01-001101 Centennial Healthcare Investment Corporation, D/B/A George E. Weems Memorial Hospital vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, August 6, 2001.

Summary: Petitioner improperly reduced nursing home license to conditional due to dropped resident who broke her shoulder. No evidence of deficient training or suspension, and staffing was adequate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 01-1101

)

CENTENNIAL HEALTHCARE )

INVESTMENT CORP., )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in Port

St. Lucie, Florida, on June 5, 2001.

APPEARANCES

For Petitioner : Alba M. Rodriguez

Assistant General C ounsel

Agency for Health Care Administration

8355 Northwest 53rd Street, First Floor

Miami, Florida 33166

For Respondent : James M. Barclay

Ruden McClosky

215 South Monroe Street, Suite 815

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Petitioner properly re-rated as

conditional Respondent's license to operate a skilled nursing

facility.

PRELIMINARY STATEMENT

By letter dated January 31, 2001, Petitioner advised

Respondent that, effective January 11, 2001, Petitioner was

re -rating its skilled nursing facility license to conditional as

a result of the findings of a survey conducted on January 11,

2001. The letter states that the surveyors found a Class II

deficiency due to the failure of the facility to ensure that it

provided all of the necessary care and services to a resident of

the facility. The letter explains that a resident sustained

injuries after being dropped from a Hoyer lift.

By Petition for Formal Administrative Hearing filed

February 27, 2001, Respondent contested the proposed action to

reduce its license to conditional and requested a formal

hearing.

At the hearing, Petitioner called four witnesses and

offered into evidence eight exhibits : Petitioner Exhibits 1-7

and 11. Respondent called five witnesses and offered into

evidence 17 exhibits. All exhibits were admitted except

Petitioner Exhibit 3 and Respondent Exhibit 8, which were

proffered. Also, the Administrative Law Judge excluded from

Respondent Composite Exhibit 2 all activities described in the

documents if those activities took place after February 13,

2001; Respondent proffered the excluded portions of Respondent

Exhibit 2.

The court reporter filed the transcript on June 28, 2001.

On July 9, 2001, Petitioner filed a motion to redact the

transcript. The motion asked for the deletion of the name of

the resident from the transcript to preserve the resident's

right to confidentiality. The Administrative Law Judge had

already directed the court reporter to substitute initials each

time the resident's name would otherwise appear in the

transcript, but the court reporter neglected to do so. This

case involves only one resident, so the Administrative Law Judge

has blackened out all references in the transcript to the

resident's name. The Administrative Law Judge orders Respondent

to do the same to its copy of the transcript.

FINDINGS OF FACT

1. Respondent operates Emerald Health Care (Emerald),

which is a skilled nursing facility in Port St. Lucie.

2. On January 11, 2001, Petitioner conducted a survey of

Emerald and cited a deficiency in the quality of care.

Petitioner cited this deficiency under Tag F309. Based on the

findings cited in Tag F309, Petitioner reduced Respondent's

license to conditional, effective January 11, 2001.

3. Tag F309 is based on 42 Code of Federal Regulations

Section 483.25, which, as cited in the survey report, provides:

"Each resident must receive and the facility must provide the

necessary care and services to attain or maintain the highest

practicable physical, mental, and psychosocial well-being, in

accordance with the comprehensive assessment and plan of care."

The survey reports notes, however, that Tag F309 is for "quality

of care deficiencies not covered by s483.25(a)-(m)."

4. After noting the details of the discovery of the

injured resident, her treatment, and Emerald's investigation,

Tag F309 notes that a certified nursing assistant had

inappropriately tried to transfer the resident without using the

proper technique or obtaining the help of another staffperson.

Tag F309 states that the resident's care plan "does not indicate

measures to be taken by staff, equipment to be utilized for

lifting[,] or the level of assistance needed by this resident in

the Activities of Daily Living[,] which include transfers."

