The Issue Whether or not Petitioner's application for an emergency shelter care home license should be approved.
Findings Of Fact Petitioners received a respite care license from Respondent on February 23, 1990 which allowed Petitioners to babysit foster children for short periods of time. This license expired by its terms on February 23, 1991. On January 20, 1991, Petitioners applied for a license to provide emergency shelter family home care for dependent children. Petitioners have a son, approximately 23 years of age, who lives with them and who has certain psychiatric problems. Respondent denied Petitioners' application on April 5, 1991 on the basis that Petitioners lacked the ability to provide for the psychological development of foster children due to the emotional instability in their home. Respondent reached that conclusion based on the medical opinion of Dr. Horatio Arias, M.D., a psychiatrist who was employed by Respondent and who provided psychological treatment to Petitioners' son. Petitioners' son, while under Dr. Arias' medical attention, was administered psychotropic medication for a mental disorder. Dr. Arias opined that Petitioners should not be given the responsibility of caring for foster children as such children are often from abused, neglected, or abandoned families and they are, at times, aggressive. Dr. Arias related instances wherein Petitioner, Mr. French, shouted and hollered at his son and there were often shouting and screaming matches between Mr. French and his son. The son felt threatened by Mr. French "because the patient (the son) didn't agree with him on certain things. (Deposition of Arias pp. 32-33). Based on the relationship between Mr. French and his son, Respondent ran away from home and went to a crisis center supervised by Respondent. He stayed in the center for a short while and was thereafter admitted to a state psychiatric hospital. He was released from the hospital and now lives with Petitioners. Mr. French admits that he has, at times, had shouting matches with his son and that he talks louder than normal because he is hard of hearing. He also acknowledged that he should be wearing two hearing aids based on his hearing impairment. The placement of foster children in Petitioners' home could cause stress which would negatively impact on their son who lives with them. This could result in behavior regression (by the son). Such placement could also cause psychological regression for the foster children which would negatively impact their psychological development. Dr. Arias opined that if Petitioners were allowed to care for foster children in their home, that such be done on a temporary basis in a trial manner. Children tend to tease and upset persons who suffer from psychiatric problems such as Petitioners' son. (Respondent's Exhibit 2, p. 8) It is not feasible for Petitioners to be licensed to provide emergency shelter care on a trial basis as it is impossible to determine how long the placement will last or how many children will need to be placed with the Petitioners at any given time.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that: Respondent enter a final order denying Petitioners' application for a license to provide emergency shelter family home care at this time. DONE AND ORDERED this 15th day of December, 1993, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1993. COPIES FURNISHED: Robert Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Wendell and Alta French, pro se 6133 Shirley Avenue Gibsonton, Florida 33534 Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services 4000 West Dr. Martin Luther King Jr. Blvd. Tampa, Florida 33614
The Issue Is there a factual basis for the imposition of the March 7, 1996 moratorium upon admissions to Petitioner's assisted living facility (ALF), pursuant to Section 400.415 F.S.?; and Is there a basis for continuing the moratorium?
