ms. Mays found no deficits on the Glasgow Scale. Following her January 14, 2015, examination of M.R., Ms. Mays’ assessment was hematoma secondary to head trauma. M.R. also had a bruised knee. Ms. Mays determined that M.R.’s injuries resulting from the fall required first-aid type treatment, only, which could be provided by a person who is trained to perform first-aid. At that time, Ms. Mays’ recommended plan of treatment called for ice to be applied to M.R.’s forehead for 15 minutes every two hours for eight hours; the checking of vital signs and alertness for the next eight hours; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Moses Alade) if M.R. became confused, dizzy, or there was a change in her level of consciousness. No ambulance or physician was called regarding M.R. on January 14, 2015. Ms. Mays documented her findings and treatment plan in “SOAP” notes dated 7:30 p.m., on January 14, 2015. SOAP notes are a problem-solving focused style of note writing, and provide guidance as to how a nurse might document her assessment of a patient for an issue that is being addressed. The term SOAP is an acronym for the following: S=subject, O=objective, A=assessment, and P=plan. The SOAP notes were maintained in M.R.’s resident file to document her health condition. Ms. Mays and Mr. Sterling were trained and qualified to perform the duties set forth in the “SOAP” notes. Ms. Mays and Mr. Sterling were trained and qualified to provide first-aid to residents. Notably, Mr. Sterling was trained and qualified on how to observe and report any changes in M.R.’s condition to Dr. Alade. Ms. Mays explained to Mr. Sterling that he should contact Dr. Alade if M.R. became dizzy; if she was not waking up; if she was sluggish; if there was any change in her normal alertness; if she was not eating; if she appeared more confused than usual; or if she was combative. Ms. Mays continued to monitor M.R.’s condition over the next two days to ensure that her initial findings were accurate. Ms. Mays also followed-up with Mr. Sterling over the next two days to ensure that he followed her orders. There was no change in M.R.’s level of consciousness during the overnight period of January 14 through 15, 2015. On January 15, 2015, at 5:30 p.m., Ms. Mays returned to APCH and conducted another examination of M.R. At this time, M.R. appeared guarded. Nevertheless, Ms. Mays observed that the hematoma was healing, and had reduced in size from two inches to one inch in circumference. The area was non-tender. There had been no change in M.R.’s level of consciousness. M.R.’s vital signs reflected a blood pressure reading of 122/78 and a heart rate of 82, which are within normal limits.3/ Notably, by this time, fluid that had collected in the hematoma had begun to collect in the facial tissues, resulting in M.R.’s facial area appearing purple/blue in color. At hearing, Ms. Mays explained that for a geriatric patient such as M.R. with non-elastic skin, it is reasonable that the fluid collected in the hematoma would dissipate downward with gravity in other areas of the body, such as to the face. Based on her examination of M.R. on January 15, 2015, Ms. Mays’ assessment remained hematoma secondary to head trauma. Again, Ms. Mays determined that nothing more than first-aid type treatment was required. Following her examination of M.R. on January 15, 2015, Ms. Mays’ recommended treatment called for Tylenol (325mg ii tabs)4/ and ice to be applied to the forehead, if needed; the checking of alertness; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Alade) if M.R. became confused, dizzy, or there was a change in her level of consciousness. Ms. Mays again documented her findings and treatment plan in “SOAP” notes dated 5:30 p.m., on January 15, 2015. On January 16, 2015, at 5:35 p.m., Ms. Mays returned to APCH and conducted another examination of M.R. At this examination, M.R. was less guarded. Ms. Mays observed that the hematoma was continuing to heal and had reduced in size from one inch to .75 inch in circumference. The area was non-tender. There had been no change in M.R.’s level of consciousness. M.R.’s vital signs reflected a blood pressure reading of 117/74 and a heart rate of 76, which are within normal limits. However, by this time, Ms. Mays observed a purple/blue discoloration on both sides of M.R.’s face and a dark green and yellow color on the bridge of her nose. This observation was consistent with blood collecting in the tissues of her face as previously determined by Ms. Mays. Based on her examination of M.R. on January 16, 2015, Ms. Mays’ assessment remained hematoma secondary to head trauma. Again, Ms. Mays determined that nothing more than first-aid type treatment was required of M.R. Following her examination of M.R. on January 16, 2015, Ms. Mays’ treatment plan called for Tylenol (325mg ii tabs), if needed; the checking of