08-003719 Agency For Health Care Administration vs. Woodland Extended Care, Inc., D/B/A Woodland Terrace Extended Care Center Status: Closed Recommended Order on Tuesday, April 28, 2009.

Summary: Petitioner did not prove a class 1 deficiency. Recommend dismissal of the administrative complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 08-3719

)

WOODLANDS EXTENDED CARE, INC., )

d/b/a WOODLAND TERRACE )

EXTENDED CARE CENTER, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on January 13 and 14,

2009, by Barbara J. Staros, assigned Administrative Law Judge of

the Division of Administrative Hearings, in Deland, Florida.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Mary Alice H. David, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Mail Station 3

Tallahassee, Florida 32308

For Respondent: Theodore E. Mack, Esquire

Powell & Mack

803 North Calhoun Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Second Amended Administrative Complaint and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

The Agency for Health Care Administration (AHCA) filed an

Amended Administrative Complaint on July 1, 2008, alleging two

class I deficiencies and seeking the imposition of an

administrative fine and survey fee for a total of $36,000, a

six-month survey cycle, and imposition of a conditional license

on Respondent. Respondent, Woodland Extended Care, Inc., d/b/a

Woodland Terrace Extended Care Center, (Woodland Terrace)

requested a formal administrative hearing, and AHCA forwarded

the case to the Division of Administrative Hearings on or about

July 29, 2008. A hearing was scheduled for October 14 and 15,

2008, in Deland, Florida.

On August 8, 2008, AHCA filed a Motion to Amend and Serve

Second Amended Administrative Complaint and the parties filed a

Joint Motion for Continuance on the same date. The motions were

granted and the hearing was rescheduled for December 2 and 3,

2008. On September 25, 2008, Respondent filed an unopposed

Motion to Reschedule Hearing, which was granted. The hearing

was rescheduled for January 13 and 14, 2009, and proceeded as

scheduled on the allegations contained in the Second Amended

Administrative Complaint.

Count I of the Second Amended Administrative Complaint

alleges that Woodland Terrace failed to conduct periodically an

accurate assessment for one of 29 sampled residents in violation

of Sections 400.23 and 400.102, Florida Statutes, and Florida

Administrative Code Rule 59A-4.109. Count II alleges that

Woodland Terrace failed to ensure that the environment remained

as free of accident hazards as possible for one of six sampled

residents identified as residents who smoked in the facility, in

violation of Sections 400.23 and 400.102, Florida Statutes.

Count III seeks to impose a conditional license and six-month

survey fee totaling $6,000 pursuant to Section 400.19(3),

Florida Statutes. Both Counts I and II categorize the

violations as class I and seek to impose a $15,000 fine for each

Count, for a total of $30,000, plus a $6,000 survey fee.

At hearing, Petitioner presented the testimony of Shane

Reed, Linda Walker, Stephanie Fox, and Nancy Marsh.

Petitioner's Exhibits numbered 1 through 6, and 11, including

the deposition testimony of James Gregory, were admitted into

evidence. Respondent presented the testimony of Lawanda

Stevens, Nicole Leonard, Miriam Mercado, Bonnie Gray, and

Margaret Van Der Malen. Respondent’s Exhibits 1 through 4 were

admitted into evidence, including the deposition testimony of

Robert Pippin.

A Transcript, consisting of four volumes, was filed on

February 6, 2009. Petitioner filed an Unopposed Motion for

Enlargement of Time in which to file proposed recommended

orders. That request was granted. On March 23, 2009,

Respondent filed an unopposed Request for Official Recognition,

which is hereby granted. The parties timely filed Proposed

Recommended Orders, which have been duly considered. All

references to Florida Statutes are to the codification in effect

at the time of the alleged violation, i.e. , the 2007 or 2008

versions, unless otherwise indicated.

FINDINGS OF FACT

1. AHCA is the agency responsible for the licensing and

regulation of skilled nursing facilities in Florida pursuant to

Chapter 400, Florida Statutes.

2. At all times material hereto, Woodland Terrace was

licensed by AHCA as a skilled nursing facility. Woodland

Terrace is located in Deland, Florida, and operates a 120-bed

facility.

The May 2008 Survey

3. On May 5 through 9, 2008, AHCA conducted an annual

survey of Woodland Terrace. Shane Reed is a registered

dietician employed by AHCA. One of her job duties is to survey

nursing homes for compliance. She was part of the survey team

during the annual survey that gave rise to the Second Amended

Administrative Complaint and to this proceeding.

