The Issue Whether Petitioner’s application for change of ownership should be granted or denied on the basis of the allegations set forth in the Second Amended Notice of Intent to Deny (“Second Amended NOID”).
Findings Of Fact The following Findings of Fact are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts set forth in the prehearing stipulation. Parties The Agency is the regulatory authority responsible for licensure of assisted living facilities (“ALFs”) and enforcement of applicable state statutes and rules governing assisted living facilities pursuant to chapters 408, part II, and 429, part I, Florida Statutes, and chapters 58A-5 and 59A-35, Florida Administrative Code. In carrying out its responsibilities, AHCA conducts inspections (commonly referred to as surveys) of licensed ALFs to determine compliance with the regulatory requirements. The Agency’s evaluation, or survey, of an ALF may include review of resident records, direct observations of the residents, and interviews with facility staff persons. Surveys may be performed to investigate complaints or to determine compliance as part of a change of ownership process. While the purpose of the survey may vary, any noncompliance found is documented in a standard Agency form entitled “Statement of Deficiencies and Plan of Correction (“Statement of Deficiencies”).2/ The form is prepared by the surveyor(s) upon completing the survey. Deficiencies are noted on the form and classified by a numeric or alphanumeric identifier commonly called a “Tag.” The Tag identifies the applicable regulatory standard that the surveyors use to support the alleged deficiency or violation. Deficiencies must be categorized as Class I, Class II, Class III, Class IV, or unclassified deficiencies. § 408.813(2), Fla. Stat. In general, the class correlates to the nature and severity of the deficiency. Dixie Lodge submitted an application seeking to change ownership of its facility in July 2015 and was issued a provisional license to operate Dixie Lodge as an ALF. At all times material hereto, Dixie Lodge was an ALF under the licensing authority of AHCA. Dixie Lodge has been licensed under previous owners for approximately 30 years. To date, Dixie Lodge operates a 77-bed ALF with limited mental health specialty services. AHCA conducted surveys of Dixie Lodge as it related to Dixie Lodge’s CHOW application, commonly referred to as a CHOW survey. The Agency conducted two surveys of Dixie Lodge’s assisted living facility. The Agency conducted a CHOW survey on September 9, 2015. On November 6, 2015, the Agency conducted a follow-up survey to determine whether Dixie Lodge had corrected cited deficiencies. AHCA’s surveyors documented deficiencies and cited Dixie Lodge for violating statutory and rule requirements in several areas of operation. The deficiencies are incorporated in the Statement of Deficiencies, which were prepared after each survey. When a CHOW survey reveals deficiencies, the Agency can deny the upgrade from a provisional license to a standard license. If a provider has three or more Class II violations, such as alleged in this matter, the Agency may deny the upgrade to a standard license. A Class III violation warrants a follow- up visit to give the licensee or applicant an opportunity to fix the alleged deficiency. The Agency may also consider the severity of the violation. Allegations Regarding Class II Deficiencies The AHCA surveyor, Lesly Linder, who participated in the CHOW survey on September 9, 2015, found several deficiencies. As set forth in the Statement of Deficiencies for September 9, 2015, Dixie Lodge was cited for three Class II deficiencies in the following areas: (Tag A0025) resident care- supervision; (Tag A0032) resident care-elopement standards; and (Tag A0165) risk management and quality assurance. Tag A0032: Resident Care and Supervision Resident care and supervision is addressed in section 429.26(7) as follows: (7) The facility must notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment. The notification must occur within 30 days after the acknowledgment of such signs by facility staff. If an underlying condition is determined to exist, the facility shall arrange, with the appropriate health care provider, the necessary care and services to treat the condition. Resident care and supervision is also adressed in Florida Administrative Code Rule 58A-5.1082(1) as follows: An assisted living facility must provide care and services appropriate to the needs of residents accepted for admission to the facility. SUPERVISION. Facilities must offer personal supervision as appropriate for each resident, including the following: Monitoring of the quantity and quality of resident diets in accordance with Rule 58A-5.020, F.A.C. 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 resident. Maintaining a general awareness of the resident’s whereabouts. The resident may travel independently in the community. 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. Maintaining a written record, updated as needed, of any significant changes, any illnesses that resulted in medical attention, changes in the method of medication administration, or other changes that resulted in the provision of additional services. During the survey, the surveyor reviewed a sampling of 18 residents’ records, and interviewed several facility employees. The allegations regarding resident care supervision were related to Resident No. 16 and Resident No. 17. During the survey on September 9, 2015, Ms. Linder interviewed Employee A and documented in the Statement of Deficiencies that the employee stated that “Resident No. 16 had wandered from the facility about five months ago and the police returned him to the facility.” Based on Employee A’s statement, it was determined that Resident No. 16 engaged in elopement approximately five months prior to Petitioner assuming ownership of the facility. Ms. Lindner documented the elopement of Resident No. 16 as a deficiency, even though Petitioner was not the owner of the facility at that time. When asked whether AHCA is seeking to hold Petitioner responsible for the purported elopement of Resident No. 16, AHCA’s field office manager, Mr. Dickson, stated, “I don’t believe so.” The evidence presented at hearing demonstrates that Petitioner was not responsible for the facility at the time Resident No. 16 eloped from the facility and, thus, was not responsible for elopement of Resident No. 16. The surveyor also interviewed Employee F on September 9, 2015. During the interview, Employee F told the surveyor that Resident No. 17 had left the facility without notifying staff. Specifically, Dixie Lodge maintained a “Report Book,” which included documentation of incidents during each shift. In the book, the staff documented that on September 3, 2015, they had not seen Resident No. 17 on the property for the entire day. The staff