09-003159 Agency For Health Care Administration vs. Northpointe Retirement Community, Inc., D/B/A Northpointe Retirement Community Status: Closed Recommended Order on Friday, January 29, 2010.

Summary: Petitioner proved four of five charged Class I deficiencies, resulting in resident's fall and death. Recommend $35,000 in fines and withhold revocation by instituting strict quarterly corrective plans and agency surveys, for benefit of other residents.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 09-3159

)

NORTHPOINTE RETIREMENT COMMUNITY, INC., d/b/a )

NORTHPOINTE RETIREMENT )

COMMUNITY, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to proper notice this matter came on for formal

proceeding and hearing before P. Michael Ruff, duly-designated

Administrative Law Judge of the Division of Administrative

Hearings. The hearing was conducted in Pensacola, Florida, on

September 10, 11, 30, and October 21, 2009. The appearances

were as follows:

APPEARANCES

For Petitioner: Richard Joseph Saliba, Esquire

Mark H. Hinely, Esquire

Agency for Health Care Administration

Fort Know Building 3

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

For Respondent: Kerry Anne Schultz, Esquire

Fountain, Schultz & Associates, P.L.

2045 Fountain Professional Court, Suite A

Navarre, Florida 32566

STATEMENT OF THE ISSUE

The issues to be resolved in this proceeding concern

whether Northpointe Retirement, Inc., d/b/a Northpointe

Retirement Community (Respondent) (Northpointe) has committed

five "Class I" deficiencies, pursuant to the statutes and rules

referenced herein, regarding circumstances surrounding the death

of "Resident No. 1" and whether Northpointe should be required

to pay an administrative fine totaling $50,000.00 and have its

license revoked.

PRELIMINARY STATEMENT

This matter arose upon the filing of an Administrative

Complaint on July 11, 2009, by the Petitioner Agency for Health

Care Administration (Petitioner) or (Agency), whereby it seeks

to impose administrative fines and to revoke the license of the

Respondent's assisted living facility (ALF). The Amended

Complaint herein was filed July 27, 2009. The case was set for

hearing for August 17, 2009, but was continued by agreement of

the parties. It was scheduled for hearing again on

September 10, 2009, and the hearing commenced on that date. The

hearing continued on to September 11, September 30, and

concluded on October 21, 2009.

The matter came on for hearing as noticed over a period of

four days. The Petitioner presented eight witnesses and the

Respondent presented eleven witnesses, as are named in the

Transcript of the proceeding. Additionally, each party

presented its exhibits in bound notebooks and the exhibits

admitted into evidence are reflected in the court reporter's

official Transcript. Additionally, the video-taped deposition

of Dr. Jack Abramson was presented and admitted into evidence by

the Petitioner. For the Respondent, the video-taped deposition

of Carol Mulloy, the granddaughter and attorney-in-fact for

Resident No. 1 was offered and admitted into evidence for

consideration by the undersigned.

The parties elected to obtain a transcript of the

proceeding, which was filed on November 10, 2009. They also

requested an extended period of 30 days to submit proposed

recommended orders. The Proposed Recommended Orders were

therefore timely submitted on or before December 11, 2009. The

Proposed Recommended Orders have been considered in the

rendition of this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Northpointe, operates an ALF consisting

of two buildings in Pensacola, Florida. The care provided to

the residents by the Respondent is primarily custodial in nature

and includes assisting with activities of daily living such as

bathing, dressing, grooming, and the feeding of residents. The

Respondent is largely reliant on the health assessment and

orders provided by a resident's physician. Decisions regarding

healthcare diagnosis and treatment are made by physicians and

other healthcare professionals, outside of the Respondent's

facility.

2. Resident No. 1 arrived at the Respondent's facility in

March of 2008. She was an 88-year-old female, with some chronic

medical conditions such as hypertension, hypothyroidism, and

arthritis. She had a habit of staying awake at night and

sleeping during the day. She was a vegetarian, with food

allergies, so she would rarely take meals in the dining room and

preferred to prepare her own food and eat in her room.

3. The resident's healthcare provider at the time she came

to the Respondent's facility was James Chaney, an Advanced

Registered Nurse Practioner (ARNP) under the supervision of

Dr. Gotthellf, MD. Dr. Mikhchi, the administrator of the

Respondent and Sara Hines, the assistant administrator, stated

that Resident No. 1 came to the Respondent's facility because

she needed additional assistance with activities of daily

living.