4. Ms. Reed was assigned to review Resident #164. On

May 6, 2008, Ms. Reed looked for Resident #164 in his room. He

was not in his room, but, after being told that he was outside

smoking, Ms. Reed found Resident #164 sitting in his wheelchair

smoking outside in front of the facility. Because there is

glass in the area near the door where he was located, Resident

#164 could be seen through the glass. He did not have oxygen

with him.

5. Ms. Reed observed what appeared to be a cigarette burn

hole in Resident #164’s housecoat, ashes on his lap, and noted

that his cigarette was burning close to his fingers.

6. Ms. Reed asked Resident #164 15 to 20 questions as part

of stage I of the survey, which is for purposes of interviewing

and getting data. Ms. Reed found him to be alert and oriented.

When she asked him if he knew if he had a burn hole in his

housecoat, he replied affirmatively, but indicated he did not

care because he had two others.

7. On May 7, 2008, Ms. Reed again reviewed Resident #164

as part of stage II of the survey, which is the investigative

part. Resident #164 was one of the residents who was reviewed

under stage II because he was also a hospice patient.

8. Ms. Reed went to Resident #164’s room. She saw him

lying in bed with his oxygen nasal cannula on while a certified

nursing assistant (CNA) took his vital signs. Resident #164 was

the only resident in the room.

9. When Ms. Reed observed Resident #164, he was not

smoking. However, she asked the CNA where Resident #164 kept

his cigarettes. The CNA opened the drawer of the nightstand

next to Resident #164’s bed. Ms. Reed observed a carton of

cigarettes and a full, plastic cigarette lighter.

10. At that point, Ms. Reed looked at Resident #164’s care

plan. Because his care plan identified him as having a problem

in the past with the facility’s smoking rules and indicated that

his smoking materials were to be kept at the nurses’ station,

Ms. Reed asked another surveyor, Linda Walker, RN, to come into

the room.

11. Ms. Walker is employed by AHCA as a registered nurse

specialist and is responsible for conducting surveys of licensed

facilities. Ms. Walker entered Resident #164’s room with

Ms. Reed. She observed Resident #164 sitting in bed with an

oxygen cannula in his nose, with the oxygen running. Ms. Walker

also observed the smoking materials in Resident #164’s

nightstand drawer.

12. Ms. Walker than asked Resident #164 a few questions

about where he went to smoke. Resident #164 informed Ms. Walker

that when he smoked, he went outside. He also informed her that

he was aware that he was not to smoke while on oxygen. Neither

Ms. Reed nor Ms. Walker asked Resident #164 whether he was aware

that the smoking materials were in his nightstand or if he knew

they were supposed to be at the nurses’ station or on a cart.

13. Ms. Reed then approached the team leader, Robert

Pippin, RN, regarding her concerns about Resident #164 having

smoking materials in his room. Ms. Walker and Mr. Pippin then

went to Resident #164’s room. After a brief observation,

Mr. Pippin and Ms. Reed left to call the area office for

guidance.

14. After discussions with the area office, Ms. Reed and

Mr. Pippin contacted the Director of Nursing, Bonnie Gray, and

the administrator, who did not testify, and took them to

Resident #164’s room. Ms. Gray and the administrator saw the

nightstand drawer open with the smoking materials inside. The

administrator immediately removed the cigarettes and the

lighter, while the Ms. Gray adjusted the oxygen cannula on

Resident #164, which was slightly askew.

15. The survey team then broadened their review to include

all other smokers in the building. They found one other

resident who was a smoker and on oxygen, but found no problems

regarding that resident. They also found that another smoking

resident, not on oxygen, had been once found smoking in his

room. However, because that incident had been handled

appropriately and quickly, they did not cite the facility for

any violation regarding that resident. The survey team did not

interview any other CNAs who provided care to Resident #164.

16. According to Ms. Walker, the reason for the team’s

determination to assign class I violations was that the

cigarettes and lighter were found in the nightstand drawer by

the CNA who did not immediately remove the smoking materials.

According to Mr. Pippin, the decision to call the situation an

“immediate jeopardy” came from the central office in

Tallahassee. Immediate jeopardy is a term found in federal

regulations.

17. Ms. Nancy Marsh is the field office manager for AHCA

in the Jacksonville area office, which covers Volusia County

where Respondent is located. The survey team called Ms. Marsh

during the survey visit. Based upon the information provided to

her, and after discussions with the Tallahassee office of AHCA,

a decision was made that a class I violation existed at

Woodlands. According to Ms. Marsh, it was the degree of

possible harm to Resident #164 that convinced her that a class I

situation existed.

18. Ms. Marsh based this opinion in part on her mistaken

belief that Resident #164 was continually non-compliant

regarding his smoking restrictions.