Findings Of Fact ALFs are defined in Section 400.402(3) F.S. They must apply for, and be granted, a license or provisional license to operate by AHCA pursuant to the terms of Section 400.411 F.S. There is no clear evidence in this record whether Semanole Brook Assisted Living was licensed to operate under Section 400.412 F.S. by a full or provisional license. The best sense of the evidence as a whole is that Semanole Brook was operating in the first five months under some type of licensure. This case arises because AHCA imposed a moratorium upon admissions on March 7, 1996. Moratoriums on admissions to ALFs are to be imposed pursuant to Section 400.415 F.S. Administrators of ALFs or their designees are trained under a program administered by the Department of Elder Affairs (DOEA). Intensive training is provided over the course of four days, and includes an introduction to the licensure and survey process, appropriateness of admissions, fire safety, food safety, nutrition, aging, mental health, behavior issues, resident rights, medication management, abuse reporting, developmental disabilities, community resources, emergency management, and the role of the long-term care ombudsman. This training is referred to as "core training". In the course of care training, participants are given a copy of the administrative rules and Florida Statutes applicable to ALFs. Participants are also given a copy of survey guidelines used by AHCA. In the course of care training, participants are advised of the requirement than an ALF have a written contract with each resident of the ALF. Core training is offered quarterly. Elizabeth McCorvey attended care training for Petitioner's ALF, Semanole Brook Assisted Living Facility, in September and October, 1995. She was permitted to represent the facility in these proceedings upon evidence that she is the sole employee and administrator of Semanole Brook. Any qualifications or certifications of hers are attributable to the facility and vice-versa. Ms. McCorvey missed that portion of care training in September 1995 which concerned medications, and therefore she did not earn a certificate of completion at that time. Rather than making her wait until the next full training session, DOEA officials agreed to allow Ms. McCorvey to come to the premises where training was provided, and there to listen to an audio tape of the portion of care training she had missed in September 1995. She did not follow up on this accommodation to her schedule and instead attended that portion of the January 1996 care training which concerned medication. She received a certificate of completion of care training on February 8, 1996. The topics which were covered with Ms. McCorvey in her core training were those described in Finding of Fact 4 supra. All such topics, with the exception of medications, were covered with Ms. McCorvey in September and October 1995. A six hour update to core training was offered by DOEA in December 1995, concerning the administrative rules for ALFs. At formal hearing, Ms. McCorvey had admitted a certificate showing she completed this course. Core training may be repeated if a given participant is asked to repeat it or if the participant requests to repeat it. Respondent conducted a complaint investigation of Semanole Brook on March 6, 1996. Respondent's survey team was composed of Kathryn Rowland, Betty Cettie, and Shawn Rogers. At the time of this investigation/survey, the residents previously on the premises had already been relocated elsewhere. They were not removed by Petitioner or AHCA. In the course of the complaint investigation of March 6, 1996, the AHCA survey team asked to see the admission/discharge register for residents of Semanole Brook. Ms. McCorvey did not produce an admission/discharge register. Records pertaining to four residents of Semanole Brook were produced by Ms. McCorvey on March 6, 1996. Two of the records indicated that no health assessment was done for either resident prior to admission into Semanole Brook. The health assessments which had been made for the other two residents indicated that neither resident was appropriate for placement in an ALF. In the course of the complaint investigation of March 6, 1996, Respondent further found that Semanole Brook's written contracts for residents were deficient in that the standard form did not state the exact services that the facility was to provide to residents, did not identify rates for payment, did not provide for 30 days' notice prior to an increase in rates, and did not state the facility's policy regarding advance payments or refund of payments. In the course of the complaint investigation of March 6, 1996, Respondent further found that Semanole Brook had no written records for income and expenses. Respondent's survey team was told by Ms. McCorvey that she relied upon memory to keep track of the facility's income and expenses and did not consider documentation of income and expenses necessary. In the course of the complaint investigation of March 6, 1996, Respondent further found that Semanole Brook's admissions packet (given to residents upon admission to the facility) did not include the facility's rules and regulations, nor the facility's admission, retention, and discharge policy, nor the facility medication storage policy. In the course of the complaint investigation of March 6, 1996, Respondent further found that Semanole Brook's resident care standards were deficient. Ms. McCorvey admitted to surveyors and at formal hearing that she had locked herself in her bedroom at night with a loaded gun she had owned before opening the facility. She testified that almost everyone "has a gun" these days, particularly single women like herself. She explained her behavior with the gun and the locked bedroom door as due to her fear of one particular resident, whose past medical history, if it had been properly assessed, would have shown the patient was not suitable for ALF placement due to violent tendencies. Ms. McCorvey only locked herself in her room after she discovered the