Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $5,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed November 7, 2012 1:32 PM Dipision of Administrative Hearings ORDERED at Tallahassee, Florida, on this b day of /V 6 Va be , 2012. ‘, - Sy At, * q Elizabeyh Dudek, ae Agency for Healt! e Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_gopy of this Final Order was served on the below-named persons by the method designated on this Z lay of _ LY Loe , 2011. Richard Shoop, Agency Cler! Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) David Selby, Esq. Haifa Harb, Administrator and Registered Agent Office of the General Counsel Bloomfield Manor Agency for Health Care Administration 2774 Wesleyan Dr., (Electronic Mail) Palm Harbor, FL 34684 (U.S. Mail) John D. C. Newton, II B. Kyle Morley, Esq. Administrative Law Judge Kelley, Kronenberg, et al Division of Administrative Hearings 8201 Peters Rd, Ste 4000 (Electronic Mail) Ft. Lauderdale, FL 33324 L (U.S. Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, Vv. Case No. 2012005357 BLOOMFIELD MANOR, INC. d/b/a BLOOMFIELD MANOR Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, Bloomfield Manor, Inc. d/b/a Bloomfield Manor (“Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2011), and alleges: NATURE OF THE ACTION This is an action against an assisted living facility to impose an administrative fine in the amount of $5,000.00 based upon one State Class II deficiency (Count I) and to assess a survey fee of five hundred dollars ($500.00) (Count Il). The total assessment is for $5,500.00. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and Chapters 408, Part Il, and 429, Part L Florida Statutes (2011). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of assisted living facilities and enforcement of all applicable federal regulations, state statutes and rules governing assisted 1 EXHIBIT 1 living facilities pursuant to the Chapters 408, Part II, and 429, Part I, Flonda Statutes, and Chapter 58A- 5, Florida Administrative Code (‘F.A.C.’), respectively. 4. Respondent operates a six bed assisted living facility (‘ALF’) located at 2774 Wesleyan Dr., Palm Harbor, FL 34684, and is licensed as an ALF, license number 9893. Respondent was at all times material hereto a licensed facility under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes. COUNT I — CLASS TI FINE 5. The Agency re-alleges and incorporates paragraphs one through five as if fully set forth herein. 6. Florida regulatory law states the following concerning resident care and elopement standards at an ALF: 58A-5.0182 Resident Care Standards. An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. (1) SUPERVISION. Facilities shall offer personal supervision, as appropriate for each resident, including the following: (a) Monitor the quantity and quality of resident diets in accordance with Rule 58A-5.020, F.A.C. (b) Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional well-being of the individual. (c) General awareness of the resident’s whereabouts. The resident may travel independently in the community. (d) Contacting the resident’s health care provider and other appropriate party such as the resident’s family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident’s family, guardian, health care surrogate, or case manager if the resident is discharged or moves out. (e) A written record, updated as needed, of any significant changes as defined in subsection 58A-5.0131(33), F.A.C., any illnesses which resulted in medical attention, major incidents, changes in the method of medication administration, or other changes which resulted in the provision of additional services. (8) ELOPEMENT STANDARDS (a) Residents Assessed at Risk for Elopement. All residents assessed at risk for elopement or with any history of elopement shall be identified so staff can be alerted to their needs for support and supervision. 1. As part of its resident elopement response policies and procedures, the facility shall make, at a minimum, a daily effort to determine that at risk residents have identification on their persons that includes their name and the facility’s name, address, and telephone number. Staff attention shall be directed towards residents 2 assessed at high risk for elopement, with special attention given to those with Alzheimer’s disease and related disorders assessed at high risk. Rule 58A-5.0182, FAC. 7. A-complaint survey, CCR # 2012000332, was performed on 9 February, 2012, in conjunction with a biennial state licensure survey of this ALF with extended congregate care. 8. The Agency’s surveyor reviewed facility records and interviewed facility staff and determined that the facility failed to provide adequate supervision to ensure the health and safety of a vulnerable 97 year old female resident, which resulted in her eloping from the facility in the early morning hours on 5 January, 2012, a very cold morning where the temperature dropped to as low as 39-42° F. She was found early that morning by law enforcement with a broken nose and bruised eyes. She had no identification on her and she was too confused to state her name. She was identified by law enforcement only after the caregiver called law enforcement at between 7:00 — 7:45 am to report the missing resident. 