Background-Resident #164

19. Resident #164 was admitted to Woodland Terrace on

July 2, 2007. His diagnosis was end-stage chronic obstructive

pulmonary disorder (COPD). Upon admission, he was evaluated, as

are all persons admitted to the facility, by a nurse who

completed a Nursing Evaluation Tool (evaluation).

20. On this initial evaluation, Resident #164’s mental

status was described as “alert,” and demonstrated no fluctuation

in safety awareness due to cognitive decline.

21. Section “G” of the evaluation is entitled “smoking

the nurse who completed the form checked “yes” and added the

notation, “but not at the moment.” In answer to the next

question, “If yes, is he/she interested in smoking cessation

program?”, the notation appears “no, has nicotine patch.” A

nurse’s note on the date of admission noted that Resident #164

was oxygen dependent and his nicotine patch was to be ordered

only as long as he was not smoking.

22. Because Resident #164 was not smoking at the time of

admission, he was not screened for smoking under section “G.”

The evaluation form also indicates that he was given a document

entitled “Woodland Terrace Smoking Rules & Regulations,” which

was signed by Resident #164’s power of attorney in his presence.

23. Resident #164 was consistently described by staff who

worked with him as alert and oriented. He was very likeable and

known by everyone in the facility. He independently propelled

himself in his wheelchair, and was one of the few residents who

could carry on a conversation with staff. He was the only

resident who was allowed to administer his own medication (eye

drops).

24. On July 16, 2007, a Minimum Data Set (MDS) for

resident assessment and screening was completed for

Resident #164. As with the Nursing Evaluation Tool, this form

is completed by a nurse upon admission, readmission, quarterly,

or when there has been a significant change in the resident.

The MDS confirmed the initial evaluation regarding

Resident #164’s cognitive ability. That is, his long and short-

term memory was marked “OK”, he was able to recall the current

season, the location of his own room, staff names and faces, and

that he was in a nursing home. Additionally, the MDS assessment

indicates that he had no limitation in range of motion and no

loss in voluntary movement.

25. The MDS generates a trigger sheet of specific areas of

concern that are then addressed in care plans. A care plan

addresses the needs of the resident and sets out interventions

to meet those needs. A typical resident has 20-to-30 care

plans. Resident #164’s care plans were first generated on

July 16, 2007, shortly after the MDS was completed.

26. The facility had care plans for Resident #164 for,

among other things, COPD and Cognitive Loss/Dementia. The

primary problem the facility had with Resident #164 was his

noncompliance in taking oxygen. Staff observed that he

apparently believed that if he could wean himself off oxygen, he

could go home. Several staff members described him, initially

at least, to be in denial of his terminal condition.

27. Care plans are reviewed quarterly or earlier and are

updated based upon the continuing assessment of the resident.

Upon review, each care plan is not totally rewritten, but is

updated. When changes are made, the changes are noted on the

care plans. In the case of Resident #164, care plans were

reviewed and changes made on July 16 and 17, 2007, October 18,

2007, January 17, 2008, and February 27, 2008. For example, his

COPD care plan included the following as an intervention:

“encourage [Resident #164] not to smoke and do teaching with him

on benefits of not smoking.” At a later care plan review, the

notation “provide education on” was added to the previous

intervention regarding his smoking.

28. From the time Resident #164 first was admitted into

Woodland Terrace in July 2007, until approximately November

2007, he would attempt to go periods of time without his oxygen.

This created problems because his oxygen level would drop in his

blood and he would become short of breath. To address the

occasional problem of his cognition being affected by either a

drop in his oxygen level or other health issues, facility staff

and hospice frequently worked with him to educate and encourage

him to use his oxygen.

29. While he was not smoking when he was admitted into the

facility, Resident #164 started smoking again at some point. He

would take the oxygen off and go outside to smoke. Because he

had resumed smoking, his nicotine patch was discontinued by his

doctor at the facility’s request, and, later, his oxygen

was done because he had to remove the oxygen to smoke.

30. Resident #164’s resident records are replete with

notations that when he smoked, he went outside the facility.

There was no indication that he ever took his oxygen with him

when he went outside to smoke. On the contrary, most of the

notes specifically state that he left his oxygen in his room

when he went outside to smoke.

31. When Resident #164 went outside to smoke, he would

propel himself in his wheelchair and could be seen through glass

near the door by the nurses at the nursing station.

The October 31, 2007, Incident

32. At 5:30 a.m. on October 31, 2007, a CNA went into

Resident #164’s room and noticed the smell of cigarette smoke.

She notified the unit manager, an LPN, who went into the room,

smelled smoke, and saw cigarette ashes on the nightstand. The

unit manager asked Resident #164 whether he had been smoking.

