00-004735 Agency For Health Care Administration vs. Beverly Enterprises - Florida, Inc., D/B/A Beverly Gulf Coast - Florida, Inc., D/B/A Washington Manor Nursing &Amp; Rehabilitation Center Status: Closed Recommended Order on Monday, May 7, 2001.

Summary: The Agency failed to prove that a nursing home, charged with a deficiency relating to its alleged failure to protect a resident from an indoor fire ant attack, should be issued a conditional license or assessed a civil penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WASHINGTON MANOR NURSING AND )

REHABILITATION CENTER , )

)

Petitioner , )

)

vs. ) Case No. 00-4035

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Respondent. )

___________________________________)

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Case Nos. 00-4735

)

BEVERLY ENTERPRISES-FLORIDA, INC. , )

d/b/a BEVERLY GULF COAST-FLORIDA, )

INC., d/b/a WASHINGTON MANOR )

NURSING & REHABILITATION CENTER , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

The parties having been provided proper notice,

Administrative Law Judge John G. Van Laningham of the Division

of Administrative Hearings convened a formal hearing of this

matter in Fort Lauderdale, Florida, on February 20, 2001. The

hearing was adjourned on February 21, 2001.

APPEARANCES

For Agency for Alba M. Rodriguez, Esquire

Health Care Agency for Health Care Administration

Administration: 8355 Northwest 53rd Street

Miami, Florida 33166

For Washington R. Davis Thomas, Jr., Esquire

Manor: Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issues are whether a licensed nursing home violated the

provisions of Title 42, Code of Federal Regulations, Section

483.70(h) and, if so, whether the relative severity of the

deficiency warrants the assignment of a conditional licensure

status and the levying of a $10,000 civil penalty.

PRELIMINARY STATEMENT

From June 5 through June 8, 2000, a survey team from the

Agency for Health Care Administration (the “Agency”) inspected a

licensed nursing home located in Hollywood, Florida, known as

Washington Manor Nursing and Rehabilitation Center (“Washington

Manor”). This facility is operated by Beverly Enterprises-

Florida, Inc., d/b/a Beverly Gulf Coast-Florida, Inc.

(“Beverly”), which is the licensee. (For ease of reference, the

term “Washington Manor” is used in this Recommended Order to

denote both building and licensee; context will make clear the

intended meaning.)

As a result of this investigation, the Agency issued a

survey report charging Washington Manor with a deficiency

relating to its alleged failure to protect a resident from an

indoor fire ant attack that had occurred on May 29, 2000. Based

on this alleged deficiency, the Agency notified Washington

Manor, by letter dated June 30, 2000, that its license was being

downgraded to conditional status effective June 8, 2000. The

Agency later restored Washington Manor’s license to standard

status, effective June 29, 2000. Objecting to the conditional

license, Washington Manor filed a petition with the Agency that

was transferred to the Division of Administrative Hearings on

September 27, 2000, initiating DOAH Case No. 00-4035.

Meantime, on November 3, 2000, the Agency brought an

Administrative Complaint against Washington Manor seeking to

impose a civil penalty of $10,000 in consequence of the alleged

deficiency associated with the fire ant attack. Washington

Manor requested a hearing, and on November 21, 2000, the case

was referred to the Division of Administrative Hearings,

initiating DOAH Case No. 00-4735.

These two cases, together with a third action (DOAH Case

No. 00-4734) which was settled before hearing, were consolidated

by order dated November 22, 2000. The final hearing was held,

as scheduled, in Fort Lauderdale, Florida, on February 20–21,

2001.

At the final hearing, the Agency presented the testimony of

five witnesses : Jeff Bomberger, Gary Warnock, Debra Wilcox,

Arlene Mayo-Davis, and Frank Buxton. In addition, the Agency

introduced three exhibits, which were received in evidence.

Washington Manor called one witness – Jeff Bomberger – and also

submitted five exhibits into evidence.

Each party timely filed a Proposed Recommended Order, and

these post-hearing submissions were considered carefully in the

preparation of this Recommended Order.

FINDINGS OF FACT

The evidence presented at final hearing established the

facts that follow.

Fire Ants Attack

1. In the first hour of Memorial Day, May 29, 2000, fire

ants roamed about Room 303 in Washington Manor, unobserved,

while its residents slept. No one had seen the intruders enter

the single-story facility, a nursing home that accommodates

240 licensed beds, built in 1968, occupying an area more than

100,000 square feet in size. Shortly before 1:00 a.m., the

aggressive ants attacked a defenseless, elderly resident in her

bed, stinging her numerous times before help arrived. The

injurious consequences of these ant bites were serious enough to

warrant the resident's removal to a hospital, where she was

treated for several days, from May 30 through June 3, 2000.

