The Issue DOAH Case No. 01-3148: Whether the Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 01-4649: Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 15, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: AHCA is the state agency responsible for licensing and regulating the operation of nursing home facilities, including ensuring that nursing homes are in compliance with criteria established by Florida statute. Chapter 400, Part II, Florida Statutes (2001). AHCA is authorized in Section 400.23(8), Florida Statutes, to impose administrative fines on nursing home facilities that fail to meet the applicable criteria. Florence Treakle conducted surveys of Life Care on May 9, 2001, and June 12, 2001, as a result of complaints received by AHCA. Because the surveys were conducted as a result of complaints received by AHCA, Ms. Treakle was the only AHCA surveyor conducting the surveys. The results of the surveys were reported on a form identified as "HCFA-2567," which is generated by the federal Department of Health and Human Services, Health Care Financing Administration, and is commonly referred to as a "Form 2567." Several deficiencies were identified in the Form 2567s completed for the May 9, 2001, and June 12, 2001, surveys, which were each cited to a federal "tag number" designated as "F" tags,1 to the applicable provision of the Code of Federal Regulations, and to the applicable Florida administrative rule. Each deficiency was also classified under Florida law as either a Class II or a Class III deficiency, and a factual narrative was included to support each deficiency cited. May 9, 2001, survey.2 The Form 2567 for the May 9, 2001, survey included a citation for a Class III deficiency under F-279, "Resident Assessment," and Section 483.13(c), Code of Federal Regulations. This citation involved the care provided to residents L.D. and A.M. and was supported by the assertion that, "[b]ased on observation and record review[,] . . . the facility did not have comprehensive care plans in place for healing of the residents [sic] pressure sores." A care plan is a tool used by the nursing staff to ensure that the resident is getting consistent care and is compiled from data included in a resident's Comprehensive Assessment. An entry in a care plan includes the identification of a problem, a goal for resolving or improving the problem, and the approaches, or means, to be used to reach the goal. Resident L.D. L.D. came into Life Care with pressure ulcers, including a Stage IV pressure ulcer3 on his coccyx, which is located at the bottom of the backbone. L.D. was receiving wound care both at Life Care and at a wound care center pursuant to a physician's order dated April 4, 2001, which contained the following requirement: "[O]ffload[] all boni [sic] prominences as much as possible." In accordance with this order, L.D. was turned and repositioned in bed every two hours, and he was provided with a special, pressure-relieving mattress. L.D. was a very quiet person, but he had no cognitive impairment and was able to communicate his needs to staff. L.D.'s wife visited him every day; she usually arrived in mid-morning and left in mid-afternoon, and she returned for a few hours in the evening. Both L.D. and his wife made it clear to the Life Care staff that L.D. wanted to sit in a wheelchair as much as possible so that he could move around the facility, take walks outdoors with his wife, and have his meals sitting up. L.D. used a special, high-backed wheelchair that he provided for his use while he was a resident of Life Care. The chair reclined so that pressure on his coccyx could be relieved somewhat, and Life Care furnished him a gel cushion for his wheelchair, also to help relieve pressure on his coccyx. On May 9, 2001, Ms. Treakle observed L.D. sitting in his wheelchair for over two hours, from 10:20 a.m. until 1:00 p.m. She found nothing in L.D.'s Care Plan regarding the amount of time L.D. would be permitted to sit in a wheelchair. Resident A.M. A.M. entered Life Care with a Stage III pressure ulcer on his left buttock. A.M. was receiving wound care at Life Care in accordance with the approaches included in his Care Plan. A.M. was not cognitively impaired, and he could communicate his needs to staff. His granddaughter and one year-old great-grandson visited him every day, and he enjoyed sitting outside in a wheelchair with his great-grandson on his lap. A.M. also liked to spend most of his time outside his room, moving himself around the facility in a wheelchair. Life Care provided a gel cushion for his wheelchair to help relieve pressure on A.M.'s buttock. On May 9, 2001, Ms. Treakle observed A.M. sitting in a wheelchair from 2:00 p.m. until 3:30 p.m. A.M.'s Care Plan did not contain an entry establishing the amount of time A.M. would be permitted to sit in a wheelchair. Summary. AHCA has failed to establish by even the greater weight of the evidence that the Care Plans developed for L.D. and A.M. were deficient. AHCA failed to present credible evidence of the contents of L.D.'s Care Plan,4 but the evidence is uncontroverted that L.D.'s wound care orders contained approaches for healing his pressure sores. A.M.'s Care Plan included several approaches for healing his pressure sores, and AHCA has not alleged that the required wound care was not provided to either L.D. or A.M. Rather, AHCA's specific complaint regarding the Care Plans of L.D. and A.M. is that there was no approach specifying the amount of time L.D. and A.M. would be permitted to sit in their wheelchairs. This complaint is based exclusively on the expectations of Ms. Treakle. Ms. Treakle expected to find this approach in the Care Plans because, in her opinion, pressure on the coccyx and buttocks can never be completely relieved when a resident is sitting,5 and any pressure on a pressure ulcer impedes healing because it decreases blood flow to an area. Accordingly, Ms. Treakle "would expect good practice would [sic] be for the Care Plan to indicate how long the resident was going to sit on this pressure sore."6 AHCA did not, however, submit any evidence of a standard of care requiring that the duration of time a resident can sit in a wheelchair be included as an approach in the care plan of a resident with a pressure ulcer, especially when the resident is alert, mobile, and able to communicate with staff. June 12, 2001, survey. The Form 2567 for the June 12, 2001, survey cited Life Care for three deficiencies: A Class II deficiency was cited under F-224, "Staff Treatment of Residents," and Section 483.13(c)(1)(i), Code of Federal Regulations, involving the care provided to residents E.G. and N.D. and supported by the assertion that "[b]ased on observation, record review and interview[,] the facility did not monitor and supervise the delivery of care and services." A Class III deficiency was cited under F-279, "Resident Assessment," and Section 483.20(k), Code of Federal Regulations, supported by the assertion that, "[b]ased on review of the care plan for resident #1 [N.D.], . . . the facility did not complete a comprehensive care plan that was revised to reflect all fall risks." A Class II deficiency was cited under F-281, "Resident Assessment," and Section 483.20(k)(3)(i), Code of Federal Regulations, supported by the assertion that, "[b]ased on citations at F 224[,] F 279 and F 324[,] the facility nursing staff did not provide care that met professional standards for residents #1 [N.D.] and #2 [E.G.]