He acknowledged to her that he had been smoking in his room and

showed signs that he was confused, as he thought he was in a

garage. The unit manager again explained to him the dangers of

smoking in his room and he acknowledged that he understood this.

33. An Incident Report was completed. The report does not

indicate whether Resident #164 was or was not on oxygen at the

time he was found smoking in his room. 1/

34. A morning meeting is conducted every day at 9:00 a.m.

When an Incident Report is filed, it is discussed at the next

morning meeting. The incident was discussed at the next morning

meeting. The Investigation Report form that was filled out at

that meeting notes, “Nursing to hold cig and lighter for

resident, to prevent further incident.”

35. At that time, Ms. Gray was the Assistant DON. She

called Resident #164’s power of attorney, his nephew, and

informed him that all cigarettes and lighters that he or any

visitors bring into the facility for Resident #164 were to be

delivered to the nurses’ station, not to the resident’s room.

This was important because it was well known by facility staff

that Resident #164 had friends and relatives who would bring him

cigarettes and lighters when they came to visit, or when they

took him on outings outside of the facility.

36. Resident #164’s Smoking Care Plan was reviewed to

address the incident. That care plan required that a smoking

assessment be done quarterly and as needed, that his smoking

materials be kept at the nurses’ station, not in his room or on

his person, that Resident #164 be given only one cigarette at a

time, and that a nurse light the cigarette for him, and that he

may smoke only with supervision.

37. At hearing, Ms. Walker acknowledged that Woodland

Terrace took appropriate action at that time in handling the

incident.

38. As a result of the Incident Report, a 72-Hour Incident

Follow-Up was conducted and the form completed. During that 72-

hour period, Resident #164 was closely monitored. He was not

observed smoking during that time. However, on November 1,

2007, the day following the incident, a green lighter was found

in his room and was removed by a nurse.

39. On November 2, 2007, the Nursing Standards Committee

discussed the smoking incident concerning Resident #164, and

noted it on the summary of the committee’s discussion. This was

not a notation of another smoking incident, just a

recapitulation of the events of the week. 2/

40. On November 15, 2007, Resident #164 left the facility

and went out of the facility with a friend. When he returned,

he stayed outside to smoke. Lawanda Stevens was the LPN on

duty. Ms. Stevens went outside to the smoking area to check on

him. She noticed that he had two cigarette lighters in a pack

of cigarettes. When she asked him for the lighters, he

initially refused to hand them over to her. Ms. Stevens noted

in the nurse’s notes that he had possession of the lighters.

41. When Resident #164 came inside the building,

Resident #164 voluntarily handed the lighters and his cigarettes

to Ms. Stevens. Ms. Stevens did not make a notation in the

nurse’s notes that he voluntarily gave her the lighters when he

re-entered the building, as she was going off shift and assumed

the problem was solved. Ms. Stevens told the oncoming nurse

what had happened regarding Resident #164 and the lighters.

Woodland Terrace’s Smoking Policy and Smoking Safety

Assessment

42. Both Counts I and II reference Woodland Terrace’s

“smoking policy.” Count I alleges that the facility failed to

complete a smoking assessment for Resident #164, “which was not

in keeping with the facility’s smoking policy and procedure for

residents who smoke in the facility.” Count II alleges that the

facility’s “smoking policy with Addendum A and Addendum B did

not ensure precautions for individual safety in securing smoking

items which created a fire hazard for all residents in the

facility.”

43. The Woodland Terrace Smoking Policy was given to

Resident #164 upon admission, along with the Smoking Rules and

Regulations referenced in paragraph 22 above. The Smoking

Policy states in pertinent part:

1. Smoking is prohibited in any room, ward

or compartment where flammable liquids,

combustible gases or oxygen is used or

stored and in any hazardous location.

2. Smokers who are residents must have the

smoking safety assessment completed and in

the medical record.

* * *

4. It shall be the responsibility of the

nursing staff to develop and implement a

smoking care plan for any resident that is

determined to be incapable of abiding by the

safe smoking policy. See Addendum A for

Smoking Safety Assessment.

5. All residents who smoke will sign the

smoking rules and regulations upon admission

into the facility. See Addendum B for

Smoking Rules and Regulations.

44. The Woodland Terrace Smoking Rules and Regulations

clearly state that residents who smoke may only do so in

designated areas if they are able to keep their cigarettes

safely in their possession, and may not smoke in their rooms or

in the bathrooms. The smoking rules also state that anyone who

does not abide by the rules will lose the privilege of smoking

and will be able to do so only with supervision.