patient had been released from a psychiatric hospital where he had been placed for three years after beating up a police officer. Inquiries at the time of the investigation showed Ms. McCorvey did not know at that time she could refuse certain types of patients. By the date of formal hearing, Ms. McCorvey understood she could refuse certain patients but was still vague about how to go about refusing to admit them. She still did not seem to appreciate that locking herself in her room left other residents potentially in harm's way and meant she was unavailable to assist them even with usual tasks. Records for a resident identified as T.W. indicated that T.W. was admitted to Semanole Brook against medical recommendations, that T.W. was in need of skilled nursing care, and that T.W. was therefore inappropriately placed in a ALF. Betty Jean Cettie, a member of Respondent's March 6, 1996 survey team, is a human services surveyor specialist with AHCA. She has a B.S. degree in Health Care Administration and is licensed in Florida as a Nursing Home Administrator. She is a fellow of, and certified by, the American College of Health Care Administrators. By education, training and experience, she is an expert in the field of long term sub-acute health care. No contrary expert testimony was presented, and Ms. Cettie's testimony and opinion are fully accepted to the effect that Ms. McCorvey, as administrator of Semanole Brook, at the time of the survey did not understand the requirements for admission to ALFs, had no understanding of one patient's dietary and medication needs, and that Ms. McCorvey needed further training as an ALF administrator if Semanole Brook was to operate safely. Nothing presented at formal hearing would alter this determination. Ms. McCorvey testified regarding the four residents of Semanole Brook whose records were reviewed by Respondent's survey team. Resident T.W. was "a head injury client" who "walked around the house in his underwear." Resident C.W., the facility's first resident, "wandered off." Resident J.R. would "not fill out any kind of demographic data" other that what Ms. McCorvey "had written at the Tallahassee psychiatric unit," and was described as "paranoid". Resident E.E. also "wandered", and Ms. McCorvey was a "little confused with the back of the boxes that her doctor had checked out from PATH". The boxes as checked on the form would show inappropriate placement. E.E. was never formally discharged, but "wandered off" on February 21, 1996. Ms. McCorvey admitted personally witnessing E.E. leaving Semanole Brook, and testified that she was "not responsible or whatever" because "according to the law they can wander off if they want to, you know." The deficiencies identified by Respondent's survey team during the complaint investigation of March 6, 1996 were documented on a statement of deficiencies. Although Ms. McCorvey has complained that she did not receive the statement of deficiencies at the appropriate time, the evidence shows she knew about all of the assessments of deficiency at all times material. It is specifically found that she received adequate notification in a timely manner. Based upon the deficiencies found on March 6, 1996, Respondent imposed an immediate moratorium upon admissions to Semanole Brook on March 7, 1996. Based upon the deficiencies as found on March 6, 1996, Respondent recommended that the administrator of Semanole Brook undergo further training in the operation of an ALF and correction of the listed deficiencies. A follow-up survey was conducted of Semanole Brook by Respondent on April 6, 1996. It was determined on April 6 that the deficiencies found on March 6, 1996 had been corrected, with the exception of those relating to inappropriate placement of residents, additional training for the facility administrator, and resident care standard. With the exception of the additional training, which must precede admitting patients to the facility, the other two deficiencies usually are checked by AHCA after the facility is reopened because the residents can be surveyed then. That is certainly the only way it could be done in this case since there are no residents or resident records to review now that the facility is empty. By letter dated April 15, 1996 AHCA continued the moratorium imposed on March 7, 1996, conditioned upon further training being completed by Ms. McCorvey as Semanole Brook's administrator. The recommended training is a repeat of the care training which lasts four 6-hour days. Ms. McCorvey's testimony is not clear as to her prior experience. It may be that she assisted her parents with some type of charity work, but she apparently has no prior work experience operating a health facility. When it was operating, Ms. McCorvey was Semanole Brook's sole employee. Ms. McCorvey declined to testify as to how she is currently employed or to give much information about how she can be located. She testified that to support herself she is presently, "doing the same miscellaneous thing and whatnot", and stated that she considers the imposition of additional ALF training to be discriminatory and selectively enforced against her facility. Further, she finds such training to be so time-consuming as to be financially oppressive. However, she gave no concrete reason as to why she does not have time to repeat the training nor evidence of selective enforcement beyond uncorroborated hearsay and her personal opinion. By letter dated April 23, 1996, Ms. McCorvey substantially disagreed with the condition of further training, describing the same as "punishment", an opinion she reiterated at formal hearing. This proceeding followed. 1/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order ratifying the terms of the moratorium as modified by the April 15, 1996 letter; requiring the correction of the remaining deficiencies, including the re-training of Ms. McCorvey; and establishing a schedule for compliance and a procedure by which Ms. McCorvey can establish compliance. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1996.