alertness; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Alade) if M.R. became confused, dizzy, or there was a change in level of consciousness. Ms. Mays again documented her findings and treatment plan in “SOAP” notes dated 5:33 p.m., on January 16, 2015. Following her examination of M.R. on January 16, 2015, Ms. Mays had no further face-to-face contact with M.R. between January 16, 2015, and January 21, 2015. The January 20 through 27, 2015, Survey and Its Aftermath From January 20 through 27, 2015, a standard biennial revisit survey was conducted at APCH by Ms. Calixte-Joasil. Upon arriving at APCH at 9:15 a.m., on January 20, 2015, to conduct the revisit survey, Ms. Calixte-Joasil observed M.R. sitting on the couch. Ms. Calixte-Joasil observed M.R.’s face with the different discolorations and bruises. Ms. Calixte- Joasil became concerned based on M.R.’s appearance. Ms. Calixte- Joasil proceeded to take three photographs of M.R.’s face. Based on “the way she looked,” Ms. Calixte-Joasil believed that M.R. needed to see a doctor “just to be on the safe side to make sure she didn’t suffer any other injuries.” M.R. had already been scheduled to see Dr. Alade on January 20, 2015, for a “normal appointment,” unrelated to her January 14, 2015, fall. Ms. Calixte-Joasil saw M.R. leave APCH on January 20, 2015, accompanied by another caregiver of APCH (“Ms. Esther”) who provides transportation. Ms. Calixte-Joasil observed M.R. and Ms. Esther linking arms, with Ms. Esther assisting M.R. walking out of the facility. At that time, Ms. Esther had M.R.’s resident file with her. Ms. Calixte-Joasil assumed Ms. Esther was taking M.R. to see Dr. Alade. Both Ms. Calixte-Joasil and Mr. Mays believed that on January 20, 2015, Ms. Esther took M.R. to Dr. Alade’s office on January 20, 2015, for her regularly scheduled appointment. Unbeknownst to Ms. Calixte-Joasil or Mr. Mays on January 20, 2015, however, Ms. Esther did not take M.R. to see Dr. Alade on January 20, 2015, as she was supposed to do. The next day, January 21, 2015, Ms. Calixte-Joasil called Dr. Alade’s office directly and found out that he did not see M.R. on January 20, 2015. When Mr. Mays found out that Ms. Esther had not taken M.R. to see Dr. Alade on January 20, 2015, Ms. Ester was suspended by APCH for two weeks and subsequently terminated. On January 21, 2015, Ms. Mays contacted Dr. Alade for the first time regarding M.R.’s fall on January 14, 2015. Ms. Mays contacted Dr. Alade on January 21, 2015, because by this time, AHCA was questioning the care that had been provided to M.R. by APCH. When Ms. Mays spoke to Dr. Alade on January 21, 2015, she explained her examinations, assessments, and treatment of M.R. from January 14 through 16, 2015. No persuasive evidence was adduced at hearing that Dr. Alade recommended that M.R. be taken to the hospital or that he needed to see her for an immediate evaluation. Upon her return to APCH on January 21, 2015, Ms. Calixte-Joasil continued her survey and investigation as to what transpired with M.R. Ms. Calixte-Joasil examined Ms. Mays’ “SOAP notes.” Ms. Calixte-Joasil’s testimony that she was unable to determine from her review of Ms. Mays’ notes whether M.R. had made any improvement between January 14 and 16, 2015, is unpersuasive, and not credited. Notably, at hearing, Arlene Mayo-Davis, AHCA’s nursing expert, acknowledged that during that time, the SOAP notes reflect that the hematoma was getting better and healing. Ms. Calixte-Joasil made no effort to communicate with Ms. Mays on January 20 or 21, 2015. However, Ms. Calixte-Joasil contacted the Department of Children and Families (“DCF”) because of how M.R. looked and after finding out that M.R. did not go to the doctor as scheduled on January 20, 2015. Ms. Calixte-Joasil suspected that M.R. was the victim of abuse “from the way she looked, the fall.” Ms. Calixte-Joasil expected DCF “to come out and investigate based on my findings and what I had said.” DCF arrived at APCH on January 23, 2015, along with law enforcement. DCF arranged for M.R. to be taken by ambulance to the North Shore Medical Center emergency room. Upon learning that M.R. had been taken to the emergency room, Ms. Mays called Dr. Alade. After talking to Dr. Alade, Ms. Mays met M.R. at the emergency room and provided the emergency room physician with a report as to what happened. Ms. Mays proceeded to the emergency room and provided the emergency room physician with a report as to what happened. M.R. was admitted to the hospital on January 23, 2015. Dr. Alade agreed on January 23, 2015, that M.R. should be admitted to the hospital, and he traced M.R.’s pre-admission work-up.5/ The emergency physician who examined M.R. at the hospital reviewed Ms. Mays’ notes, and Ms. Mays testified that the emergency room physican agreed with her assessment and treatment of M.R. On January 29, 2015, M.R. was discharged from the hospital with a