The Issue The issue in this case is whether Respondent, Logan T. Lanham, R.N., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Health, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. The Department is the agency in Florida responsible for regulating the practice of nurses pursuant to Chapters 20, 456, and 464, Florida Statutes (2004).1 Mr. Lanham is and has been at all times material hereto a licensed registered nurse in the State of Florida, having been issued license number 3221312. Mr. Lanham, at the times pertinent, was employed in his capacity as a registered nurse by Palm Gardens of Vero Beach (hereinafter referred to as "Palm Gardens"). Mr. Lanham was employed by Palm Gardens from approximately October 1998 until January 3, 2002. Palm Gardens. Palm Gardens was, at the times pertinent, a Florida licensed residential nursing home facility as defined in Section 400.021(13), Florida Statutes. Palm Gardens' facility included a wing, "A-Wing," which was devoted to the care of residents suffering from various forms of dementia, including Alzheimer's disease. While employed at Palm Gardens, Mr. Lanham was assigned to A-Wing. Due to the tendency of some patients on A-Wing to "wander," A-Wing doors leading to the outside were equipped with alarms which sounded whenever a patient attempted to open them. Whenever an alarm was triggered, employees, including nurses, had to check to ensure that a resident was not leaving the unit. Part of A-Wing consisted of a room which was used as a dining room and day room (hereinafter referred to as the "Day Room"). There were four, floor-to-ceiling, windows at one corner of the Day Room located near an open area of A-Wing, which included a nurses' station. There was a single, heavy, self-closing door providing access to the Day Room. This door was normally propped open. During the pertinent period of time involved in this case, the door to the Day Room was slightly larger at the one corner than the door jam, which caused the door to stick if closed. Although the door could be opened, it took some strength to do so. The condition of the door was known to employees of A-Wing, including Mr. Lanham. Patients M.S. and G.K. Among the patients on A-Wing were M.S. and G.K., both female residents. Both were elderly, suffered from dementia and Alzheimer's disease, and were in relatively poor physical and mental health. M.S., whose date of birth was February 3, 1920, and G.K., whose date of birth was March 21, 1915, were both totally dependant on the facility and employees of Palm Gardens for their care. Both residents were ambulatory, but not capable of providing the daily necessities of life, such as cleaning themselves or dressing. Neither resident was oriented as to time or place, and both lacked the capacity to consent. Both residents, but especially M.S., had a habit of wandering the halls of A-Wing and touching doors equipped with alarms, which would cause the alarms to sound. The Events of December 13, 2001. On December 13, 2001, Mr. Lanham was working the "swing shift" (from 3:00 p.m. to 11:00 p.m.) on A-Wing. During Mr. Lanham's shift, both M.S. and G.K. were wandering the wing, sometimes setting off door alarms. G.K. was agitated and had been found by Mr. Lanham in another resident's room eating food that had been left in the room. Neither M.S. nor G.K. was harming any other residents or causing any harm to themselves. Out of frustration over having to respond every time that M.S. or G.K. set off an alarm, Mr. Lanham took both residents and directed them into the Day Room, closing the door as he left. By closing the door to the Day Room, Mr. Lanham effectively locked M.S. and G.K. into the room. Mr. Lanham left both residents in the Day Room without any supervision; no one was in the Day Room with them and no one was watching them through the windows between the room and the hall. M.S. and G.K., for most of the time they were in the Day Room, were unsupervised by any employee of Palm Gardens. M.S., crying, attempted unsuccessfully