The Issue Whether Respondent, a licensed assisted living facility (ALF), committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to regulate ALFs licensed pursuant to Chapter 400, Florida Statutes. At all times pertinent to this proceeding Ms. Rodriguez was an owner and administrator of Respondent, an ALF licensed by Petitioner. Respondent operates in Broward County, Florida. At all times pertinent to this proceeding, ALF administrators were required to receive core training administered by the Florida Department of Elder Affairs. At the time she took the core training, Ms. Rodriguez was not required to pass a final examination. Section 400.452(2), Florida Statutes, provides, in part, that effective July 1, 1997, all persons taking the core training must pass a competency examination to be administered by the Department of Elderly Affairs. 4. Effective April 20, 1998, Rule 58A-5.0191(1)(e), Florida Administrative Code, provides that any ALF administrator who did not attend mandatory periodic training updates must retake core training and must pass the competency examination. In 1998 and 1999, Ms. Rodriguez failed to attend mandatory training updates. On April 11, 2000, Maryanne Clancey conducted a survey of Respondent's facility. Ms. Clancey cited two Class III deficiencies that are pertinent to this proceeding. The first deficiency was Ms. Rodriguez's failure to attend mandatory core training updates. That failure justified the first Class III deficiency cited by Ms. Clancey. The second deficiency was the Respondent's failure to maintain an accurate up-to-date Medication Observation Record (MOR), which is required for each resident of an ALF. Ms. Clancey's determination that Respondent's MOR was inaccurate was based on the records for a resident of the ALF who will be referred to as Resident 1. Resident 1's record reflected that he had received certain prescribed medications at 9:00 a.m. on the morning of April 11, 2000. There was a conflict in the evidence as to whether Resident 1 was available to take his medicine at 9:00 a.m. on April 11, 2000. Ms. Clancey testified that she had been told by staff that Resident 1 was in the hospital that morning. Ms. Rodriguez testified Resident 1 had gone to the hospital during the early morning hours on April 11, 2000, but that Resident 1 had returned from the hospital by 9:00 a.m. that day. There was no other evidence as to whether Resident 1 had or had not taken his prescribed medicine that day. Based on the conflict between equally credible testimony, it cannot be determined that Resident 1 was not at the facility at 9:00 a.m. on April 11, 2000, as alleged by Petitioner, and it cannot be concluded that Resident 1 did not take his or her prescribed medicine that day. The alleged Class III deficiency pertaining to medical records should not be sustained based on the allegation that Resident 1 could not have taken his prescribed medicine as reflected on the MOR. The Class III deficiency pertaining to the medical records did not depend alone on the allegation that Resident 1 could not have taken his prescribed medicine on April 11, 2000. Ms. Clancey also observed that Resident 1's MOR for the month of March 2000 reflected that Resident 1 had received Cyprohepatadine three times a day for the entire month. There was no indication that Resident 1 had been administered Prozac. Ms. Clancey determined from Resident 1's pharmacist that Resident 1's physician had discontinued Cyprohepatadine on March 28 and had ordered Prozac on March 15. Ms. Rodriguez admitted that Resident 1's medical records failed to reflect those changes. The inaccuracies in Resident 1's MOR justified the second Class III deficiency cited by Ms. Clancey. Respondent was ordered to correct both Class III deficiencies by May 10, 2000. George Tokesky is the ALF Program Manager for the Department of Elder Affairs in Broward County, Florida. Ms. Rodriguez contacted Mr. Tokesky after Ms. Clancey's visit to determine what she needed to do about the core training. Mr. Tokesky explained to her that she would have to retake the core training program and pass the competency examination. Ms. Rodriguez took the core training program from June 6 to June 13, 2000, but she failed the competency examination. As of the final hearing, Ms. Rodriguez had not passed the competency examination. On June 27, 2000, Leonard Meerow conducted a follow-up visit at Respondent's facility to determine whether the facility had corrected the Class III deficiencies that Ms. Clancey had cited. The first Class III deficiency cited by Ms. Clancey pertaining to Ms. Rodriguez's core training had not been corrected. Mr. Meerow observed continued Class III deficiencies pertaining to medical records during the follow-up visit. Specifically, MOR records for three residents reflected that each resident had been administered his or her hour of sleep medication. The entries had been made before 4:00 p.m. Ms. Rodriguez admitted that these entries were incorrect. The second Class III deficiency cited by Ms. Clancey pertaining to medical records had not been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent failed to timely correct two Class III deficiencies. Petitioner should assess an administrative fine against Respondent in the amount of $1,000 per violation. DONE AND ENTERED this 21st day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 21st day of February, 2001.
