The Issue Whether Respondent Indiana House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003, 61C- 1.004(9)(b), 61C-1.004(11), and 61C-3.001(5), Florida Administrative Code, and, if so, what penalty should be imposed. Whether Respondent Illinois House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 61C-1.004(5) and 4A-48.003, Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the operation of hotel establishments pursuant to Section 210.165 and Chapter 509, Florida Statutes. Respondents, at all times material to these proceedings, have been licensed or otherwise subject to the Department's jurisdiction. The last known business address of Indiana House is 1114 Indiana Avenue, St. Cloud, Florida. The last known business address of Illinois House is 820 Illinois Avenue, St. Cloud, Florida. Both Indiana House and Illinois House are transient rooming houses. The tenants pay rent for the rooms they occupy. On January 26, 2001, an inspector for the Department inspected the Indiana House and noted numerous deficiencies, including a lack of a fire alarm system. The inspector returned to Indiana House on May 1, 2001, but was unable to get into the building. She made a call-back inspection on May 22, 2001, and found that certain violations had not been corrected, including the lack of a fire alarm system. On June 5, 2001, the inspector returned to Indiana House. No fire alarm panel had been installed, and the owner, Thomas Griffin, did not have keys to the property so the inspector did not have access to the building. On February 12 and 18, 2002, an inspector for the Department inspected the Indiana House and found the following deficiencies: (1) a gang plug was being used in a bedroom, (2) wires were dangling from a fan light, (3) the air conditioner faceplate was missing, exposing the filters and coils, and (4) no service tag was on the fire extinguisher. A gang plug is an adapter that is put into the electrical outlet on a wall so that more than one electrical plug can be used with that outlet. The gang plug found at Indiana House on the February 12 and 18, 2002, inspections would allow the use of six electrical plugs at one time. On January 26, 2001, an inspector from the Department inspected Illinois House and found that there was no fire alarm system. Another inspection was made on May 1, 2001, and it was noted that the outside door was locked. A call-back inspection was made on May 22, 2001, and no fire alarm had been installed. On June 5, 2001, a call-back inspection was made. The owner of the property stated that he did not have keys to the building; thus, the inspector could not access the premises. The owner advised at the time of the inspection on June 5, 2001, that no fire alarm system had been installed. On February 18, 2002, an inspector for the Department inspected Illinois House and found that none of the bedrooms had smoke detectors. On February 25, 2002, a call-back inspection was made, and a battery operated smoke detector in a bedroom did not work when tested. The Department considers a critical violation to be one that is an immediate health hazard. The failure to have a fire alarm system is a critical violation because the buildings are transient rooming houses and most of the people residing in the buildings at any given time will be strangers to one another. If a fire occurs, the consistent and reliable means of notifying the tenants would be through the use of a fire alarm system. The failure of the smoke detector to work is also a critical violation. If a fire occurs, an inoperable smoke detector will not warn the tenant, and, since no fire alarm has been installed, it is likely that the tenant may not have sufficient warning in time to escape from the fire. Both Illinois House and Indiana House have applied to the Homeless Service Network for a grant to make renovations to the buildings to bring them up to whatever code is necessary in order for the properties to be used as transient housing. When the money becomes available, it is anticipated that the renovations will be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Indiana House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003, 61C- 1.004(9)(b), 61C-1.004(11), and 61C-3.001(5), Florida Administrative Code. Imposing a $2,500 fine on Indiana House and requiring the owner of Indiana House to attend a Hospitality Education Program. Finding that Illinois House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003 and 61C- 1.004(5), Florida Administrative Code. Imposing a $1,500 fine on Illinois House and requiring the owner of Illinois House to attend a Hospitality Education Program. DONE AND ENTERED this 27th day of September, 2002, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 27th day of September, 2002. COPIES FURNISHED: Thomas Griffin Indiana House 1221 12th Street St. Cloud, Florida 34769 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue DOAH Case No. 02-4161: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 02-4160: Whether Respondent committed the violations alleged in the Administrative Complaint dated August 29, 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. Shell Point operates a licensed nursing home at 15701 Shell Point Boulevard, Fort Myers, 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 III representing the least severe deficiency. On June 3 through 6, 2002, AHCA conducted an annual licensure and certification survey of Shell Point 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 a deficiency identified as Tag N201 (violation of Section 400.022(1)(l), Florida Statutes, relating to a resident's right to adequate and appropriate health care and protective and support services, if available; planned recreational activities; and rehabilitative services consistent with the resident's care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency). 