to open the door of the Day Room. M.S. and G.K., however, were too weak to open the door. M.S. began to hit on the door when she couldn't open it. M.S. and G.K. were involuntarily confined to the Day Room. At some point after M.S. and G.K. had been placed in the Day Room, Sharon Sullivan, L.P.N., told Mr. Lanham that M.S. and G.K. had to be let out. He was reminded that the door was too difficult for them to open when fully closed, which he already knew. Mr. Lanham, after admitting that he had placed M.S. and G.K. in the Day Room and why, indicated that it was okay to leave them in there as long as he could see them. When Ms. Sullivan told Mr. Lanham that she disagreed, he left the unit. Mr. Lanham left A-Wing to go see Carrie Duprey, L.P.N., the House Supervisor. Mr. Lanham indicated to Ms. Duprey that he had a "hypothetical" question. He then asked Ms. Duprey whether it would be considered abuse if, in order to keep a resident occupied, he placed the resident in the Day Room, with the door closed but not locked, as long as a C.N.A. stayed with the resident.2 Ms. Duprey indicated she did not think that his hypothetical action would constitute abuse.3 Ms. Duprey's answer to Mr. Lanham's hypothetical question did not constitute, in any way, permission for him to either place M.S. and G.K. in the Day Room or to leave them there. Ms. Duprey was unaware that Mr. Lanham had already placed the residents in the Day Room or that he had placed them there unattended and unable to leave on their own. After speaking with Ms. Duprey, Mr. Lanham returned to A-Wing where he spoke to Ms. Sullivan again. Mr. Lanham again told Ms. Sullivan that placing M.S. and G.K. in the Day Room was okay. Ms. Sullivan continued to disagree. When Ms. Sullivan persisted, Mr. Lanham opened the door to the Day Room and allowed the residents to leave. M.S. and G.K. had been left in the Day Room with the door closed, unable to leave on their own and with no one else present in the room for somewhere between more than 20 minutes and less than an hour.4 While they were not actually injured, M.S. and G.K. could have been because they were unsupervised. Unprofessional Conduct. Mr. Lanham's conduct fell below the minimum standards of acceptable and prevailing nursing practice. By placing M.S. and G.K. in the Day Room, unsupervised and unable to leave without assistance, Mr. Lanham failed to protect the welfare and safety of those residents. Mr. Lanham's conduct constituted unprofessional conduct for a nurse. Involuntary Seclusion. Placing M.S. and G.K. in the Day Room, unsupervised and unable to leave without assistance, constituted involuntary seclusion. Based upon the length of time that Mr. Lanham left M.S. and G.K. in the Day Room constituted an "extended" involuntary seclusion. Mr. Lanham's Explanation. Mr. Lanham testified at hearing that he had directed a C.N.A. to stay with M.S. and G.K. when he left them in the Day Room. This testimony is not been credited. Mr. Lanham's version of events is inconsistent with other, more credible witnesses. Additionally, when first asked to give a written statement, Mr. Lanham failed to indicate that he had left anyone in the Day Room with the residents. It was not until he added an addendum to his statement a few days later that he first suggested that others were in the Day Room. Mr. Lanham's testimony at hearing as to whether he placed M.S. and/or G.K. in the Day Room, while not clear, is not credited to the extent that he stated that the did not place them in the Day Room. This testimony conflicts with his admission to Ms. Sullivan and his written statement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Dismissing Count I of the Administrative Complaint; Finding that Logan T. Lanham, R.N., violated Section 464.018(1)(h), Florida Statutes, as alleged in Count II of the Administrative Complaint; and Imposing discipline as suggested in this Recommended Order. DONE AND ENTERED this 9th day of March, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2005.