4. James Chaney completed a "form 1823 assessment" of

Resident No. 1 upon her arrival at the Respondent's facility.

5. In March of 2008, Resident No. 1 was taking two

medications for blood pressure, as well as aspirin, a thyroid

supplement, and Prozac for depression. James Chaney first

examined her at the Respondent's facility on March 28, 2008.

Resident No. 1 regained her independence in terms of taking care

of herself and her activities of daily living, within weeks of

her arrival at the Respondent's facility. James Chaney next

examined her at the Respondent's facility on April 23, 2008. At

that time he communicated with the Respondent's staff regarding

Resident No. 1. He noted that Resident No. 1 was doing well and

adjusting well to her move to the Respondent's facility.

6. James Chaney examined Resident No. 1 at the

Respondent's facility essentially once a month over the ensuing

months, until November 2008. He noted generally, during those

visits, that Resident No. 1 was doing well, aside from having

elevated blood pressure.

7. Mr. Chaney examined the Resident at the Respondent's

facility on October 14, 2008. He communicated with the

Respondent's staff at the facility regarding Resident No. 1 at

that time. He noted that she was well-dressed and pleasant, as

usual, and noted that she had a high functional level.

8. James Chaney next examined Resident No. 1 on

November 11, 2008, at the Respondent's facility. He

communicated with his staff at that time regarding Resident No.

1 and noted that there were no unusual occurrences. Resident

No. 1 was continuing to do well and was maintaining a good level

of independence, according to Mr. Chaney. He did not feel the

need to change her medication at that time.

9. On or about November 18, 2008, Sara Hines, the

Assistant Administrator, had a conversation with Resident No.

1's granddaughter. She then learned that Resident No. 1 had

hallucinations. This apparently involved Resident No. 1's

coming out of her room several times saying that the "little boy

next door" was crying because his father was trying to kill him

or else that someone next door was being killed. On November

19th she was observed to be roaming the halls and yelling that a

man was beating a child. Dr. Mikhachi testified that a meeting

was held between he, Sara Hines, and Dr. Christina Mikhchi as a

result of his learning of Resident No. 1's hallucinations.

James Chaney or his office was apparently contacted by the

Respondent's staff on or about November 21, 2008, and he replied

that he would be out to see Resident No. 1 on November 24, 2008.

Dr. Mikhachi directed the staff at the Respondent's facility to

increase supervision of Resident No. 1, should she experience

another hallucination, by making attempts to calm her, take her

back to her room to talk about her family photographs, which she

enjoyed doing. He directed them to get her involved in tasks

she enjoyed, such as folding clothes or serving ice tea in the

dining room to other residents; or to take her to visit a friend

at the facility and to call her granddaughter.

10. Mr. Chaney examined Resident No. 1 at the Respondent's

facility on November 24, 2008. He indicated that the staff had

informed him that Resident No. 1 had hallucinations. He

conducted the examination because of the staff's request.

Delusions are a significant change in status of the resident.

Resident No. 1's mental status had changed significantly between

Mr. Chaney's November 11, 2008, visit and his November 24, 2008,

visit.

11. On December 3, 2008, Resident No. 1 was again having

hallucinations and called the emergency 911 number. She

summoned Sheriff's deputies to the Respondent's facility and her

room by acting on her delusion or hallucination concerning

children being beaten or killed. A CNA note for that occasion

reflects the incident, but Mr. Chaney was not told, and no call

was made to him or his office. This was a significant change

once again, because now Resident No. 1 was acting out on her

hallucinations.

12. The CNA note for December 6, 2008, indicates that

Resident No. 1 was "wandering like crazy," "very hard to keep up

with," "going out the door so many times." Mr. Chaney testified

that he felt the behavior amounted to "exit seeking" or seeking

to leave the facility. This was important for him to know and

seemed to be a change in behavior, in terms of increased

agitation and excitability on the part of Resident No. 1.

Mr. Chaney's notes from that December 9, 2008, visit do not

indicate that he was then aware of "exit seeking" behavior.

Mr. Chaney said he would have recommended more frequent

monitoring if he had known. He would have told the staff that

Resident No. 1 was a high risk for that type of behavior if he

had known about it.

13. A significant change was noted on Mr. Chaney's

December 9, 2008, visit, when he diagnosed Resident No. 1 with

"agitation" for the first time. He felt she had an escalation

in her symptoms and ordered a psychological evaluation. She was

starting an atypical, anti-psychotic medication, Risperdal,

coupled with a decrease in the amount of Prozac she was being

prescribed. He therefore felt he needed an expert evaluation.