." Resident E.G. Diabetes management. Pertinent to these proceedings, E.G. was diagnosed with insulin-dependent diabetes; his blood sugar generally ranged from 150 to 270, which is in the mid-range, although it once reached 348. E.G. was alert, oriented, self-ambulatory, and somewhat grouchy. E.G.'s brother visited him about three times each week, and E.G. often left the facility with his brother for a meal. He did not adhere strictly to his diet, but often ate fried foods when he went out with his brother, and he kept a supply of orange juice in the small refrigerator in his room. Both fried foods and orange juice are contraindicated for diabetics. Pursuant to physician's orders, E.G.'s blood sugar was to be monitored four times a day, before each meal and at bedtime,7 and insulin was to be administered on a sliding scale, in an amount to be determined based on his blood sugar level. This order was transcribed on E.G.'s Medication Record, which, for each day of the month, included spaces for the time, the blood sugar level, the insulin coverage (the dosage expressed in number of units administered), and the site of injection, together with the initials of the staff member providing the care. Life Care staff also maintained glucose monitoring sheets, which included spaces for the date, the time, the blood sugar level, the dosage of insulin administered, and the initials of the staff member providing the care. There is no documentation in E.G.'s Medication Records, his glucose monitoring sheets, or the Nurses Notes that his blood sugar was checked at 11:30 a.m. on June 7, 2001. When his blood sugar was checked at 4:30 p.m. on June 7, it was 317, which is substantially higher than usual. For the 6:30 a.m. checks on June 2, 3, and 8, 2001, E.G.'s blood sugar level was documented and there are notations that insulin was given, but the dosages and sites of injection were not noted; E.G.'s blood sugar at the 11:30 a.m. checks on these days was either virtually the same as, or less than, the levels noted at the 6:30 a.m. checks. For the 6:30 a.m. check on June 4, 2001, E.G.'s blood sugar level was documented, but there is no notation that insulin was given; E.G.'s blood sugar at the 11:30 a.m. check on June 4 was less than the level noted at the 6:30 a.m. check. Wound Care. On June 5, 2001, a dermatologist removed a lesion from the top of E.G.'s left hand. The dermatologist prescribed Bactroban ointment, which was to be applied to the wound twice a day. Wound care instructions were included with the prescription, which provided as follows: Leave bandage on for 24 hours only without getting wet. Remove bandage after 24 hours and then do not apply another bandage. Leave the area open and clean the wound twice daily with warm water. Pat the wound dry and then apply Bactroban Ointment. Bactroban Ointment is a topical antibiotic that can be purchased without a prescription. Continue to do this until the wound has healed. Normal bathing can be resumed after the bandage is removed. Some redness and swelling are normal in the immediate area of the wound. If the wound develops significant redness, tenderness or a yellow drainage, please contact this office immediately . . . . A physician's order dated June 5, 2001, was written for E.G. for "Bactroban oint to wound on L hand, 45gm." The order did not state how often the ointment was to be applied or include the other instructions accompanying the prescription. The order was transcribed on E.G.'s Treatment Record on June 5, 2001, but the entry provided only that Bactroban ointment was to be applied to the wound once a day. There is nothing in E.G.'s Care Plan, Treatment Record, or Medication Record to document that his wound was treated between June 5 and June 12, 2001, nor was there any indication in E.G.'s chart that anyone signed for the Bactroban ointment. Marion Neuhaus, the Director of Nursing at Life Care at the times pertinent to these proceedings, observed E.G.'s wound every day because E.G. came to her office to show her the wound and other bumps and scrapes he accumulated as he walked around the facility. Ms. Neuhaus noted that the wound was scabbed, that there was a pink area around the wound, and that there was no swelling or drainage. Treatment was begun on the wound on June 12, 2001, and it healed without any complications. Summary. AHCA has established clearly and convincingly that Life Care did not provide E.G. with the wound care that was ordered by his physician. AHCA has, however, failed to establish by even the greater weight of the evidence that the healing process of E.G.'s wound was compromised by this lack of treatment. Ms. Treakle observed E.G.'s wound on June 12, 2001, and noted that it was scabbed and red around the edges. Ms. Treakle concluded that this redness alone indicated that the wound was infected. This conclusion is undermined by the notation in the wound care instructions included with E.G.'s prescription from the Dermatology Center that "[s]ome redness and swelling are normal in the immediate area of the wound." Furthermore, Ms. Treakle did not follow E.G.'s wound after June 12, 2001, and the evidence presented by Life Care that E.G.'s wound healed in a timely manner is uncontroverted. AHCA has established clearly and convincingly that there are several omissions in the documentation of Life Care's monitoring of E.G.'s blood, but these omissions do not reasonably support the inference that Life Care failed to monitor E.G.'s blood sugar and administer insulin on these dates as required by the physician's orders; rather, Life Care's failure on these occasions was inadequate documentation, not inadequate care. AHCA has, however, established clearly and convincingly that Life Care did not monitor E.G.'s blood sugar as required by his physician's order at 11:30 a.m. on June 7, 2001; this inference may reasonably be drawn based on the lack of documentation and E.G.'s elevated blood sugar at the next check at 4:30 p.m. Ms. Treakle assumed that E.G. suffered actual harm as a result of this omission because, in her view, hyperglycemia, or elevated blood sugar, always causes damage to the body; Ms. Treakle could not, however, identify any specific harm to E.G. caused by this one omission. AHCA has failed to establish by even the greater weight of the evidence that E.G.'s physical well-being was compromised by Life Care's failure to monitor his blood sugar on this one occasion. Resident N.D. Fall from Shower Chair.8 At the times pertinent to these proceedings, N.D. was a 79 year-old woman who had been a resident of Life Care since October 26, 1999. According to the assessment of N.D. included in the Minimum Data Set completed on May 3, 2001, N.D. suffered from Alzheimer's disease, had long- and short-term memory problems, and was severely impaired and unable to make decisions; as of June 12, 2001, N.D. was almost entirely dependent on staff for all of the activities of daily living. N.D.'s Care Plan for November 6, 2000, which was updated with handwritten notes, reflects that she had poor safety awareness. The Interdisciplinary Notes maintained by Life Care reflect that, on June 5, 2001, a nurse observed N.D. leaning forward in her wheelchair at breakfast; this was the first mention of this behavior in N.D.'s chart. Dr. Gil, N.D.'s physician, included a notation in the Physician's Progress Notes for June 8, 2001, that he observed N.D. leaning forward but was unable to assess her abdomen because of her anxiety. The Interdisciplinary Notes reflect that Dr. Gil visited N.D. on Saturday, June 9, 2001, and that she was again leaning forward in her wheelchair, "almost falling out of [her] chair." Dr. Gil ordered an ultra-sound of N.D.'s abdomen and a "lap buddy while in w/c [wheelchair] to prevent falls." Dr. Gil's order was noted in the Interdisciplinary Notes for June 9, 2001, as well as on a physician's order form signed by Dr. Gil on June 10, 2001. According to Life Care's written policy, physician orders are to be transcribed into a patient's care plan, treatment plan, or medication administration record, depending on the nature of the order. Dr. Gil's order for a lap buddy had not been transcribed into N.D.'s November 6, 2000, Care Plan at the time Ms. Treakle conducted her survey on June 12, 2001.9 A lap buddy was used on N.D.'s wheelchair beginning on the morning of June 11, 2001. On the evening of June 11, 2001, CNA Nova Coleman was caring for N.D. Ms. Coleman had been working for Life Care for only a short time, and N.D. was one of the first patients Ms. Coleman cared for after finishing her initial training. Ms. Coleman was, however, not an inexperienced CNA, having previously worked at another nursing home. At approximately 8:30 p.m., Ms. Coleman and another CNA had just finished showering N.D., and N.D. was sitting in a shower chair; her hair had been toweled dry, and she was dressed in her night clothes. The second CNA left the room, and Ms. Coleman, who had been standing in front of N.D., moved to the back of the shower chair so she could push N.D. out of the shower area. As she moved around the chair, N.D. pitched forward and fell face-first onto the floor. Ms. Coleman tried to grab N.D. to stop her from falling, but N.D. toppled over so quickly that Ms. Coleman could not reach her. N.D. suffered severe bruises to her face and a laceration on her lip as a result of the fall, but she did not break any bones. Ms. Coleman had not been advised prior to the fall of N.D.'s tendency to lean forward in her chair. N.D.'s tendency to lean forward in her wheelchair should have been entered in her Care Plan, together with the requirement that a lap buddy was to be used whenever she was in a wheelchair. In addition, Ms. Coleman should have been briefed on N.D.'s condition, including her tendency to lean forward, before Ms. Coleman was allowed to care for N.D. Although a lap buddy was not ordered for the shower chair and, in fact, could not appropriately have been used on a shower chair, the former Nursing Director of Life Care conceded that there