Findings Of Fact During the months of June and July, 1987, Respondent Convalescent Services of Venice, Inc., operated Pinebrook Place Health Care Center in Venice, Florida. On or about June 19, 1987, Rev. Spittal, then the licensed Administrator of the facility, submitted his emergency resignation in order to assume administration of another facility to which he was obligated to give guidance. He immediately notified the Regional Director of the Respondent corporation, Mr. Rick Winkler, who was himself a licensed health care administrator in Florida. As Regional Director, with the responsibility for supervising five nursing homes and one retirement center, Mr. Winkler had his office in the Pinebrook Place facility. Mr. Winkler's license was physically located at Respondent corporation's other facility, Lakeside Nursing Home in Naples, Florida. Mr. Winkler had been the Administrator of that facility prior to becoming Regional Director, and because the incumbent administrator, Ms. Harnish, was newly licensed, and because an administrator in training, Ms. Cox, was undergoing training at that facility, he left his license at the Lakeside facility when he moved to Pinebrook to become Regional Director. Upon the departure of Rev. Spittal, Mr. Winkler immediately assumed administration of the Pinebrook facility, fulfilling all the functions of the administrator and advising the staff that he had done so. In addition, he immediately entered into a contract with Ms. Joyce A. Coleman, a licensed nursing home administrator, to assume the position of Administrator of Pinebrook Place effective July 13, 1987. Thereafter, between Rev. Spittal's departure on June 19 and Ms. Coleman's arrival on July 13, 1987, Mr. Winkler was the Administrator of Pinebrook Place Health Care Center. A licensed assistant administrator was not employed at Pinebrook during that period. On June 30, 1987, Mr. Dowless, an investigator for HRS Office of Licensure and Certification, pursuant to a report filed by a discharged former employee at Pinebrook, visited the facility to determine if the allegation made that Pinebrook was operating without a licensed administrator was true. That day in question, Mr. Winkler was absent from the facility attending the opening of the Respondent corporation's newest facility. When Mr. Dowless arrived he spoke with the acting Administrator In Charge, the chief nurse to whom Mr. Winkler supposedly gave a letter of authority in writing to assume supervision in his absence, and after an inspection of the facility, concluded that the Respondent corporation was in violation of the law. This was because Mr. Winkler, though a licensed nursing home administrator, had his license physically located at Lakeside and he failed to have an Assistant Administrator under his supervision at the Pinebrook facility. This information was telephonically reported to Mr. Winkler who called Mr. Dowless by telephone later that day. The discussion was somewhat heated. Because he was unable to convince Mr. Dowless of the fact that he was the administrator at that facility, Mr. Winkler placed a telephone call to Mr. Richard Reysen, a Deputy Director of the Office of Licensure and Certification. During this conversation, Mr. Winkler explained his licensure situation and was led to believe that the situation was acceptable so long as he would have his license physically removed from Lakeside to Pinebrook. He did this and took no further action. Considering the matter closed, he was somewhat surprised when a citation was subsequently issued by Petitioner levying a fine of $1300. The fine was $100 per day for each day of the alleged violation.
Recommendation Based on the foregoing findings of fact and conclusions of laws it is therefore: RECOMMENDED that the Administrative Complaint filed in this case against the Respondent, Convalescent Services of Venice, Inc. d/b/a Pinebrook Place Health Care Center be DISMISSED. RECOMMENDED in Tallahassee this 16th day of June, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of June, 1988. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1 - 2. Accepted. Accepted and incorporated herein. Irrelevant. Respondent is not cited for this alleged violation. Accepted and incorporated herein. 6 - 10. Accepted and incorporated herein. 11. Irrelevant. 12 - 13. Accepted and incorporated herein. By the Respondent Accepted and incorporated herein. Accepted and incorporated herein. Accepted and Incorporated herein. 4 - 5. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a synopsis of testimony, not a finding of fact. Irrelevant. COPIES FURNISHED: ANTHONY DELUCCIA, ESQUIRE DISTRICT VIII LEGAL COUNSEL P. O. BOX 06085, SUITE 110 FT. MYERS, FLORIDA 33906 R. BRUCE MCKIBBEN, JR., ESQUIRE P. O. BOX 10651 TALLAHASSEE, FLORIDA 32302 GREGORY L. COLER, SECRETARY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32399-0700 R. S. POWER, AGENCY CLERK DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32399-0700
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
The Issue Whether the Department of Children and Family Services (DCF) may revoke Respondent's Family Day Care Home License for cause.