45. In addition to these policies, there is a form

entitled “Smoking Safety Assessment.” According to the DON,

Ms. Gray, Woodland Terrace interprets the facility’s policy to

require a Smoking Safety Assessment to be completed when a

resident exhibits an inability to follow the smoking policy and

rules and regulations. Using the facility’s interpretation of

the policy, it was not necessary for the Smoking Safety

Assessment to be completed for Resident #164 until he began

exhibiting an inability to follow the smoking rules.

46. As discussed earlier, Resident #164 was not screened

for smoking safety upon admission to the facility under section

G of the Nursing Assessment Tool because he was not smoking at

the time of admission.

47. Following the October 31, 2007, incident, Woodland

Terrace developed a Smoking Care Plan discussed in detail above.

However, the Smoking Safety Assessment form was not completed

for Resident #164 until January 12, 2008.

48. The Smoking Safety Assessment form consists of a

scoring system, wherein a resident can score between zero and 18

points. A score of six or higher required that a resident may

only smoke with certain restrictions. Resident #164 scored 10

on the Smoking Safety Assessment.

49. As a result of this score, the Smoking Safety

Assessment noted that Resident #164 must request smoking

materials from nursing staff and must be supervised by staff, a

volunteer, or a family member at all times while smoking.

50. The restrictions noted on the Smoking Safety

Assessment Form are consistent with the more detailed smoking

care plan, as updated immediately following the October 31,

2007, incident, which required that Resident #164's smoking

materials were to be kept at the nursing station, that he would

be supervised when smoking, and that he was to receive one

cigarette at a time with a nurse lighting the cigarette.

51. There was considerable testimony from nurses on all

three shifts that Resident #164’s smoking supplies were kept on

the nurse’s medicine cart, and that he would let a nurse know

that he wanted to go outside and smoke. Once he was outside, a

nurse would light his cigarette. Often, someone would stay with

him, but, in any event, the nurses at the nursing station were

able to observe Resident #164 through the glass near the door to

the front of the building, which they could observe from the

nursing station.

52. Between October 31, 2007, and the May 2008 survey,

Resident #164 was assessed for smoking in his smoking care plan

on October 31, 2007, January 17, 2008, and again on February 27,

2008, when he was readmitted after going into the hospital. The

next quarterly smoking assessment was not due until May 27,

2008, after the survey took place.

53. Between October 31, 2007, and the survey in May 2008,

Resident #164 did not smoke in his room, consistently went

outside to smoke after a nurse got his cigarettes out of the

medicine cart and assisted him.

54. The facility staff is educated to follow a resident’s

care plan which addresses the needs of the residents and

interventions to meet those needs. Basic information and

specific care issues from the care plan are noted on Care Cards

to assist staff in remembering the needs of the residents.

Resident #164’s care card had a notation reminding staff that he

was on oxygen, that he smoked, and that the nurses kept his

smoking materials. The staff, including the CNA who failed to

remove the smoking materials from Resident #164’s drawer,

received in-service training on care cards on March 11, 2008.

The CNA who failed to remove the smoking materials also attended

another in-service training on March 20, 2008, that included

reminders to check rooms for inappropriate items.

55. Despite this training, the CNA who was in the room on

May 6, 2008, failed to remove the smoking materials. While she

did not normally work with Resident #164, she had a duty to be

familiar with the issues regarding his oxygen use, smoking and

smoking materials that were on his care plan and on his care

card. Because she failed to adequately familiarize herself with

his care plan and care card, evidenced by her failure to remove

the smoking materials, she was terminated from employment with

Woodland Terrace.

Other Fire Safety Requirements

56. As noted in paragraph 43 above, AHCA alleges that the

smoking policy did not ensure precautions for individual safety

in securing smoking items, which created a fire hazard for all

residents of the facility. Considerable evidence was presented

as to whether or not Woodland Terrace’s smoking policy met or

violated various federal regulations, as AHCA does not have

rules or its own fire safety codes regarding smoking or smoking

policies in nursing homes. 3/

57. James Gregory works for AHCA in the Office of Plans

and Construction. Mr. Gregory is an architect who manages the

activities of 46 architects, engineers, and fire protection

specialists who review and approve all of the new health care

construction in Florida having to do with hospitals, nursing

homes, and surgical centers. He also coordinates five fire

protection specialists and training for ten fire safety

inspectors who do all of the inspections of nursing homes for

certification. Mr. Gregory was tendered at his deposition,

without objection, as an expert in fire and life safety codes

concerning long-term care facilities, and is accepted as such.