were other means by which N.D.'s fall could have been prevented.10 The former Nursing Director also conceded that the failure to brief Ms. Coleman on N.D.'s condition probably contributed to the fall from the shower chair. Summary. AHCA has established clearly and convincingly that Life Care failed to provide N.D. with the services necessary to prevent her from falling from the shower chair and injuring herself, that Life Care failed to provide services that met professional standards, and that Life Care failed to revise N.D.'s Care Plan to include the risk of her falling forward while seated and the approaches Life Care would take to prevent her from injuring herself. Life Care conceded that the Care Plan should have included N.D.'s tendency to lean forward while seated and Dr. Gil's order of June 9, 2001, that N.D. be provided with a lap buddy when she was in the wheelchair. Life Care also conceded that the CNA should have been briefed on N.D.'s condition before she was assigned to care for N.D. Life Care further conceded that, even though Dr. Gil did not specifically prescribe a restraint to be used in the shower chair, measures could have been taken to ensure that N.D. did not fall out of the shower chair. AHCA has also established clearly and convincingly that Life Care's failure to provide proper care to N.D. resulted in her suffering significant injuries to her face. Although the injuries were to soft tissue and ultimately healed, N.D.'s physical well-being was adversely affected. In addition, AHCA has established clearly and convincingly that, even had N.D. not fallen and suffered injuries, the failure to include in N.D.'s Care Plan her tendency to lean forward and its failure to transcribe the physician's orders regarding the lap buddy into the Care Plan could have caused a lapse in the care provided to N.D. that could have possibly resulted in injury.
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 Sustaining the reduction in the licensure status of Life Care Center of Port Saint Lucie to conditional for the period extending from June 12, 2001, to August 17, 2001; and Imposing an administrative fine in the amount of $5,000.00. DONE AND ENTERED this 15th day of May, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 May, 2002.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $5,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed November 7, 2012 1:32 PM Dipision of Administrative Hearings ORDERED at Tallahassee, Florida, on this b day of /V 6 Va be , 2012. ‘, - Sy At, * q Elizabeyh Dudek, ae Agency for Healt! e Administration
Other Judicial Opinions 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. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_gopy of this Final Order was served on the below-named persons by the method designated on this Z lay of _ LY Loe , 2011. Richard Shoop, Agency Cler! Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) David Selby, Esq. Haifa Harb, Administrator and Registered Agent Office of the General Counsel Bloomfield Manor Agency for Health Care Administration 2774 Wesleyan Dr., (Electronic Mail) Palm Harbor, FL 34684 (U.S. Mail) John D. C. Newton, II B. Kyle Morley, Esq. Administrative Law Judge Kelley, Kronenberg, et al Division of Administrative Hearings 8201 Peters Rd, Ste 4000 (Electronic Mail) Ft. Lauderdale, FL 33324 L (U.S. Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, Vv. Case No. 2012005357 BLOOMFIELD MANOR, INC. d/b/a BLOOMFIELD MANOR Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, Bloomfield Manor, Inc. d/b/a Bloomfield Manor (“Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2011), and alleges: NATURE OF THE ACTION This is an action against an assisted living facility to impose an administrative fine in the amount of $5,000.00 based upon one State Class II deficiency (Count I) and to assess a survey fee of five hundred dollars ($500.00) (Count Il). The total assessment is for $5,500.00. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and Chapters 408, Part Il, and 429, Part L Florida Statutes (2011). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of assisted living facilities and enforcement of all applicable federal regulations, state statutes and rules governing assisted 1 EXHIBIT 1 living facilities pursuant to the Chapters 408, Part II, and 429, Part I, Flonda Statutes, and Chapter 58A- 5, Florida Administrative Code (‘F.A.C.’), respectively. 4. Respondent operates a six bed assisted living facility (‘ALF’) located at 2774 Wesleyan Dr., Palm Harbor, FL 34684, and is licensed as an ALF, license number 9893. Respondent was at all times material hereto a licensed facility under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes. COUNT I — CLASS TI FINE 5. The Agency re-alleges and incorporates paragraphs one through five as if fully set forth herein. 6. Florida regulatory law states the following concerning resident care and elopement standards at an ALF: 58A-5.0182 Resident Care Standards. An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. (1) SUPERVISION. Facilities shall offer personal supervision, as appropriate for each resident, including the following: (a) Monitor the quantity and quality of resident diets in accordance with Rule 58A-5.020, F.A.C. (b) Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional well-being of the individual. (c) General awareness of the resident’s whereabouts. The resident may travel independently in the community. (d) Contacting the resident’s health care provider and other appropriate party such as the resident’s family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident’s family, guardian, health care surrogate, or case manager if the resident is discharged or moves out. (e) A written record, updated as needed, of any significant changes as defined in subsection 58A-5.0131(33), F.A.C., any illnesses which resulted in medical attention, major incidents, changes in the method of medication administration, or other changes which resulted in the provision of additional services. (8) ELOPEMENT STANDARDS (a) Residents Assessed at Risk for Elopement. All residents assessed at risk for elopement or with any history of elopement shall be identified so staff can be alerted to their needs for support and supervision. 1. As part of its resident elopement response policies and procedures, the facility shall make, at a minimum, a daily effort to determine that at risk residents have identification on their persons that includes their name and the facility’s name, address, and telephone number. Staff attention shall be directed towards residents 2 assessed at high risk for elopement, with special attention given to those with Alzheimer’s disease and related disorders assessed at high risk. Rule 58A-5.0182, FAC. 7. A-complaint survey, CCR # 2012000332, was performed on 9 February, 2012, in conjunction with a biennial state licensure survey of this ALF with extended congregate care. 8. The Agency’s surveyor reviewed facility records and interviewed facility staff and determined that the facility failed to provide adequate supervision to ensure the health and safety of a vulnerable 97 year old female resident, which resulted in her eloping from the facility in the early morning hours on 5 January, 2012, a very cold morning where the temperature dropped to as low as 39-42° F. She was found early that morning by law enforcement with a broken nose and bruised eyes. She had no identification on her and she was too confused to state her name. She was identified by law enforcement only after the caregiver called law enforcement at between 7:00 — 7:45 am to report the missing resident. 