then documented their efforts to locate Resident No. 17. Staff documented that they called the hospital and the local jail to determine the location of Resident No. 17. After these calls, the staff contacted law enforcement and law enforcement returned Resident No. 17 to the facility. Based on the evidence of record, there was sufficient evidence to demonstrate that the Dixie Lodge staff had a general awareness of the whereabouts of Resident No. 17. A review of the Report Book revealed that Resident No. 17 had also eloped from the facility on September 8, 2015, and had not been found at the time of the survey on September 9, 2015, at 3:30 p.m. At that time, the timeline for a one-day adverse incident had not expired. The surveyor interviewed the then administrator for Dixie Lodge and she disclosed that the facility does not have contact information for next of kin or a case manager for Resident No. 17. Even if the administrator had the contact information, Dixie Lodge would not be required to contact them (regarding the elopement), unless the resident was discharged or had moved out. Here, Resident No. 17 had eloped but returned to the facility. Tag A0032: Elopement Standards Elopement is when a resident leaves a facility without following facility policies and procedures and without the knowledge of facility staff. The elopement standards are described in rule 58A- 5.0182(8), which provides as follows: (8) ELOPEMENT STANDARDS Residents Assessed at Risk for Elopement. All residents assessed at risk for elopement or with any history of elopement must be identified so staff can be alerted to their needs for support and supervision. As part of its resident elopement response policies and procedures, the facility must 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 must be directed towards residents assessed at high risk for elopement, with special attention given to those with Alzheimer’s disease or related disorders assessed at high risk. At a minimum, the facility must have a photo identification of at risk residents on file that is accessible to all facility staff and law enforcement as necessary. The facility’s file must contain the resident’s photo identification within 10 days of admission or within 10 days of being assessed at risk for elopement subsequent to admission. The photo identification may be provided by the facility, the resident, or the resident’s representative. Facility Resident Elopement Response Policies and Procedures. The facility must develop detailed written policies and procedures for responding to a resident elopement. At a minimum, the policies and procedures must provide for: An immediate search of the facility and premises, The identification of staff responsible for implementing each part of the elopement response policies and procedures, including specific duties and responsibilities, The identification of staff responsible for contacting law enforcement, the resident’s family, guardian, health care surrogate, and case manager if the resident is not located pursuant to subparagraph (8)(b)1.; and, The continued care of all residents within the facility in the event of an elopement. AHCA alleged that Dixie Lodge failed to follow its elopement policies and procedures for Resident Nos. 16 and 17. The Statement of Deficiencies also alleged that Dixie Lodge failed to ensure that at least two elopement drills per year had been conducted with all staff at the facility. Regarding Resident No. 16, evidence of record demonstrates that Petitioner was not responsible for the facility at the time Resident No. 16 eloped from the facility and, thus, was not responsible for elopement of Resident No. 16. Although the elopement occurred before Petitioner assumed ownership of the facility, Resident No. 16 was designated as being at risk for elopement. As such, the facility was required to have photo identification (ID) on file for the Resident. Investigation by the AHCA surveyor revealed that there was a photo on file but that it was of such poor quality that the photo was not readily recognizable. The surveyor did not provide further description of the photo. Dixie Lodge’s owner, Jeff Yuzefpolsky, testified that because Resident No. 16 had been incarcerated, his picture would be immediately accessible, if needed, from the Department of Corrections’ inmate database, and that Mr. Yuzefpolsky was familiar with accessing such photographs. While there was testimony offered regarding the photo, the photo was not offered into evidence. Based on the evidence in the record, the undersigned finds there was not sufficient evidence to demonstrate that Dixie Lodge failed to maintain a photo ID for Resident No. 16. Regarding Resident No. 17, Dixie Lodge had an elopement policies and procedure manual and the staff followed their policies and procedures as it relates to Resident No. 17. Regarding the elopement drills, Ms. Walker discovered documentation of two elopement drills. While the drills did not include record of the staff who participated, there is not a requirement for such in the elopement standards. Dixie Lodge met the requirement by completing the drills and maintaining documentation of the drills. The undersigned finds that the citation for deficiency Tag A0032, a Class II deficiency, was not supported by the evidence in the record. Tag A0165: Risk Management-Adverse Incident Report AHCA also alleged that Dixie Lodge failed to prepare and file adverse incident reports. Each ALF is required to file adverse incident reports as set forth in section 429.23, which, in pertinent part, provides: Every facility licensed under this part may, as part of its administrative functions, voluntarily establish a risk management and quality assurance program, the purpose of which is to assess resident care practices, facility incident reports, deficiencies cited by the agency, adverse incident reports, and resident grievances and develop plans of action to correct and respond quickly to identify quality differences. Every facility licensed under this part is required to maintain adverse incident reports. For purposes of this section, the term, “adverse incident” means: An event over which facility personnel could exercise control rather than as a result of the resident’s condition and results in: Death; Brain or spinal damage; Permanent disfigurement; Fracture or dislocation of bones or joints; Any condition that required medical attention to which the resident has not given his or her consent, including failure to honor advanced directives; Any condition that requires the transfer of the resident from the facility to a unit providing more acute care due to the incident rather than the resident’s condition before the incident; or An event that is reported to law enforcement or its personnel for investigation; or Resident elopement, if the elopement places the resident at risk of harm or