Findings Of Fact Since approximately September 3, 2001, Respondent has held a license from DCF to operate a Family Day Care Home for up to ten children in her residence Mondays through Fridays. DCF seeks to revoke her current license due to her allowing her ex-husband, Eddie Morand, to have access to her home and the children entrusted to her care there. Mr. Morand's name was submitted for background clearance as a resident in the home in connection with a different application to authorize Respondent to provide 24-hour per day care, which she submitted to DCF in 1997. DCF notified Mr. Morand by a notice dated January 16, 1998, that he was ineligible to have contact with children in a Family Day Care Home due to two prior felony convictions for crimes addressed in Section 435.04, Florida Statutes: aggravated battery and possession of crack cocaine. Respondent was sent a copy of this notice. On April 13, 1999, Mr. Morand pled guilty to two felony counts for the sale and possession of cocaine and was sentenced to 23.8 months of incarceration with the Department of Corrections. These crimes are also disqualifying under Section 435.04, Florida Statutes. Respondent was still married to Mr. Morand in November 1998, when these charges arose. Sometime in 1999, Respondent divorced Mr. Morand. Sometime thereafter, Respondent changed her residence and secured a permanent injunction against Mr. Morand for protection against domestic violence. After about a year, Respondent believed that Mr. Morand had changed, and she lifted the injunction. DCF's Abuse Hotline received a call alleging that on March 9, 2002, Mr. Morand had sexually molested a female day-care registrant in Respondent's Family Day Care Home. March 9, 2002, was a Saturday, a day not authorized for day-care by Respondent's current license. The child had reported to her foster mother that she had been fondled while at Respondent's Family Day Care Home. The Ocala Police Department was notified. After interviewing the child, the police went to Respondent's home. Mr. Morand was present, and he was arrested. Respondent told police officers that while she was outside watching the other children in care, Mr. Morand was alone in the house with the accusing child for about ten minutes, getting something to eat. Respondent confirmed this at the disputed-fact hearing, but also maintained that she could see inside the house from the porch and observed nothing amiss. She believes the child's accusations were untruthful. Child Protective Investigator Steve Davis was assigned to investigate the abuse report received by DCF. On the morning of March 10, 2002, Mr. Davis happened to be in court in connection with another case. Mr. Morand also was brought up for first appearance at that time and was allowed to bond out. In court, Mr. Morand gave his address of residence as that of Respondent's Family Day Care Home. At about 3:15 p.m., the afternoon of March 10, 2002, Mr. Davis went to Respondent's Family Day Care Home to investigate the abuse report. When he arrived, he saw Mr. Morand about to exit the front door of the home. Mr. Morand acknowledged that it was Respondent's home and held the door open for Mr. Davis to enter. Mr. Davis entered the home where he found Respondent caring for other children registered in her Family Day Care Home. This was Sunday, also a day not authorized for day-care by Respondent's current license. Respondent acknowledged that the man Mr. Davis had met at the door was Mr. Morand. Respondent told Mr. Davis that Mr. Morand got his mail at her home and stayed there occasionally. At the hearing, Respondent testified that she had no control over where Mr. Morand had his mail sent and that "he was not a man you say, 'no,' to." Respondent's DCF Day Care Licensing Counselor was Cathy White. On March 16, 2002, Ms. White, accompanied by a law enforcement officer, went to Respondent's home to deliver the Notice of Revocation of Respondent's license. Mr. Morand was the only person at the home when Ms. White and the officer arrived. Mr. Morand told the officer and Ms. White that Respondent had taken the children to the park. He first said that Respondent had told him she was going to the park and then said she left him a note to that effect. Later on March 16, 2002, Ms. White returned to the residence where she found Respondent and several day-care children. This was also a Saturday, not covered by Respondent's license. Ms. White explained why DCF was moving to close the day care home and that Ms. White could not leave until all the children had been picked up by their parents. On March 28, 2002, Respondent executed another sworn petition for protection from domestic violence, seeking an injunction against Mr. Morand. In this, her second petition, Respondent stated that Mr. Morand had threatened her and was very violent when he was drinking. On April 4, 2002, Mr. Morand was arrested for sexual battery, false imprisonment, battery on a person over the age of 65, and violation of a domestic violence injunction. The charges stemmed from an attack on Respondent. Respondent's testimony at the disputed-fact hearing and documentary evidence leaves the impression that Mr. Morand had overpowered, beaten, and raped Respondent on or about April 4, 2002. After the incident of April 4, 2002, Respondent moved to a new address in order to get away from Mr. Morand.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order ratifying the past immediate revocation of the Respondent's current license for a Family Day Care Home. DONE AND ENTERED this 7th day of August, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Dorothy Dempsey 1633 Northwest 14th Street Ocala, Florida 34475 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The ultimate issues are whether ACT Corporation (ACT) engaged in unlawful employment practices by discriminating against Petitioners Rosa Gibson (Gibson) or Lillian Brown (Brown) on account of race. More specifically, both Petitioners allege that they were terminated based on race.