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 was noted as "isolated" in scope. Based on the alleged Class II deficiency in Tag N201, AHCA imposed a conditional license on IHS, effective June 6, 2002. A follow-up survey was conducted by AHCA on July 9, 2002. AHCA found that Shell Point had corrected all deficiencies noted in the Form 2567, and the agency restored Shell Point's license rating to "standard" on July 9, 2002. The survey found one instance in which Shell Point allegedly failed to provide appropriate health care and protective services. The surveyor's observation on Form 2567 concerned Resident 14: N201 – 400.022(1)(l), F.S. Right to Adequate and Appropriate Health Care 400.022(1)(l) The right to receive adequate and appropriate health care and protective and support services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules adopted by the agency. This Rule is not met as evidenced by: Based on observations, record review and staff interviews, the facility failed to provide care and protective services for 2 of 3 sampled residents (#14 and #15) on the second floor dementia unit. This is evidenced by the continued resident-to- resident altercations without facility staff providing on-going interventions, implementation of facility abuse policy, or development of a therapeutic plan of care. The findings include: During the initial tour of the second floor on 6/03/02 at approximately 9:30 AM, Resident #14 was identified by nursing staff as having "injured" another resident (#15) the night before (6/02/02). According to the nurses notes for Resident #15 on 6/02/02 at 1745 (5:45 PM) " (resident's name) was knocked to the ground by another resident. She hit her head and tore open the L (left) forearm. Her L. knee has a quarter-sized abrasion -– instantly swollen . . . had a small abrasion L. side of head –- ice applied." L. knee abrasion with obvious pain and swelling -– ice applied to knee also. Lg. (large) hematoma (bruise) from L. wrist to mid forearm with lg. deep skin tear. Skin reapproximated and steri-stripped –- dressed with telfa and Kling per Dr. ." The physician was called and noted the presence of a "contusion" of the L. parietal area (the head). Review of Resident #15's record showed a nurse's note dated 5/19/02 at 2100, "Hit in back of head by another resident for no apparent reason." Interview with nursing staff on 6/04/02 at approximately 11:00 AM revealed the resident had been struck by Resident #14 during this incident as well. However, no injuries were noted during this altercation. Review of facility Policy Related to "Abuse, Neglect, or Misappropriation of Property" dated 12/12/00 revealed "5. Should abuse be expected (suspected?) to be resident-to-resident initiated, the residents will be separated, the environment will be reviewed as to the stimuli that may have triggered a catastrophic response. . . . Corrections to the environment will be implemented, the residents will be evaluated for injury, the residents will be interviewed (where practicable)." Review of the clinical record for Resident #14 showed documentation in the nurse's notes for 6/02/02 of escalating behavior throughout the day i.e. "She has had one confrontation after another today with residents –- not staff." There is no documentation to indicate any interventions until resident #14 injured resident #15. Review of the plan of care (both current and past) showed no interventions for aggressive, assaultive behavior by this resident or environmental review for stimuli. Interview with the Social Worker on 6/04/02 at approximately 1:30 PM revealed no interventions had been planned or written by him for the aggressive behavior, although the psychiatric nurse had been called regarding reinstating the use of an antipsychotic medication. Interview with the R.N. in charge of the unit as well as the DON (Director of Nursing) revealed no changes in the plan of care had been implemented since the altercation. Further review of the clinical record for Resident #14 disclosed at least 12 other incidents since March 9th of 2002 in which the resident struck, slapped or pushed other residents (3/09, 4/07, 4/18, 4/21, 4/30, 5/03, 5/04, 5/13, 5/18, 5/19, 5/24, and 5/25). The resident's record revealed her to have "expressive aphasia due to CVA (Cerebrovascular Accident)" and to be moderately impaired for cognition. The resident was observed pacing around the 2nd floor dining unit and in the dining room for lunch on 6/04/02. She was minimally able to communicate with gestures. Review of the "Behavior/Intervention monthly Flow Record" showed the behaviors being monitored as the following: "Mood changes, Delusions, Depressed, and Compulsive." Interview with the DON on 6/04/02 at approximately 3:30 PM verified these "behaviors" were inappropriate for this resident, unable to be observed, and emotions unable to be verbalized by the resident. The clinical record and interviews with administrative nursing staff on 6/05/02 at approximately 3:30 PM revealed interventions at the time of an incident included 1:1 monitoring and removal to her room. Medication