diagnosis of contusion and urinary tract infection. The discharge diagnosis of contusion confirms that M.R. did not suffer any fractures or a brain injury as a result of the January 14, 2015, fall, and is compatible with the need for first-aid type treatment, only, which was adequately provided by APCH. There is nothing more that APCH could have done that would have changed the course of M.R.’s recovery from her injuries resulting from the fall. Following her discharge, M.R. was returned to APCH on January 29, 2015. On February 3, 2015, Dr. Alade examined M.R. and completed AHCA’s Form 1823. Following his examination of M.R. on February 3, 2015, Dr. Alade indicated that M.R.’s facial contusion had resolved. At no time has Dr. Alade expressed any concern about the manner in which M.R. was medically treated at APCH. Dr. Alade recommended that M.R. return to APCH where she has resided ever since. M.R.’s guardian approved of M.R.’s return to APCH. AHCA’s Alleged Deficiencies as a Result of the January 20 through 27, 2015, Survey AHCA’s proposed agency action to deny APCH’s renewal license is based on three purported Class II deficiencies and one purported uncorrected Class III deficiency. Each of these alleged deficiencies relate to M.R.’s fall on January 14, 2015, and the subsequent January 20 through 27, 2015, survey. The undersigned turns now to specifically address each of these alleged deficiencies upon which AHCA’s proposed agency action is based. Tag A030: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA charged APCH with the following Class II deficiency: Tag A030 58A-5.0182(6) FAC; 429.28 FS Resident Care-–Rights & Facility Procedures: * * * he facility failed to provide access to adequate and appropriate health care consistent with established and recognized standards within the community for one out of eight [M.R.] residents. In support of its position, AHCA presented the expert testimony of Ms. Mayo-Davis. Ms. Mayo-Davis is a licensed registered nurse. She has been licensed since 1988. At hearing, AHCA’s counsel offered Ms. Mayo-Davis as an expert in the area of general nursing. Without objection, she was accepted by the undersigned as an expert in general nursing. By way of background, Ms. Mayo-Davis worked as a registered nurse at two hospitals for a total of seven years, focusing on medical, surgical, oncology, and hematology. Since 1995, she has been employed by AHCA. She began her ACHA employment as a registered nurse specialist. She later became a registered nurse supervisor and registered nurse consultant. Ms. Mayo-Davis is currently employed by AHCA as a field office manager. As a field office manager, Ms. Mayo-Davis manages 110 employees in the Delray and Miami, Florida, offices of AHCA. As a field officer manager, Ms. Mayo-Davis reviews deficiencies found at AHCA licensed facility surveys. She reviews hundreds of surveys on an annual basis, but she has not actually performed surveys while employed at AHCA. At hearing, Ms. Mayo-Davis opined that the factual basis supporting this alleged deficiency is that the facility “did not seek additional health evaluation after the resident had a fall.” Ms. Mayo-Davis testified that based on her review of the three photographs taken on January 20, 2015, and other documents, her nursing impression is that there was the potential for a brain injury or fracture of the face and that M.R. needed to be assessed by a doctor, not a nurse, and also taken to the hospital to evaluate whether or not some additional diagnostic testing needed to be done (i.e., CAT scan or X-ray). Ms. Mayo-Davis opined that M.R. still needed to go to the hospital even though by the third day “things were resolving.” At hearing, Ms. Mayo-Davis conceded that there is no evidence that M.R. suffered a brain injury or fracture to the face as a result of the fall on January 14, 2015. Importantly, at hearing, Ms. Mayo-Davis conceded that she never saw or examined M.R., and that she has never been to APCH. The undersigned rejects Ms. Mayo-Davis’ opinions as unpersuasive. The undersigned accepts and finds Ms. Mays’ opinions persuasive. By way of background, Ms. Mays received a bachelor’s degree in nursing from the University of Miami in 1999 and a master’s degree in nursing for clinical research from Duke University in 2001. She received a post-masters’ certificate as a psychiatric nurse practitioner from the University of Florida in 2013 and a doctoral degree in nursing practice from the University of Florida in August 2015. Ms. Mays has been licensed as a registered nurse in Florida since 1997. She is also licensed as a registered nurse in North Carolina and Kentucky. She is also licensed as an advanced registered nurse practitioner in Florida and Kentucky. Ms. Mays received training as an ALF administrator in Florida, and she is certified by the State of Florida to train ALF trainers. Ms. Mays began