The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what sanctions, if any, should be imposed.
Findings Of Fact Based on the evidence adduced at the final hearing and the record as a whole, including the factual stipulations contained in parties' Joint Prehearing Stipulation,2 the following findings of fact are made: Respondent operates a Skilled Nursing Facility (Facility) located at 5725 N.W. 186th Street in Hialeah, Florida. The Facility is licensed by the Agency under Chapter 400, Part II, Florida Statutes. Aida Rodriguez has been a Florida-Certified Nursing Assistant (CNA) for the past three or four years. Ms. Rodriguez was employed as a CNA at the Facility on a part-time basis from November 6, 2002, until March 31, 2003, when she resigned for "family reasons." She worked only Fridays, Saturdays, and Sundays. Among the residents living in the Facility during the period of Ms. Rodriguez's employment were Residents 16 and 30.3 In accordance with his care plan, when Resident 30 was in the dining room for a meal, "staff [were] supposed to keep an eye on him" and "encourage him and attempt to assist him [if] he stop[ped] feeding himself" and needed help. Resident 30's daughter was often with her father at mealtime and provided him with whatever assistance he required, thus obviating the need, on these occasions, for staff intervention. On Saturday, March 15, 2003, Ms. Rodriguez was in the dining room when she observed Resident 30, without his daughter, seated at a table with a plate of uneaten food, that had been served a half an hour earlier, in front of him. Ms. Rodriguez approached Resident 30 and "offered him help." Ms. Rodriguez, who is bilingual in Spanish and English,4 spoke to Resident 30 in Spanish. Resident 16, who was nearby, interjected. She rebuked Ms. Rodriguez by telling her, "Don't touch him because the daughter is coming to assist him with feeding." Ms Rodriguez replied, in English, to Resident 16, who is not Spanish-speaking, "Let me ask Resident 30." Ms. Rodriguez then asked Resident 30, "Do you want water? Do you want me to help you?" Resident 30 responded, "Give me water." Ms. Rodriguez did as she was asked. After Resident 30 finished the glass of water Ms. Rodriguez had given him, Ms. Rodriguez asked Resident 30 if he "want[ed] to eat." When Resident 30 responded in the negative, Ms. Rodriguez left and tended to other business. At no time did Ms. Rodriguez tell Resident 16 to "shut up" or that Resident 16 should "mind [her] own business." At no time did Ms. Rodriguez force Resident 30, against his will, to eat or drink.5 Jeannette Barrett is now, and was at all times material to the instant case, a Florida-Licensed Practical Nurse (LPN) employed at the Facility. Ms. Barrett was in the dining room on March 15, 2003, when Ms. Rodriguez came over to the area where Residents 16 and 30 were seated. From her vantage point, Ms. Barrett was able to visually observe the encounter. Ms. Barrett did not "see Resident 30 get upset or aggravated during that meal." Ms. Barrett was unable to "hear any conversation between [Ms.] Rodriguez and Resident 16." As Resident 16 was leaving the dining room in her wheelchair, she "calm[ly]" told Ms. Barrett that she did not want Ms. Rodriguez "put[ting] [her] back to bed." When Ms. Barrett asked her why, Resident 16 responded, untruthfully, that Ms. Rodriguez had told her to "mind [her] own business" when she had suggested to Ms. Rodriguez that perhaps Resident 30 did not want to eat because he was waiting for his daughter to come and feed him.6 Ms. Barrett immediately informed the LPN who supervised the CNAs on Resident 16's "side" of the Facility of Resident 16's request and, in accordance with Facility policy, another CNA was assigned to care for Resident 16. Delia Rudio was the Director of Nursing at the Facility from February 11, 2002, until July 31, 2003.7 Ms. Rudio was not at the Facility on March 15, 2003. She was off from work that weekend. Upon Ms. Rudio's return to the Facility the following Monday, March 17, 2003, Ms. Barrett reported to Ms. Rudio about the conversation she had had with Resident 16 the previous Saturday and asked Ms Rudio to speak with Resident 16 and Ms. Rodriquez to sort out what had really happened in the dining room. Ms. Barrett brought the matter to Ms. Rudio's attention because it would have been "rude," in Ms. Barrett's opinion, for Ms. Rodriguez to have told a resident to "mind [her] own business." Tony Farinella is now, and was at all times material to the instant case, the Administrator of the Facility. On March 17, 2003, Mr. Farinella conducted a department supervisors meeting, at which (as his notes of the meeting, which were offered and received into evidence as Respondent's Exhibit 9, reflect) he was advised, by Ms. Rudio, of the "concerns" that Resident 16 had expressed, over the weekend, to Ms. Barrett regarding Ms. Rodriguez. That same day, after having received Ms. Barrett's report on the matter, Ms. Rudio spoke with Resident 16, Ms. Rodriguez, and other CNAs who were on duty at the Facility the previous Saturday with Ms. Rodriguez. Ms. Rudio asked them if there had been any problems at the Facility over the weekend. They all responded in the negative, indicating that the weekend had been uneventful with no unusual occurrences. Having talked to these individuals, Ms. Rudio reasonably believed that "nothing had occurred . . . over