had been utilized but discontinued. There was no documented plan of care outlining interventions to prevent this resident from continuing to injure herself or others. Resident 14 was a 85-year-old female admitted to Shell Point on June 29, 2001. Her primary diagnoses on admission were anorexia, weight loss, and multiinfarct dementia, a form of organic brain disease that is indistinguishable from Alzheimer's disease in terms of treatment. Resident 14 had secondary diagnoses of hypertension and depression. Alzheimer's disease is a progressive disease. Its initial signs are usually confusion and short-term memory loss. As the disease progresses, the patient suffers greater overall loss of memory and reduced cognition. In the middle stages of the disease, the patient loses the ability to follow directions, to perform her activities of daily living and to take care of her own needs. Another common symptom of Alzheimer's disease is the loss of inhibition and social awareness. The loss of social awareness can cause the patient to invade the space of others, unaware of her effect on those around her. Another common effect of the progression of Alzheimer's disease is increased aggression, again the result of an inability to understand how one's actions affect others. Joan Cagley-Knight, AHCA's expert on Alzheimer's disease, estimated that at any given time, 20 percent to 40 percent of the residents in the Alzheimer's unit of a nursing home will demonstrate aggressive or violent behavior. Aggressive behavior in Alzheimer's residents cannot be eliminated, as it is simply a part of the progression of the disease. One way in which Alzheimer's patients are treated is to place them in secured, locked Alzheimer's units. Such units allow the residents greater freedom within the unit while allowing the nursing home to provide greater supervision. Secure Alzheimer's units also provide reduced stimulation for the residents, lessening the potential for extraneous sights and sounds to cause agitation. At the time of the survey, Shell Point's secure Alzheimer's unit, where all of the relevant incidents took place, consisted of 58 beds. Ms. Cagley-Knight testified that most special care units for dementia have a maximum of twenty beds. She opined that the larger size of Shell Point's unit made it more difficult to manage, because residents with Alzheimer's require more supervision and less stimulation in their environment than do healthy residents. Evidence at the hearing established that ambulatory residents were allowed to interact in the common areas of the Shell Point Alzheimer's unit, though always within sight of facility staff. Shell Point employed staff persons to work exclusively in the Alzheimer's unit, and assigned those staff persons to care for the same residents on each shift. These assignments allowed the staff to become familiar with each resident's needs, abilities, and behaviors. A nursing home's ability to deal with aggression in an Alzheimer's unit is limited. The facility cannot simply lock a resident in her room. Physical restraints tend to worsen the situation, and in any event violate the Resident's Bill of Rights, Section 400.022(1)(o), Florida Statutes, unless authorized by a physician or necessitated by an emergency. Among the permissible initial responses to aggressive behavior are redirection and increased supervision. If these responses fail to control the resident's aggressive behavior, the resident can be medicated, though the facility is required to maintain the use and dosage of psychotropic drugs at the lowest level practicable. Finally, if all else fails, an overly aggressive nursing home resident who presents an immediate threat to herself or others may be involuntarily committed to a mental health facility through the "Baker Act", Section 394.467, Florida Statutes. Ms. Cagley-Knight testified that a facility should do anything it can to avoid "Baker Acting" its residents, short of allowing one resident to hurt another. She stated that the decision as to "Baker Acting" a resident is a judgment call based on an evaluation of all the circumstances. At the time of her admission, Resident 14 was independent regarding her activities of daily living and required minimal care. Pamela Garcia, an LPN on the Alzheimer's unit, described Resident 14 as part of the "out and about" group, able to participate in outings and group activities. Over time, however, Resident 14 suffered cognitive decline and the symptoms of her dementia worsened. At one point, Resident 14 became overly protective and "motherly" toward her roommate, so much so that the facility had to separate the two women. Resident 14 then transferred her affections to a newly admitted male resident. She behaved very protectively toward him and became jealous when other female residents approached him. Eventually, Resident 14 adopted two more male residents for this jealous, protective behavior. Resident 15 was another female resident on the Alzheimer's unit. Due to her loss of inhibitions and lack of social awareness, Resident 15 would get physically close to other residents, much closer than is normally considered acceptable. When she would get too close to one of Resident 14's gentlemen friends, Resident 14 would become angry and would slap at Resident 15. As quoted above, the Form 2567 states that Resident 14 was involved in 12 incidents in which she "struck, slapped, or pushed other residents." Ms. Cagley-Knight, the surveyor who