58. Mr. Gregory had not visited Woodland Terrace, but

answered questions regarding the facts and circumstances

surrounding this case. In particular, Mr. Gregory focused on

the dangers of smoking in the presence of oxygen use.

59. Smoking in the presence of concentrated oxygen creates

a high probability of fire. In order for such a fire to occur,

there must be combustible materials and the ignition of those

smoking materials. Although oxygen is not combustible, it

supports combustion.

60. Mr. Gregory and Ms. Marsh were particularly sensitive

to the dangers of smoking in the presence of oxygen use because

another nursing home had experienced a fire due to a resident

smoking while using oxygen. The resident in that facility was

getting smoking materials from other residents and smoking in

his room while on oxygen, with his door closed. That facility

was not fully sprinklered and did not have smoke detectors in

residents’ rooms.

61. Woodland Terrace is a fully sprinklered building, and

its residents’ doors are not closed unless they are receiving

care in their rooms. According to Mr. Gregory, the danger of

fatality in a sprinklered facility is to the person in the room

where the fire occurs. Also according to Mr. Gregory, there has

never been a multiple death fire in a fully sprinklered health

care facility.

62. In its Life Safety Code inspection done in conjunction

with the May 2008 survey, AHCA determined that the facility was

in compliance with relevant portions of the National Fire

Protection Association’s Life Safety Code.

CONCLUSIONS OF LAW

63. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat. (2008).

64. The burden of proof in this proceeding is on the

agency. Because of the proposed penalties in the Second

Amended Administrative Complaint, the agency is required to

prove the allegations against Respondent by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern & Co ., 670 So. 2d 932 (Fla. 1996).

65. Count I of the Second Amended Administrative Complaint

alleges as follows:

On or about May 9, 2008, Woodland Terrace

Extended Care Center failed to conduct

periodically an accurate assessment for one

of 29 sampled residents, Resident #164.

The facility failed to comprehensively

assess Resident #164’s smoking needs and

behaviors which had the potential to result

in a fire hazard, putting the safety and

well-being of all facility residents in

harms way. The facility failed to complete

a smoking assessment for this resident which

was not in keeping with the facility’s

smoking policy and procedure for residents

who smoke in the facility.

Resident #164 was found smoking in their

room hooked up to the oxygen canister next

to the bed on more than one occasion per the

nurses notes and the direct care staff

interviewed. The lack of an updated

accurate comprehensive assessment that would

give the staff the interventions to prevent

a fire created Immediate Jeopardy,

endangering the health and safety of not

only Resident #164 but all residents

residing in the facility.

66. Count II of the Second Amended Administrative

Complaint alleges as follows:

On or about May 9, 2008, Woodland Terrace

Extended Care Center failed to ensure the

environment remained as free of accident

hazards as possible for 1 of 6 residents

identified as residents who smoked in the

facility. The facility failed to ensure

that Residents [sic] #164 was safe and that

the individualized plan of care, which

reflected behavior problems in relationship

to poor safety awareness and smoking in

their room, was followed. The facility

failed to include the oxygen use of this

residents [sic] while smoking as a part of

their plan of care. This use of oxygen was

observed during the survey and the staff

indicated that the resident had smoked in

their room.

The facility’s Smoking Policy with Addendum

A and Addendum B did not ensure precautions

for individual safety in securing smoking

items which created a fire hazard for all

residents in the facility.

The lack of supervision of this resident,

who was known by staff as a smoker, had been

known to have smoked in their room, and was

observed using oxygen during the survey,

places this resident and all other residents

residing in the facility in danger of

serious injury or possible death.

67. Counts I and II classified the violations as class I,

scope-widespread, and noted a correction date of June 9, 2008.

68. AHCA cites as authority for Counts I and II Section

400.23(8)(a), Florida Statutes, which defines class I

deficiencies and licensure status as a result of those

deficiencies, and cites Section 400.23(7)(b), Florida Statutes,

in Count III regarding the imposition of a conditional license.

Section 400.23, Florida Statutes, reads in pertinent part as

follows:

400.23 Rules; evaluation and deficiencies;

licensure status--

(7) The agency shall, at least every 15

months, evaluate all nursing home facilities

and make a determination as to the degree of

compliance by each licensee with the

established rules adopted under this part as

a basis for assigning a licensure status to

that facility. The agency shall base its

evaluation on the most recent inspection

report, taking into consideration findings

from other official reports, surveys,

interviews, investigations, and inspections.

. . .

(a) A standard licensure status means that

a facility has no class I or class II

deficiencies and has corrected all class III

deficiencies within the time established by

the agency.

(b) A conditional licensure status means

that a facility, due to the presence of one

or more class I or class II deficiencies, or

class III deficiencies not corrected within

the time established by the agency, is not

in substantial compliance at the time of the

survey with criteria established under this

part or with rules adopted by the agency.