injury. Licensed facilities shall provide within 1 business day after the occurrence of an adverse incident, by electronic mail, facsimile, or United States mail, a preliminary report to the agency on all adverse incidents specified under this section. The report must include information regarding the identity of the affected resident, the type of adverse incident, and the status of the facility’s investigation of the incident. Licensed facilities shall provide within 15 days, by electronic mail, facsimile, or United States mail, a full report to the agency on all adverse incidents specified in this section. The report must include the results of the facility’s investigation into the adverse incident. Rule 58A-5.0241 identifies the requirements for filing adverse incident reports as follows: INITIAL ADVERSE INCIDENT REPORT. The preliminary adverse incident report required by Section 429.23(3), F.S., must be submitted within 1 business day after the incident pursuant to Rule 59A-35.110, F.A.C., which requires online reporting. FULL ADVERSE INCIDENT REPORT. For each adverse incident reported in subsection (1) above, the facility must submit a full report within 15 days of the incident. The full report must be submitted pursuant to Rule 59A-35.110, F.A.C., which requires online reporting. AHCA alleged that Dixie Lodge was required to file an adverse incident report for elopement incidents involving Resident Nos. 16 and 17 and an injury related to Resident No. 3. During the survey, the surveyor observed Resident No. 3 with a one-inch laceration above his left eye that was covered in dried blood. On September 9, 2015, at 12:14 p.m., the surveyor conducted an interview of Employee A. The surveyor asked the assistant administrator about the laceration on Resident No. 3’s eye. The assistant administrator responded that she learned of the injury at 10:30 a.m. AHCA took issue with the lack of an adverse incident report. However, the timeframe for preparing and filing a report had not expired. Thus, AHCA did not demonstrate by clear and convincing evidence the alleged deficiency for failure to file an adverse incident report regarding Resident No. 3. As referenced above, the adverse incident requirements related to Resident No. 16 should not be imputed to Petitioner, as Petitioner was not the owner of Dixie Lodge at the time of the incident that would trigger the compliance requirement. At the time of the survey, approximately five days after Resident No. 17 eloped, there was no documentation that a one-day adverse incident report had been filed. The elopement required a one-day adverse incident report because Resident No. 17 eloped and the incident involved law enforcement. Thus, a citation for failure to complete an adverse incident report for the September 3, 2015, elopement incident involving Resident No. 17, a Class II violation, is supported by clear and convincing evidence. A review of the Report Book also revealed that Resident No. 17 had eloped from the facility on September 8, 2015, and had not been found at the time of the survey on September 9, 2015, at 3:30 p.m. Although Resident No. 17 had eloped, the timeline for a one-day adverse incident report had not expired. Thus, the Class II citation for failing to file a one-day adverse incident report for the September 8, 2015, elopement incident involving Resident No. 17 incident was not supported by the evidence. Allegations Regarding Class III Deficiencies In addition to the Class II deficiencies, the surveyor cited 18 Class III deficiencies in the following areas: (A0008) admissions-health assessment; (A0026) resident care- social and leisure activities; (A0029) resident care-nursing services; (A0030) resident care-rights and facility procedures; (A0052) medication-assistance with self-administration; (A0054) medication-records; (A0056) medication-labeling and orders; (A0076) do not resuscitate orders; (A0077) staffing standards-administrators; (A0078) staffing standards-staff; (A0081) training-staff in-service; (A0082) training-HIV/AIDS; (A0083) training-first aid and CPR; (A0090) training-do not resuscitate orders; (A0093) food service-dietary standards; (A0160) records-facility; (A0161) records-staff; and (A0167) resident contracts. Section 400.23(8)(c) provides in part: “A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, a civil penalty may not be imposed.” Section 408.811(4) provides that a deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is required or approved by the agency. Section 408.811(5) provides: “The agency may require an applicant or licensee to submit a plan of correction for deficiencies. If required, the plan of correction must be filed with the agency within 10 calendar days after notification unless an alternative timeframe is required.” On September 17, 2015, AHCA sent Dixie Lodge a Directed Plan of Correction (“DPOC”). However, the DPOC was not offered at hearing. There was testimony regarding the content of the DPOC, but that testimony alone, without corroborating admissible evidence, is not sufficient to support a finding of fact regarding Petitioner’s failure to comply with the DPOC. The Findings of Fact below are made regarding the Class III deficiencies alleged in subsection 2, paragraph 1, of the Seconded Amended NOID. Tag A0008: Admission-Health Assessment AHCA alleged that Dixie Lodge failed to ensure that it obtained and maintained complete health assessments for Dixie Lodge residents. Specifically, the Amended NOID alleged that the files for two residents were missing health assessments. The first resident, Resident No. 16, allegedly had been re-admitted after a seven-month absence from the facility without an updated health assessment. While the readmission and the initial timeframe for updating the health assessment expired before Petitioner took possession of the property, the facility was responsible for updating the records so information is available for the facility to determine the appropriateness of the resident’s continuous stay in the facility. There is clear and convincing evidence to demonstrate that Dixie Lodge violated Tag A008 and that it indirectly or potentially poses a risk to patients. Tag A0026: Resident Care-Social and Leisure Activities AHCA alleged that Dixie Lodge failed to ensure that residents were provided a minimum weekly number of hours of leisure and social activities. The logbook reflected there were no activities offered during the month of September 2015. There is sufficient evidence to demonstrate that Dixie Lodge failed to provide a minimum weekly number of hours of leisure and social activities. Dixie Lodge’s failure to provide leisure and social activities constitutes an indirect or potential risk to residents. Tag A0029: Resident Care-Nursing Services AHCA alleged that Dixie Lodge failed to ensure that it provided nursing services as required for resident care