14. Mr. Chaney's next visit was on December 14, 2008.

During that visit he was not told about an incident that

occurred on December 12, 2008, in which Resident No. 1 was

observed walking out the front door while talking about

"killings" occurring, apparently a recurrence of the

hallucination about persons or children being murdered. Another

nurse or CNA note for that day stated that Resident No. 1 was

wandering around outside of her room carrying a blanket and

trying to enter another resident's room with the blanket,

because she believed it was her granddaughter's room.

Mr. Chaney was not told of these incidents. If he had been told

of them he would have recommended increased monitoring and

supervision of Resident No. 1. On December 14, 2008, at his

visit to the Respondent's facility and Resident No. 1, he noted

a significant decline in her status as to dementia and delirium,

agitation, and hallucinations.

15. After Mr. Chaney left the facility on December 14,

2008, Resident No. 1 suffered a fall. Mr. Chaney was not

immediately informed of it by the Respondent. Resident No. 1

was transported to the emergency room at the hospital by

ambulance because of confusion, irritation, hallucination, and

falling. Mr. Chaney was not informed by the Respondent

concerning the circumstances surrounding the fall. Resident No.

1 was diagnosed at the hospital with a urinary tract infection.

She was given Bactrim, an antibiotic, and discharged back to the

Respondent's facility. The fall and the urinary tract infection

constituted a significant change in Resident No. 1's condition.

16. Mr. Chaney, as her medical provider was not called by

the Respondent. Rather he found out about that situation a day

or so after the diagnosis was made as to the urinary tract

infection. He learned of the fall by reading the Adverse

Incident Report prepared by the Respondent, but was not made

aware of the particular circumstances surrounding Resident No.

1's fall. It was important for Mr. Chaney to have been informed

of the urinary tract infection because it could have affected

the resident's treatment regimen. Urinary tract infections in

elderly people can result in symptoms indicating delirium.

17. If Resident No. 1 made statements regarding suicidal

ideation, such as that "voices were telling her to jump out of a

window," it would be important for Mr. Chaney and his

supervising physician to know because she should then have been

transported for an inpatient psychiatric evaluation as soon as

the statements were made. However, it has not been proven by

persuasive evidence that she made such statements. The

testimony in this regard was by Ms. Endress, the surveyor, who

based her testimony about the statements on her interview with

Brenda Wilson. Brenda Wilson, however, recanted her statements

to Ms. Endress to that effect, in her testimony at hearing,

saying essentially that she had felt intimidated during her

interview with Ms. Endress during Ms. Endress' survey. Brenda

Wilson, in her testimony, denied that Resident No. 1 had made

such statements involving self-harm. Brenda Golden testified

that Brenda Wilson had told her, after the interview, that she

had basically told Ms. Endress what she wanted to hear. It was

thus not persuasively established that the suicidal statements

at issue were actually made.

18. Mr. Chaney diagnosed Resident No. 1 with agitation,

depression, hallucinations, and dementia. Those diagnoses show

that Resident No. 1 was in a circumstance where she could change

for the worse quickly. It was thus important for the facility

to contact Mr. Chaney immediately following significant changes

in condition, in order for him to provide appropriate care.

19. Brenda Wilson is an employee of the Respondent and

provided direct care to Resident No. 1 in the course of her

employment. She observed Resident No. 1 hallucinating,

concerning hearing voices about a man beating two screaming

children. She had observed Resident No. 1 walking down the hall

to other resident rooms and stating that a man was beating

children inside the room.

20. Ms. Wilson was on duty on the night of December 23,

2008, until the morning of December 24, 2008. She provided care

for Resident No. 1 during that time. She observed that Resident

No. 1 became agitated that night, walking out of her room and

down the hall, putting her head up to other resident's doors

trying to find the voices she was apparently "hearing." Ms.

Wilson called Sara Hines, the assistant administrator, and told

her that Resident No. 1 was a little agitated, but more

importantly she was talking very loud.

21. Resident No. 1 was more agitated than normal on that

morning which is why Ms. Wilson called Ms. Hines. Ms. Wilson

indicated to Ms. Hines that she was unable to care for all the

residents under her supervision on the morning of December 24th,

because Resident No. 1 was following her to other resident

rooms. Ms. Hines told Ms. Wilson to stay with Resident No. 1

and watch her closely.