her work experience as a telemetry nurse for two years at Kendall Regional Medical Center. After that, she studied at Duke University where she became a clinical instructor for nursing students at Vance-Granville Community College, as well as the staff coordinator trainer at a nursing home in North Carolina. After that, Ms. Mays moved to Kentucky for six months where she was hired to be a director of a nursing home. She then returned to South Florida, where she accepted the position of director of nursing for a ventilator unit at Miami Hart Hospital, a position she held for three years. After Ms. Mays received her post-master’s certificate as a psychiatric nurse practitioner, she was then hired to work at West Palm Hospital as a psychiatric nurse practitioner. She is currently employed as an assistant professor at the University of Miami for clinical studies in the School of Nursing, in addition to her duties as the nursing care consultant at APCH. At hearing, without objection, Ms. Mays was accepted as an expert in the areas of general nursing, nursing standards, fall management, core training as it relates to ALFs, and nursing as it relates to the administration and management of ALFs. Ms. Mays persuasively opined that the acute course of M.R.’s medical condition occurred between January 14 and 16, 2015. During this time period, there was no change in M.R.’s condition because of her injuries from the fall which necessitated APCH contacting M.R.’s primary care physician or taking her to the hospital. M.R. was able to carry out her same activities of daily living she had done before the fall. Ms. Mays persuasively opined at hearing that had there been any indication of a brain injury as a result of the fall, the symptoms would have manifested during the January 14 through 16, 2015, period. However, no symptoms of a brain injury were presented, and there was no indication of a fracture. The persuasive evidence adduced at hearing establishes that APCH provided the correct course of treatment following M.R.’s fall, and there was no need for any further medical treatment or assessment of M.R. as a result of her injuries from the fall. M.R. was not subject to abuse or neglect by APCH, and AHCA failed to prove an intentional or negligent act by APCH seriously or materially affecting the health of M.R. Based on the particular facts of this case, the first-aid medical treatment provided by APCH as a result of M.R.’s injuries from the fall was adequate, appropriate, and consistent with the established and recognized standards within the community. Mr. Sterling was trained and qualified to perform the first-aid type treatment that he did and to contact Dr. Alade if there was any change in M.R.’s condition. Mr. Sterling’s first-aid treatment of M.R. was consistent with Ms. Mays’ protocol. The treatment protocol was sufficiently documented and followed. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A030. Tag A077: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class II deficiency: Tag A077: 58A-5.019(1) FAC Staffing Standards--Administrators * * * he facility failed to be under the supervision of an administrator who is responsible for the provision of appropriate care for one out of eight [M.R.] residents. The facility administrator, Mr. Mays, is responsible for the provision of appropriate care for the residents. At hearing, Ms. Calixte-Joasil testified that it is the administrator’s responsibility to ensure that the resident receive appropriate care. She testified that the reason she cited APCH for this deficiency is because Mr. Mays, “never ensured that she saw a doctor,” there was no documentation that she saw a doctor, and then when she contacted the doctor’s office, Dr. Alade had not seen her. Again, this deficiency is based on M.R.’s fall, and AHCA’s position that M.R. did not receive appropriate care as a result of her injuries from the fall. However, as detailed above, the undersigned has found that M.R. received adequate and appropriate care as a result of her injuries from the fall. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A077. Tag A025: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class II deficiency: Tag A025: 58A-5.0182(1) FAC Resident Care- Supervision * * * he facility failed to maintain a written record of any significant change for one out of eight residents [M.R.]