The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what sanction(s), if any, should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent operates a 120-bed skilled nursing facility in Tallahassee, Florida (Facility) pursuant to a license issued by the Agency. The Facility is part of a "continuing care retirement community" that also includes an assisted living facility (Westminster ALF). There are residents of the Facility who have "lived [in the community for] up to 20 years." The Facility has the benefit of a stable workforce. Its staff "retention rates are very high." As a result, staff members are generally quite familiar with the residents and their needs. A 20-bed wing on the second floor of the Facility (referred to as the "240 wing") houses residents in the "middle stage of dementia." Most of these residents come from the Westminster ALF, which has a "memory support floor" set up "very similarly" to the Facility's 240 wing. The 240 wing is "for residents [who] are very social" and enjoy interacting with others and participating in the many group activities that are available to residents in this wing. It is not for persons who are prone to violent outbursts. The residents in the unit are evaluated on a regular basis to ensure that their placement there remains appropriate. If it is determined that a placement has become inappropriate, the resident will be moved to a more appropriate setting. The 240 wing provides a "structured" environment for its residents. Activities take place "at the same time every day"; furniture is not moved "so the [residents] know where to go"; and there is the "same staff caring for [the residents]" on a regular basis. Assigned to the 240 wing during the day shift are: four Certified Nursing Assistants (CNAs), including a team leader, who are responsible for the care and supervision of the units' residents; an "activities person"; and the "unit manager who oversees the entire wing." There are also others who have occasion to be "on the floor," including "floor nurses," housekeeping and janitorial staff, clergy, and volunteers. In addition, some residents have "sitters" (hired by the residents' families) who stay with them and provide them with extra help in dealing with their day-to-day needs. The doors to the 240 wing are supposed to remain closed, but they are not locked and residents from other parts of the Facility have access to the unit. There is a nurses' station, which is open on three sides, located in approximately the center of the second floor of the Facility. It is an active area usually occupied by "clinical staff," who, from their vantage point at the station, are able to "look straight down" the 240 wing hallway (as well as the 220 wing and 260 wing hallways) and into the second floor dining room, which is approximately ten to fifteen feet away. The second floor dining room is not ordinarily visited by residents except at "eating time," when its doors are opened and residents are invited in. It has one of the four "wheelchair buffets" located in the Facility. There is also a "wheelchair buffet" in the first floor dining room,2 one in the 140 wing hallway (on the first floor), and another in the 240 wing hallway.3 The 140 wing and 240 wing hallways are sufficiently wide4 to provide ample room for the "wheelchair buffets," as well as for the tables and potted plants that have been placed there. The "wheelchair buffets" in these hallways are positioned near (but not flush against) the wall so they do not impede hallway traffic. The instant case involves allegations of "unsupervised access" of "24 cognitively impaired, ambulatory [Facility] residents,"5 on January 4, 2006, to the "wheelchair buffets" in the second floor dining room and in the 140 wing and 240 wing hallways. The discussion that follows concerns these three "wheelchair buffets" (Three Wheelchair Buffets), as they existed on and leading up to the date in question. At all material times to the instant case, each of the Three Wheelchair Buffets consisted of a "pretty thick" and relatively sturdy rectangular folding table on which four large (approximately a foot wide, a foot and a half long, and six inches deep), metal chafing dishes (with electric heating elements, temperature control knobs,6 and two-inch high, handled lids) were set side-by-side the length of the table. The table was "very low to the ground" to accommodate residents in wheelchairs. Running the length of the "tray line" side (or front) of the table was a "sneeze guard," beneath which was an additional Plexiglas barrier (Lower Barrier) that extended up to the height of the rims of the chafing dishes. There was a space of four inches between the bottom of the sneeze guard and the top of the Lower Barrier. It would have been extremely difficult, if possible at all, for a resident, standing or in a wheelchair in the front of the table, to reach through this four-inch space and "get the lid off" any of the chafing dishes (and there is no record evidence that any resident ever attempted to do so). Neither the rear nor the ends of the table had a "sneeze guard" or a Lower Barrier. At