22. Brenda Golden is a Med Tech Manager for Northpointe.

She was so employed during the entirety of 2008 and is a member

of the Respondent's management. She provided care for Resident

No. 1 as well. She had observed Resident No. 1 hallucinating.

On the morning of December 24, 2008, she was working in the

Westpointe building next door. It is part of the same facility,

but a separate building. Around 6:30 a.m. the administrator

informed her that something was wrong with Resident No. 1 and

asked her to check on Resident No. 1 right away. The

administrator did not tell her that Resident No. 1 was agitated.

23. Ms. Golden went to check on Resident No. 1 in her room

and saw that the screen on the window was torn. When she went

over to the screen and looked out she saw Resident No. 1 lying

on the ground below. Ms. Golden stated that Resident No. 1 told

her, when she went down to assist her, that she had jumped out

of the window because the "voices" had told her to do so.

Ms. Golden also heard Resident No. 1 tell the paramedics who

were summoned, that voices had told her to jump. Ms. Wilson was

not in Resident No. 1's room when Resident No. 1 jumped out of

the window.

24. Resident No. 1 was conscious and appeared lucid when

the paramedics arrived. She did not appear to have any broken

bones. She was transported to the hospital, but later that

morning or that day declined precipitously and died.

25. Sara Hines was the assistant administrator in 2008.

She was aware of the hallucinations and that they had gotten

more intense in December of 2008. After Ms. Hines spoke with

Ms. Wilson on the morning of December 24th she waited

approximately 25 minutes to speak to the administrator about

Resident No. 1's condition that morning. She did not contact

Resident No. 1's health care provider after speaking with

Ms. Wilson and the administrator. After Resident No. 1's fall

that day she completed the adverse incident report and stated

that Resident No. 1 had jumped from the window because of

voices.

26. Ms. Hines did not make any determinations to increase

supervision of the resident after finding out about the

scheduled psychiatric evaluation which Mr. Chaney and the

resident's family had scheduled. The administrator did not make

any changes in the resident's supervision based on that

information either.

27. Rebecca Yokom is an employee with Northpointe who

provided care to Resident No. 1 during 2008. She observed

Resident No. 1 hallucinate approximately six times that year.

None of the other residents she cared for hallucinated.

28. Mohamad Mikhici is the owner and administrator for

Northpointe. He acknowledged that Resident No. 1 was re-located

from the Westpointe Assisted Living Facility to the Northpointe

because she had fallen several times.

29. After the hallucinatory episodes began, on

November 18, 2008, the administrator told Resident No. 1's

granddaughter that, if the frequency and intensity of

hallucinations continued, Resident No. 1 would not be

appropriately placed in the facility. He was told by Ms. Hines,

his assistant, that Resident No. 1 was still hallucinating from

December 16th through December 22, 2008. Obviously she also

hallucinated on December 3 and 12; as well as on the nights of

December 23-24, 2008, based upon the above findings.

30. The administrator, Dr. Mikhici, did not communicate

with the Sheriff's Department on December 3, 2008, when deputies

were mistakenly summoned to the facility because Resident No. 1

had called 911, as prompted by her hallucination at the time.

The administrator acknowledged that the only intervention they

initiated as a result of the that incident was to remove the

phone from the resident's room.

31. The administrator acknowledged that he knew he had

authority to increase monitoring and supervision of Resident No.

1. He acknowledged that he did not personally read the CNA log

nor did he regularly review Resident No. 1's records. He relied

on his staff to do so.

32. Dr. I. Jack Abramson holds medical licenses in a

number of states including Florida. He completed a residency in

psychiatry at Beth Israel Hospital and at Harvard Medical

School. He holds sub-specialty certifications in geriatric

psychiatry, as well as forensic and addiction psychiatry. The

parties stipulated to his expertise and the introduction of his

video-taped deposition into evidence. Dr. Abramson reviewed the

documents, including survey documents, statements of

deficiencies, hospital records, staff sheets and the facility

records for Resident No. l, all of which were stipulated into

evidence by the parties and attached and incorporated into his

deposition.

33. Dr. Abramson opined that Resident No. 1 was impaired

by delusional thinking, paranoid ideations and hallucinations.

This produced a great deal of psychic turmoil inside her,

ultimately resulting in her jumping from the window on

December 24, 2008. She was significantly impaired in the last

month of her residence and not functioning independently while

residing at an ALF which was unable to adequately provide care

needed for her safety and security. She was actively psychotic

and delusional thinking influenced her behavior. She was unable

to control her behaviors at various points in time after the

middle of November 2008.