the weekend" that required her to take any remedial action. Ms. Rodriguez was not formally suspended pending Ms. Rudio's inquiry; however, Ms. Rudio concluded her inquiry before Ms. Rodriguez was next scheduled to report to work. Prior to the relicensure survey that led to the filing of the instant Administrative Complaint, Ms. Rudio did not document that she had done anything in response to the report she had received from Ms. Barrett concerning Resident 16's allegations against Ms. Rodriguez. Ms. Rudio, though, did verbally relate, at a department supervisors meeting conducted by Mr. Farinella on March 18, 2003, that she had looked into the matter and found that, in fact, there had been "no problem[s]" involving Resident 16 the previous weekend (as Mr. Farinella's notes of the meeting, which were offered and received into evidence as Respondent's Exhibit 10, reflect). The Agency conducted its relicensure survey of the Facility from March 31, 2003, through April 3, 2003. Elizabeth Rojas-Mariaca, a Health Facility Evaluator II with the Agency, was involved in conducting the survey. Resident 16 was interviewed during the survey. She alleged that, some time previous, Ms. Rodriguez had "told her to shut up and mind her own business" and that she (Resident 16) had "brought those allegations to the [attention of] the LPN [Ms. Barrett]." Resident 16 indicated that she "fe[lt] bad[ly] because Ms. Rodriguez was nasty and mean to [her]," but "still work[ed] there" at the Facility. Ms. Rojas-Mariaca spoke to staff at the Facility, including Ms. Barrett and Ms. Rudio, about Resident 16's allegations. She did not communicate, however, with either Ms. Rodriguez or Resident 30. When Ms. Rojas-Mariaca initially requested "some type of documentation" showing that, in accordance with the Facility's policy, an "investigation [into Resident 16's allegations] had been done" and documented, the Facility was unable to produce any such documentation. Shortly thereafter, however, the Facility prepared such documentation. Copies thereof were provided to Ms. Rojas- Mariaca and placed in the file the Facility maintained on Resident 16. The documentation accurately indicated that the Facility's investigation had revealed that Resident's 16's allegations were unfounded. Cindy Goldman, a Public Health Nutrition Consultant with the Agency, also participated in the survey. While at the Facility on April 1, 2003, Ms. Goldman went into a room in the sub-acute wing of the Facility shared by Resident 31 and another resident. Resident 31 was a recent admittee to the Facility. While she was "able to move her upper extremities" freely, as an amputee with only one leg, she needed assistance moving the lower half of her body. She was unable to, among other things, get on or off a bedpan by herself. When Ms. Goldman entered Resident 31's room, she observed Resident 31 lying in her bed with a bedpan under her buttocks. Resident 31 complained to Ms. Goldman that she was "in pain" as a result of having "been on the bedpan since yesterday"8 and she asked if Ms. Goldman could help her. There was a "call bell" tied to the upper bed rail to the right of Resident 31, which Ms. Goldman asked Resident 31 to "try to reach." Resident 31 moved her arm but not far enough to make contact with the "call bell." Ms. Goldman then activated the "call bell" to get assistance for Resident 31. Linda Mohammad, an LPN at the Facility, was in the sub-acute wing of the Facility when she noticed the "call light" outside of Resident 31's room was on. Ms. Mohammad was not "the person who [had] placed [Resident 31] on the bedpan."9 Ms. Mohammad nonetheless went to Resident 31's room and, after knocking on the door and entering the room, asked if she could be of any assistance. Ms. Goldman, who was standing in between the two beds in the room, responded that, according to what she had been told, Resident 31 had "been on the bedpan since yesterday." Ms. Mohammad then went to Resident 31's bedside. Resident 31 was "[i]n a normal position [on the bed] with her head up toward the head of the bed [which was elevated at approximately a 45 degree angle] on the pillow." As was apparent to Ms. Mohammad, based upon her past experiences with Resident 31, the "call bell" on the upper bed rail was within Resident 31's reach. On previous occasions, Ms. Mohammad had come to Resident 31's assistance in response to the activation of Resident 31's "call bell" and had found Resident 31 in the same position in relation to the "call bell" as she was in on this particular occasion.10 After putting on gloves, turning off the "call bell," and closing the privacy curtain around Resident 31's bed, Ms. Mohammad cleaned Resident 31 and removed and emptied the bed pan that she had been on. At no time did Resident 31 complain to Ms. Mohammad that she was in pain. When Ms. Mohammad "asked [Resident 31] if she was okay," Resident 31 "stated that she was fine." Ms. Mohammad re-opened the privacy curtain and left the room (which Ms. Goldman had already vacated), but not before making "sure [that Resident 31] was comfortable" and that "the call bell was still within [Resident 31's] reach."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency issue a final order dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED this 22nd day of December, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 22nd day of December, 2003.