9. The following information was learned from the records review and staff interviews during the Agency’s survey: a. This resident was admitted to the facility as a respite (short stay) resident by her son on 1/1/12 to stay for a week while he was going to be away. b. A formal health assessment was not required for respite care for a stay of less than 30 days. The facility administrator/owner’s brief notes indicated that he had asked the son questions about his mother’s routine, behaviors, diet, and her general needs regarding her activities of daily living. The notes included no milk, no smoking, some confusion, no wandering, regular diet, no falling and supervision with dressing. He listed her age as 97. c. Additional unsigned handwritten notes on resident observation log sheets stated that she was confused, and she had stated that she was leaving and her son was going to come and get her. When the administrator came to the facility on 1/1/12, he and the live in caregiver (#1) (she stayed there five days a week) agreed to activate the front door alarm as a preventative step because of this particular resident's confusion. This was done the following day. There was no documentation of a plan to provide closer supervision. After the new door alarm was installed the next day, there was no documentation indicating that this resident had ever gone out the door and set off the alarm but it was documented that she continued to be confused and kept saying she was going to leave, that her son was coming for her. After a day of the alarm going off frequently due independent residents coming and going, the caregiver removed it the next day, 1/3/12, and contacted the administrator to let him know. The administrator acknowledged during his interview that he had been contacted as indicated by this caregiver. This caregiver said that she removed the door alarm because residents said it bothered them. Additionally, she did not see exit seeking behaviors from this respite resident, only confusion, and she stayed in the living room and kept a close eye on her. However, the caregiver did describe seeing the resident going from room to room, touching different doors and having difficulty finding the restroom. At one point during the night, the caregiver heard noise from the resident’s room and found her fooling with her travel bag which she had put on top of her bed. She described the inability of the resident to follow simple commands such as putting on clean clothes that had been selected for her to put on after she showered. Instead, she put on the same clothes she had worn previously. Her appetite was described as good. The caregiver further stated that she had verbally briefed the incoming replacement staff member (caregiver #2) on 1/4/12 before getting off at 9:00 am. She did not mention anything to her replacement about the door alarm being activated and then deactivated 4 i. but she did relate that the resident was confused. She did not say that this resident needed more supervision than the other residents. There were no written notes in the resident's file to describe for the benefit of the replacement the behaviors that had been observed that would have called for constant supervision or possible discharge to a higher level of care than could be provided at this facility. A confidential interview during the survey with a different resident revealed he had heard and felt someone touch his feet during the early hours of 1/5/12 and thought it was a burglar in his room but then realized it was the respite resident who immediately left his room. He recalled this happening between 3:00 - 3:30 am. He said he got up and rolled into the living room and found the caregiver (#2) asleep on the chair. Shortly after that he said he heard noises coming from behind his closet where the respite resident's closet backed up to his but the noises stopped and he did not think any more about it. He said the caregiver (#2) came into his room sometime around 5:00 am he thought and asked him if he had seen the respite resident. He told her that he had not seen her since earlier that morning when she had come into his room. He said the caregiver then began a full search. Review of the 1 day and 15 day Adverse Incident reports submitted on 1/15/12 and 2/5/12 (submitted late and cited as a separate deficiency) revealed the respite resident was discovered missing on 1/5/12 at approximately 7:30 am at which time the administrator was notified. By that time, the resident had already been picked up by law enforcement and taken to a nearby hospital with a fractured nose. Review of the facility's elopement drills revealed they were completed timely. Caregiver #1’s personnel file reflected all required training. 