34. Based upon the facts found above concerning her

delusions and hallucinations, there was a period of a month to

five weeks where the hallucinations manifested themselves in a

sufficiently pronounced way to provide adequate warning to the

facility that her mental status was deteriorating. There were

many opportunities to observe decline in her functioning and

then the fall occurred on December 14, 2008, which is a proto-

typical decline in function in terms of the evaluation and

treatment of geriatric patients. With the hallucinations and

confusion around the beginning of December, with Resident No. 1

yelling about a little boy being murdered, or someone being

murdered in the room next to hers; with the evidence concerning

her going into other rooms to look for her granddaughter, who

she believed was in some sort of distress, and the other aspects

of the hallucinatory episodes, Resident No. 1 was inappropriate

for placement in a ALF environment, at least after late November

or early December 2008.

35. That portion of Dr. Abramson's opinion concerning

suicidal threats, leading to his opinion that arranging for

involuntary examination might have been appropriate, is not

accepted. This is because the evidence does not persuasively

show that she actually made suicidal threats.

36. Dr. Abramson also believed that there was no evidence

of any record of communication between the facility and the

physician (or Mr. Chaney the ARNP). This is only partly true.

There was insufficient communication, as shown by the above

findings of fact, but there was not an absolute dearth of such

communication.

37. Dr. Abramson found and opined that Resident No. 1 was

not functioning independently, was unable to care for her own

needs of daily living, based upon cognitive difficulties, her

delusional state and delirium. These factors, taken together,

would have required her to be transferred to a more appropriate

facility, according to Dr. Abramson. Thus he believes discharge

of Resident No. 1 to another more appropriate skilled nursing

facility was appropriate because of her delusional and

hallucinatory state. He believes that she was a candidate for

24-hour supervision by mid-December 2008.

38. Dr. Abramson opined that within a reasonable degree of

psychiatric probability, injury or death was preventable. Had

Resident No. 1 been sent to a more secure skilled facility, she

would have been under closer supervision and would not have been

able to act in the way she did. An earlier intervention with

her delusions and hallucinations might have calmed them

adequately or put them into remission, so that she wouldn't have

felt the need to escape from those delusions.

39. She thus became a danger to herself by mid-December,

based upon her inability to adequately care for her needs and

her cognitive and perceptional impairments by the time she had

the urinary tract infection on December 14, 2008. She was also

clearly a danger to herself on December 23 and 24, 2008, based

upon the above facts even without making suicidal threats. Her

injury or death would have been preventable if her care in a

more structured, supervised setting had been arranged, and

possibly had psychiatric consultation been arranged at an

earlier date. It is true that Mr. Chaney and the family, on

December 9, 2008, scheduled a psychiatric evaluation and the

Respondent was informed of that. The evaluation, however, was

not scheduled until early in January 2009.

40. The Respondent could have arranged for Resident No. 1

to be placed in a more skilled facility, such as a nursing home

facility while psychiatric treatment was implemented or

alternatively by at least providing a higher level of

supervision, such as constant supervision, until a placement

decision and psychiatric evaluation could be completed. The

failure to accomplish a higher level, protected supervision

regime, or to transfer Resident No. 1 to a higher skilled

facility, as well as the inadequate communication with the

treating physician and his staff, contributed to the injury and

death to Resident No. 1.

41. Thus, while the specifics of Resident No. 1's death by

jumping out of a window, or suicide, might not have been

foreseeable, it was foreseeable, based upon the opinion of

Dr. Abramson, that she was placed in a situation where serious

injury could occur. Dr. Abramson's opinion that the death of

Resident No. 1 was preventable and that to a great extent

Resident No. 1's actions and behaviors were foreseeable and

could have been avoided, with the added interventions referenced

above, is deemed credible, persuasive, and is accepted.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

43. The Petitioner alleges, as to Count I of the

Administrative Complaint, that the administrator failed to

properly monitor Resident No. 1 to determine if continued

appropropriate placement should be in the Respondent's facility,

rather than a higher level of care facility, such as a skilled

nursing home, citing Section 429.26(1), Florida Statutes (2008),

and Florida Administrative Code Rule 58A-5.0181(1) and (4). The

Petitioner maintains that this failure to monitor, and determine

the appropriateness of continued placement. resulted in Resident

No. 1's jumping out of the second story window, which

the Petitioner maintains constituted a Class I deficiency,

pursuant to Section 429.19(2)(a), Florida Statutes (2008).