. . .

* * *

(8) The agency shall adopt rules pursuant

to this part and part II of chapter 408 to

provide that, when the criteria established

under subsection (2) are not met, such

deficiencies shall be classified according

to the nature and the scope of the

deficiency. The scope shall be cited as

isolated, patterned, or widespread. An

isolated deficiency is a deficiency

affecting one or a very limited number of

residents, or involving one or a very

limited number of staff, or a situation that

occurred only occasionally or in a very

limited number of locations. A patterned

deficiency is a deficiency where more than a

very limited number of residents are

affected, or more than a very limited number

of staff are involved, or the situation has

occurred in several locations, or the same

resident or residents have been affected by

repeated occurrences of the same deficient

practice but the effect of the deficient

practice is not found to be pervasive

throughout the facility. A widespread

deficiency is a deficiency in which the

problems causing the deficiency are

pervasive in the facility or represent

systemic failure that has affected or has

the potential to affect a large portion of

the facility’s residents. The agency shall

indicate the classification on the face of

the notice of deficiencies as follows:

(a) A class I deficiency is a deficiency

that the agency determines presents a

situation in which immediate corrective

action is necessary because the facility’s

noncompliance has caused, or is likely to

cause, serious injury, harm, impairment, or

death to a resident receiving care in a

facility. The condition or practice

constituting a class I violation shall be

abated or eliminated immediately, unless a

fixed period of time, as determined by the

agency, is required for correction. A class

I deficiency is subject to a civil penalty

of $10,000 for an isolated deficiency,

$12,500 for a patterned deficiency, and

$15,000 for a widespread deficiency. . . .

A fine must be levied notwithstanding the

correction of the deficiency.

69. AHCA further cites Section 400.102(1), Florida

Statutes, as authority for Counts I and II. Section 400.102(1)

reads as follows:

Section 400.102--Action by agency against

licensee: grounds.--

In addition to the grounds listed in part II

of chapter 408, any of the following

conditions shall be grounds for action by

the agency against a licensee:

(1) An intentional or negligent act

materially affecting the health or safety of

residents of the facility.

70. AHCA also cites as authority for Count I Florida

Administrative Code Rule 59A-4.109(1), which reads as follows:

Resident Assessment and Care Plan

(1) Each resident admitted to the nursing

home facility shall have a plan of care.

The plan of care shall consist of:

(a) Physician’s orders, diagnosis, medical

history, physical exam and rehabilitative or

restorative potential.

(b) A preliminary nursing evaluation with

physician’s orders for immediate care,

completed on admission.

(c) A complete, comprehensive, accurate and

reproducible assessment of each resident’s

functional capacity which is standardized in

the facility, and is completed within 14

days of the resident’s admission to the

facility and every twelve months,

thereafter. The assessment shall be:

1. Reviewed no less than once every 3

months.

2. Reviewed promptly after a significant

change in the resident’s physical or mental

condition.

3. Reviewed as appropriate to assure the

conditioned accuracy of the assessment.

71. The Second Amended Administrative Complaint seeks to

impose a $15,000.00 administrative fine for each class I

deficiency with the scope characterized as “widespread” in both

Counts I and II.

72. Count III seeks to impose a conditional license, and a

six month survey fine of $6,000. AHCA cites as authority

Sections 400.19(3) and 400.23(7)(b), Florida Statutes,

73. Section 400.19(3), Florida Statutes, requires that a

survey be conducted every six months for the next two-year

period if the facility has been cited for a class I deficiency,

and authorizes the imposition of a fine of $6,000 for each

facility that is subject to the six-month cycle.

74. AHCA failed to prove the allegations in Count I. The

evidence established that, upon admission to the facility,

Woodland Terrace identified Resident #164 as a smoker who was

not currently smoking because he was on a nicotine patch,

appropriately assessed Resident #164 when he began smoking

again, assessed him again in a care plan after the October 31,

2007, incident, and updated that care plan quarterly as

required.

75. Woodland Terrace should have completed their Smoking

Safety Assessment Form following the October 31, 2007,

incident. However, while it did not fill out that particular

form at that time, the evidence is clear that they continually

assessed Resident #164 regarding his smoking and, therefore,

the failure of completing the form was in the nature of a

documentation error. Woodland Terrace did what it was required

to do to assess Resident #164 for his safety and the safety of

the other residents.