1. Caregiver #2’s personnel file was missing so it could not be reviewed. The administrator thought that that caregiver might have taken it from his office when she returned for the rest of her personal items on 1/20/12 after being terminated on 1/5/12. 10. The information set forth above reflects Respondent’s failure to ensure care and services appropriate to the needs of a resident accepted for admission to the facility including personal supervision where Respondent knew of or should have known of the resident’s confusion, risk of elopement, and possible injury, but nevertheless deactivated the alarm needed to ensure the continued safety of an obvious at-risk resident. 11. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which directly threatens the physical or emotional health, safety, or security of the clients, other than class I violations. 12. The same constitutes a State Class II offense, defined as follows: 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients. ... Violations shall be classified on the written notice as follows: (b) Class “II” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A fine shall be levied notwithstanding the correction of the violation. Section 408.813, Florida Statutes (2011) 13. The fine for a Class II violation is set forth as follows: 429.19 Violations; imposition of administrative fines; grounds.— (1) In addition to the requirements of part I of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the ... actions of a facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a 6 resident of the facility. (2) Each violation of this part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: (b) Class “If” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation in an amount not less than $1,000 and not exceeding $5,000 for each violation. (3) For purposes of this section, in determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: (a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated. (b) Actions taken by the owner or administrator to correct violations. (c) Any previous violations. (d) The financial benefit to the facility of committing or continuing the violation. (e) The licensed capacity of the facility. (7) In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility’s biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under s. 429.28(3) (c) to verify the correction of the violations. Florida Statute 429.19, Florida Statutes (2011). WHEREFORE, the Agency intends to impose an administrative fine in the amount of $5,000.00 against Respondent, an ALF in the State of Florida, pursuant to Section 429.19 (2) (b) and (3), Florida Statutes (2011). COUNT II- ASSESSMENT OF A SURVEY FEE 14. The Agency re-alleges and incorporates paragraphs 1 through 5 and Count | as if fully set forth herein. 15. Pursuant to Section 429.19 (7), Florida Statutes (2011) (paragraph 13 above), in addition to any administrative fines imposed, the Agency may assess a survey fee, equal to the lesser of one half of a facility’s biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under Section 429.28 (3) (c), Florida Statues, to verify the correction of the violations. 16. The citation of the Class II deficient practice based on the 9 February, 2012, survey was the subject of a complaint. 17. Respondent is therefore subject to a survey fee of $500.00, pursuant to Section 429.19 (7), Florida Statutes (2011). WHEREFORE, the Agency intends to impose a survey fee of $500.00 against Respondent, an ALF in the State of Florida, pursuant to Section 429.19 (7), Florida Statutes (2011). Submitted this 7 day of June, 2012. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION The Sebring Building 525 Mirror Lake Dr. N., Suite 330H St. Petersburg, FL 33701 Ph: (727) 552-1942 Fax: 552-1440 L. 7 . CO ; py Cher O. /' Edwin D. Selby, Esq. Fla. Bar No. 262587 Attorney for Petitioner
The Issue The issues are whether Respondent should issue Petitioner a conditional license based on the following citations for violations of Rule 59A-4.1288, Florida Administrative Code: Class II deficiency for failing to provide necessary social services; (b) Class II deficiency for failing to provide assessment, care and services to prevent the development of pressure sores; and (c) Class I deficiency for failing to ensure that residents received thickened liquids pursuant to physician order.