44. Resident No. 1 had multiple instances of

hallucinations and confused unstable behavior based on those

hallucinations, beginning November 18, 2008. That situation

became more severe in early December, such that on December 9,

2008, Mr. Chaney the ARNT recommended, and he and the family

obtained an appointment for a psychiatric evaluation, to be

accomplished in early January 2009.

45. The administrator cautioned Resident No. 1's

granddaughter in late November 2008, that if the resident's

behavior did not correct itself or improve, concerning the

hallucinations and related behavior, the resident might no

longer be appropriately placed in the Respondent's facility.

Documentation of the Respondent, specifically the CNA notes for

the months of November and December, 2008 show that, starting in

late November, Resident No. 1 had multiple instances of

hallucinations and mentally unstable behavior based on the

hallucinations.

46. The Petitioner maintains that the testimony of Marlene

Hunter, the administrator, Mohammad Mikhici; Dr. Jack Abramson

and Barbara Alford; and the purported lack of documentation in

the record regarding monitoring Resident No. 1, shows that the

monitoring was deficient as to the question of appropriateness

of continued residency of Resident No. 1 at the Respondent's

facility. See § 429.26(1), Fla. Stat. (2008), and Fla. Admin.

Code R. 58A-5.0181(1) and (4). The monitoring requirement in

Section 429.26(1), Florida Statutes (2008), is based on the

resident's specific needs. Resident No. 1 had significant

monitoring needs because of the fact that she was hallucinating

and in early December started acting on those hallucinations.

She was on anti-psychotic medication and, as of December 9,

2008, was scheduled for a psychiatric consultation.

47. The administrator demonstrated that he was aware of

monitoring requirements for purposes of determining continued

appropriateness of placement, as shown by his admonition to

Resident No. 1's granddaughter, in late November, that if the

hallucinatory behavior continued then the resident may have to

be placed in a more skilled care facility. The Petitioner

demonstrated, however, that the administrator failed to monitor

the resident closely enough by observing the resident and

adequately consulting with the resident's health care provider

concerning this question. The resident's particular needs

demanded that he do so, as shown by the above-found facts

concerning the progression of the resident's aberrant behavior.

As shown by Dr. Abramson's testimony the failure to monitor the

resident for continued appropriate placement resulted in

Resident No. 1 remaining placed at the facility through

December 24, the day she died.

48. The direct cause of the death of Resident No. 1 was

her hallucinations, prompting her to jump out of the window when

no staff member was present in the room to stop her. However,

the failure of the administrator to monitor her continued

placement at the facility had an indirect effect simply because

it likely caused her to remain at the facility long enough for

this to occur. This constituted a Class I deficiency, pursuant

to Section 429.19(2)(a), Florida Statutes (2008).

Count II

49. The Petitioner maintains that the Respondent failed to

ensure that Resident No. 1 received adequate care, in violation

of Florida Administrative Code Rule 58A-5.019(1), by failing to

initiate proceedings pursuant to the Baker Act, Section

394.463(1), Florida Statutes (2008). The Petitioner contends

that this resulted in the resident's jumping out of the second

story window and dying shortly thereafter. It is alleged that

this failure constituted a Class I deficiency, pursuant to

Section 429.19(2)(a), Florida Statutes (2008).

50. It is true that Resident No. 1 hallucinated, and acted

on the hallucination, in terms of wandering to other residents'

rooms, verbalizing her delusional ideas, and ultimately jumping

from the window because of hallucinations. She was diagnosed by

the health care provider with delirium, agitation, and dementia

and had been prescribed Prozac and, more recently, Risperdal, an

anti-psychotic. As of December 9, 2008, Mr. Chaney had

scheduled her for a psychological evaluation. Mr. Chaney's

testimony, which is accepted, indicates that he did not believe

that an involuntary mental illness examination, pursuant to the

Baker Act, was necessary. This was because of his diagnosis,

the scheduling of the psychological evaluation, and the lack of

indication of threats of self-harm by the resident.

51. In light of the above findings of fact concerning

Brenda Wilson and Norma Endress, and their interview during the

investigation, it has not been established by preponderant,

persuasive evidence that Resident No. 1 actually made threats of

self-harm in the nature of wanting to kill herself. The

testimony of Barbara Alford, Marlene Hunter, and Dr. Abramson,

as well as Norma Endress concerning the resident's purported

threats of self-harm, were all based upon the version of events

described by Brenda Wilson in the interview with Norma Endress.