5. Tag F309 states that the certified nursing assistant

dropped the resident while trying to transfer her

inappropriately from her wheelchair to her bed and then failed

to notify anyone of the incident. Tag F309 acknowledges that

Respondent had instructed the certified nursing assistant five

days prior to the incident, when she started working at Emerald,

of the appropriate procedures for lifting residents, her

immediate supervisor had repeated these instructions three times

on the day of the incident, and an interpreter repeated these

instructions in the native language of the certified nursing

assistant an additional time on the day of the incident.

Tag F309 notes that Respondent's records indicated that the

certified nursing assistant "had been instructed on the use of

the lift and was believed to be competent in its use in

transferring residents."

6. By letter dated January 31, 2001, Petitioner informed

Respondent of the reduction to conditional of Respondent's

license based on the January 11 survey. The sole explanation

for the action is as follows: "During this survey a Class II

deficiency was cited due to facility failure to ensure that all

necessary care and services were provided to a resident in the

facility. A resident sustained a fractured right shoulder and

upper body bruising after being dropped to the floor from the

Hoyer lift."

7. The Joint Prehearing Stipulation eliminates a couple of

issues. Paragraph 5.i states that Respondent "had developed and

instituted adequate policies and procedures to prevent neglect

of its residents due to lifting and transferring and had written

no-lift policies and procedures in effect." Paragraph 5.r

states that Respondent "had a comprehensive program to address

lifts and transfers. That program included assessment, care

planning and on-going reassessment of its residents. The

assessments and care plans for [the resident] were appropriate."

The most detailed statement of an issue is in Paragraph 5.q,

which states: "[Respondent] failed to maintain the resident's

highest level of functioning because of the incident."

8. The deficiency arises out of an incident at 7:00 to

7:30 p.m. on December 24, 2000, in which one of Respondent's

employees, certified nursing assistant Paulette LeBrun, dropped

a resident, who sustained a broken shoulder, and failed to

report the incident to anyone. Another staffperson noticed the

injury the next morning, notified a physician and family

members, and caused the resident to be taken to the hospital,

where she was treated and returned to the facility the next day.

9. Petitioner resurveyed Emerald on February 13, 2001, and

found that the deficiency previously cited no longer existed.

Petitioner thus re-rated Respondent's license as standard,

effective February 13, 2001.

10. Prior to the incident, Respondent had taken several

precautions to avoid an accident of the type that took place in

this case.

11. First, Respondent had conducted a complete assessment

of the resident by April 18, 2000. In the assessment,

Respondent had properly concluded that the resident was in a

condition of "total dependence" for bed mobility, transfer,

locomotion, and personal care.

12. Second, Respondent had adopted a comprehensive set of

written policies for assessing and reassessing, care planning,

and lifting and transferring residents. Petitioner stipulated

that these policies were "adequate . . . to prevent neglect of

[Respondent's] residents due to lifting and transferring . . .."

13. For a substantial period of time prior to the date of

the incident, Respondent had contracted with Prevent, Inc., for

products and services in connection with the lifting and

transferring of residents. Prevent, Inc., is in the business of

supplying lift equipment and training programs to facilities

such as Emerald. Facilities obtaining the products and services

of Prevent, Inc ., have experienced reductions of 95 percent in

staff injuries and 48 percent in resident injuries in connection

with lifting and transferring residents.

14. As part of the program that it supplied to Emerald

staff, Prevent, Inc ., prepared a "no-lift" policy. This policy,

which Respondent adopted for use at Emerald, restricts manual

lifting and transferring of residents. In the words of the

policy, "any resident requiring 50% or greater assistance with

lifts/transfers is to be lifted/transferred with a mechanical

lift. The nurse aide is to use a lift with the assistance of a

second nurse aide during the transfer."

15. Prevent, Inc., also prepared a lift manual for Emerald

staff. The manual details the proper procedures for lifting and

transferring residents using any of the mechanical lifts present

at Emerald for this purpose.