Findings Of Fact Respondent is the state agency that is charged with, among other things, the licensure and inspection of nursing homes in Florida. Petitioner is a licensed skilled nursing facility. Petitioner's facility is located in Mt. Dora, Florida. Respondent conducted an annual Medicare/Medicaid re-certification survey, state licensure survey, and life safety survey of Petitioner's facility on September 11, 2001, through September 14, 2001. During the survey, Respondent also investigated two complaints against Petitioner. After the survey, Respondent prepared a survey report, Form 2567, detailing alleged deficiencies in the standards of care found at Petitioner's facility. The Form 2567 alleged that Petitioner had violated three federal regulations, each of which was identified on the form by a corresponding code or "tag." The form provided a summary of the violation for each "tag" and set forth specific factual allegations that Respondent believed supported the violation. The Form 2576 also indicated the scope and severity of the noncompliance for each alleged violation. The severity of a violation relates to the effect on resident outcome. The four severity levels are as follows: Level 1, no actual harm with potential for minimal harm; Level 2, no actual harm with potential for more than minimal harm that is not immediate jeopardy; (c) Level 3, actual harm that is not immediate jeopardy; and (d) Level 4, immediate jeopardy to resident health or safety. The scope of a violation relates to the number of residents potentially or actually affected. The three scope levels are as follows: (a) an isolated violation affecting one or a very limited number of residents; (b) a pattern of violations affecting more than a limited number of residents; and (c) widespread violations affecting or having potential to affect a large portion of all residents. During a survey, Respondent uses an enforcement matrix to assign alleged violations, depending on their severity and scope, to one of four class deficiencies. Only three of the four class deficiencies are cited on the Form 2567. The three class deficiencies that Respondent cites on the Form 2567 are as follows: (a) Class I, a situation that requires immediate corrective action because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident; (b) Class II, a situation that has compromised a 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; and (c) Class III, a situation that will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to do so, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. The Form 2567 at issue here included one alleged Class I deficiency, with a scope and severity rating of K (a pattern of violations affecting four residents, one of which Respondent determined to be in immediate jeopardy.) According to the Form 2567, Petitioner violated 48 C.F.R. Section 483.25(i), Tag F-326, by failing to ensure that Resident 1, Resident 13, Resident 15, and Resident 18 received thickened liquids as ordered by their physicians. Respondent's allegations in this regard focused primarily on Resident 15, the only resident that Respondent determined to be in immediate jeopardy. The Form 2567 at issue here included two Class II deficiencies with a scope and severity rating of G (isolated violations resulting in actual harm but no immediate jeopardy to any resident.) First, Petitioner allegedly violated 42 C.F.R. Section 483.15(g), Tag F-250, by failing to provide necessary social services to assist Resident 4 and Resident 16 with financial and mental health issues, creating a situation which caused the residents mental or psychosocial distress. Second, Petitioner allegedly violated 48 C.F.R. Section 483.25(c), Tag F-314, by failing to provide assessment, care, and services to prevent development of an avoidable pressure sore on Resident 5. Tag F-250 Tag F-250 states that "[t]he facility must provide medically-related social services to attain or maintain the highest physical, mental, and psychosocial well-being of each resident." 42 C.F.R. Section 483.15(g). Respondent alleges that Petitioner failed to provide appropriate social services to Resident 4, who was concerned about her finances and wanted to be transferred out of the facility. Respondent also alleged that Petitioner failed to provide adequate grief counseling to Resident 16, who had been injured in an automobile accident, which killed her daughter. According to Respondent, Petitioner's inaction resulted in psychosocial harm to these residents. Resident 4 Resident 4 was admitted to Petitioner's facility on July 17, 2001, as a private pay patient. The initial discharge plan called for Resident 4 to return to her home after discharge from Petitioner's facility. On July 27, 2001, Petitioner's social worker performed an assessment of Resident 4's psychosocial status. This assessment did not indicate that Petitioner was concerned over her personal finances and the cost of an extended stay in Petitioner's facility. The social worker projected that Resident 4 would be discharged within 31-90 days. A July 30, 2001, Resident Assessment Protocol (RAP) summary indicated that Resident 4 required limited assistance with activities of daily living. She participated in therapy at Petitioner's facility so that she could become strong enough to return to her home. A care plan dated August 2, 2001, referenced Resident 4's desire to return to her home to live alone with home care services. The care plan called for Petitioner to refer Resident 4 to home health agencies and to educate her family about her home health issues. On or about August 31, 2001, Resident 4's physician ordered a psychological consultation to determine if she was depressed. A psychiatry progress note dated September 4, 2001, stated that