76. Moreover, the evidence is clear that the allegation in

Count I that Resident #164 was found smoking in his room while

hooked up to the oxygen canister next to his bed on more than

one occasion, is simply not correct and not supported by the

evidence. First, the evidence showed that he smoked in his

room once. There was no evidence to establish that he was on

oxygen the one time he smoked in his room. To the contrary,

AHCA conceded that he must not have been on oxygen at the time

of the incident because he was still alive during the survey.

77. An analysis of Count II requires examining each

paragraph of the allegations contained therein, as the

allegations are not numbered.

78. Regarding the first sentence of the first paragraph,

despite all of Respondent’s efforts, the CNA’s failure to

remove the smoking materials in May 2008 did not ensure that

the environment remained free of accident hazards for

Resident #164. Thus, AHCA proved the allegation in the first

sentence of the first paragraph of Count II.

79. As to the second sentence, AHCA failed to prove that

the facility failed to include oxygen use of Resident #164 in

his plan of care.

80. As to the second paragraph, AHCA failed to prove that

the facility’s smoking policy did not ensure precautions for

individual safety in securing smoking items thereby creating a

fire hazard for all residents of the facility.

81. In its Proposed Recommended Order, AHCA cited as

authority Florida Administrative Code Rule 59A-4.130, which

deals with fire prevention, fire protection, and life safety in

the construction of nursing homes. This rule was also

referenced by Mr. Gregory in his deposition. However, the

Second Amended Administrative Complaint does not cite this rule

and, therefore, does not put Respondent on notice of any

alleged violation of same. See Travisani v. Department of

Health , 908 So. 2d, 1108 (Fla. 1st DCA 2005), and Ghani v.

Department of Health , 714 So. 2d 1113 (Fla. 1st DCA 1998).

82. While AHCA proved a deficiency as alleged in the first

sentence of the first paragraph, it did not prove that “the

facility’s noncompliance has caused, or is likely to cause,

serious injury, harm, impairment, or death to a resident

receiving care in the facility.” More than six months had

elapsed between the one smoking incident and the survey, at

which time smoking materials were found in Resident #164’s

nightstand. All indications were that Resident #164 understood

that he had to go outside the facility to smoke and, indeed, he

did so consistently since the October 31, 2007 incident.

Accordingly, applying the statutory definition, the deficiency

does not rise to a class I deficiency as defined in Section

400.23(8)(a), Florida Statutes. No other deficiency class was

alleged in the Second Amended Administrative Complaint.

83. The third paragraph of Count II goes primarily to the

scope of the deficiency. AHCA characterized the scope of the

deficiency as widespread. The evidence does not support this

conclusion. The smoking materials located in Resident #164’s

nightstand had the potential to cause serious injury to

Resident #164. However, because the facility is fully

sprinklered, the potential danger was to him, not to the other

residents.

84. Applying the definitions found in Section 400.23(8),

Florida Statutes, AHCA proved that the deficiency, which is of

a level below class I, was within the scope of “isolated,” as

defined in Section 400.23(8), Florida Statutes.

85. In light of the disposition of Count II of the Second

Amended Administrative Complaint, the $6,000 survey fee sought

by AHCA to be imposed pursuant to Section 400.19(3), Florida

Statutes, is not appropriate, as a class I deficiency was not

established by the evidence.

86. Finally, AHCA seeks to impose a conditional status to

states that a conditional license is appropriate “due to the

presence of one or more class I or class II deficiencies. . . .

is not in substantial compliance at the time of the survey.”

87. A class I deficiency was alleged and not established.

No other deficiency class was alleged, and the undersigned is

not inclined to assign one not alleged by the agency which has

the burden of proof in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Agency for Health Care Administration enter a

final order dismissing the Second Amended Administrative

Complaint against Respondent, Woodland Terrace.

DONE AND ENTERED this 28th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of April, 2009.

ENDNOTES

1/ AHCA's Field Office Manager, Ms. Marsh, assumed that

Resident #164 was not on oxygen at the time of the October 31,

2007, incident, “because he was still with us at the survey.”

2/ However, AHCA, in reaching its conclusions which resulted in

the Administrative Complaint in this matter, considered this to

be a separate incident of Resident #164 smoking in his room.

3/ This evidence will be discussed only in the context of the

statutory and rule authority cited in the Second Amended

Administrative Complaint, which did not allege any violation of

federal regulations or state rules specifically regarding fire or

smoking safety.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Mail Station 3

Tallahassee, Florida 32308

Theodore E. Mack, Esquire

Powell & Mack

803 North Calhoun Street

Tallahassee, Florida 32303

Justin Senior, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

Holly Benson, Secretary

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building 3, Suite 3116

Tallahassee, Florida 32308-5403

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 should be filed with the agency that will

issue the final order in this case.