The Issue Whether Respondent’s nursing home license should be disciplined, and whether Respondent’s nursing home license should be changed from a Standard license to a Conditional license.
Findings Of Fact Bayside Manor is a licensed nursing home located in Pensacola, Florida. On June 14, 2003, Resident No. 4 climbed out of her bed without assistance to go to the bathroom. She fell to the floor and sustained a bruise to her forehead and lacerations to her cheek and chin. Her Foley catheter was pulled out with the bulb still inflated. The fall occurred shortly after Resident No. 4 had finished eating. No staff was in her room when she climbed out of her bed. She was found on her side on the floor by staff. According to the June 14 Bayside’s Nurses' notes, Resident No. 4 stated, "Oh, I was going to the bathroom." In the hour prior to her fall, Resident No. 4 was seen at least three times by nursing assistants, which was more than appropriate monitoring for Resident No. 4. On June 20, 2002, AHCA conducted a survey of Bayside Manor’s facility. In its survey, AHCA found one alleged deficiency relating to Resident No. 4. The surveyor believed that Resident No. 4 should have been reassessed for falls by the facility and, based upon that reassessment, offered additional assistive devices and/or increased supervision. The surveyor also believed that the certified nursing assistant had left Resident No. 4 alone with the side rails to her bed down. The deficiency was cited under Tag F-324. Tag F-324 requires a facility to ensure that “[e]ach resident receives adequate supervision and assistance devices to prevent accidents.” The deficiency was classified as a Class II deficiency. On October 9, 2001, and January 14, 2002, Bayside Manor assessed Resident No. 4 as having a high risk for falls, scoring 9 on a scale where scores of 10 or higher constitute a high risk. In addition to the June 14, 2002, fall noted above, Resident No. 4 had recent falls on November 30, 2001, April 19, 2002, and May 12, 2002. Resident No. 4's diagnoses included end-stage congestive heart failure and cognitive impairment. She had periods of confusion, refused to call for assistance, and had poor safety awareness. Resident No. 4 had been referred to hospice for palliative care. Because hospice care is given when a resident is close to death, care focuses on comfort of the resident rather than aggressive care. Additionally, the resident frequently asked to be toileted even though she had a catheter inserted. She frequently attempted to toilet herself without staff assistance, which in the past had led to her falls. Often her desire to urinate did not coincide with her actual need to urinate. She was capable of feeding herself and did not require assistance with feeding. Bayside Manor addressed Resident No. 4’s high risk of falls by providing medication which eliminated bladder spasms that might increase her desire to urinate and medication to alleviate her anxiety over her desire to urinate. She was placed on the facility’s falling stars program which alerts staff to her high risk for falls and requires that staff check on her every hour. The usual standard for supervision in a nursing home is to check on residents every two hours. The facility also provided Resident No. 4 with a variety of devices to reduce her risk of falling or any injuries sustained from a fall. These devices included a lap buddy, a criss-cross belt, a roll belt while in bed, a low bed, and a body alarm. Some of the devices were discontinued because they were inappropriate for Resident No. 4. In December 2001, the roll belt was discontinued after Resident No. 4, while attempting to get out of bed, became entangled in the roll belt and strangled herself with it. On May 6, 2002, the low bed and fall mat were discontinued for Resident No. 4. The doctor ordered Resident No. 4 be placed in a bed with full side rails. The doctor discontinued the low bed because it could not be raised to a position that would help alleviate fluid build-up in Resident No. 4’s lungs caused by Resident No. 4’s congestive heart failure. Discontinuance of the low bed was also requested by hospice staff and the resident’s daughter to afford the resident more comfort in a raised bed. The fact that placement in a regular raised bed potentially could result in an increase in the seriousness of injury from a fall from that bed was obvious to any reasonable person. The May 5, 2002, nurses’ notes indicate that there was a discussion with Resident No. 4’s daughter about returning the resident to a high bed for comfort. On balance, the placement of Resident No. 4 in a regular raised bed was medically warranted, as well as reasonable. The placement in a regular bed with side rails was not noted directly in the