Resident 4 denied being depressed but realized that she could no longer live alone. According to the note, Resident 4 was interested in an assisted living arrangement. The note does not refer to any financial concerns. Resident 4 had a friend that she designated as her power of attorney. At some point in time, the friend with power of attorney informed Petitioner that Resident 4 wanted to transfer to Petitioner's assisted living facility as soon as possible. When Respondent's survey team interviewed Resident 4 on September 13, 2001, she indicated that she was concerned about her financial condition and that she wanted to be transferred to an assisted living facility so she would not go broke. In accordance with industry standards, Petitioner's social worker performs an assessment of residents after admission, after each hospitalization, and every 90 days unless there is a referral by the direct care staff for more frequent assessments. Resident 4 was not in Petitioner's facility for 90 days. There is no persuasive evidence that Resident 4 ever expressed a concern about her financial condition prior to the interview with Respondent's staff on September 13, 2001. Petitioner had not completed her restorative therapy and was not ready for discharge at that time. After receiving discharge orders from the treating physician, Petitioner appropriately discharged Resident 4 from its skilled nursing facility to its assisted living facility on September 21, 2001. The greater weight of the evidence indicates that Petitioner could not have discharged Resident 4 to an assisted living facility prior to September 21, 2001. There is nothing that Petitioner's social workers could have done to expedite the resident's discharge. There is no persuasive evidence that Resident 4 suffered any harm as a result of Petitioner's provision of social services. Resident 16 Resident 16 was admitted to Petitioner's facility on August 16, 1999, after a motor vehicle accident that resulted in the death of her daughter. She was almost 89 years old at the time of her admission. Resident 16 had a consultation with a psychiatrist on November 16, 1999. The psychiatrist prescribed psychotropic drugs to treat her anxiety and depression. A care plan dated November 16, 2000, revealed that Resident 16 was verbalizing sadness regarding her daughter's death. At that time, Resident 16 was expressing a wish that she had died in the accident instead of her daughter. A care plan dated February 2001 documented Resident 16's negative statements and wishes that God had taken her instead of her daughter. The care plan included detailed approaches for Petitioner to use in addressing the resident's mood state. The February 2001 care plan also referred to Resident 16's diagnosis of anxiety and depression, for which Petitioner would arrange a psychiatric evaluation, if needed. However, a RAP summary dated February 14, 2001, indicated that Resident 16's anxiety over the loss of her daughter was improving even though she still had tearful episodes. Resident 16's Minimum Data Set (MDS) dated August 6, 2001, indicated that she had sad/pained/worried facial expressions up to five days a week. The MDS quoted Resident 16's regrets that she had lived so long and her desire to die. In an interview with Respondent's staff during the survey, Resident 16 continued to refer to her daughter's death, becoming tearful and unable to speak for several minutes at a time. Resident 16 once again expressed her wish that she had died instead of her daughter. Throughout the survey, Respondent's survey team observed Resident 16 with a sad/worried facial expression. Resident 16's family was very supportive. They visited her frequently and took her out of the facility to church activities. Petitioner did everything it could to encourage Resident 16 to participate in activities. Petitioner's chaplain visited with Resident 16 two times per week. A psychiatric nurse practitioner provided her with grief counseling until she achieved her highest level functioning. Resident 16's psychiatric care included treatment with medications for anxiety and depression. The greater weight of the evidence shows that Petitioner provided Resident 16 with appropriate psychosocial services to help her with her grief, her anxiety, and her depression. There is no persuasive evidence that Petitioner's failure to offer Resident 16 additional counseling or psychiatric services caused her continued mental distress. Tag F-314 Tag F-314, provides that "[b]ased on the comprehensive assessment of a resident, the facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores . . . and a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent pressure sores from developing." 