meal times, food prepared in the Facility's kitchen was brought to the table on aluminum pans having depths from approximately two and quarter inches to three and half inches. The pans, with the food on them, were placed in the "wells" of the chafing dishes, suspended over no more than two inches of water lying at the bottom of the dishes. The chafing dishes' heating elements, when turned on, heated the water, producing steam, which kept the food at appropriate serving temperatures. Residents (both wheelchair-bound and non-wheelchair bound) went down the "tray line," observed the food items in the unlidded chafing dishes, made their selections, and then communicated their choices to the Facility staff members (Buffet Staff), who were manning the buffet from their positions on the opposite side (or rear) of the table (which they were able to get to without difficulty given the distance the table was away from the wall).7 The Buffet Staff removed the selected food items, in appropriate portions, from the chafing dishes and placed them on plates. They then put the plates on trays and gave them to the residents.8 Residents were frequently accompanied to their seats by Facility staff, who carried the residents' trays. During the entire process, there was careful monitoring of the residents' movements. The "wheelchair buffets" were the product of considerable study and planning. They were borne out of desire on the part of Respondent, as a step in the development and implementation of a "person-centered [overall] care model"9 for the Facility, to move from the "institutional model" of food service ("where the trays are assembled and plated in another location and brought to the floor and then given to each resident") to a "more homelike model where residents could see the food [and] smell the food" and have the opportunity to select, from among the available choices, what they wanted to eat. The Facility's nutrition committee "submitted a request back in 2002" that such a change be made. It took Respondent quite a while to work out the details of implementing this change. Input was sought and obtained from the residents, their families, Facility staff, and outside consultants, as well as the Agency. Safety issues, including those relating to the placement of the "wheelchair buffets," were considered. The Agency was consulted regarding these matters, and it expressed no concerns about the planned locations of the "wheelchair buffets." As part of the planning process, Respondent set up a non-operational, unmanned "wheelchair buffet" (with empty chafing dishes) in the 240 wing hallway to see what the residents' reaction to it would be. The residents did not "seem interested in it at all." "They [simply] walked past it." Similar "trial runs" were conducted at the other three planned locations, with similar results. The "wheelchair buffet" in the 240 wing hallway was the first of the Facility's four "wheelchair buffets" to go into service. It became operational in 2004. Later that year, the Agency surveyed the Facility and found no deficiencies related to this "wheelchair buffet." "[P]leased that there were no concerns stated" with respect to this "wheelchair buffet," Respondent "moved forward with placing the other ones into service." By February 2005, the other three "wheelchair buffets" were up and running. Along with the "wheelchair buffet" in the 240 wing hallway, they have remained in service through the present. By all appearances, the Facility's transition to buffet-style dining has been a success. The Facility's "management services" office developed the following written "guidelines" for "[b]uffet [s]tyle [d]ining" at the Facility" (Buffet Guidelines): All residents will be offered an opportunity to partake of buffet meals in their dining rooms. This will provide choices to our residents, as well as offer a more interesting meal time environment. Residents will be asked if they would like to go through the buffet line, or if they would like nursing staff to tell them what is on the buffet. Diet will be liberalized as much as possible. See liberalized diets for long term care. There will be a choice of 2 entrees at all meals for all therapeutic diets and consistency types as well as a selection of starches and vegetables. We also provide a soup, and selection of salads, and 2 dessert choices for lunch and dinner. The Dining Services Director/dining services department will be responsible for maintaining standard operating procedures at remote dining locations: There must be a system in place to keep hot foods above 140° and cold foods below 40°F. Temperature logs must be maintained on foods and refrigeration units designated for resident use. Sneeze guards must be utilized on hot food tables and salad bars, etc. Residents that choose not to or are unable to eat in dining room will be served in their room by nursing staff. Room trays will be assembled from the steam table in the main floor dining room in accordance with physician ordered diet and delivered in closed food carts to assure maintenance of safe food temperatures. Operating Hot Food Tables Plug-up