9. The following information was learned from the records review and staff interviews during the Agency’s survey: a. This resident was admitted to the facility as a respite (short stay) resident by her son on 1/1/12 to stay for a week while he was going to be away. b. A formal health assessment was not required for respite care for a stay of less than 30 days. The facility administrator/owner’s brief notes indicated that he had asked the son questions about his mother’s routine, behaviors, diet, and her general needs regarding her activities of daily living. The notes included no milk, no smoking, some confusion, no wandering, regular diet, no falling and supervision with dressing. He listed her age as 97. c. Additional unsigned handwritten notes on resident observation log sheets stated that she was confused, and she had stated that she was leaving and her son was going to come and get her. When the administrator came to the facility on 1/1/12, he and the live in caregiver (#1) (she stayed there five days a week) agreed to activate the front door alarm as a preventative step because of this particular resident's confusion. This was done the following day. There was no documentation of a plan to provide closer supervision. After the new door alarm was installed the next day, there was no documentation indicating that this resident had ever gone out the door and set off the alarm but it was documented that she continued to be confused and kept saying she was going to leave, that her son was coming for her. After a day of the alarm going off frequently due independent residents coming and going, the caregiver removed it the next day, 1/3/12, and contacted the administrator to let him know. The administrator acknowledged during his interview that he had been contacted as indicated by this caregiver. This caregiver said that she removed the door alarm because residents said it bothered them. Additionally, she did not see exit seeking behaviors from this respite resident, only confusion, and she stayed in the living room and kept a close eye on her. However, the caregiver did describe seeing the resident going from room to room, touching different doors and having difficulty finding the restroom. At one point during the night, the caregiver heard noise from the resident’s room and found her fooling with her travel bag which she had put on top of her bed. She described the inability of the resident to follow simple commands such as putting on clean clothes that had been selected for her to put on after she showered. Instead, she put on the same clothes she had worn previously. Her appetite was described as good. The caregiver further stated that she had verbally briefed the incoming replacement staff member (caregiver #2) on 1/4/12 before getting off at 9:00 am. She did not mention anything to her replacement about the door alarm being activated and then deactivated 4 i. but she did relate that the resident was confused. She did not say that this resident needed more supervision than the other residents. There were no written notes in the resident's file to describe for the benefit of the replacement the behaviors that had been observed that would have called for constant supervision or possible discharge to a higher level of care than could be provided at this facility. A confidential interview during the survey with a different resident revealed he had heard and felt someone touch his feet during the early hours of 1/5/12 and thought it was a burglar in his room but then realized it was the respite resident who immediately left his room. He recalled this happening between 3:00 - 3:30 am. He said he got up and rolled into the living room and found the caregiver (#2) asleep on the chair. Shortly after that he said he heard noises coming from behind his closet where the respite resident's closet backed up to his but the noises stopped and he did not think any more about it. He said the caregiver (#2) came into his room sometime around 5:00 am he thought and asked him if he had seen the respite resident. He told her that he had not seen her since earlier that morning when she had come into his room. He said the caregiver then began a full search. Review of the 1 day and 15 day Adverse Incident reports submitted on 1/15/12 and 2/5/12 (submitted late and cited as a separate deficiency) revealed the respite resident was discovered missing on 1/5/12 at approximately 7:30 am at which time the administrator was notified. By that time, the resident had already been picked up by law enforcement and taken to a nearby hospital with a fractured nose. Review of the facility's elopement drills revealed they were completed timely. Caregiver #1’s personnel file reflected all required training. 1. Caregiver #2’s personnel file was missing so it could not be reviewed. The administrator thought that that caregiver might have taken it from his office when she returned for the rest of her personal items on 1/20/12 after being terminated on 1/5/12. 10. The information set forth above reflects Respondent’s failure to ensure care and services appropriate to the needs of a resident accepted for admission to the facility including personal supervision where Respondent knew of or should have known of the resident’s confusion, risk of elopement, and possible injury, but nevertheless deactivated the alarm needed to ensure the continued safety of an obvious at-risk resident. 11. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which directly threatens the physical or emotional health, safety, or security of the clients, other than class I violations. 12. The same constitutes a State Class II offense, defined as follows: 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients. ... Violations shall be classified on the written notice as follows: (b) Class “II” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A fine shall be levied notwithstanding the correction of the violation. Section 408.813, Florida Statutes (2011) 13. The fine for a Class II violation is set forth as follows: 429.19 Violations; imposition of administrative fines; grounds.— (1) In addition to the requirements of part I of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the ... actions of a facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a 6 resident of the facility. (2) Each violation of this part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: (b) Class “If” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation in an amount not less than $1,000 and not exceeding $5,000 for each violation. (3) For purposes of this section, in determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: (a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated. (b) Actions taken by the owner or administrator to correct violations. (c) Any previous violations. (d) The financial benefit to the facility of committing or continuing the violation. (e) The licensed capacity of the facility. (7) In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility’s biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under s. 429.28(3) (c) to verify the correction of the violations. Florida Statute 429.19, Florida Statutes (2011). WHEREFORE, the Agency intends to impose an administrative fine in the amount of $5,000.00 against Respondent, an ALF in the State of Florida, pursuant to Section 429.19 (2) (b) and (3), Florida Statutes (2011). COUNT II- ASSESSMENT OF A SURVEY FEE 14. The Agency re-alleges and incorporates paragraphs 1 through 5 and Count | as if fully set forth herein. 15. Pursuant to Section 429.19 (7), Florida Statutes (2011) (paragraph 13 above), in addition to any administrative fines imposed, the Agency may assess a survey fee, equal to the lesser of one half of a facility’s biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under Section 429.28 (3) (c), Florida Statues, to verify the correction of the violations. 16. The citation of the Class II deficient practice based on the 9 February, 2012, survey was the subject of a complaint. 17. Respondent is therefore subject to a survey fee of $500.00, pursuant to Section 429.19 (7), Florida Statutes (2011). WHEREFORE, the Agency intends to impose a survey fee of $500.00 against Respondent, an ALF in the State of Florida, pursuant to Section 429.19 (7), Florida Statutes (2011). Submitted this 7 day of June, 2012. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION The Sebring Building 525 Mirror Lake Dr. N., Suite 330H St. Petersburg, FL 33701 Ph: (727) 552-1942 Fax: 552-1440 L. 7 . CO ; py Cher O. /' Edwin D. Selby, Esq. Fla. Bar No. 262587 Attorney for Petitioner