That was later recanted, and in the above Findings of Fact show

that there is no persuasive, substantial evidence that the self-

harm threats were actually made.

52. In any event, the question only arose on the last

night or morning of the resident's life, shortly before she

jumped from the window. It is noteworthy that under the

pressure of events at that time, it is understandable that a

report to the health care provider, concerning the threats,

would not have been made early on the morning of December 24,

2008, because of the immediate emergency concerning the

resident.

53. In summary, it has not been proven that the resident

had become the apparent danger to herself that the Respondent

should have seen or foreseen, in terms of threatened self-harm.

Therefore, the Respondent should not be held to the standard of

having to seek an involuntary examination. Therefore, Count II

of the Administrative Complaint has not been established as a

violation of Florida Administrative Code Rule 58A-5.019(1).

Therefore, as to this count, there was not a Class I deficiency,

as envisioned in Section 429.19(2)(a), Florida Statutes (2008).

Count III

54. Concerning Count III, the persuasive evidence

establishes that the Respondent failed to notify the resident's

healthcare provider of certain changes and conditions (although

it did so as to some). It failed to adequately document contact

with the healthcare provider. It is determined that significant

changes were documented in the CNA notes. Nonetheless, the

failure to consistently and timely notify the healthcare

provider of significant changes and conditions is a violation of

Florida Administrative Code Rule 58A-5.0185(4)(b).

55. Witness Alford for the Petitioner noticed some pattern

of failing to contact the healthcare provider of the resident

concerning some significant changes, although some, as

delineated in the above Findings of Fact, were notified to the

healthcare provider. The first hallucinatory incident of

November 18 and 19, 2008, were timely reported to Mr. Chaney.

According to witness Alford, the primary healthcare provider

should be notified of such changes within a 24-hour period or a

resident can be placed at a continued risk.

56. Mr. Chaney established that he was not made aware of

some significant changes in Resident No. 1's behavior and

condition and the failure had an effect on his assessments of

the resident. The administrator Dr. Mikhici admitted that he

had not personally contacted the healthcare provider regarding

significant changes, although it was his position that his staff

had done so, or that he relied on them to do so.

57. The above Findings of Fact, based upon the persuasive

evidence, show that the Respondent was repeatedly deficient in

adequately reporting to the healthcare provider regarding

significant changes in Resident No. 1's condition and behavior.

That failure to adequately report affected the type and quality

of care the resident received because it likely delayed or

prevented the ordering by the physician of enhanced supervision

of the resident. This would tend to place the resident at a

heightened risk for injury or death. The failure to adequately

report significant changes in the resident's condition and

behavior was a violation of Florida Administrative Code Rules

Mr. Chaney and Dr. Abramson shows that a failure to adequately

communicate significant changes in condition, and to adequately

document such changes and contacts, would limit the ability of

the healthcare provider to provide adequate care, at least in

terms of recommending enhanced supervision of the resident. It

would place the resident in imminent danger, which constitutes a

Class I deficiency, pursuant to Section 429.19(2)(a), Florida

Statutes (2008).

Count IV

58. The evidence, culminating in the above Findings of

Fact, establishes that the Respondent violated Florida

Administrative Code Rule 58A-5.0182(1)(b) by failing to provide

adequate supervision for Resident No. 1. This constituted a

Class I deficiency.

59. Mr. Chaney would have ordered more monitoring and

supervision of Resident No. 1 if he had known about some of the

behaviors which were not reported to him. The resident had

greater supervision needs than the typical ALF resident.

Despite the Resident's condition, the hallucinatory behavior and

the attendant appointment for a psychological consult after

December 9, 2008, the assistant administrator, Ms. Hines, did

not make any determination about increasing supervision of the

resident. The administrator did not make any such changes to

the supervision regime, based upon the condition of Resident No.

1 and the scheduling of a psychological evaluation for her.

60. Resident No. 1's condition, on December 24, 2008, was

reported by Brenda Wilson to management. Her past behavior was

known to the staff and management. However, neither Brenda

Wilson, whose shift was just ending at 7:00 a.m. nor Rebecca

Yokom who was coming on duty at that time, and responsible for

caring for Resident No. 1 that morning, was in the resident's

room when the resident jumped out of the window. Someone should

have been present to supervise her.