. At hearing, Ms. Calixte-Joasil testified that the factual basis for this alleged deficiency is that APCH did not have any written record of any “significant change” for M.R. following the fall. The determination of whether a resident suffered from a “significant change” in behavior or mood cannot be made by a non- medical professional. Nevertheless, Ms. Calixte-Joasil made the determination that M.R. suffered from a “significant change” in her health status because of the “bump” on her head and “discoloration of the resident’s eyes.” The contusion caused by M.R.’s fall, which later resolved, did not result in a significant change in her health status. As detailed above, the injuries M.R. sustained as a result of the fall were short-term, requiring first-aid treatment, only. M.R. was able to continue to carry out her same activities of daily living before and after the fall. The credible and persuasive evidence adduced at hearing establishes that M.R. did not suffer from a “significant change” in her health status as a result of her injuries from the fall on January 14, 2015. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A025. Tag A152: Uncorrected Class III Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class III uncorrected deficiency: Tag A152: 58A-5.023(3) FAC Physical Plant-– Safe Living Environ/Other * * * he facility failed to maintain a safe living environment free from hazards. This alleged deficiency is premised on Ms. Calixte-Joasil’s belief that M.R.’s fall was caused by her tripping over a metal threshold at the entrance of APCH. At hearing, Ms. Calixte-Joasil testified that her belief is based on a conversation she had with Mr. Sterling on January 27, 2015. However, a review of Ms. Calixte-Joasil’s survey notes reflects that Mr. Sterling told her that his back was toward M.R. when she fell, and he did not actually see when M.R. fell. At hearing, Ms. Calixte-Joasil further testified that Ms. Mays told her that M.R. fell as a result of the metal threshold. However, Ms. Calixte-Joasil acknowledged that this purported statement is not in her survey notes. At hearing, Mr. Mays denied making the purported statement to Ms. Calixte- Joasil. No persuasive and credible evidence was adduced at hearing to demonstrate what caused M.R. to fall on January 14, 2015. Although APCH did not dispute in its Petition for Formal Hearing that M.R. “fell at the entrance of the facility,” that does not mean that she tripped over the metal threshold at the entrance of the facility. No witnesses who actually saw M.R. fall testified at the hearing. M.R. could have tripped over her own two feet at the entrance to the facility. Ms. Calixte-Joasil’s testimony that M.R. fell because she tripped over the metal threshold is not credited. Mr. Mays’ testimony is credited. In sum, the persuasive evidence adduced at hearing fails to establish that M.R. tripped over the metal threshold at the entrance door to APCH on January 14, 2015, which caused her to fall and suffer injuries.6/ Moreover, the evidence presented at hearing fails to establish that the metal threshold was a hazardous or potential hazardous condition. At hearing, Ms. Calixte-Joasil testified that when she observed the metal threshold during her January 2015 inspection, “[i]t was elevated a little bit.” Based on her belief that M.R. fell on January 20, 2015, she cited this deficiency as a repeat environmental hazard. APCH was unaware that the metal threshold was a potential hazard prior to the January 20 through 27, 2015, survey. There is no history of anyone ever tripping over the metal threshold prior to January 14, 2015. The metal threshold is not an uncorrected deficiency from the October 21, 2014, survey. The metal threshold was in the same condition on January 20, 2015, as it was at the time of the October 21, 2014, survey. The metal threshold was in the same condition it had been in when APCH commenced operations in 2013. Ms. Calixte-Joasil had been to APCH on multiple occasions prior to the October 21, 2014, survey, and used the same entrance where the metal threshold is located. Notably, Ms. Calixte-Joasil did not cite the metal threshold as an environmental hazard at any time prior to the October 21, 2014, survey, or when she conducted the October 21, 2014, survey. Ms. Calixte-Joasil made no mention to APCH of any issue with the metal threshold prior to the January 20 through 27, 2015, survey, and APCH was never made aware by AHCA that the metal threshold was a tripping hazard prior to the January 20 through 27, 2015, survey.7/ At hearing, Ms. Calixte-Joasil conceded that by the time of the January 20 through 27, 2015, survey, all of the items cited in the October 21, 2014, survey had been timely repaired. APCH’s license was set to expire on February 26, 2015. On February 23, 2015, AHCA conducted a standard biennial second revisit survey at APCH, at which time no deficiencies were found. At hearing, Ms. Calixte-Joasil conceded that all of the January 20 through 27, 2015, citations were timely corrected prior to the February 23, 2015, survey. Thus, there were no deficiencies at the facility for weeks prior to the March 10, 2015, denial letter. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA enter a final order granting APCH’s license renewal application. DONE AND ENTERED this 9th day of December, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 9th day of December, 2015.