48 C.F.R. Section 483.25(c). Respondent alleges that Resident 5 was not properly identified as having a pressure sore and that this failure possibly delayed effective treatment. Resident 5 Resident 5 was admitted to Petitioner's facility on August 28, 2001. Petitioner's nursing admission assessment form indicates that Resident 5 did not have pressure ulcers. However, a RAP dated September 6, 2001, shows that Resident 5 had pressure ulcers and that within the previous seven days, Petitioner had treated Resident 5 for those ulcers. Additionally, a MDS dated September 6, 2001, states that Resident 5 was admitted with a small Stage II pressure ulcer on her coccyx and Stage I pressure sores on her heals. Interdisciplinary progress notes and daily nursing progress notes show that Petitioner had a care plan for Resident 5's pressure ulcers and that she received treatment pursuant to the plan. There is no persuasive evidence that Petitioner failed to identify or treat Resident 5's pressure sore, thereby preventing her from maintaining or achieving her highest level of physical functioning. Tag F-326 Tag F-326 states that "[b]ased on a resident's comprehensive assessment, the facility must ensure that a resident receives a therapeutic diet when there is nutritional problem." During the survey, Respondent selected 13 residents who had diet orders for thickened liquids. Of those residents, Respondent alleged that Resident 1, Resident 13, Resident 15, and Resident 18 failed to receive the appropriate thickened liquids. Respondent found that only Resident 15 was in immediate jeopardy, directing Petitioner to correct the problem before the surveyors left the building. Resident 15 Resident 15, a 92-year-old man, was admitted to Petitioner's facility in December 1999. He had multiple health problems, leaving him dependent on Petitioner's staff for his daily living activities. Because he suffered from dementia and was delusional, Resident 15's daughter had power of attorney over his medical care. A MDS dated December 27, 1999, indicates that Resident 15 needed limited assistance in eating. The MDS also indicates that he was diagnosed as having dysphagia, requiring a mechanically altered diet. On January 4, 2000, Resident 15 participated in a barium swallow study, which showed that he was likely to aspirate on food of all consistencies. The swallow study recommended that Resident 15 be placed on a tube feeding diet to minimize the risk of aspiration. Petitioner's staff informed Resident 15's daughter about the tube feeding recommendation in a meeting on January 7, 2000. At the conclusion of that meeting, the daughter signed a disclaimer form indicating that she had been advised of the risks to Resident 15 but that she wanted him to have pleasure foods as he desired, contrary to the recommendations of the speech/language pathologist for tube feeding. A care plan dated June 28, 2001, indicated that Resident 15 was at risk for nutritional decline and loss of weight. According to the care plan, one of the approaches to solve the problem was for Petitioner to provide him with a mechanically soft diet and honey thickened liquids. As of September 5, 2001, the standing orders of Resident 15's physician included a mechanical soft diet with honey consistency liquids and fortified foods twice daily. The standing orders also stated that Resident 15 was to have dietary and alcohol liberties. Although Resident 15 had dementia, he was able to make his preferences known to Petitioner's staff. He consistently became agitated when served thickened liquids. He especially preferred regular, thin-liquid coffee. The staff also observed Resident 15's daughter serving him regular coffee during visits. Resident 15 was not a silent aspirator. Coughing was a natural and unavoidable consequence of the daughter's decision not to place a feeding tube in her father. Over the two years that Petitioner gave him regular liquids, Resident 15 routinely coughed and was always able to clear his breathing passages. He was able to let Petitioner's staff know if he needed assistance. In order to ensure that Resident 15 would be able to have assistance if he ever needed it, Petitioner fed him in close proximity to a nurses' station. In fact, he was placed within ten feet of the station and facing it. Typically, a nurse was in the station and one or more certified nursing assistants were in the immediate vicinity of Resident 15 when he was eating. During the survey, Respondent's surveyors observed Resident 15 drinking thin liquids on three occasions. On each occasion, the resident would cough and turn red without Petitioner's staff taking action to provide assistance. When Respondent's surveyors inquired about Resident 15's coughing, Petitioner's staff replied that Resident 15 always reacted that way and that he had a waiver that allowed him to have thin liquids. The surveyors then looked at the above-referenced disclaimer form and rejected it because it did not specifically state that Resident 15 could have thin liquids. They also noted the physician's order calling for honey-thickened liquids but gave no weight to the same order's allowance for dietary liberties. The surveyors noted that on one occasion Resident 15 was coughing in a somewhat reclined position. They believed that he might choke less if he were sitting upright. The survey