by permitting a certified nursing assistant to change wound dressings instead of a nurse. The certified nursing assistant did not testify, nor did the administrator. Therefore, there was no admissible evidence to support the allegation. Tag A0030: Resident Care-Rights and Facility Procedures AHCA alleged Dixie Lodge failed to ensure residents’ rights were addressed. Specifically, it is alleged that residents had grievances regarding not being paid for gardening labor performed, and Dixie Lodge’s then administrator acknowledged those grievances. In addition, a resident reported a grievance regarding the resident’s roommate. The administrator acknowledged the grievances and admitted the grievances were not documented. As a result, Dixie failed to ensure residents’ rights were implemented. Tag A0052: Medication-Assistance/Self-Administration AHCA alleged that Dixie Lodge failed to ensure that it provided assistance with self-administration of medications for residents. Specifically, Dixie Lodge failed to assist a resident with self-administration of Depakene (an anti-seizure medication). The resident self-administered two doses of the medication without assistance. As a result, Dixie Lodge failed to meet the parameters for self-administration. Tag A0054: Medication-Records AHCA alleged that Dixie Lodge failed to maintain accurate and up-to-date medication observation records for residents receiving assistance with self-administration of medications by failing to properly document medication administration. The medication administration records were not offered at hearing. However, the surveyor testified about her observations while conducting the survey. Dixie Lodge did not dispute her testimony. Thus, the evidence was clear and convincing that Dixie Lodge failed to maintain accurate and up- to-date medication observation records related to administration of anti-psychotic medications. Tag A0056: Medication-Labeling and Orders AHCA alleged that Dixie Lodge failed to ensure that it complied with requirements to take reasonable steps to timely re-fill medication prescriptions for residents. It was further alleged that Dixie Lodge had not scheduled a face-to-face visit for a patient as required to obtain a prescription refill. However, there were no records offered at hearing to support the allegations. The surveyor’s testimony was based on an interview she conducted with a resident and her review of medical records, which was not corroborated by any admissible evidence. There is no clear and convincing admissible evidence in the record to support the violation. Tag A0076: Do Not Resuscitate Orders AHCA alleged that Dixie Lodge failed to develop and implement a policy and procedure related to “Do Not Resuscitate Orders (“DNRs).” The AHCA surveyor relied upon statements made during an interview by phone of Dixie Lodge employees. The employees interviewed did not testify at hearing. The testimony presented by the surveyor was based on uncorroborated hearsay, which could not be relied upon for a finding of fact. Tag A0077: Regarding Staffing Standards-Administrators The surveyor noted that the administrator of record failed to provide adequate supervision over the facility by failing to notify the Agency of an adverse incident report for three of the patients sampled (i.e., Resident Nos. 3, 16, and 17). The facts of the incidents are set forth above. Regarding Resident No. 3, the evidence offered at hearing was sufficient to demonstrate that the deficiency found was appropriate. Regarding Resident No. 16, Petitioner was not the owner of the facility at the time of the resident’s elopement and, thus, Petitioner is not responsible for the incident that occurred prior to it assuming ownership of the facility. Regarding Resident No. 17, the evidence offered at hearing was sufficient to demonstrate that the cited deficiency was appropriate. On November 6, 2015, the Agency conducted a follow-up survey wherein the surveyor cited an uncorrected deficiency regarding Tag A0077. No evidence was offered at hearing to refute the allegation that the deficiency was not corrected. Thus, the Class III uncorrected deficiency citation was appropriate. The evidence offered at hearing was sufficient to demonstrate that the cited deficiency was appropriate. Tag A0078: Staffing Standards-Staff AHCA alleged that Dixie Lodge failed to ensure within 30 days that it had obtained and maintained in the personnel file of each direct health care provider, verification that the staff member was free from communicable disease. The surveyor testified that she reviewed the records for two staff members and discovered there was no documentation in the personnel file of the staff members to demonstrate compliance with the communicable disease-testing requirement. The evidence presented at hearing supports a violation for the allegations related to Tag A0078, which is an indirect risk to residents. Tag A0081: Training-Staff In-Service AHCA alleged that Dixie Lodge failed to ensure that staff members completed required in-service training programs, including training related to HIV and AIDS. An employee’s file contained a roster of staff members who completed a training course in HIV and AIDS. Although the roster was not dated and did not include a certificate of completion, there was evidence to demonstrate that the employee had completed the training. Based on the evidence presented at hearing, there was no clear and convincing evidence that Petitioner failed to provide HIV and AIDS training to staff. Tag A0082: Training-HIV/AIDS AHCA alleged that Dixie Lodge failed to ensure that a staff member had completed a required HIV/AIDS course within 30 days of employment. Specifically, the personnel file for Employee B included a training roster which reflected that she received the training. The surveyor noted that there was no date on the roster and no certificate of completion. The evidence of record demonstrates that Employee B completed the training. Regarding maintaining documentation, the roster was not offered into evidence to determine whether the requisite information was included on the roster. In addition, Petitioner had not assumed ownership of the facility during the timeframe that the training was required and, thus, there was not sufficient evidence presented at hearing to demonstrate that Petitioner is responsible for the alleged deficiency. Tag A0083: Training-First Aid and CPR AHCA alleged that Dixie Lodge failed to ensure that a staff member who had completed courses in First Aid and Cardiopulmonary Resuscitation (“CPR”) was in the facility at all times. The allegation was supported by the record. The failure to ensure at least one staff member on each shift is trained in First Aid and CPR presents an indirect or potential risk to patients. Tag A0090: Training-Do Not Resuscitate Orders (DNRs) AHCA alleged that Dixie