made the observations and findings as to Resident 14, conceded that most of the 12 incidents did not involve physical contact with another resident. Ms. Cagley-Knight maintained that the non-physical incidents, which involved taunting, arguing, and slapping at other residents without making contact, were nonetheless significant resident-to-resident altercations that should have triggered some response by the facility. The nurses' notes for March 9, 2002, contained a care plan note indicating that the facility was aware of, and concerned about, Resident 14's tendency toward aggressive behavior. The note stated "Resident [14] rarely displays sexual behavior now. Her meds seem well-adjusted. She does have episodes of anger directed at certain female residents for no apparent reason. She will redirect during these episodes but will glare at the residents or taunt the other residents verbally." The first incident involving Resident 14 was recorded in the nurses' notes of April 7, 2002. The note stated, "Resident [14] acting out in dining room. Picked a fight with another female resident. [Resident 14] was returned to 2nd floor. Stood staring at everyone. Trying to 'get in someone's face' -– very obvious foul mood and attitude." The nurses' note gave no indication that "picking a fight" involved anything more than a verbal confrontation. The nurses' notes of April 18, 2002, provide documentation of a second incident: "Caregiver reports that [Resident 14] is slapping out at others in peer group. Will monitor behavior and report findings to [physician]." The referenced caregiver was not a Shell Point employee, but a private duty person who came in regularly to tend to Resident 14. The nurses' notes of April 21, 2002, labeled "weekend summary," reflect that "Resident [14] was in a very foul mood all weekend. She verbally taunted several female residents Saturday and Sunday. She took 2 male residents to her room dozens of times and was angry with staff when redirected. She sat on a male resident's lap and when the CNA removed her -- she shook her breasts at him. Sunday a female resident was knocked down by [Resident 14] and she bragged to staff that she did it. She continued to taunt the injured resident after the incident." In response to Resident 14's increased aggression and sexually inappropriate behavior, the facility had her reevaluated by a neuropsychiatrist on April 25, 2002, four days after the weekend incidents were recorded in the nurses' notes. The neuropsychiatrist noted that Resident 14 "does well in activities and tends to act out during non-structured events," and that she was "at risk to harm others." The neuropsychiatrist increased Resident 14's dose of Depacote (divalproex sodium), a psychotropic drug. The nurses' notes of April 30, 2002, record that Resident 14 "became aggressive with another resident in hallway –- as other female resident walked by, [Resident 14] reached out to grab –- other resident pushed hand away and [Resident 14] began to swing at other resident. Did not make contact and did state 'Well did you see her.' When informed of inappropriateness stated 'I'm sorry.' No further episode." The nurses' notes of May 3, 2002, record that "Resident [14] was confrontational with nurse and with another resident, closed door on nurse, attempted to slap other resident, but was redirected in time." The nurses' notes of May 4, 2002, record that "Resident had behavioral problems all day. She verbally attacked many residents. She slapped 2 female residents. Tried to get a male resident to her room repeatedly. She stood staring at Mr. [resident name] for hours trying to get him to go with her. She paced the entire day with her arms crossed just looking at residents and staff. Not easily redirected." In response to this episode, Shell Point again had Resident 14 evaluated by her neuropsychiatrist, this time on May 9, 2002, five days after the incident. After reviewing Resident 14's drug regimen, the neuropsychiatrist decided not to change her prescriptions at that time because he had just increased the dosage on April 26. At this time Resident 14 was taking 750 mg of Depakote, and 7.5 mg of Remeron daily. Remeron (mirtazapine) is an antidepressant. The nurses' notes of May 13, 2002, reflect that Resident 14 "took male resident to her room repeatedly and into the bathroom once. She verbally attacked 2 female residents –- paced most of the evening." The nurses' notes of May 18, 2002, record that Resident 14 was "very aggressive with other residents who approached her room or a particular male resident. Paced the entire day -- took 2 male residents to her room repeatedly." The nurses' notes for the afternoon of May 19, 2002, record that Resident 14 "keeps dragging a particular male resident out of his chair and taking him down the hall to her room. Very taunting to multiple other residents. Very boisterous toward 2 females at one point. Paces continually -- will not be redirected by staff." The nurses' notes for the evening of May 19, 2002, record that Resident 14 was "aggressive this evening. Hit another resident in back of head -– not causing any injury. Verbally abusive to other residents." The nurses' notes of May 24, 2002, record that Resident No. 14 had "multiple confrontations with other residents early part of this shift. CNA's and nurses had to redirect her from stalking another resident. She struck out at several other residents –- paced a good portion of the evening - – staff removed her from