team did not consider that Resident 15's hiatal hernia made it uncomfortable for him to sit in an upright position. Resident 15 was able to let Petitioner's staff know when he was in an uncomfortable position. After Respondent's survey team determined that Resident 15 was in immediate jeopardy and while the survey was still in process on September 13, 2001, Petitioner conducted a care plan meeting with Resident 15's daughter. During the meeting, the daughter confirmed that her father wanted regular liquids. She again rejected placing a feeding tube in her father. The daughter acknowledged that the waiver she signed on January 7, 2000, was intended to allow her father to have pleasure foods such as thin liquids. Resident's 15's physician was also contacted on September 13, 2001. The doctor's nurse practitioner subsequently entered the following physician's order in Resident 15's chart: Order clarification: Diet for pt. has been and will remain mechanical soft NAS [with] thin liqs. per patient and HCS desires despite known risk of aspiration. Waiver in chart. A September 13, 2001, physician's progress note, signed by the doctor's nurse practitioner, states as follows: Based on conference with responsible party/caregiver/Health Care Surrogate . . . clarification to diet made. Based on patient wishes/demands despite known knowledge of aspiration potential, his diet has been and will remain mechanical soft, no added salt and thin liquids. Signed waiver in chart dated 1-7-2000 and re-clarification of pt. and HCS wishes confirmed today. Discussed @ length [with] collaborating physician who concurs. (emphasis included) In a letter dated September 17, 2001, Resident 15's physician acknowledged the daughter's continued refusal of a feeding tube based on her father's living will and previously expressed wishes. The letter also acknowledges the daughter's desire for continuation of pleasure foods, including solids, liquids, or pureed food for which her father had demonstrable preference even though some of these might have been of deleterious consistencies given his dysphagia. The September 17, 2001, letter explained the standing order for thickened liquids as follows: The patient's medication record does contain an order for thickening agent. This remains on the patient's record to assist the staff in giving the patient certain fluids on an as needed basis, although the family/POA/medical surrogate does clearly state that this (sic) wish an unrestricted diet (i.e. pleasure foods) be given to the patient. This provision cannot harm this patient and does not consist of a departure from the patient's/family's wishes since it is not used on a continuous basis. Another physician's order dated September 18, 2001, states as follows: Diet order clarification: Mechanical soft, NAS [with] thin liquids per pt. and HCS desires despite known risk of aspiration-- waiver in chart. Continue fortified foods twice daily & scoop plate to facilitate eating. Resident 15's physician signed this order on September 21, 2001. The greater weight of the evidence indicates that Resident 15 was never in immediate jeopardy. Additionally, to the extent that being served thin liquids posed a risk to Resident 15, Petitioner's staff honored his wishes and the wishes of his daughter, as his health care surrogate, to refuse tube feeding, to have pleasure foods as he desired instead of thickened liquids, and to allow him dietary liberties, including thin liquids. Resident 18 Resident 18's diet order called for nectar-thickened liquids. However, during the survey, Respondent's staff observed that Resident 18 was served a bowl of soup with broken crackers in it. When the surveyors inquired whether the soup had been thickened, Petitioner's staff replied that the soup had been thickened with crackers. There was no immediate jeopardy with regard to Resident 18. She did not attempt to eat the soup and, therefore, did not suffer any harm. Resident 18 never choked while eating and her physician's order called for dietary liberties. The American Dietetic Association recognizes crumbled crackers as one means of thickening a liquid. The supervisor of the secure unit in which Resident 18 was located always uses crackers as a thickening agent in soup for two reasons. First, the commercial thickening agents have a peculiar taste that the residents, including Resident 18, do not like. Second, many residents have physical conditions that cause them to shake. By thickening soup with crackers, the patients are able to get more soup into their mouths. The certified nursing assistants in the secure unit are trained to crush two packets of crackers into each bowl of soup. The greater weight of the evidence indicates that Resident 18's soup was properly thickened. There clearly was no chance that she was in immediate jeopardy simply because Petitioner did not use a commercial agent to thicken her soup. Resident 13 Resident 13's physician's order called for him to receive honey-thickened liquids. During the survey, Respondent's staff