Lodge failed to ensure that staff members timely completed a required training course in DNRs. The surveyor’s review of the personnel files of employees A, B, and C revealed that the files did not include sufficient documentation to demonstrate that the three employees completed required training in DNRs. Employees A and C had certificates indicating that they completed the training, but the certificates did not include the duration of the course. Employee B’s file did not include a certificate indicating she completed the training within 30 days, as required. Based on the evidence offered at the final hearing, there is sufficient clear and convincing evidence to support the citation for Tag 0090. Tag A0093: Food Service-Dietary Standards AHCA alleged that Dixie Lodge failed to maintain a three-day supply of food in case of an emergency. Specifically, the surveyor observed that three proteins had expired. The failure to ensure sufficient resident nutrition is an indirect risk to residents. There was clear and convincing evidence to prove the cited deficiency. Tag A0160: Records-Facility AHCA alleged that Dixie Lodge failed to maintain facility records for admission and discharge. Specifically, a review of the facility’s admission and discharge log incorrectly reflected that 80 residents resided in the facility. It was discovered that the discharge log had not been updated to reflect that five residents no longer resided in the facility. The evidence supports the citation for a deficiency for failure to properly maintain the discharge log. Tag A0161: Records-Staff AHCA alleged that Dixie Lodge failed to maintain personnel records with required documentation. Specifically, the Statement of Deficiencies alleges that the personnel files of four Dixie Lodge employees did not include documentation of required trainings. The surveyor reviewed personnel files for the employees. Employees A, B, and C did not include documentation of first aid or CPR training. Employee D’s file did not include updated Level 2 eligibility records. Failure to maintain proper and complete personnel files for employees does not pose an indirect risk to residents so as to constitute a class III violation. Tag A0167: Resident Contracts AHCA alleged that Dixie Lodge failed to provide 30 days’ notice prior to an increase in resident rates for services. The surveyor reviewed the records of two residents and discovered that the two residents received notice of the rate increase less than 30 days before they were implemented. However, the rate increase occurred prior to Dixie Lodge assuming ownership of the facility. Thus, Petitioner was not responsible for the rate increase notice and therefore, there was not sufficient evidence to support the deficiency. Impact on Residents Petitioner seeks to maintain operation of the facility so as not to prevent a negative impact on residents. Marifrances Gullo, RN-C, MSN, FNP-BC, is the owner of Advanced Practical Nursing Services, a behavioral health and addictions management practice. She was accepted as an expert in the field of psychiatric mental health nursing, and testified about the lack of availability of appropriate placements for Dixie Lodge residents should Dixie Lodge be closed. Nurse Gullo provides mental health services to facilities such as Dixie Lodge. She testified that the dislocation of Dixie Lodge residents would likely lead to extremely detrimental effects on many residents. Edward Kornuszko, PsyD, was accepted as an expert in the provision of psychiatric and mental health services. Dr. Kornuszko has more than five years of experience seeking residential placements for patients similarly situated to those at Dixie Lodge. He testified that the task of placing up to 77 chronically ill Dixie Lodge residents at once would be “nearly impossible.” If placements were found for residents who had been at Dixie Lodge for at least 5 to 10 years, he would expect to see “considerable decompensation” in these residents. Ultimate Findings of Fact AHCA demonstrated by clear and convincing evidence that the cited deficiencies were appropriate for Tag A0165, a Class II deficiency. There was also clear and convincing evidence to demonstrate that the cited deficiencies were appropriate for the following Class III deficiencies: Tag A0008, Tag A0026, Tag A0030, Tag A0052, Tag A0054, Tag A0077, Tag A0078, Tag A0083, Tag A0090, and Tag A0093. Dixie Lodge demonstrated a potential negative impact on residents should Dixie Lodge close its doors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Administration, enter a final order rescinding its Amended Notice of Intent to Deny Change of Ownership Application. DONE AND ENTERED this 10th day of May, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 10th day of May, 2018.
The Issue Whether Respondent violated section 429.26(7), Florida Statutes, and Florida Administrative Code Rule 58A-5.0182(1) by failing to appropriately supervise one of its residents, and, if so, the penalty that should be imposed. Whether Respondent failed to follow its own elopement policy, in violation of Florida Administrative Code Rule 58A- 5.0182(8), and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, Agency for Health Care Administration, is the state agency statutorily charged with regulating assisted living facilities ("ALFs") in the state of Florida. Respondent, Flamingo Park Manor, LLC, is a 72-bed limited mental health2/ ALF licensed pursuant to License No. AL7308 and subject to regulation by Petitioner pursuant to chapter 429, Florida Statutes, and Florida Administrative Code Chapter 58A-5. It is located at 3051 East 4th Avenue, Hialeah, Florida 33013. The Administrative Complaint As the result of a complaint survey conducted on or about February 3, 2015, Petitioner served an Administrative Complaint on Respondent on April 14, 2015. The Administrative Complaint charged Respondent with a Class I violation of section 429.26(7) and rule 58A-5.0182(1) for failing to appropriately supervise one of its facility residents, R.R., resulting in Respondent not knowing R.R.'s whereabouts for five days. The Administrative Complaint also charged Respondent with a Class II violation of rule 58A-5.0182(8) for failing to follow its own elopement policy and procedures during the time that R.R. was absent from Respondent's facility. The Administrative Complaint seeks to impose administrative penalties of $5,000 for the alleged Class I violation and $2,500 for the alleged Class II violation.3/ The Events Giving Rise to this Proceeding R.R., a 38-year-old male, admitted himself to, and became a resident of, Respondent's ALF on May 15, 2014. He was classified as a mental health resident.4/ He had been diagnosed with schizophrenia and had been prescribed medications to address this condition. On the day he was admitted to the ALF, Respondent's administrator completed an Elopement