16. Additionally, staff of Prevent, Inc., personally

trained Emerald staff in the proper lifting and transferring

procedures. The training program is thoughtfully designed with

step-by-step instructions using visual props and visually driven

demonstrations to overcome language barriers, as the trainer

covers a list of 52 separate skills. To complete the training,

each trainee must perform a number of "return demonstrations,"

in which he or she demonstrates to the satisfaction of the

trainer the skills and techniques that are being taught.

17. Emerald's implementation of the lifting program

accommodates persons of a wide range of intelligence and

motivation. For example, based on frequently updated

assessments of each resident, the door of each resident's room

bears a colored patch that informs the Emerald employee of the

size of the sling to use in the lift device in order safely to

lift and transfer the resident.

18. Prevent, Inc., provides large-group training at

Emerald every six to twelve months. However, the trainer visits

the facility every six to eight weeks to answer questions and

provide additional training, as needed, to employees who have

already been trained.

19. Ms. LeBrun began working as a certified nursing

assistant at Emerald on December 20, 2000. On the next day, she

received training on the use of mechanical lifts and

Respondent's restricted lift and transfer policy.

20. On Christmas Eve, Ms. LeBrun was one of the certified

nursing assistants working the east wing at Emerald. She worked

the 7:00 a.m. to 3:00 p.m. shift. When her supervisor, who was

a licensed practical nurse, found that they were going to be

short of certified nursing assistants during the 3:00 p.m. to

11:00 p.m. shift, she asked Ms. LeBrun to work another shift,

and Ms. LeBrun agreed to do so. Normally five certified nursing

assistants work the east wing on the 3:00 p.m. shift, but, at

the start of this shift, only two certified nursing assistants

were present until 7:00 p.m. At that time, two more certified

nursing assistants reported to work the east wing. However, at

all times, a licensed practical nurse also worked each of the

two main halls constituting the east wing.

21. Containing 60 residents, the east wing is the harder

wing to work at Emerald because its residents are totally

dependent for assistance with the activities of daily living.

Although there is no difference in the level of functioning of

the residents on the two main halls of the east wing ,

Ms. LeBrun's earlier shift that day had been in the front hall,

and her later shift was in the back hall, so she was working

with different residents. However, Ms. LeBrun had been oriented

on the east wing.

22. Due to the minimal staff present during the Christmas

Eve shift starting at 3:00 p.m., a supervisor decided not to

have the east wing residents taken to the dining area for their

evening meal, but to have them fed in their beds.

23. Ms. LeBrun's immediate supervisor was concerned about

Ms. LeBrun's ability to care for the more intensive residents on

the east wing. During her first shift, another certified

nursing assistant had seen signs of fatigue in Ms. LeBrun during

her meal break and had reported this fact to Ms. LeBrun's

immediate supervisor. Acting on her concern, Ms. LeBrun's

immediate supervisor asked her supervisor, at the start of the

3:00 p.m. shift, if she would reassign Ms. LeBrun to the west

wing, but the supervisor declined to do so.

24. On several occasions, Ms. LeBrun's immediate

supervisor reminded her of Respondent's restricted-lift policy.

Ms. LeBrun speaks French Creole, although she seems functionally

literate in English. Concerned that Ms. LeBrun may not have

understood these reminders, the immediate supervisor found

another employee who could speak French Creole, and the employee

translated the immediate supervisor's instructions, including

the requirement that two employees operate the lift for

transfers.

25. At some point in the evening, probably after

7:30 p.m., Ms. LeBrun attempted to transfer a resident from a

wheelchair to a bed without a lift and without the assistance of

another employee. In the course of doing so, Ms. LeBrun dropped

the resident, who sustained a fractured right shoulder. Picking

up the resident off the floor, Ms. LeBrun completed the transfer

to the bed. In the course of this procedure, the resident also

sustained bruising of the upper body. Ms. LeBrun did not report

this incident to anyone.