observed Resident 13 being served milk with Carnation Instant Breakfast in it at three meals. Respondent's staff did not know how thick the drink was but noted that it did not appear to be as thick as honey pouring out of a jar. Resident 13 was observed gurgling, but he did not choke or turn red after drinking his instant breakfast. Resident 13 also had a recommendation for a feeding tube due to a likelihood of aspiration on any consistency of food or liquid. This recommendation was based on a swallow study completed on August 27, 2001. Resident 13 and/or his health care surrogate refused the recommendation. During the survey on September 14, 2001, Resident 13 requested a glass of water. He became angry and refused to drink the glass of honey-thickened water that he was given. After the survey, Resident 13's health care surrogate signed an informed consent and release of liability. In this document, the health care surrogate refused the tube feeding and requested that Petitioner provide Resident 13 with a diet as tolerated with thin liquids despite the risk of aspiration. There is no recognized standard for measuring the thickness or viscosity of a liquid. Individual practitioners may consider various consistencies to constitute different degrees of thickness. Manufacturers' products result in different viscosities for the same definition. In this case, there is no persuasive evidence that the Carnation Instant Breakfast failed to properly thicken Resident 13's drink. There clearly is no credible evidence that Resident 13 was in immediate jeopardy. Resident 1 Resident 1's physician order called for nectar- thickened liquids. During the survey, Respondent's staff noted that Resident 1 was being served liquids that appeared to have almost a honey consistency. In other words, Respondent claims that Resident 1's liquid was too thick. There is no persuasive evidence that Resident 1's drink was too thick. He did not choke on the liquid and was not otherwise harmed by the thickened drink. On the other hand, there is credible evidence that an overly thick liquid cannot harm a resident. Accordingly, Resident 1 was not in immediate jeopardy.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner had no Class I or Class II deficiencies and should not have been issued a conditional license effective September 14, 2001. DONE AND ENTERED this 20th day of November, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 20th day of November, 2002. COPIES FURNISHED: Jay Adams, Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building Suite 310H 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
Conclusions any 212 Poe ap, AS 1g DOAH No. 12-2633 AHCA No. 2012003965 RENDITION NO.: AHCA-12- {tF 27S Ole DOAH No. 12-2865 AHCA No. 2012008077 License No. 11870 File No. 11967907 Provider Type: Assisted Living Facility DOAH No. 12-2866 AHCA No. 2012003189 THIS CAUSE came on for consideration before the Agency for Health Care Administration (“the Agency”), which finds and concludes as follows: 1 The applicant’s fictitious names on the settlement agreement are reversed. 1 Filed December 7, 2012 4:54 PM Division of Administrative Hearings 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Notices of Intent to Deny and Election of Rights forms to the Provider. (Composite Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Provider’s renewal application for Cooper’s Retirement Home and initial application for Cooper’s Residential Home are withdrawn without prejudice to the Provider reapplying for such licensure in the future. The corresponding Notices of Intent to Deny these applications are moot and are thus withdrawn. 6. In accordance with Florida law, the expiration date of the existing license for Cooper’s Retirement Home is extended 30 days for the sole purpose of allowing the safe and orderly discharge of clients. At the conclusion of 30 days or upon the discontinuance of operations, whichever is first in time, the Petitioner shall immediately return the license certificate for the license which is the subject of this action to the appropriate licensure unit in Tallahassee, Florida. 7. The Provider shall pay the Agency $2,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 8. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. ORDERED in Tallahassee, Florida, on this (“4 day of Qeaertlee.. 52012.
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy ofthis Final we was served on the below- named persons/entities by the method designated on this 6 day of , 2012. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Finance and Accounting Theresa DeCanio, Field Office Manager Revenue Management Unit Area 7 Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Edwin D. Selby, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration Harvey M. Alper, Esquire Post Office Box 162967 Altamonte Springs, Florida 32716-2967 (U.S. Mail) | Electronic Mail) Lynne A. Quimby-Pennock 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. (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.