the lobby to her room where she remained for the night." The nurses' notes of May 25, 2002, record that "Resident [14] touched lower extremity of another resident. He reached up and slapped left side of face as witness[ed] by CNA." The nurses' notes for the morning of June 2, 2002, record that "Resident has paced all day with arms crossed. She has had one confrontation after another today with residents-- not staff. She has been redirected repeatedly with no effect. Very defiant. She has been very physical with a male resident. She will not leave him alone. Families were complaintive [sic] during lunch about her behavior with male residents." The nurses notes for the same afternoon record that "[Resident 14] knocked another resident down. Other resident injured. [Resident 14] taken to room 214 per Dr. Hicks and supervisor. Will be monitored by CNA." Resident 15, the victim of this incident, suffered cuts, skin tears, and bruises caused by her fall after being slapped by Resident 14. The chief allegation under Tag N201 is that Shell Point allowed resident-to-resident altercations to continue without effective interventions, implementation of an abuse policy, or development of a therapeutic care plan for Resident 14 to address her ongoing problems of aggression and sexual acting out. The most recent care plan on file for Resident 14 was dated March 27, 2002, and did not address her aggressive behavior. Resident 14's inappropriate sexual behavior had been addressed in a prior care plan, but as of March 27, 2002, Shell Point considered this issue "resolved" because "resident no longer exhibits this behavior." The nurses' notes indicated that Resident 14 resumed this behavior no later than April 21, 2002, when she was first recorded taking male residents to her room, but no update to the care plan was made to address this resumption of inappropriate sexual behavior. AHCA faulted Shell Point for failing to prepare a care plan for Resident 14 so that all staff members would know when her needs were greater and what interventions were working with her, and for failing to identify and remove those stimuli that caused Resident 14 to become aggressive. However, the evidence established that Shell Point knew that the aggravating stimulus was female residents coming too close to the male residents whom Resident 14 had adopted for her special attention. Shell Point contended that the preparation of a care plan for Resident 14 would not have resulted in a different approach by the staff. Shell Point maintained flow sheets and cards on each resident in the Alzheimer's unit, and used these flow sheets rather than the care plan to track the residents' progress. At the conclusion of each shift, staff would prepare a report for the next shift detailing anything of note that occurred on their shift. Shell Point's contention that preparation of a care plan would not have changed its approach is credited, though it begs the question of whether that approach was deficient as to the care and protection of the residents involved in these altercations. Ms. Cagley-Knight testified that the appropriate response to resident-on-resident aggression in a secure Alzheimer's unit must be evaluated on a case-by-case basis. The response depends on the number and seriousness of the incidents. Shell Point attempted to minimize the seriousness of Resident 14's actions, pointing out that only four of the 12 documented incidents resulted in actual physical contact and that only the incident of June 2 resulted in physical harm to a resident. Shell Point also pointed out that in each instance of Resident 14 hitting or attempting to hit another resident, she did so suddenly and was quickly redirected by facility staff. Thus, Shell Point contends that the level of danger presented by Resident 14 was relatively low and that Shell Point's response was sufficient. This contention is not credited. Even those incidents that did not involve actual physical contact did involve slapping out at and abusive language toward other residents, who had a right not to be exposed to such a fearful, oppressive situation. The evidence established that Shell Point routinely identified when Resident 14 was becoming agitated or aggressive. Staff would attempt to redirect her when she displayed aggressive behavior, but were not always successful in doing so. When redirection was ineffective, the staff at Shell Point would increase their supervision of Resident 14. Staff was generally aware of the need to monitor Resident No. 14 and her location was monitored at all times. When she was acting out, they would increase her supervision to one-on-one. However, even with this close supervision, Resident 14's behavior could not always be stopped. Shell Point correctly noted that AHCA did not identify any other specific interventions that Shell Point should have tried. However, Shell Point failed to demonstrate that the AHCA surveyors are required or even qualified to identify specific interventions for Shell Point residents, based upon a record review and a day or two of observation. The AHCA survey is a critique of the facility's practices in light of state and federal requirements. It is the task of the facility, not the AHCA surveyors, to devise a plan of correction in response to that critique. Ms. Cagley-Knight acknowledged that a resident's first incident of aggression cannot be predicted, and that planned interventions may not always be effective. However, Ms. Cagley- Knight