care plan but was contained in the doctor’s orders and was well known by all the facility’s staff. There was no evidence that directly mentioned the regular bed in the formal care plan was required or that the failure to do so had any consequence to Resident No. 4’s care. Even a lack of documentation clearly would not constitute a Class II deficiency. Moreover, the bed with side rails was not ordered to protect or prevent falls by Resident No. 4. The facility does not consider a bed with side rails of any sort to be a device which assists in the prevention of falls. Indeed rails often cause falls or increase the injury from a fall. In this case, the rails were ordered so that the resident could more easily position herself in the bed to maintain a comfortable position. Again, the decision to place Resident No. 4 in a regular raised bed with side rails was reasonable. The focus is on comfort as opposed to aggressive care for hospice residents. The evidence did not demonstrate that Bayside Manor failed to adequately supervise or provide assistive devices to Resident No. 4. There was no evidence that reassessment would have shown Resident No. 4 to be at any higher risk for falls, since she was already rated as a high risk for falls. Nor did the evidence show that reassessment would have changed any of the care given to Resident No. 4 or changed the type bed in which she was most comfortable.
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 restoring the Respondent’s licensure status to Standard and dismissing the Administrative Complaint. DONE AND ENTERED this 3rd day of June, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 3rd day of June, 2003. COPIES FURNISHED: Joanna Daniels, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Donna H. Stinson, Esquire R. Davis Thomas, Jr., Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to chapters 429 and 408, Part II, Florida Statutes. At all times material hereto, Stephens Memorial held a standard assisted living facility (ALF) license with extended congregate care, which was issued by AHCA. Stephens Memorial is located in St. Augustine, Florida, and operates a 15-bed facility. Julie Fisher is a registered nurse who was employed by AHCA as a nurse surveyor at all times material to this case. In that capacity, she surveyed nursing homes and ALFs for compliance. She has a total of 30 years? experience in nursing, including acting as Director of Health Care Services for an ALF for seven years, working in home health care for 10 years, working in hospital care and public health, and having experience in overseeing dementia care. She is currently employed as a training coordinator for the Georgia Department of Community Health, Health Care Facility Regulation Division. Julia Dorcey is a health facility evaluator for AHCA. She has been with AHCA for 18 months. For the first year, she surveyed nursing homes. Since her first year, she has been in training for mental health crisis units, residential treatment facilities for adolescents and adults, as well as ALFs. Her training includes various aspects of health care specifically related to geriatric care. Keisha Woods is employed by AHCA as a health facility evaluator supervisor. She is responsible for oversight of ALFs and other types of facilities for a seven-county area. She has been employed by AHCA for approximately four years. May 1 Survey Visit AHCA conducted an unannounced biennial licensure, Extended Congregate Care monitoring, and complaint survey on May 1, 2012, that gave rise to the Administrative Complaint and to this proceeding. On May 1, 2012, Ms. Dorcey participated in the survey at Stephens Memorial as a trainee. Her purpose for being at that facility was to observe the surveyor on site, Julie Fisher, who was conducting the survey. Count I alleges that Stephens Memorial failed to ensure that one out of four (hereinafter Resident 4) sampled residents was free of physical restraints. Specifically, Count I alleges that an activity board was attached to both arms of the wheelchair with duct tape and Velcro fasteners and that Resident 4 could not remove or avoid the activity board without the assistance of another person. Ms. Dorcey observed Resident 4 sitting in a wheelchair with an activity board attached to the wheelchair. The resident was moving himself forward by moving his feet on the floor. At the time she observed him, he was not engaged with the activity board, but was grasping the air in a reaching motion beyond the activity board. At hearing, Ms. Dorcey described the activity board as being attached to the arms of Resident 4's wheelchair and around to the back of the chair with what appeared to her to be multiple wrappings of duct tape. Ms. Dorcey believed Resident 4 to be in cognitive