Findings Of Fact ACT Corporation is a comprehensive community mental health provider. In 1989, it had five major clinical departments and employed approximately 500 people, of whom 24% were minority employees and 18% were black. One of the clinical departments includes two residential facilities for mentally ill clients, Big Pine and Big Tree. The Petitioners herein have been employed at both facilities, but were on the staff of Big Tree at the time of their terminations. Brown began working for ACT on September 14, 1982. She worked at several different facilities, but was working at Big Pine in 1987 as a Residential Specialist or Residential Advisor (RA) under the immediate supervision of the house manager, Myra Morris, who is black. Gibson began working for ACT in November, 1987, as Residential Specialist or Residential Advisor (RA) at Big Pine under Morris. Gibson was often tardy for work and Morris counseled with her about the problem. During one discussion between Morris and Gibson about tardiness, Gibson became haughty and verbally aggressive toward Morris. Morris would have terminated Gibson for this aggression, but she knew Gibson needed the job. Instead, Morris had Gibson transferred to Big Tree. In early 1988, Morris was transferred to another position with ACT. She was replaced as house manager by Kenneth Polite, a black employee. Brown continued as an RA at Big Pine. Brown was transferred to Big Tree and promoted to House Manager on September 30, 1988. Gibson continued as an RA at Big Tree under Brown. In January, 1989, Ann Turley became the Clinical Administrator for Adult Services and the immediate supervisor over both facilities. Brown was still on probation in the House Manager position because Turley's supervisor, Chris Kennedy, had extended Brown's probation. The extension resulted from Brown's poor performance, including poor follow through on assignments, incorrect preparation of reports and paperwork, inability to communicate effectively, and inability to conceptually grasp and carry out programs. Turley kept Brown on in the House Manager position despite the poor performance because Brown told her that Kennedy and she just did not understand all that Brown was doing. Turley told Brown to keep a written record to show what she was doing. In July, 1989, Polite left employment with ACT. Turley made some organizational changes at that time. ACT and her department needed to come up with $100,000 in revenue or in expense reduction. Turley made the decision to cut back one staff person at Big Pine. The position of house manager at Big Pine was eliminated. The two facilities were reorganized to have a Team Leader at Big Pine and a Residential Coordinator at Big Tree. Turley told Brown of these changes before they were announced. Brown was promoted to the Residential Coordinator position. Donna Dooley, a white employee was made Team Leader at Big Pine. She received a 5% raise, not a raise to the salary level of House Manager. Turley made the selection for Team Leader from the five eligible employees remaining at Big Pine. All five had been employed at ACT by Turley's predecessor. Turley examined the personnel files of the five employees, including performance evaluations. The employee with the best evaluation, within the most recent evaluations made by Polite, was Dooley. Polite noted in her evaluation that Dooley had filled in for him and had done a good job at it and that the other staff at Big Pine came to Dooley for leadership and advice. Turley's decision was poorly received by some of the staff. Polite had wanted the house manager position to go to his roommate, a black employee. Other staff thought the position should have been awarded based on seniority. Staff from the various facilities of ACT asked Turley by letter to meet with them to discuss the position. Turley met with the staff, but no real discussion occurred. The staff in attendance was racially mixed. Individual staff members, including Gibson, verbally attacked Turley because they failed to understand that the house manager position had been eliminated and that the Team Leader position was not its equivalent. Turley was quite emotionally upset about the hostile tone displayed at the meeting. She was also concerned that Brown had signed the staffs' letter requesting a meeting and had attended the meeting, because Brown was a supervisor and not a member of the supporting staff. Brown also had been told before anyone else the reasons for the reorganization and she knew that she was being promoted to Residential Coordinator. Turley had made the decision to promote Brown as Residential Coordinator because the reorganization had to go through and Brown's duties would not change that dramatically. The Residential Coordinator would work closely with the Team Leader to organize and coordinate the operation of both facilities. The position of House Manager ceased to exist at either facility. Brown's inadequate performance continued while she was on probation as Residential Coordinator. The same problems were apparent and some new ones