steam table Be sure table is free of crumbs, etc. Turn on switch. Select desired temperature setting Place pans in steam table bins Serve Clean steam table daily Cleaning Hot Food Table IMMEDIATELY AFTER USE Turn off steam table Cover all pans on steam table Replace all guards Empty and clean all pans daily Buffet staff were trained, in accordance with the Buffet Guidelines, to "turn [the chafing dishes] on in the morning, serve breakfast, turn [them] off after use, turn [them] back on before lunch, and then off, and then on before dinner." They did not always, however, in practice "turn [the chafing dishes] off after use." "[W]hen they were having problems keeping the food at hot temperatures, they would leave them on throughout the day periodically."10 That they did so was not common knowledge among the Facility's non-food service employees. At no time prior to the Agency's conducting the survey that led to the issuance of the instant Administrative Complaint had the Facility experienced any problems with residents making, or attempting to make, contact with the chafing dishes on any of the buffet tables, nor had the residents shown any interest in the buffet tables unless there was a meal being served. Furthermore, no resident had ever [accidentally] "fallen in close proximity to [a] buffet table." The survey referenced in the preceding paragraph was an annual survey that was conducted by the Agency from January 3, 2006, to January 6, 2006. The alleged deficiency that is the subject of the instant controversy was observed on January 4, 2006. On the morning of January 4, 2006, after breakfast had been served, Agency survey personnel observed the activity at and around the Three Wheelchair Buffets. At the time of these observations, there were no Buffet Staff manning the tables and the lidded chafing dishes on the tables were turned on and had hot water (with temperatures of 149 degrees Fahrenheit or more11) in them.12 Agency survey personnel found the lids of the chafing dishes too hot for them to hold in their bare hands when they went to take the lids off.13 Although there were residents in the vicinity of the buffet tables during these observations, no residents were seen going up to the tables to examine or touch the chafing dishes. The activities at and around the "wheelchair buffet" in the second floor dining were observed from approximately 9:09 a.m. to 9:37 a.m. (Dining Room Observation Period). Residents 26 and 27 (both of whom had transitioned to the Facility from the Westminster ALF) were in the dining room this entire time. Resident 26 used a wheelchair and, according to the records maintained by the Facility, had mild cognitive impairment, although his impairment was "not particularly obvious." He was someone who "stay[ed] in his wheelchair." Although he "could move himself," there was no reason to believe, based on prior experience, that he would attempt to approach the buffet table in the dining room between meals. Resident 27 also used a wheelchair. She was deaf, blind, and mute. According to the records maintained by the Facility, she had severe cognitive impairment. When she was sitting in her wheelchair in the dining room and wanted to leave, she would "tap[] her foot" and a Facility staff member would come and wheel her out. She did not "move about the unit unaccompanied." There was no reason to believe, based on prior experience, that she would at any time attempt to approach the buffet table. During the Dining Room Observation Period, approximately five other persons that Agency survey personnel believed to be Facility residents (but did not identify by resident number or otherwise) went "[i]n and out of the dining room" (the doors to which were unlocked). No Facility staff member took any action to "redirect" these individuals. For a portion of the Dining Room Observation Period, Jim Gagnon, Ph.D., a "contract" licensed clinical social worker, was seated facing Resident 26 and engaging in a conversation with him. "[T]here were [also Facility] staff in and out of the dining room periodically [during the Dining Room Observation Period, but] there was no continuous supervision." In addition, there were Facility staff "at the nurses' station intermittently" and they could "see into the dining room" (albeit not the entire dining room). The activities at and around the "wheelchair buffet" in the 240 wing hallway were observed from approximately 10:10 a.m. to 10:37 a.m. (240 Wing Observation Period). During the 240 Wing Observation Period, there were persons that Agency survey personnel believed to be Facility residents (but did not identify by resident number or otherwise) who passed by (but did not stop at) the buffet table. Some were walking. Others were in wheelchairs. Though there were Facility staff in the hallway (one engaged in an activity with approximately 12 residents, and others entering and exiting the resident rooms off the hallway), no staff member was "continuous[ly]" within twenty feet of the table. The activities at and around the "wheelchair buffet" in the 140 wing hallway were observed from approximately 11:10 a.m. to 