61. The Respondent failed to ensure the resident's safety

and health when it failed to provide a higher level of

supervision for the resident. The Respondent was thus negligent

and the negligence resulted in imminent danger of injury or

death to the resident.

62. Florida Administrative Code Rule 58A-5.0182(1)(b)

requires ALF's to provide supervision appropriate for each

resident. The Respondent failed to provide supervision that was

necessary for Resident No. 1's heightened needs, and the failure

to do so resulted in an immediate risk and potential for injury

or death. It constituted a Class I deficiency, pursuant to

Section 429.19(2)(a), Florida Statutes (2008).

Count V

63. Florida Administrative Code Rule 58A-5.0181(5)

provides that a resident should be discharged if the resident's

needs can no longer be met under the criteria for assisted

living facility residence. The persuasive, substantial evidence

and the above Findings of Fact show that, at least as of

December 3, 2008, when Resident No. 1 acted on her

hallucinations and made the call to the 911 number which

ultimately summoned Sheriff's deputies; that the Respondent knew

or should have known that her placement in the ALF facility of

the Respondent was no longer appropriate. While it is true that

it may take some extended period of time to secure a placement

in a skilled nursing facility or other appropriate facility, the

Respondent, under the above-found facts, should have initiated

steps to secure a change of her placement. The resident was not

independently functioning, required skilled observation and

likely required skilled nursing observation because of her

delusional and hallucinatory state. These required more

intensive services than could have been provided at Northpointe.

64. The administrator himself had warned the resident's

granddaughter, after the November 18 and 19 hallucinatory

incidents, that there was a possibility that she would have to

be discharged to another facility, if the behavior did not

alleviate. Therefore, he was aware of the need to consider

transferring the resident to another facility such as a skilled

nursing facility. The Respondent simply failed to act quickly

enough on this issue. The Respondent, in light of the above

Findings of Fact, violated Rule 58A-5.0181(5), by failing to

discharge Resident No. 1 when her needs exceeded the

capabilities of the Respondent's facility and when she no longer

met the criteria for assisted living facility residence. She

was thus placed in imminent danger due to a lack of adequate

supervision, which constituted a Class I deficiency, for

purposes of Section 429.19(2)(a), Florida Statutes (2008).

Count VI

65. Given the above Findings of Fact, based upon

persuasive evidence, the Respondent has committed a negligent

act which affected the health and safety of Resident No. 1. See

§ 429.141(a), Fla. Stat. (2008). The Respondent has also

committed one or more Class I deficiencies for purposes of

Section 429.14(1)(e)1., Florida Statutes (2008). The Respondent

facility is subject to revocation by committing the Class I

violations, pursuant to Section 408.815(1)(c), Florida Statutes

(2008).

66. In light of the gravity of the violations proven,

substantial or maximum penalties are recommended to be imposed.

Although revocation is legally available, the interest of the

many other residents of the facility in continued placement

there should be strongly considered. It is also true that, as

serious as this situation was, it was an isolated occurrence and

not reflective of a pattern of care as to other residents.

Accordingly, it is recommended that revocation be withheld,

subject to the Respondent submitting quarterly corrective action

plans, to be accompanied with quarterly inspections or surveys

by the Petitioner, to ensure compliance and correction, for a

period at the discretion of the Agency, not to exceed two years,

and contingent upon timely payment of the monetary penalties

imposed, based upon a schedule determined at the discretion of

the Petitioner Agency.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses and pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED that a final order be entered by the Agency for

Health Care Administration, as to Count VI, imposing the

referenced alternative to revocation, under the conditions and

in the manner referenced in the last paragraph of the

Conclusions of Law above; that as to Count I, a fine of

$5,000.00 be imposed; that Count II found to be dismissed; that,

as to Count III, that a $10,000.00 fine be imposed; as to Count

IV, that a $10,000.00 fine be imposed; and as to Count V that a

$10,000.00 fine be imposed.

DONE AND ENTERED this 29th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January, 2010.

COPIES FURNISHED :

Richard Joseph Saliba, Esquire

Mark H. Hinely, Esquire

Agency for Health Care Administration

Fort Know Building 3

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Kerry Anne Schultz, Esquire

Fountain, Schultz & Associates, P.L.

2045 Fountain Professional Court, Suite A

Navarre, Florida 32566

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Justin Senior, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Thomas W. Arnold, Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

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.