decline. Because of this, she was concerned with whether Resident 4 had the ability to remove the board without assistance and was concerned with his safety. Ms. Dorcey walked over to the next building where Julie Fisher, the surveyor assigned to do the survey that day, was with another trainee. Ms. Dorcey told Ms. Fisher about Resident 4 and both of them went back to the building where Resident 4 was seated in his wheelchair. Ms. Fisher observed Resident 4. She described Resident 4 as seated in a wheelchair with a lap board or activity board tied to the wheelchair with duct tape and Velcro. Ms. Fisher attempted to communicate with the resident, who appeared confused to Ms. Fisher. She asked him if he could remove the board. He did not respond. At hearing, Ms. Fisher acknowledged that she seriously doubted that Resident 4 could understand her. Ms. Fisher then sought out the owner of the facility, Brenda Stephens. Ms. Fisher told Ms. Stephens that the activity board should not be attached to the wheelchair, because in ALFs residents cannot be restrained with the exception of the use of half side rails on a bed. It was Ms. Fisher's opinion that Resident 4 could not remove the activity board without assistance. Ms. Fisher completed a statement of deficiencies and worksheets while on Respondent's premises. Ms. Stephens explained to Ms. Fisher and Ms. Dorcey that the activity board was ordered by Resident 4's doctor and supplied by Hospice. Ms. Fisher then called her supervisor, Ms. Woods, to inform her about Resident 4. Ms. Woods told Ms. Fisher that activity boards should not be used in ALFs. Ms. Woods received the statement of deficiencies and worksheets prepared by Ms. Fisher and concluded that Ms. Fisher had supporting documentation for the issued citation. Ms. Woods determined that this was a class II violation because, in her opinion, the use of the activity board was a direct threat to the resident's physical and/or mental well-being. She concluded that this constituted a direct threat because the resident was unable to demonstrate to the surveyor on site that he was able to remove the board. At hearing, Ms. Woods acknowledged that if the resident were able to remove the board, it would not be a restraint. Following the receipt of the deficiency, Ms. Stephens discontinued the use of the activity board for Resident 4. History of Resident 4 Brenda Stephens is the owner/administrator of Stephens Memorial. She is a registered nurse and has been in the nursing field for approximately 25 years. She has been the owner/administrator of Stephens Memorial for 13 years. She and her late husband opened Stephens Memorial in 2000. She lives on property adjacent to the facility's property. Resident 4 was diagnosed in 2006 with vascular dementia. His dementia progressed fairly rapidly and he was placed in adult day care in 2007. In 2008, his wife, J.A., who is also a registered nurse, had to quit work to care for her husband full-time. By that time, he had lost his ability to speak and was incontinent. Resident 4 had been an engineer who worked with mechanical things. He was very strong and it became difficult for his wife to care for him by herself at home, despite her 40 years of nursing experience. J.A. investigated a number of facilities in the area and chose to place her husband at Stephens Memorial. When Resident 4 first came to Stephens Memorial, Ms. Stephens had weekly conversations with Resident 4's psychiatrist to determine the best care plan for Resident 4. The psychiatrist recommended to Ms. Stephens that Resident 4 be placed on a strict routine. At first, Resident 4 could communicate with affirmative or negative sounds (e.g., “uh-huh” and “uh-uh”). As his dementia progressed, Resident 4 became agitated and began pounding on his chest, hitting himself, banging his head against the wall, and banging his feet on the floor while in the wheelchair. Ms. Stephens believes strongly that it is better for residents to have the least amount of chemical restraints possible, and residents should be allowed to walk around freely and go outside accompanied by staff. Resident 4 enjoyed going outside. Resident 4's dementia reached the point where his medications were not managing his behavior. His dementia was progressing and he was placed on Hospice care in 2011, while remaining at Stephens Memorial. The Activity Board In an attempt to achieve a means to control Resident 4's behavior, Ms. Stephens, in conjunction with Resident 4's physician and J.A., came up with the idea of using an activity board as a therapeutic activity. Resident 4's physician wrote a prescription for an activity board to be used while in a wheelchair. The activity board was intended to keep Resident 4 occupied, to give him something to focus on, and