The Issue DOAH Case No. 02-4795: Whether the licensure status of The Moorings, Inc., d/b/a The Chateau at Moorings Park ("The Chateau") should be reduced from standard to conditional for the period from July 18, 2002, to August 21, 2002. DOAH Case No. 02-4796: Whether The Moorings committed the violations alleged in the Administrative Complaint dated November 12, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes; Chapter 59A-4, Florida Administrative Code. The Moorings, Inc. is a Florida corporation with its principal address at 120 Moorings Park Drive, Naples, Florida. It is a not-for-profit organization governed by a local board of directors. Moorings Park is a continuing care retirement community. The Chateau is the long-term care facility at Moorings Park. It is a 106-bed skilled nursing facility located at 130 Moorings Park Drive, Naples, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and IV representing the least severe deficiency. On July 15 through 18, 2002, AHCA conducted an annual licensure and certification survey of The Chateau to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged several deficiencies during the survey, only one of which is at issue in these proceedings. At issue is the deficiency identified as Tag F324 (violation of 42 C.F.R. Section 483.25(h)(2), relating to ensuring that each resident receives adequate supervision and assistive devices to prevent accidents). The deficiency alleged in the survey was classified as Class II under the Florida classification system for nursing homes. A Class II deficiency is "a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. The deficiency alleged in the survey was cited as a federal scope and severity rating of G, meaning that the deficiency was isolated, caused actual harm that is not immediate jeopardy, and did not involve substandard quality of care. Based on the alleged Class II deficiency in Tag F324, AHCA imposed a conditional license on The Chateau, effective July 18, 2002. The Chateau submitted a plan of correction, and AHCA performed a follow-up survey indicating that the facility had addressed AHCA's concerns. The Chateau's standard license was restored, effective August 21, 2002. The Chateau's submission of a plan of correction did not constitute an admission of the alleged deficiency. The survey allegedly found a violation of 42 C.F.R. Section 483.25(h)(2): Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. * * * Accidents. The facility must ensure that-- The resident environment remains as free of accident hazards as is possible; and Each resident receives adequate supervision and assistance devices to prevent accidents. (Emphasis added.) In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F324." The Agency's allegations in this case involved accidental falls suffered by two residents at The Chateau. The Form 2567 listed two incidents under Tag F324, one involving Resident 7 and another involving Resident 12. The surveyor observations read as follows (unless otherwise noted, abbreviations and non-standard spellings are reproduced as they appear in the Form 2567): Based upon record review, observation, and interview the facility failed to ensure that 2 of 16 active sampled residents (#12 and #7) at risk for falls received adequate supervision and assistance to prevent the residents from falling and injuring themselves. This is evidenced by: 1. Resident #12 had a Cerebral Vascular Accident with Left Hemiparesis. The resident required supervision and assistance for Activities of Daily Living (ADL's) and was assessed to be at risk for falls. The resident was left unattended on the toilet on 7/9/02, fell off the toilet and sustained a fractured left rib. 2. Resident #7 was at risk for falls due to a Cerebral Vascular Accident and was further at risk for falling due to Parkinson Disease [sic]. The resident was left unattended in the bathroom on 5/31/02 and sustained a fractured left hip after tripping over his Foley catheter tubing and falling to the floor. Findings include: The medical record for Resident #7 was reviewed on 7/16-18/02. This resident was admitted to the facility on 3/25/02 with diagnoses including: diabetes mellitus, arthritis, cerebrovascular accident (stroke), and Parkinson's disease. A review of nursing notes dated 5/31/02 revealed the resident had fallen in his bathroom. The note stated the following: "0745 called to Rm CNA reported resident on the floor. Res was brushing his/her teeth @ sink in standing position-- fell backward. Full ROM. No obvious deformity noted. C/O L hip pain. Denies head or back pain. Had prev. fx R hip. Lifted to feet C/O L hip pain. Refused to go to hospital @ this time. Dr. notified of incident new orders received for [x-rays] notified nurse." "1400 Result from x-ray came back @ a Novitis placed L femoral intero chanteric fx. Dr. notified order to send Pt to the ER. Daughter notify agree to keep the Pt room while in the hospital call 911 have Pt sent to ER." The Hospital Consultation Document dated 5/31/02 was reviewed. It revealed: The chief complaint: "I slipped and fell." "History of Present Illness: Resident with multiple medical problems, followed by Dr., who today at the nursing home apparently fell and tripped over his Foley catheter while trying to go to lunch, and had a resultant trauma to his left hip and left shoulder, with resultant hip fracture." The Hospital Admission record dated 5/31/02 showed the diagnosis: "Left intratrochanteric hip fracture. The patient was admitted for opened reduction internal fixation of the left hip." According to facility records, the resident was readmitted on 6/05/02. Following the record review, an interview was conducted with the resident on 7/16/02 at approximately 1:30 PM. The resident stated he had fallen on 5/31/02. He stated he started to move away from the bathroom sink and tripped over the Foley catheter (indwelling urinary catheter) tubing that was on the floor. The staff member left him unattended, according to the resident, while the staff retrieved the resident's glasses on the bedside table. An interview was conducted with the facility's Risk Manager on 7/17/02 at approximately 3:30 PM who stated that no one had interviewed the resident following the accident. Review of the clinical record revealed a Minimum Data Set (MDS), completed on 4/22/02. This MDS showed the following: The resident was assessed as a 2 (2= Moderately Impaired-- decisions poor: cues/supervision required) for Cognitive skills for daily decision-making. Under section P, Special Treatment and procedures Alzheimer's/dementia special care unit was indicated. Interview with the facility Social Worker on 7/18/02 at approximately 9:30 AM revealed the resident's cognitive status had improved so that his capacity was being reviewed for increased cognitive functioning. Additionally, the resident was assessed for ability to walk in the room (How resident walks between locations in his/her room) as needing extensive assistance by one person. (coded 3/2. 3= Extensive Assistance 2= One person physical assist). Under section J, Health Conditions, "Unsteady gait" was indicated for the resident as well as accidents, "Fell in the past 30 days". The RAP summary for Falls had the following documentation: "Ambulating with extensive assist of two in PT room. Compromised safety awareness associated with cognitive impairment." The resident triggered for Falls and a plan of care dated 4/11/02 revealed the following goal: "Resident will not be injured in a fall. Staff are to assist in ambulation and transfer. Anticipate needs as much as possible and place items close at hand." The resident was assessed as at risk for falls, facility staff responsible for the care and supervision of the resident failed to implement the plan of care by not providing adequate supervision as needed. Resident #12 was admitted to the facility on 6/25/02 from the hospital. The admitting diagnosis included, but was not limited to: Cerebral Vascular Accident (CVA) with Left (L) Hemiparesis; Status Post fracture T-12 (Thoracic); Seizure Disorder; Systemic Lupus; severe Interstitial Lung Disease; Pulmonary Hypertension and Congestive Heart Failure (CHF). The facility initially care planned the resident for falls with a goal that the resident would not be injured in a fall. The approaches included: providing assistance in ambulation and transfer; reminding the resident to use call light for assistance; providing the resident with routine toileting per request of resident to decrease risk and personal protection device to bed and wheelchair. On 6/25/02 the resident had a physical therapy assessment completed in the facility. The facility physical therapist notes state, "Client is now presenting self with severe weakness of left extremities, decreased balance and poor endurance. Causing client to be functioning at a very limited activity level. Client also has complete foot drop on L side with mediolateral instability. Sensation/Proprioception: Noted loss of proprioception in left extremities, which along with present weakness cause client to have no functional use of left extremities at this time. Orientation forgetful at times. Transfers Sit to stand with extensive assist times 2 and verbal cues for posture. Client unable to maintain sitting balance on her own. Sitting posture is round shouldered, head forward position leaning to left side. Client unable to get any support from left lower extremity when standing. Client is at high risk for falls. Client has multifactorial balance problems due to weakness, decreased balance, decreased endurance, decreased vision, decreased proprioception. This was discussed with client and nursing." On 6/28/02 the facility completed a 5 day Medicare Minimum Data Set (MDS) for the resident which showed the following assessment: In Section G Physical Functioning and Structural Problems the resident was assessed in G1b as 3/3 (3= Extensive Assistance/ 3= Two+ person physical assist). In G1c and G1d-- Walk in Room and Walk in Corridor the resident was assessed 8/8 (Activity did not occur during entire 7 days). In G1i-- Toilet use was assessed as 4/2 (4= Total Dependence-- Full staff performance of activity during entire 7 days). In G3a Balance while Standing and G3b Balance while sitting-- position, trunk control the resident was assessed as 3/0 (3= Not able to attempt test without physical help and 0= Maintained position as required in test). In G6 Modes of transfer the resident was assessed in b as using bed rails for bed mobility or transfer, in c as requiring to be lifted manually, and in e as needing transfer aid (e.g. slide board, trapeze, cane, walker, brace). In Section J Health Conditions and in J4 Accidents the resident was assessed as having fell in past 31 to 180 days. In Section P Special Treatments and Procedures the resident was noted to be receiving Speech, Occupational and Physical therapy. Review of the nursing note for 6/29/02 revealed: "1100 hours max assist with all ADLs-- and transfers, alert-- noted to have slid to the floor in the bathroom with CNA in attendance-- lost grip on bar next to toilet, stated banged back of head left side." Further review of the nursing notes revealed: "Daughter notified that mother was with a CNA at the time and that the CNA was assisting her mother with pulling up her pants." Review of the physical therapy notes dated 7/2/02 revealed: "Left knee will tend to buckle easily if client not concentrating on what she is doing. Client does show severe loss of proprioception and severe neglect of left upper extremity, client encouraged to work on HEP on her own. Client remain at high risk for falls (had one fall this past week) will continue to use bed and wheelchair alarms for safety. Also noted much instability of pelvis when standing." Further review of nursing notes from 7/1/02 to 7/8/02 indicated the facility was providing 2 person assist with transfer and toileting. Review of the nursing note on 7/8/02 revealed: "assist of 2-- resident requested only one person transfer her-- educated on risks of this and reinforced that we will continue to use 2 people to transfer." Review of the nursing notes on 7/9/02 revealed: "1900-2400 Total assist with all ADL's. Two person transfer. CNA brought resident to bathroom and gave resident call light to pull when finished. Resident leaned to Left side and fell off toilet at 2130. Resident reports hitting top of head on cabinet/floor. No edema or hematoma noted to scalp.... Resident reports pain to Left rib cage. Resident does not want to go to ER (Emergency Room) and agreed to have X- rays of ribs at AM at facility. Between 2400 and 0700.... Still with c/o (complaints of) left rib pain. Interview with Risk Manager and Administrator on 6/18/02 at 10:30 AM revealed that the CNA left the resident alone in the bathroom on 7/9/02. On 7/9/02 the resident was X-rayed in the facility. Nursing note of 7/10/02 states "rib X-ray back. + (positive) for fx (fracture) Left anterior lat (lateral) approximately 10th rib." On 7/10/02 the facility received the following written interpretation from the Radiologist: "There is a definite acute fracture of left lower anterolateral rib, which appears to be the tenth rib." Impression: "Fracture of left anterolateral lower rib, probably the tenth rib. Cannot absolutely exclude fracture of left posterior fourth rib, although this is considered less likely." At the hearing, AHCA conceded that falls can happen, and that a facility is not required to be an absolute guarantor against falls. When a first fall for a resident occurs, AHCA generally deems it an accident and does not cite it as a violation. It is only a second fall for the same resident that is usually deemed an "incident" that may warrant a citation. AHCA employs a "Resident Assessment Protocol" or "RAP" for falls that provides a systematic approach to the evaluation of a fall and assists facility staff in identifying risk factors for falls and potential preventive interventions. The RAP's guidelines for resident care planning state that a major risk factor is the resident's history of falls. The guidelines note that "internal risk factors" involving the resident's underlying health problems should be addressed to prevent falls. The guidelines also list "external risk factors," including medications, appliances and devices, and environmental or situational hazards. The guidelines note that external risk factors can often be modified to reduce the resident's risk of falls. As to the external risk factor of "medications," the guidelines state: Certain drugs can produce falls by causing related problems (hypotension, muscle rigidity, impaired balance, other extrapyramidal side effects [e.g., tremors], and decreased alertness). These drugs include: antipsychotics, antianxiety/hypnotics, antidepressants, cardiovascular medications, and diuretics. Were these medications administered prior to or after the fall? If prior to the fall, how close to it were they first administered? Resident 7 was an 89-year-old male who had been admitted to The Chateau in March 2002. At the time of admission, Resident 7 suffered from several conditions: metabolic myopathy, early stage Parkinson's disease, adult-onset diabetes, hypertension, and failure to thrive. Upon admission, he could not walk or feed himself. As of April 22, 2002, Resident 7's balance was unsteady, but he was able to rebalance himself without the use of an assistive device. Resident 7's treatment plan for functional goals, dated March 12, 2002, noted that he was a "high fall risk." A preliminary fall assessment, also dated March 12, 2002, showed a score of 21, on a scale where a score of 10 or above indicated a risk of falling. Among the factors noted in this assessment was "loss of balance while standing." An assessment of Resident 7's activities of daily living ("ADL") functions, dated March 25, 2002, showed that he required "total care" for eating, "extensive assistance" for dressing and grooming, and assistance in transfers. A RAP summary, dated March 29, 2002, stated that the family reported that Resident 7 had fallen at home within the last 30 days. The RAP stated that Resident 7 required extensive assistance from two people to ambulate in the physical therapy room. In addition to his physical limitations, Resident 7 displayed some mental confusion at the time of his admission to The Chateau. On March 19, 2002, Nancy Lockner, a social worker at The Chateau, administered a mental status examination on which Resident 7 scored 20 out of a possible 30 points. Ms. Lockner testified that a score below 25 on this "mini- mental" exam triggers a finding of incompetency as regards medical decisions. The resident's physician signs a statement of incompetency empowering a designated health care surrogate to make medical decisions for the resident. This procedure was followed with Resident 7. The RAP of March 29, 2002, noted that Resident 7 exhibited "[c]ompromised safety awareness associated with cognitive impairment." Resident 7's care plan, dated April 11, 2002, confirmed that he was at risk for falls, stated a goal that he would not be injured in a fall, and set forth the following among the means to be used to prevent falls: "Anticipate needs as much as possible and place items close at hand. Ask [Resident 7] if he needs anything before leaving room." By May 31, 2002, the date of his fall, Resident 7's overall condition had improved dramatically. His metabolic myopathy had cleared and the failure to thrive had been reversed. By the time of the fall, Resident 7's mental confusion had cleared considerably. He was able to understand what was said to him, and was able to make his wishes known to the staff. The staff persons who worked with Resident 7 believed they could depend on him to follow instructions. On June 6, 2002, a few days after his fall, Resident 7 scored 26 out of 30 points on a second "mini-mental" exam, indicating competency. Resident 7 had initially been placed in the facility's secure unit for his safety, but by late May had improved such that The Chateau's staff was trying to convince him to move off the unit. Resident 7 was functioning at a higher level than the other residents on the secure unit, but wished to stay there because he had become attached to the staff people on the unit. By May 31, 2002, Resident 7 was able to balance himself and to ambulate up to 300 feet without direct physical assistance. His minimum data set ("MDS") of April 22, 2002, coded him as requiring "extensive assistance" for both transfers and walking, with physical assistance from one person. "Extensive assistance" means that the resident is able to perform part of a given activity, but also needs weight-bearing support and/or full staff performance of the activity on occasion. In practice, staff