Risk Assessment Form, which evaluated R.R.'s risk for elopement5/ from the facility. At that time, R.R. was determined not to constitute an elopement risk.6/ On June 1, 2014, by Joyce Gonzalez, a doctor of osteopathic medicine, performed a health assessment of R.R. She completed the Resident Health Assessment for Assisted Living Facilities, AHCA Recommended Form 1823 ("Form 1823"), as required by rule. Gonzalez noted on Form 1823 that R.R. had been diagnosed with schizophrenia and asthma, and that he heard voices and exhibited poor judgment. R.R. was evaluated as "independent" for the following activities of daily living: ambulation, bathing, eating, toileting, and transferring. She evaluated him as "needs supervision" for dressing, and "needs assistance" for self-care (grooming). Gonzalez answered "yes" in response to the question "[i]n your professional opinion, can this individual's needs be met in an assisted living facility, which is not a medical or psychiatric facility?" R.R. was evaluated as "independent" for the self-care tasks of shopping, making phone calls, handling personal affairs, and handling financial affairs. In the "General Oversight" section of Form 1823, which constitutes an evaluation of the frequency with which R.R. needed general oversight by Respondent's staff, R.R. was determined to need the following services on a daily basis: observing wellbeing, observing whereabouts, and reminders for daily tasks.7/ On the "Self-Care and General Oversight—Medications" section of R.R.'s Form 1823, Gonzalez listed three medications that R.R. was to receive, some twice daily. Gonzalez indicated on Form 1823 that R.R. needed the assistance of Respondent's staff to self-administer his medications. The Form 1823 completed for R.R. states that he did not constitute an elopement risk. R.R. was involuntarily admitted to a mental health treatment facility (i.e., "Baker-Acted") from May 16 through May 20 and September 29 through October 3, 2014. Both times, after being discharged, he resumed living at Respondent's ALF. When R.R. was discharged from the mental health treatment facility on October 3, 2014, he was taking an anti- psychotic medication to treat his schizophrenia and medications to alleviate the side effects of his anti-psychotic medication. The written patient discharge instructions he received, which were included in Respondent's medical information files for R.R., included descriptions of the medications he had been prescribed. These instructions stated that these medications needed to be taken as directed. The evidence establishes that despite his mental health condition, R.R. was an independent resident who was lucid, alert, self-aware, and oriented regarding time and place. As was the case for the other residents at Respondent's ALF, R.R. received his meals when he was present in the facility. He also received assistance from Respondent's staff in self- administering his medications, which he was free to refuse to take, and he received supervision and guidance in grooming and dressing himself. In other respects, consistent with the evaluation recorded on Form 1823, R.R. functioned independently. When R.R. was present in the ALF, his wellbeing and whereabouts were observed on a daily basis, as documented by the room censuses, medication logs, shift reports, and resident observation logs that Respondent kept on R.R. During his residency at the ALF, R.R. left the facility at various times of the day, on an almost daily basis. He often would be gone for many hours and would return to the facility. According to Respondent's staff, R.R. told them that he took long walks in the community and that at times, he visited his parents at their home. The credible evidence establishes that during R.R.'s five-month residency at the ALF, although he requently left and often was gone for many hours at a time, he had been absent more than 48 hours only twice,8/ and absent between 24 hours and 48 hours three times,9/ prior to his departure on October 15, 2014. If R.R. was not in the facility at the time he was to take his medications, he did not receive them. The medication observation records for R.R. show numerous days throughout his residency on which he did not receive some or all of his medications. Sometime during the day on October 15, 2014, R.R. left the ALF. R.R. received the morning doses of his medications and attended a mental health counseling session before he left that day. Alaine Dominguez, Respondent's shift supervisor on duty that day, and George Hernandez, the psychological counselor who conducted the mental health counseling sessions at the facility, both testified, credibly, that R.R. told them he was leaving for approximately a week to visit his parents at their home.10/ Dominguez credibly testified that he told R.R. to take his medications with him, but R.R. refused. Respondent's staff did not contact R.R.'s parents to verify that he was going to visit, or was visiting, them. Tragically, R.R. was struck by an automobile late on the evening of October 15, 2014, while walking in the travel lanes of Northwest 79th Street. He was seriously injured and was taken to Jackson Memorial Hospital, where he died on the morning of October 16, 2014. R.R.'s parents were notified by the hospital on October 16, 2014, that R.R. had been injured and died. On October 20, 2014, R.R.'s mother and sister visited Respondent's facility and questioned staff regarding R.R.'s whereabouts. Respondent's staff told them that R.R. had left the facility a few days ago to visit his parents. At that point, R.R.'s mother informed Respondent's staff that R.R. had been killed almost five days ago. By the time R.R.'s mother informed Respondent's staff of his death, R.R. had been absent from the ALF for approximately five days. Until R.R.'s mother informed Respondent's staff that he had been killed, they did not know R.R.'s specific whereabouts during the period in which he was absent from the ALF. The evidence establishes that Respondent's staff assumed that, consistent with R.R.'s statements to Dominguez and Hernandez, he had gone to visit his parents at their home. Consequently, Respondent did not report to R.R.'s parents, law enforcement, or any other entity, that R.R. was absent or missing from the ALF. Petitioner presented the testimony of its health care evaluator, James Byrd Williams, who performed the February 3, 2015, complaint survey on Respondent's ALF. Williams testified that R.R.'s mother told him that R.R. did not know the location of his parents' home, so he could not have gone to visit them.11/ Regardless of whether R.R. knew or did not know the location of his parents' home, the evidence establishes that Respondent's staff believed that R.R. knew the location of his parents' home. Accordingly, it was reasonable for them to accept as true R.R.'s statement that he was leaving the facility