also concluded that the interventions in place for Resident 14 plainly were not working to curb her aggressiveness or at least prevent her from harming other residents. Ms. Cagley-Knight's conclusion was reasonable, based on the dozen instances of aggressive behavior by Resident 14 over a two-month period, four of which involved physical contact. Given her limited exposure to Resident 14, Ms. Cagley-Knight was in no position to prescribe specific interventions, and her inability to do so does not excuse the facility's failure to explore different approaches in curbing Resident 14's aggressiveness. Shell Point correctly noted that staff was always observant of Resident 14 and always acted quickly to minimize the harm she caused to other residents. However, swift reaction to Resident 14's outbursts does not excuse the facility's failure to try different approaches that might have prevented the outbursts in the first place. Shell Point argued that the only way to eliminate the stimulus causing the aggressive behavior would have been to remove the other residents, which would be impractical, or to isolate Resident 14, which would violate her resident rights. Shell Point contended that, given the limited responses available to a nursing home to respond to aggressive behavior by a resident with Alzheimer's, the only other option available was to "Baker Act" Resident 14. Shell Point contended that "Baker Acting" was not necessary for Resident 14, based on the judgment of the professionals charged with her care, and that second- guessing their judgment should not form the basis for a finding of deficiency and issuance of a conditional license. The fact that staff at Shell Point understood the stimuli that triggered Resident 14's outbursts should have led to some form of intervention designed to prevent her exposure to those stimuli. If the facility lacked a means, short of complete isolation, to keep Resident 14 apart from the residents who triggered her violent outbursts, then it should have conceded its inability to provide adequate care to Resident 14 and taken steps to have her moved to a facility better suited to cope with her needs. This is not a matter of second-guessing the professional judgment of Shell Point's staff, but a finding based on the manifest evidence that Shell Point was unable or unwilling to devise intervention strategies that would respect both the dignity of Resident 14 and the safety of the residents around her. In summary, based upon all the evidence adduced at the final hearing, AHCA's finding of a deficiency under Tag N201 was demonstrated by clear and convincing evidence.
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 Christian and Missionary Alliance Foundation, d/b/a Shell Point Nursing Pavilion, for the period of June 6, 2002, through July 9, 2002, and imposing an administrative fine in the amount of $2,500. DONE AND ENTERED this 1st day of July, 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 1st day of July, 2003. COPIES FURNISHED: Jay Adams, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Eileen O'Hara Garcia, Esquire Agency for Health Care Administration Sebring Building, Room 310J 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 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 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2008). At all times material to this case, the Respondent was a residential hotel located at 2811 East Highway 60, Valrico, Florida 33594, and holding license number 6268431. On May 6, 2008, Mark Cannella, a trained inspector employed by the Petitioner, performed a routine inspection of the Respondent. Mr. Cannella identified various safety regulation violations in a written report that was provided at the time of the inspection to Carolyn Seas, a representative of the Respondent. Safety regulation violations that constitute an immediate threat to public safety are deemed to be "critical" violations. Mr. Cannella noted in his inspection report that, at the time of the inspection, the Respondent had no smoke detectors capable of providing appropriate warning to hearing- impaired motel residents. The absence of smoke detectors capable of warning hearing-impaired residents was identified as a critical violation because hearing-impaired guests may be unable to hear the alarm presented by a standard smoke detection device. Mr. Cannella's inspection report also noted that there was no backflow prevention device installed on a water heater hose bibb. A backflow prevention device prevents potentially contaminated water from being drawn into supply lines. The lack of a backflow prevention device presents a contamination risk to the entire water supply, should tainted water be drawn back into the supply lines. A re-inspection was conducted on June 11, 2008, by Eric Singletary, another inspector employed by the Petitioner. Mr. Singletary's inspection report noted that the violations related to the smoke detection devices and the backflow prevention device had not been corrected. A copy of Mr. Singletary's written report was again provided to Ms. Seas. A second re-inspection was conducted by Mr. Singletary on July 9, 2008. Mr. Singletary's inspection report noted that the violations related to the smoke detection devices and backflow prevention device still remained uncorrected. Ms. Seas was again provided a copy of Mr. Singletary's written report.