provided Resident 7 with close supervision but no hands-on assistance when he walked. Resident 7 used a walker, which is a recognized safety device. He was counseled as to the danger of walking without supervision by a staff person. Prior to May 31, 2002, Resident 7 had not fallen during his stay at The Chateau. Mondy Sataille was an experienced CNA who worked regularly with Resident 7. Regina Dreisbach, the executive director of Moorings Park, described Ms. Sataille as one of the reasons why Resident 7 insisted on staying in the secure unit. At times, Ms. Sataille allowed Resident 7 to stand with his walker in the room while she gathered his clothes or other items for him, without incident. On the morning of May 31, 2002, Resident 7 called Ms. Sataille into his room. He told her that he wanted to get dressed and go to the bathroom before going out for breakfast. Ms. Sataille asked Resident 7 if he wanted to use his wheelchair, because he was sometimes weak in the morning. Resident 7 declined the wheelchair. Ms. Sataille brought him his walker, then watched him get dressed. After dressing, Resident 7 went to the bathroom while Ms. Sataille waited at the door. After brushing his teeth, he started to walk out of the bathroom and asked Ms. Sataille where his glasses were. Ms. Sataille told him they were lying at the end of his bed, between six and seven feet away from where they were standing. Resident 7 asked Ms. Sataille to get the glasses for him. Ms. Sataille hesitated, because getting the glasses would require her to leave his side. She suggested they wait until they both reached the bed, when he could pick up the glasses for himself. Resident 7 insisted that Ms. Sataille get the glasses. Ms. Sataille agreed to get the glasses. She told Resident 7 that he would have to stand still while she did so, that he should not attempt to walk until she returned to his side. As she took her second step toward the bed and reached for the glasses, Ms. Sataille heard a noise. She turned back and saw Resident 7 on the floor. Resident 7 told Ms. Sataille that he tripped over the tubing from his Foley catheter. The tubing ran from inside his pants to a collection bag, which was attached to his walker. Ms. Sataille reported the resident's statement, though she did not believe that he could have tripped over the tubing, given its short length and the fact that it remained attached to the standing walker even after Resident 7 fell. The evidence is insufficient to find that the tubing from the Foley catheter caused Resident 7's fall. It is at least as plausible that he fell while attempting to walk alone, or that he simply lost his balance. On the date of his fall, Resident 7 was sent to the emergency room of a NCH Healthcare System hospital in Naples, where he was diagnosed with a left intratrochanteric hip fracture. An orthopedic surgeon performed an open reduction internal fixation of the left hip with a DHS compression screw. At the hearing, Ms. Sataille testified that she was "not exactly" aware that Resident 7 was at risk for falls. She knew that he was at risk when he was admitted to the facility, but said she was later told by the physical therapist that "he's okay to use his walker," which led her to believe she did not need to supervise him so closely as she did prior to therapy. Her belief was reinforced by the fact that she had left him standing alone holding onto his walker on prior occasions to no ill effect. However, Ms. Sataille's statements are undercut by her initial hesitation to leave the side of Resident 7 when he asked her to retrieve his glasses and her admonition that he stand still while she was away from his side. These actions make it apparent Ms. Sataille knew that leaving Resident 7 unattended for even a few seconds was risky, despite her testimony that she had done so on prior occasions. Based upon all the facts presented, it is found that Resident 7's fall could have been avoided had facility staff simply provided the close supervision that The Chateau's own medical records indicated was required when the resident used his walker. Though this was Resident 7's first fall in the facility, the staff was aware that he had fallen at home and was at high risk for further falls. The fact that Ms. Sataille had left Resident 7 standing alone on previous occasions without his falling did not change the requirement of close supervision when he ambulated. Diane Gail Ross, The Chateau's director of nursing services and expert in long-term care nursing, opined that Resident 7 was being "supervised," even when Ms. Sataille was not in direct proximity to him. Ms. Ross' opinion begs the question of whether such supervision was adequate to the needs of Resident 7 as established in the medical record. The Chateau failed to provide adequate supervision to Resident 7, and this failure directly led to his fall and consequential injuries. Resident 12 was an 87-year-old female who had been admitted to The Chateau on June 25, 2002. Prior to admission, Resident 12 had suffered a stroke. Her underlying conditions included systemic lupus, seizure disorders, interstitial lung disease, and hypertension. Due to the stroke, her left side was extremely weak to the point of flaccidity, though her right arm had good strength and a full range of motion. Resident 12 was unable to walk and used a wheelchair to ambulate. Resident 12 had no cognitive impairment. She was administered a "mini-mental" exam on June 28, 2002, and scored 27 out of a possible 30 points, indicating that she was able to make her wishes known and was competent to make her own medical decisions. Resident 12's therapy treatment progress notes for June 25, 2002, indicated that she had "complete footdrop" on the left side with medial lateral instability. "Footdrop" refers to the inability to dorsiflex, or evert, the foot caused by damage to the common peroneal nerve. The notes also recorded a loss of proprioception in Resident 12's left extremities. In layman's terms, "proprioception" is the ability to sense one's whereabouts that allows the body to orient itself in space without visual clues. Resident 12 was noted as alert and oriented, but forgetful at times. The June 25, 2002, progress notes also recorded that Resident 12 required extensive assistance from two people to transfer from her bed to her wheelchair, and required verbal cues for posture. She was unable to maintain sitting balance on her own. Her sitting posture was round-shouldered, with her head in a forward position and leaning to the left. Her standing posture was round-shouldered, head forward, and bent heavily forward from the waist. Her left leg provided no support when she stood. Finally, the June 25, 2002, progress notes stated that Resident 12 was at high risk for falls, and that she would need bed and wheelchair alarms for safety. She had balance problems attributed to weakness, poor endurance, decreased vision, and decreased proprioception. Resident 12's MDS dated June 29, 2002, indicated a code of "3/3" for transfers, meaning that she required "extensive assistance" and support from at least two persons to transfer between surfaces. As to toilet use, Resident 12 was coded at "4/2", meaning "total dependence" (full staff performance) with support from one person. Contemporaneous nurses' notes indicate that, on some occasions, Resident 12 required two persons to assist her with toilet use. On the morning of June 29, 2002, Resident 12 slid to the bathroom floor while a CNA was assisting her in pulling up her pants. Resident 12 was standing when the incident occurred. The next set of weekly therapy treatment progress notes for Resident 12, dated July 2, 2002, noted the fall on June 29, 2002, and stated that she remained at high risk for falls. The progress notes indicated that Resident 12's sitting balance now showed a tendency for her to lose her balance backwards and to the left side. Similarly, her standing balance showed a tendency to lean backwards and to the left. During the first week of July 2002, the facility's ADL flowsheets showed that Resident 12 was able to use the toilet with the assistance of one person during the day, but required the assistance of two persons at night. However, the nurses' notes for the same period show that on at least some occasions Resident 12 required two persons to assist her in toilet use during the day. The next set of weekly therapy treatment progress notes for Resident 12, dated July 9, 2002, again showed that her tendency was to lose her balance backwards, both when sitting and standing. She was still at risk for falls and still needed bed and wheelchair alarms for safety. A second MDS for Resident 12 was completed on July 8, 2002. Resident 12's status for transfers was