11:16 a.m. (140 Wing Observation Period). During the 140 Wing Observation Period, there were approximately six persons that Agency survey personnel believed to be Facility residents (but did not identify by resident number or otherwise) who were "just sitting or walking around [and] chatting" in the hallway. No Facility staff member was nearby providing supervision. It was not until 1:00 p.m. that Agency survey personnel first brought to the attention of the Facility's administration that they believed that the conditions that they had observed with respect to the Three Wheelchair Buffets constituted a deficiency requiring immediate corrective action. Respondent timely took action to eliminate these conditions. The Facility was deemed by the Agency to be in substantial compliance with all regulatory standards on February 20, 2006.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency issue a final order dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2006.
The Issue Whether Petitioner violated section 400.0255, Florida Statutes, by improperly discharging or transferring a resident such that Respondent correctly issued a Statement of Deficiencies against Petitioner.
Findings Of Fact Petitioner is a 36-bed skilled nursing facility located on the campus of Sand Cove Hills, a retirement community in Palm City, Florida. Sand Cove Hills is a continuing care retirement community containing 255 independent living units, 36 skilled nursing units, and 20 assisted living beds. The assisted living beds and skilled nursing units are separately licensed by the Agency. M.M. became a resident of Water's Edge on February 25, 2012, after being referred to the facility from Martin Memorial Hospital for rehabilitation. She was 90 years old. During M.M.'s residency at Water's Edge, Heather Furlong served as the administrator, Martha Legere served as the director of nursing, Dr. Michael Sherman served as the medical director, Althea Armstrong served as a charge nurse, Christine Cerny served as a licensed practical nurse (LPN) who provided direct care to M.M., and Deneas Morris served as a certified nursing assistant (CNA) who also provided direct care to M.M. From March 3, 2012, until March 11, 2012, M.M. was hospitalized and diagnosed with right lower lobe pneumonia. When she arrived at Water's Edge, she was admitted by Dr. Sherman, an internist. Dr. Marie Cambronne was M.M.'s psychiatrist and first saw M.M. on April 10, 2012. She found M.M. to be very agitated and paranoid. Dr. Cambronne diagnosed her as suffering from dementia and psychosis and prescribed Risperdal for paranoia, delusion, and psychosis. Dr. Cambronne believed that an involuntary examination under the Baker Act might be appropriate because M.M. was very territorial, but opted to wait and see if medicine would alleviate the symptoms. On or about April 14, 2012, Nurse Cerny noticed that M.M. was exhibiting troubling behavior. She had periods of paranoia, believing that Water's Edge staff and other residents were trying to hurt her. CNA Morris recalled M.M. being difficult; M.M. hit Ms. Morris on more than one occasion, ate other residents' meals, took other residents' possessions, and argued with other residents. Ms. Morris believed that other residents were afraid of M.M. Nurse Cerny recalled that M.M. was confused, agitated, went into other residents' rooms, changed her clothes often, and would go through her roommate's belongings. M.M. was calmer when her daughter was present, but when alone, would sometimes pack and unpack her own belongings. She had periods of forgetfulness and hallucinations. Water's Edge is not a locked-down unit; therefore, some residents, like M.M., were fitted with a "WanderGuard" to keep them from wandering out of the facility. The WanderGuard is a bracelet which activates an alarm if a resident wearing it attempts to open an exterior door. The door becomes locked for 15 seconds, to allow time for the staff to redirect the resident. M.M. cut off her WanderGuard twice while she resided at Water's Edge. On or about April 30, 2012, M.M. pushed a roommate's wheelchair (while the roommate was seated in the wheelchair) out of their room and into the hallway, and then slammed the door shut. Dr. Sherman ran tests to rule out an organic cause for M.M.'s spiraling psychiatric issues; he found none. On May 1, 2012, Dr. Cambronne once again saw M.M. M.M. explained to Dr. Cambronne that she believed her roommate had fooled around with her husband, which is why she had kicked her roommate out of the room. Dr. Cambronne noted that M.M. was angry, obsessed with her roommate, confused, and paranoid. She prescribed Ativan to calm M.M. down. While she considered initiating a Baker Act transfer, she was informed by the staff that Dr. Sherman was running tests to rule out an organic cause for M.M.'s psychiatric symptoms. On May 2, 2012, Nurse Cerny noted that M.M. was getting more aggravated at night and was wandering into other resident's rooms. The staff began conducting 15-minute safety checks on M.M. On the morning of May 3, 2012, Nurse Cerny noted that M.M. had continued to enter other