arose. One significant problem was in Brown's supervision and discipline of Gibson. Gibson was repeatedly late for work and she brought her child to work with her. Brown was told by Turley to take certain corrective and disciplinary actions with Gibson, but she failed to do so. Gibson also was rude to a case manager at medication clinic (med clinic), refused to get a client's chart for a case worker, and repeatedly yelled at, demeaned and was uncooperative with the staff at med clinic. Turley instructed Brown to give a counseling statement to Gibson for this behavior, but again Brown did not do so. Because of Brown's lack of appropriate job performance, Turley demoted her from Residential Coordinator to Residential Advisor at Big Tree on September 7, 1989. Turley assumed Brown's job duties temporarily. Brown and Gibson were very upset over this demotion. The evidence taken as a whole shows that Brown and Gibson developed an "us versus them" attitude which significantly interfered with their job performance thereafter. After Brown's demotion, Turley discovered a new fiscal problem. One option for addressing the problem was to change Big Tree from a level two to a level one facility. That change would require a change in staffing patterns such that licensed practical nurses would be required around the clock and a registered nurse as the supervisor of the LPNs. Turley rewrote the job description for the Residential Coordinator position to require a registered nurse's license. In October, 1989, Darlene Hasenkamp, who is white, was hired as the Residential Coordinator because she was an RN and had experience with mentally ill patient care. As Residential Coordinator, Hasenkamp supervised all staff at both Big Tree and Big Pine. Donna Dooley, the Team Leader at Big Pine was the person immediately below Hasenkamp in the supervisory chain. While the staff at Big Tree were not immediately responsible to Dooley, Dooley did have some supervisory responsibilities over the staff at both facilities when Hasenkamp was not there. Brown and Gibson did not like working for Hasenkamp or Dooley. Both were subtly resistant and uncooperative with Hasenkamp and Dooley. Mentho Saafir is another black Residential Advisor with ACT. Her observation is that Brown and Gibson were part of a small tight group of black employees. The group got mad because Dooley was made Team Leader. Then when Brown was demoted and Hasenkamp was hired, they became openly oppositional to any encounter with Dooley. Gibson was especially hostile and uncooperative with Dooley. On a Saturday during November, 1989, Dooley and Hasenkamp were both off work, but they were on call for their respective facilities. A client at Big Pine was suicidal. The one staff person working at Big Pine was managing the client and called Dooley for assistance in getting the van and transporting the client to the hospital. The van was parked at Big Tree because Big Tree always had two staff persons on duty and Big Pine only had one. Therefore in an emergency, one staff person could leave Big Tree to take the van to Big Pine to assist. Dooley was at home and called Big Tree to get the van delivered to Big Pine. Gibson answered the telephone at Big Tree. She was evasive and refused to answer Dooley's questions about who was working at Big Tree and where that person was. Dooley told Gibson that she needed the van for a suicidal client. Gibson kept saying that her coworker wasn't there and finally told Dooley that if she needed the van "I suggest you come and get it yourself." After much pressing by Dooley, Gibson acknowledged that her coworker was Brown and Brown was not there. Dooley called Hasenkamp and explained the problem and described Gibson's evasiveness and lack of cooperation. Hasenkamp told Dooley to meet her at Big Tree. When Dooley arrived at Big Tree, Hasenkamp was discussing with Gibson her rude and uncooperative behavior toward Dooley on the telephone. As Dooley walked in to Big Tree, Gibson jumped up, leaned over the desk and shouted that Dooley was not her supervisor and she did not have to report (or listen) to Dooley. In order to avoid a confrontation and to get the van to the client in need, Hasenkamp told Dooley to take the van. Dooley left. Hasenkamp sat down and waited for Brown to return to work. When Brown came in 45 minutes later, she had a bag of fast food. Hasenkamp asked where she had been and Brown advised that she had been getting breakfast. Brown said she had only been gone 25 to 30 minutes. Hasenkamp told Brown that it was against normal procedures to leave like that while on duty. Brown simply said she didn't know that. Hasenkamp then took Brown to Big Pine to relieve Dooley who was there alone, having sent the staff person in the van with the client. On the way, Hasenkamp stopped at her home and at her mother's home. When they arrived at Big Pine, Hasenkamp's briefcase fell open to reveal a counseling statement to Brown regarding some furniture, however, that counseling statement was administered at a later time. The counseling statement about the