26. The next morning, another staffperson noticed that the

resident had been injured. The staffperson notified the

resident's physician and family and caused the resident to be

taken to the hospital for treatment. The hospital returned the

resident the following day.

27. At the time of the incident, the resident was an

89-year-old person suffering from dementia, poor vision,

contracture of her left hand, and a neck deformity resulting in

a pronounced hump in her upper back. She had not been able to

walk at all for a long time. She was incontinent, totally bed-

ridden, and totally dependent for the activities of daily

living, except that she could feed herself.

28. Prior to knowing that the resident had suffered a

fracture, Respondent's staff modified the resident's care plan

on Christmas Day. They identified a special way to lift and

transfer the resident. Later, they modified the care plan again

to require a four-person lift and to reflect the reduced range

of motion in the resident's arm, which prevented her from self-

feeding. However, at the time of the final hearing and

following therapy, the resident had regained her ability to lift

her arm to her mouth and had begun to regain the skills that

might lead to self-feeding.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

30. Section 400.23(7) requires Petitioner to assign a

rating of standard or conditional to each nursing home facility.

Section 400.23(7)(a) provides for a standard license if the

facility has no Class I or II deficiencies and no uncorrected

Class III deficiencies. Section 400.23(8)(b) defines a Class II

deficiency as one that has "a direct or immediate relationship

to the health, safety, or security of the nursing home facility

residents, other than class I deficiencies."

31. Section 400.23(2)(f) provides for the promulgation of

rules to based on federal law for the care and treatment of

residents. Rule 59A-4.1288 incorporates by reference the

provisions of 42 Code of Federal Regulations Section 483.25.

32. The flush language of 42 Code of Federal Regulations

Section 483.25 provides:

Each resident must receive and the facility

must provide the necessary care and services

to attain or maintain the highest

practicable physical, mental, and

psychosocial well-being, in accordance with

the comprehensive assessment and plan of

care.

33. As Respondent contends in its proposed recommended

order, Petitioner's theory of liability is unclear. At the

hearing, Petitioner disclaimed any reliance on the principle of

strict liability event though its choice of federal regulation

suggests such a theory, rather than a theory specifically

focused on inadequacies in staffing, training, or supervision.

There is little doubt of the neglect of Ms. LeBrun in causing

the resident's injury and consequent decline, but little in the

record attributes any responsibility for this neglect to

Respondent. To the contrary, Respondent adequately discharged

its responsibility to train its employees, including Ms. LeBrun,

adequately discharged its responsibilities to assess and prepare

a care plan for the resident, and adequately supervised

Ms. LeBrun.

34. On the other hand, there is no doubt that this case

illustrates the deficiency of Petitioner's practice of reliance

upon survey reports and brief letters as charging pleadings,

rather than subjecting its implicit theory of a case to the

discipline of preparing a formal charging document.

35. In its proposed recommended order, Respondent argues

that Petitioner brought this case for an improper purpose, under

Section 120.569(2)(e). In this case, based on a report of a

another certified nursing assistant and her own observations, an

immediate supervisor expressed her concerns about the fitness of

Ms. LeBrun to work the more demanding east wing during her

second consecutive shift that day after five days on the job and

while the wing was below its customary staffing, at least during

the first few hours of the shift; however, the immediate

supervisor was unable to obtain a transfer of Ms. LeBrun to the

less demanding east wing. These facts preclude any award of

attorneys' fees and costs, despite the vagueness of the charging

pleadings.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order restoring a

standard rating to Respondent's license retroactive to

January 11, 2001.

DONE AND ENTERED this 6th day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of August, 2001.

COPIES FURNISHED:

Ruben J. King-Shaw, Jr.

Secretary

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3116

Tallahassee, Florida 32308

Julie Gallagher

General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308

Sam Power

Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308

Alba M. Rodriguez

Assistant General Counsel

Agency for Health Care Administration

8355 Northwest 53rd Street, First Floor

Miami, Florida 33166

James M. Barclay

Ruden McClosky

215 South Monroe Street, Suite 815

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.