residents' rooms through the night and had been found wearing her undergarments over her clothes. On May 3, 2012, M.M. left with her daughter to have some lab work done. When M.M. returned to Water's Edge, and her daughter left, M.M. required one-on-one care due to her high level of agitation. Nurse Cerny provided that care. On that same day, Dr. Cambronne received a call from Water's Edge, letting her know that the Ativan was not working, that Dr. Sherman had ruled out any organic cause for the psychiatric symptoms, and that M.M. was becoming increasingly agitated. She was informed that M.M. was continuing to bother the other residents, and, in particular, M.M. was bothering the resident whom she had delusions about. Dr. Cambronne decided to involuntarily commit M.M. to a facility that received Baker Act patients, because the Ativan was not working, and M.M. was terrorizing another resident. Dr. Cambronne was concerned that M.M. was a threat to the other residents. Because Dr. Cambronne was busy at a hospital, she asked Water's Edge staff to bring the Baker Act form to her at the hospital so that she could fill it out. Director of Nursing Legere brought the form to Dr. Cambronne and waited until Dr. Cambronne was able to see her. The Baker Act form was completely filled out by Dr. Cambronne. On the Baker Act form, Dr. Cambronne checked the boxes that indicated the patient was likely to suffer from neglect or would pose a threat to herself by refusing to take care of herself and that there was a substantial likelihood that she would pose a threat. Dr. Cambronne failed to check the next box, which indicated whether that threat was to M.M. or others, but she credibly testified that the threat was to both. Dr. Cambronne wrote the following as her observations: Pt. [sic] is combative with staff [sic] push [sic] other resident on her wheelchair and closed door, entering into other residents room [sic], confused, disorganized, psychotic [sic] not following redirection, exit seeking[.] Martha Lenderman, an expert in the Baker Act, reviewed the Baker Act form and found it deficient because Dr. Cambronne had not personally observed M.M. on the date the form was filled out, the form was not filled out based solely on Dr. Cambronne's observations, and Dr. Cambronne had left a box empty which asked for "other information." Dr. Cambronne explained that she had personally observed M.M.'s obsession with her roommate, her confusion, and her psychosis. Dr. Cambronne had been informed of M.M.'s combativeness with staff and her exit seeking behavior. Since Dr. Cambronne was not providing one-on-one care to M.M., she had to rely on the reports from the staff, coupled with her own observations and diagnosis. The undersigned finds Dr. Cambronne's testimony credible and reasonable; any omissions on the form were harmless. Water's Edge held a bed open for M.M., paid for by M.M.'s family, should she return to the facility that same night, or at any later date. Dr. Sherman was in complete agreement with M.M.'s involuntary commitment, finding it an appropriate course of action. Dr. Cambronne was fairly certain that M.M. would be brought by law enforcement to the St. Lucie Medical Center, which is the hospital where she was working that day, because it is the closest Baker Act facility to Water's Edge. Ms. Lenderman testified that once a Baker Act involuntary examination is initiated, the patient must be taken to a receiving facility or hospital. Law enforcement is the designated authority to transport a patient, and law enforcement has no discretion to ignore the Baker Act order. Ms. Lenderman also testified that, if a Baker Act order is improperly issued, an affected person can file a Petition for Writ of Habeas Corpus to have the individual released from the receiving facility. No evidence was presented indicating that a Petition for a Writ of Habeas Corpus was ever filed in the instant case, or that any disciplinary action was initiated as to Dr. Cambronne's medical license. Water's Edge, having received a Baker Act initiation form from M.M.'s treating psychiatrist, contacted law enforcement for a proper transfer. M.M. was brought by law enforcement to the St. Lucie Medical Center, and Dr. Cambronne treated her there. M.M.'s transfer from Water's Edge to St. Lucie Medical Center was initiated by Dr. Cambronne, and not by Water's Edge. Water's Edge only complied with M.M.'s treating psychiatrist's Baker Act order, arranging transportation without delay. M.M. received 24-hour care at St. Lucie Medical Center and, in Dr. Cambronne's opinion, received good care. During M.M.'s stay at St. Lucie Medical Center, M.M.'s family did not request that M.M. return to Water's Edge. After eight to ten days had passed, M.M.'s family asked Water's Edge to release the bed hold for M.M. M.M. was later moved to another facility and eventually passed away in January of 2013.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration dismiss the Statement of Deficiencies issued to Water’s Edge. DONE AND ENTERED this 24th day of June, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 24th day of June, 2013.