to visit his parents at their home. Respondent's staff completed shift reports for October 15 through October 20, 2014. Most of the reports noted that R.R. was "on pass," meaning that he was not present in the ALF. None of the reports contained notations specifically stating that R.R. was visiting his parents or when he was expected to return. Williams testified that in his opinion, Respondent did not adequately supervise R.R., based on the fact that R.R. was a mental health resident, that he frequently left the ALF and was gone for extended periods of time without Respondent knowing his specific whereabouts, that R.R. did not receive his medications when he was out of the ALF, and that Respondent did not contact his parents at their home to verify that R.R. was, in fact, at their home. As required by rule, Respondent has prepared and implemented an elopement policy,12/ which states: Policy: It is the policy of this facility to permit and encourage residents to retain their independence and not to infringe upon their right to come and go from the facility as they please. Procedure: Residents are informed upon admission and during their stay to notify staff members when they leave the facility and when they will be expected to return. Each new admission and yearly thereafter, will have an "Elopement Risk Assessment Form" completed. If elopement risk is determined, the following actions will be taken: an i.d. bracelet will be placed with his/her name and facility contact information; a picture will be placed in the "Elopement Risk Binder" where pertinent resident information will be easily available if reporting is needed; and all staff members will be informed of "at risk" residents and the "Elopement Risk Binder" and its contents. Each case will be evaluated independently when implementing this policy taking into consideration the resident's usual outing habits. For "At-Risk" identified residents, the following will take place immediately if facility staff determines that the whereabouts of such resident is unknown: a complete grounds search will be conducted by all staff members present at the time, directed by the Shift Supervisor; a complete neighborhood search will be conducted by all staff at the time, directed by the Shift Supervisor; if resident is not located and it has not been determined that he/she left without notifying staff, Shift Supervisor or Administrative staff will be responsible for notifying law enforcement, resident's family, guardian, health care surrogate, attending physician and case manager that the resident's whereabouts are not known. an adverse incident report in the AHCA website will be done. Once the resident has been reported "missing" with the local authorities, a case number will be obtained and placed on the resident's chart. A "Quality Improvement/Missing Person Report Form" will be used to evaluate events and keep track of all daily calls to hospitals, shelters, jails etc[.] made to locate resident. If resident is located by facility staff prior to law enforcement, then the Shift Supervisor or Administrative staff will notify law enforcement, resident's family, guardian, health care surrogate, attending physician and case manager that the resident has been located. Residents who are considered to be "not at risk," from the elopement risk assessment form complete [sic] upon admission, are to be reported missing if ou[t] of the facility more than 48 hours. If residents, [sic] behavior is to leave the facility for long periods of time and always returns, this is to be considered to also be "not at risk" and will be reported missing after 48 hours. Respondent's administrator testified that paragraph 1 of Respondent's elopement policy superseded all of the other paragraphs of the policy, so that if a resident told a member of Respondent's staff that he or she was leaving the ALF, that resident would not be considered to have eloped, even if he or she were absent longer than the time period specified in paragraphs 5 and 9 for residents considered "at risk" and "not at risk" for elopement. Only if the resident did not follow the procedure set forth in paragraph 1 when leaving the facility would the other provisions of the elopement policy apply, depending on whether the resident was "at risk" or "not at risk" for elopement. As noted above, none of the documents prepared by Respondent to keep track of which residents were present or absent from the facility, including the shift reports or room census reports, contained notations regarding where R.R. had told staff he was going when he left on October 15, 2014, or when he anticipated returning. However, Respondent's administrator testified that, based on verbal communications from Dominguez, "we were all aware of how long it was going to be." She further testified that if R.R. had told them he was going to be gone a week and then was gone for a longer period, the elopement policy would have been triggered and Respondent would have contacted R.R.'s family and law enforcement and filed a missing person report pursuant to the applicable policy provisions. Findings of Ultimate Fact Florida courts consistently hold that the issue of whether an individual's or entity's actions violate a statute or deviate from an established standard of conduct is an issue of ultimate fact to be determined based on the evidence in the record. See Gross v. Dep't of Health, 819 So. 2d 997, 1003 (Fla. 1st DCA 2002); Goin v. Comm'n on Ethics, 658 So. 2d 1131, 1138 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Failure to Provide Appropriate Supervision Petitioner did not prove, by clear and convincing evidence, that Respondent failed to provide appropriate supervision to R.R., in violation of section 429.26(7) or rule 58A-5.0182(1). Section 429.26(7) states: The facility must notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment. The notification must occur within 30 days after the acknowledgment of such signs by facility staff. If an underlying condition is determined to exist, the facility shall arrange, with the appropriate health care provider, the necessary care and services to treat the condition. R.R. was diagnosed with schizophrenia before becoming a resident at Respondent's ALF. However, the evidence does not establish that R.R. suffered from dementia or cognitive impairment. To that point, when R.R. was admitted to the facility, the evaluating doctor determined that his needs could be met in an ALF, rather than a medical facility. There are no notations in the resident observation logs or in any other records that Respondent kept on R.R. indicating that he suffered from dementia or cognitive impairment. Additionally, although R.R. would not receive his medications on many occasions, Petitioner failed to establish that R.R.'s refusal or failure to take his medication somehow constituted a "changed condition" that