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine of $1,000 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 9th day of April, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 9th day of April, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Tom Collins Bradford Motel 2811 Highway 60 East Valrico, Florida 33594 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent is guilty of testing positive for a controlled substance on a pre-employment drug screen without a prescription or valid medical reason for using the substance, in violation of Rule 64B9-8.005(1)(e)18, Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact Respondent is a licensed registered nurse, holding license number RN 1553452. She was originally licensed in Florida in 1984. Except for the complaint leading to this case, Petitioner has received no complaints against Respondent in her 16 years of licensure. Respondent did not have a prescription for cocaine, nor a valid medical reason for the use of cocaine. On April 19, 1999, the director of nursing and assistant director of nursing at the Whispering Pines Nursing Home interviewed Respondent for an opening as a registered nurse at the nursing home. Offering Respondent a job, subject to passing a urine screen, the assistant director of nursing administered the urine test. The assistant director of nursing gave Respondent a collection cup and showed her to the bathroom. She told Respondent not to flush or wash her hands until she had returned the filled cup to the assistant director of nursing. Because Respondent had appeared for her interview at about 5:00 P.M., the assistant director of nursing told her to use a different bathroom from that which was normally used for urine tests. However, this deviation from the norm did not introduce an element of risk of confusion of urine samples. To the contrary, the use of the alternative bathroom, which, unlike the customary bathroom, had hot and undyed water, introduces an element of risk of manipulation by the urine donor. As for the risk of confusion of urine samples, the after-hours use of the alternative bathroom, if anything, reduced the risk of confusion of urine samples. Respondent was the only person from whom the assistant director of nursing ever collected urine after hours, and the likelihood of confusion of urine samples was limited by the fact that Respondent's sample was the only sample collected at the time. When Respondent returned the filled cup, the assistant director of nursing immediately read the temperature of the sample and determined that, as required, it was over 90 degrees. The assistant director of nursing directed Respondent to initial the seal to be placed on the container. After Respondent did so, the assistant director of nursing then applied the seal to the container. However, Respondent could not recall if she sealed the container before Respondent left the room. This procedure deviated from the procedure adopted by the nursing home in two respects: the assistant director of nursing did not require Respondent to initial the seal after it was placed over the container and the assistant director of nursing could not affirmatively state that she sealed the container in the presence of Respondent. It is unclear whether numerous other urine samples were in sufficient proximity to the assistant director of nursing so as to raise the possibility of confusion of urine samples. Likely, the director of nursing and assistant director of nursing had collected other samples that day. If so, their use of an overnight courier service would raise the possibility that any other samples remained in the area for pick-up. There is a more serious discrepancy in the record. The laboratory technician produced a bar code that accompanied the sample that yielded the positive result of cocaine. Comparing this bar code to the materials in her file, the assistant director of nursing could find no bar code of a similar size. This significant discrepancy, which is unexplained in the record, militates in favor of confusion of urine samples. Respondent has worked many years as a registered nurse and been subject to numerous announced and unannounced drug tests. The record reveals no indication of drug use in these tests. Respondent's employment record and unblemished disciplinary history militate in favor of confusion of urine samples. Also, Respondent voluntarily submitted to the drug screen in this case. As a registered nurse, she would presumably have had a reasonable concern about a positive result, if she had ingested cocaine recently. Her voluntary submission to a drug test militates in favor of confusion of urine samples. In isolation, neither the discrepancies in the urine testing and handling of the sample nor the background of Respondent would likely preclude a finding of clear and convincing evidence that Respondent tested positive for cocaine. However, these facts, together, preclude a finding of clear and convincing evidence that Respondent tested positive for cocaine.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 13th day of April, 2000. COPIES FURNISHED: Diane K. Keisling, Contract Attorney Agency for Health Care Administration 2727 Mahan Drive Building 3, Room 3231A Tallahassee, Florida 32308 Leslie M. Conklin Conklin & Stanley, P.A. Suite 202 1465 South Fort Harrison Avenue Clearwater, Florida 33756 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 William Large, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Ruth Stiehl, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207