furniture arose from Hasenkamp's direct instructions to Brown to inspect some furniture that was to be delivered before signing the invoice. Brown did not inspect the furniture, but did sign the invoice. When the furniture was finally inspected by Hasenkamp, a tear was discovered in one chair. Brown claimed that she had told the maintenance man to look at the furniture, but that was contrary to Hasenkamp's direct instruction. Brown was "written up" for this failure to carry out her supervisor's instructions. Brown and Gibson were also written up for the incident regarding the van. Gibson was also written up regarding another matter. Hasenkamp had sent a memo to all of the staff about eating pastry in the office. She instructed all staff to initial and sign-off on the memo by a certain date. Everyone signed the memo except Gibson, who refused. The time for signing the memo passed, but rather than write Gibson up for failing to carry out her instructions, Hasenkamp called Gibson to find out why she had not signed the memo. Gibson was off work at the time and Hasenkamp called her at home. Gibson was extremely rude, told Hasenkamp that she had no business bothering her at home, and refused to discuss the memo. Gibson gave Hasenkamp no choice except to write her up again. On December 12, 1989, at approximately 4:00 p.m., Hasenkamp and Dooley drove up to Big Tree. Dooley went in for Hasenkamp because Hasenkamp was on crutches. Brown came outside to the car and told Hasenkamp she needed to come inside regarding a problem. Dooley and Hasenkamp observed Gibson holding and comforting a client, Janice, who was suffering a locked jaw and an extremely painful muscular reaction as a side effect of her psychotropic medication. The patient had to have been in severe discomfort for a couple of hours. The side effects are counteracted by another medication, Cogentin. It was obvious to Hasenkamp that the client needed emergency medical care. Hasenkamp asked if the client had been given her Cogentin. The Cogentin is to be given every day at 9:00 p.m., so Hasenkamp asked to see the medication records from December 11, 1989, to see whether the client had received her Cogentin. Gibson and Brown were the staff people for the 4 to 12 p.m. shift on both December 11 and 12, 1989. Hasenkamp asked Gibson if she had given the client the Cogentin on December 11th. Gibson said yes. Hasenkamp then looked at the medication records and found that no one had initialed to show that they had given the Cogentin on December 11th. Hasenkamp again asked Gibson, but when Gibson was shown the unsigned medication record, she admitted that she did not know if she had given the medication. Hasenkamp sent Gibson to take the client to the emergency room. The client was given an injection of Cogentin. When Gibson asked Hasenkamp if she should give the December 12th dose of Cogentin to the client, Hasenkamp told her no, because the injection would serve in place of the dose. Hasenkamp told Gibson to initial the medication record for December 12th to show that Cogentin was given. Hasenkamp also instructed Brown to hold the client back from work the next morning and to make sure the client was sent to med clinic so that the psychiatrist could review and adjust her medications. The next morning, December 13, 1989, Hasenkamp arrived at Big Tree just as the van was leaving with clients for med clinic. She flagged down the van and asked the driver, Rosario Rizzo, if that client, Janice, was on the van. Rizzo said "no" because no one had told him to take that client. Hasenkamp told Rizzo what had happened the night before, because Rizzo is a nurse. She then sent Rizzo to find the client and take her to med clinic. When Rizzo had arrived that morning, he went to the office and spoke with Brown and Nadine Banning. Banning was the person who had been on duty from midnight to 8:00 a.m. He personally asked Brown and Banning who was scheduled to go to med clinic. Brown read him the names off of a list, but did not mention Janice. At Hasenkamp's instructions, Rizzo found Janice at the bus stop, waiting to go to work. He took her to med clinic. When Hasenkamp went into Big Tree, she immediately asked Brown why she had failed to hold Janice and send her to med clinic. Brown's only reply was "It doesn't matter anyway because the psychiatrist won't see Janice without an appointment." Hasenkamp then went to look at the medication records for Janice and discovered that Gibson had gone back and filled in her initials to show that she had given the missed dose of Cogentin to Janice on December 11th. When Hasenkamp asked Gibson about this, Gibson told her that she remembered that she had given the medication on the 11th. In fact, it is not possible for the client to have had such a severe side effect reaction on December 12th if she had been given her medication on the 11th. Hasenkamp determined that Gibson and Brown had endangered the safety and health of a client and had failed to follow her direct instructions, because Gibson did not properly given the medication and Brown did not