required Respondent to notify a physician of his condition. Further, even if the evidence had shown that R.R. exhibited dementia, cognitive impairment, or a changed condition, Petitioner failed to present evidence establishing when Respondent's staff acknowledged these conditions for purposes of commencing the 30-day statutory notification period. Accordingly, it cannot be discerned when the notification period ended for purposes of determining whether Respondent violated the notification requirement. For these reasons, it is determined that Petitioner failed to prove that Respondent violated section 429.26(7), as charged in the Administrative Complaint. Rule 58A-5.0182(1), which establishes the standard of care for supervision of ALF residents, states in pertinent part: (1) SUPERVISION. Facilities must offer personal supervision as appropriate for each resident, including the following: * * * 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 resident. Maintaining a general awareness of the resident's whereabouts. The resident may travel independently in the community. 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. Maintaining a written record, updated as needed, of any significant changes, any illnesses that resulted in medical attention, changes in the method of medication administration, or other changes that resulted in the provision of additional services. Fla. Admin. Code R. 58A-5.0182(1)(emphasis added). The evidence establishes that Respondent appropriately supervised R.R. under his specific personal circumstances. As discussed above, when R.R. was present in the facility, Respondent's staff observed and documented his wellbeing and whereabouts. The evidence shows that in most respects, R.R. was an independent resident who only required assistance with a limited number of tasks. Although R.R. frequently left the facility for long periods of time, Respondent's staff generally were aware, based on R.R.'s statements to them, that he was walking around in the community——which he clearly was entitled to do without being supervised, pursuant to the plain language of rule 58A- 5.0182(1)(c).13/ With respect to the specific event giving rise to this proceeding, the persuasive evidence establishes that when R.R. left the ALF on October 15, 2014, he told Respondent's staff that he was going to be gone for approximately a week to visit his parents at their home, and that Respondent's staff had no reason to question the truth of this statement. The evidence establishes that Respondent's staff believed R.R. was at his parents' home. This is sufficient to meet the rule requirement that Respondent maintain a general awareness of R.R.'s whereabouts——particularly given that there is no statute or rule that would require Respondent to "check up on" or verify that a resident was at the specific location that he or she purported to be going when leaving the facility. Petitioner also failed to present evidence showing that R.R. exhibited a "significant change" in condition14/ or that he had been discharged or moved out of the facility, any of which would have triggered the requirement to notify his health care provider or family. The evidence also fails to establish that Respondent failed to maintain adequate written records of significant changes in R.R.'s condition, illnesses that R.R. suffered resulting in medical attention, changes in the method of R.R.'s medication administration, or other changes resulting in the provision of additional services. To the contrary, the written records Respondent kept regarding R.R.'s condition and medication administration specifically noted when he had been Baker-Acted and when he took or did not take his medications. Petitioner did not present any evidence showing that these records were inaccurate or incomplete. For these reasons, Petitioner failed to prove, by clear and convincing evidence, that Respondent violated rule 58A-5.0182(1), as charged in the Administrative Complaint. Failure to Follow Elopement Policy Petitioner also failed to prove, by clear and convincing evidence, that Respondent violated rule 58A-5.0182(8) by failing to follow its own elopement policy with respect to reporting R.R. missing. Rule 58A-5.0182(8) requires ALFs to develop written rights and facility procedures for responding to a resident elopement. The rule states in pertinent part: (b) Facility Resident Elopement Response Policies and Procedures. The facility must develop detailed written policies and procedures for responding to a resident elopement. At a minimum, the policies and procedures must provide for: An immediate search of the facility and premises; The identification of staff responsible for implementing each part of the elopement response policies and procedures, including specific duties and responsibilities; The identification of staff responsible for contacting law enforcement, the resident's family, guardian, health care surrogate, and case manager if the resident is not located pursuant to subparagraph (8)(b)1.; and The continued care of all residents within the facility in the event of an elopement. "Elopement" is defined as "an occurrence in which a resident leaves a facility without following facility policies and procedures." Fla. Admin. Code R. 58A-5.0131(14)(emphasis added). As noted above, Respondent has developed an elopement policy pursuant to rule 58A-5.0182(8), and the sufficiency of this policy is not at issue in this proceeding. As a threshold matter, Respondent's elopement policy requires residents to notify staff members when they leave the facility and when they will be expected to return. If a resident complies with this requirement, he or she has followed the "facility's policies and procedures," so has not eloped under rule 58A-5.0313(14). Here, the persuasive evidence establishes that when R.R. left the facility on October 15, 2014, he informed Respondent's staff that he was leaving the facility and that he expected to return in approximately one week, in compliance with Respondent's policies and procedures regarding notification when the resident leaves the facility. Therefore, R.R.'s departure from the facility that day did not constitute "elopement" as defined in rule 58A-5.0131(14). Because R.R. did not elope from the facility on October 15, 2014, he was not considered "missing" for purposes of triggering paragraph 9 of Respondent's elopement policy, which would have required Respondent to report him missing after being out of the facility for 48 hours. For these reasons, Petitioner failed to prove, by clear and convincing evidence, that Respondent violated rule 58A-5.0182(8), as charged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order dismissing the Administrative Complaint against Respondent, Flamingo Park Manor, LLC. DONE AND ENTERED this 9th day of May, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 May, 2016.