unchanged since the June 29 MDS. However, her status for toilet use was upgraded from "4/2" ("total dependence"/one person physical assist) to "3/2" ("extensive assistance"/one person physical assist). A RAP for Resident 12, dated July 8, 2002, noted that she had "[c]ompromised safety awareness. Resident feels she is capable of independence in tasks and lacks insight into limitations at times." As of July 9, 2002, Resident 12's only fall in The Chateau was her slide to the floor when having her pants pulled up in the bathroom. The facility had noted that she tended to fall backward when losing her balance, and in fact she had never fallen forward. She was able to sit in her wheelchair without falling. At approximately 9:30 p.m. on July 9, 2002, Resident 12 fell forward off the toilet. She hit the top of her head, either on the cabinet or the floor, and experienced pain in her left rib cage. Subsequent examination revealed that she suffered an acute fracture of a left anterolateral rib. The Chateau had a care plan in place for Resident 12's toileting, and devices in place to maintain her safety. The Chateau had outfitted Resident 12's toilet with a three-sided commode seat that had armrests on both sides and a bar in back. It was designed to support the resident as she sat on the toilet. The Chateau's records for Resident 12 indicated that she was able to maintain a sitting position for up to 30 minutes as of July 9, 2002. Thus, there was every reason to believe the commode seat would be adequate to support Resident 12 for the short time she sat on the commode. There was also a bar on the shower door within reach of the toilet, and a grab bar behind the commode. Resident 12 had adequate strength on her right side to pull herself with that arm. A call bell was within her reach as she sat on the commode. At the time of the fall, Resident 12 was being supervised by Oriaene Celestin, an experienced CNA who knew Resident 12 well. Ms. Celestin and another CNA had helped Resident 12 onto the toilet. Ms. Celestin then positioned herself outside the open door of the bathroom, discreetly monitoring the resident. When Resident 12 fell, Ms. Celestin immediately went into the bathroom and called for assistance. Ms. Celestin testified that she did not go into the bathroom while Resident 12 used the toilet because Resident 12 had expressly told her that she wished to be alone in the bathroom. Ms. Celestin described Resident 12 as a very demanding person who did not hesitate to tell staff what she wanted. Regina Driesbach, executive director of Moorings Park, Diane Lanctot, an RN who worked with Resident 12, and Brian Kiedrowski, M.D., Resident 12's physician, all testified that Resident 12 was an outspoken, independent, strong-willed woman who insisted on making her own decisions even as her health declined. Ms. Lanctot confirmed that Resident 12 had asked to be alone in the bathroom. At the hearing, AHCA objected to the hearsay testimony as to Resident 12's expression of her desire to be alone in the bathroom. The Chateau contended that these statements should be admitted because they were not offered to prove the truth of the matter asserted, but to indicate the effect of Resident 12's utterances on Ms. Celestin in particular and of the staff of The Chateau in general. The undersigned overruled the objection and allowed the testimony as to Resident 12's stated desire to be alone in the bathroom, for the limited purpose stated by The Chateau. However, even if the out-of-court statements of Resident 12 were excluded from the record, the requirement that a facility respect the resident's dignity gives rise to a common-sense presumption that the resident should be left alone when using the toilet, unless safety concerns mandate the direct presence of facility staff. The relevant question is not whether Resident 12 asked to be left alone in the bathroom, but whether her safety in the bathroom could not be reasonably assured without Ms. Celestin's physical presence inside the bathroom. Christine Byrne, AHCA's expert in nursing in long-term care facilities, suggested several steps that The Chateau could have taken to make Resident 12 safer when using the bathroom. One of those proposed steps, having "someone standing outside of the bathroom door, which would facilitate resident privacy although asking the resident to crack the door a little bit," merely described what The Chateau in fact did. Ms. Byrne's other suggestions included soliciting safety ideas from the resident, putting a safety belt on the toilet, placing a wheelchair in front of the toilet, consulting with the physical therapist as to positioning the resident on the commode, assessing the physical environment in the bathroom, and re-evaluating the resident's medications in conjunction with the facility's pharmacist. Dr. Kiedrowski, an expert in geriatric medicine, testified that restraining Resident 12 on the toilet would be problematic because she was short and heavyset, and a safety belt could cause the entire commode to flip over if she fell forward. Aside from that practical problem, Dr. Kiedrowski testified that the entire issue of restraints is very sensitive in the long-term care setting, and that anything blocking a resident's movements should be employed only as a last resort. He did not believe that a safety belt on the commode or a wheelchair in front of it would be an acceptable restraint. Ms. Driesbach testified that she did not believe a safety belt could be attached to the three-sided seat on Resident 12's commode. Maher Moussa, director of rehabilitation services at Moorings Park and an expert in physical therapy, testified that the toilet seat was adequate and appropriate. As to medications, AHCA suggested at the hearing that Resident 12's fall might have been caused by her reaction to Ambien (zolpidem tartrate), a hypnotic agent prescribed to induce sleep, and phenobarbital, a barbiturate prescribed for seizure disorders that has a common side effect of drowsiness. On the evening of July 9, 2002, Resident 12 took a 5 mg tablet of Ambien at 8:30 p.m., and a 30 mg tablet of phenobarbital at 9:00 p.m. ACHA suggests that the facility failed to account for the possible effects of these medications, in derogation of the RAP guidelines set forth at Finding of Fact 16 above. While AHCA's suggestion is plausible, no firm evidence was offered to support it. Diane Lanctot was the RN who responded to Ms. Celestin's call for help after Resident 12 fell. She took Resident 12's vital signs and tested her range of motion. Ms. Lanctot testified that Resident 12 seemed alert, and was not confused or disoriented. Based on all the evidence, it is found that The Chateau took reasonable steps to ensure Resident 12's safety and dignity in light of the reasonably foreseeable risk of falls. Resident 12 had been sitting in a wheelchair since her admission and had never fallen forward. Her only previous fall was from a standing position. The only indication in the entire medical record of any tendency to fall forward was in the initial progress notes of June 25, 2002. Every subsequent notation mentioned Resident 12's tendency to fall backward and to the left when she lost her balance. The Chateau took sufficient precautions to prevent a backward fall off the toilet. Two CNAs assisted Resident 12 into the bathroom, as indicated by the MDS and the daily ADL flowsheets. Ms. Celestin did not remain in the bathroom while Resident 12 used the toilet, but remained at the open door keeping watch. There was no foreseeable reason for Ms. Celestin to compromise the resident's dignity by remaining in the bathroom while Resident 12 used the toilet. Under all the circumstances, The Chateau provided adequate supervision and appropriate assistive devices to prevent accidents in the case of Resident 12. In summary, based upon all the evidence adduced at the final hearing, AHCA's finding of a deficiency under Tag F324 was demonstrated by clear and convincing evidence as to the circumstances surrounding the fall of Resident 7. AHCA failed to demonstrate, by even a preponderance of the evidence, that the fall of Resident 12 was due to any act or omission on the part of The Chateau.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order upholding its notice of intent to assign conditional licensure status to The Moorings, Inc., d/b/a The Chateau at Moorings Park, for the period of July 18, 2002, through August 20, 2002, and imposing an administrative fine in the amount of $2,500. DONE AND ENTERED this 7th day of August, 2003, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 7th day of August, 2003. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Tom R. Moore, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