hold Janice for med clinic. Gibson's late "memory" that she had given the medication further undermined her confidence in Gibson. She felt she could no longer trust their judgment and could no longer entrust the care of patients to them. Hasenkamp recommended that both be terminated. Turley took that recommendation and did an investigation. From that investigation, she determined that they had, in fact, endangered the client. Specifically, Turley found that Gibson had failed to ensure that the medication was taken and had then tried to cover up that failure and that Brown had failed to get the client to med clinic as instructed. Turley terminated Brown and Gibson on December 14, 1989. The reason given to each in the letter of termination was "insubordination." This reason was given in writing because the personnel director of ACT recommended that they not say "endangerment of a client's health and safety" for liability reasons. Both Gibson and Brown filed a grievance with ACT's affirmative action officer, Carolyn Fleming, a black employee. Fleming did an extensive investigation of all of Gibson's and Brown's allegations of harassment and termination based on racial discrimination. Fleming determined that there was no racial discrimination in ACT's actions. Based on an observation of the candor and demeanor of all the witnesses and on a review of the contradictions in the testimony, it is determined that the testimony of Brown and Gibson is less credible than that of the witnesses for ACT. Both Brown and Gibson gave testimony that was calculated to show them in the best light. While it is not determined that their testimony was untrue, it is found that their memories of these events are skewed so as to diminish the severity of their failures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitions for Relief filed by Rosa Gibson and Lillian Brown be DENIED and DISMISSED. DONE and ENTERED this 2nd day of April, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 2nd day of April, 1992. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Rosa Gibson 1129 Hillcrest Drive Daytona Beach, FL 32117 Reginald E. Moore Attorney at Law Post Office Box 1848 Daytona Beach, FL 32015 Mitchell A. Gordon Attorney at Law Post Office Drawer 9670 Daytona Beach, FL 32120
Conclusions Having reviewed the Administrative Complaints and Amended Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency issued the attached Administrative Complaints, Amended Notice of Intent to Deny and Election of Rights forms to the Providers. (Composite Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 2. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 3. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 4. The Providers’ home health agency licenses are SURRENDERED and the Providers shall return all license certificates currently in the Providers’ possession to the Agency upon receipt of this Final Order. 5. An administrative fine in the amount of $210,000.00 is imposed against Autumn Home Care of Southwestern Florida, LLC, which is STAYED in accordance with the terms of the Settlement Agreement. 6. In accordance with Florida law, the Providers are responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Providers are advised of Section 408.810, Florida Statutes. 7. In accordance with Florida law, the Providers are responsible for any refunds that may have to be made to the clients. Page 2 of 5 8. The Providers are given notice of Florida law regarding unlicensed activity. The Providers are advised of Section 408.804 and Section 408.812, Florida Statutes. The Providers should also consult the applicable authorizing statutes and administrative code provisions. The Providers are notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this <3! “any of (fA , 2013. ae Dudek, Secret: Agency for Health Care 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 1 CERTIFY that a true and correct ¢ of this Final Order was served on the below-named persons by the method designated on this 3/>"day of CY) UA , 2013. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Anne Menard, Manager Facilities Intake Unit Home Care Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Page 3 of 5 Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Andrea Lang, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Bradford C. Herter, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Cynthia A. Mikos, Esquire Allen Dell, P.A. 202 S. Rome Avenue, Suite 100 Tampa, Florida 33606 (U.S. Mail) Harold Williams, Field Office Manager Local Field Office Agency for Health Care Administration Susan Tuthill 161 Barbados Drive Jupiter, Florida 33458 (Electronic Mail) (U.S. Mail) | Arlene Mayo-Davis, Field Office Manager William Tuthill Local Field Office 161 Barbados Drive Agency for Health Care Administration Jupiter, Florida 33458 (Electronic Mail) (U.S. Mail) Claude B. Arrington Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a. valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. Page 4 of 5 (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency. Page 5 of 5