to divert his anxiety into a positive experience. Ms. Stephens was familiar with commercially available activity boards but she did not think these would meet Resident 4's needs. So, she made one to better suit his needs. She obtained a plain wooden board and, because Resident 4 had worked with his hands, she attached hardware such as sliding latches, metal door handles, and rope. She bolted these things to the board because Resident 4 was so strong that she believed he could break them off. The activity board was attached to the wheelchair to prevent Resident 4 from knocking it off or throwing it. Based upon his behavior, Ms. Stephens and J.A. felt certain that if the activity board was simply placed on a table, Resident would push it away because he was constantly moving. When activity boards are used on wheelchairs, they are attached to the wheelchair in some way, such as with the use of clamps. While there was inconsistent testimony regarding whether Velcro was attached only to the arms of the wheelchair or attached to the back of the wheelchair, Ms. Stephens, Ms. Ahrens, and J.A. consistently testified that the activity board was held in place with Velcro, not duct tape.1/ Velcro could be removed easily and duct tape would have left a residue. The Velcro straps used on Resident 4's activity board were produced at hearing, and examined by the undersigned. The Velcro straps are black on one side, with silver on the back. The silver side did not have the Velcro on it and would be the visible side. The surveyors, at the time of the survey, thought the straps were held down by duct tape. While the silver side of the Velcro straps may have appeared to the surveyors to be duct tape, the evidence simply does not support this. The evidence established that the activity board was held in place by Velcro straps, not by duct tape, as charged in the Administrative Complaint. The activity board was placed on Resident 4's wheelchair twice a day, once after breakfast and again after lunch. Typically, it was on his chair two hours each time, for a total of four hours a day. While using the activity board, Resident 4 did not attempt to get up from the wheelchair. After the activity period was over, the board would be removed, and Resident 4 would stay in the wheelchair or be assisted in taking a walk. Typically, when the activity board was attached to his wheelchair, Resident 4 would engage in its activities, such as sliding the slide locks. According to J.A., the use of the activity board had the effect of calming him and reducing his agitation. He was able to take less medication when he was able to use the activity board. Susan Ahrens is a registered nurse with Hospice. She has worked for Hospice for two years and has been going to Stephens Memorial since she began working for Hospice. She is familiar with most of the facilities in St. Johns County, and thinks very highly of Stephens Memorial. She confirmed Ms. Stephens' testimony that the purpose of the activity board was to give Resident 4 something to focus on. She also confirmed J.A.'s testimony that use of the board kept his mind busy, resulting in a decrease in his repetitive motion and abnormal behavior, such as banging his head against the wall or beating on a desk or his wheelchair. The Administrative Complaint charges that Resident 4 was unable to respond to interview questions or to demonstrate ability to self-release the activity board. According to Ms. Stephens, Resident 4 removed the activity board by himself at least five times, at which times she then had to replace the Velcro. Both Ms. Stephens and J.A. confirmed that Resident 4 would rock the board from side to side, which ripped the Velcro. The testimony of Ms. Stephens, J.A., and Ms. Ahrens, all experienced registered nurses, was consistent in that Resident 4 was extremely strong and his dementia did not diminish his physical strength. All three were certain that he was strong enough to pull the board off the wheelchair if he wanted to do so. Their testimony was also consistent that he was never harmed while the activity board was attached to the wheelchair, and that the board would not cause him to tip the wheelchair over. Since the board has been removed, Resident 4 whistles constantly, screams, yells, and beats on things. His medications have been increased to calm him down. Ms. Ahrens and Ms. Stephens are of the opinion that the removal of the activity board has been detrimental to Resident 4. J.A. very much wants her husband to be able to resume use of the board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint against Respondent, Stephens Memorial Home, Inc. DONE AND ENTERED this 6th day of June, 2013, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 6th day of June, 2013.