Happily, the resident recovered from the adverse health

consequences that ensued from this horrible event, which was the

first of its kind at Washington Manor.

Regulatory Environment

2. To participate in and receive funds under the Medicare

and Medicaid programs, nursing homes must comply with numerous

federal and state statutory and regulatory mandates. 1 As a

"state survey agency," the Agency is authorized, on behalf of

the United States Department of Health and Human Services,

Health Care Finance Administration, to inspect participating

facilities (such as Washington Manor) and assess their

respective levels of obedience to federal health, safety, and

quality standards. Assigned a dual regulatory role, the Agency

performs similar functions for the state, enforcing compliance

with Florida's statutes and rules.

3. The Agency carries out these responsibilities by

dispatching teams of investigators ("surveyors") to conduct on-

site inspections ("surveys") of the facilities under its

jurisdiction. Survey teams are required to report violations,

which are called "deficiencies." If a survey uncovers any

deficiencies, both the federal and state regulatory agencies may

impose sanctions against the facility or prescribe other

remedies. The severity of the sanction or remedy depends upon

the seriousness of the deficiency. It is therefore necessary to

grade each deficiency according to its perceived "severity" and,

pursuant to federal guidelines, its apparent "scope."

4. Under the federal regulations, there are 12 separate

"scope and severity" outcomes represented by the letters "A"

through "L," with A being the least serious type of violation

and L the most severe. The 12 outcomes are depicted in a table

consisting of four rows (denoting severity) and three columns

(denoting scope), the three cells of the bottom (least serious)

row corresponding, from left to right, with grades A, B, and C,

respectively; of the second row, with D, E, and F; and so forth.

The scope of a deficiency is classified as "isolated" (left-hand

column), "pattern" (middle column), or "widespread" (right-hand

column). The severity of a deficiency is assigned to one of

four levels, matching the four aforementioned rows: "No actual

harm with potential for minimal harm" (first, or bottom, row);

"No actual harm with potential for more than minimal harm that

is not immediate jeopardy" (second row); "Actual harm that is

not immediate jeopardy (third row); and "Immediate jeopardy to

resident health or safety" (fourth, or top, row). See generally

Title 42, Code of Federal Regulations, Section 488.404. Thus, a

grade of L — the most severe rating in the federal scheme —

falls in the top, right-hand cell of the scope and severity

table and represents a finding that the facility has a

widespread deficiency which puts residents in immediate

jeopardy.

5. Under the state scheme, violations are rated according

to severity as either Class I, Class II, or Class III

deficiencies. See generally Section 400.23(8), Florida

Statutes ; Rule 59A-4.128(3), Florida Administrative Code. (The

Agency also recognizes a category of "Substandard Quality of

Care" deficiencies, using a definition patterned after the

federal description of that term. See Rule 59A-4.128(3)(a),

Florida Administrative Code.) Class I deficiencies are the most

serious, presenting "either an imminent danger, [or] a

substantial probability of[,] death or serious physical harm."

Rule 59A-4.128(3)(a), Florida Administrative Code. Next serious

are Class II deficiencies, which "present an immediate threat to

the health, safety, or security of the residents of the

facility . . . ." Id. Finally, "Class III deficiencies are

those which present an indirect or potential relationship to the

health, safety, or security of the nursing home residents, other

than Class I or Class II deficiencies." Rule 59A-4.128(3)(b),

Florida Administrative Code.

6. For each deficiency identified, the Agency's surveyors

are responsible for making an initial determination regarding

scope and severity. Typically, the federal letter grade is

assigned first, and that mark is allowed to drive the state

severity rating, despite substantial differences between the

federal and state classification systems and their respective

criteria for measuring severity. Thus, a federal J, K, or L

demands a state rating of Class I. Similarly, a Class II rating

always follows a grade of G, H, or I. At the other end of the

spectrum, deficiencies graded A, B, or C are always placed in

state Class III, and those rated D, E, or F usually are. If the

surveyors would assign a grade in the G through L range (state

Class I or II), then they must communicate their findings and

recommendations to superiors within the Agency who make the

official decision.

The Agency Inspects

7. On June 5, 2000, a survey team composed of three Agency

employees arrived at Washington Manor, which is located in

Hollywood, Florida, to conduct a regularly scheduled, periodic

inspection of the facility. That this routine compliance survey

happened to commence one week after the May 29, 2000, fire ant

attack was coincidental. The surveyors, however, had been

informed about the incident and, not surprisingly, were keenly

interested in ascertaining how it had occurred and whether fire

ants continued to pose a risk of harm to Washington Manor's

residents.

8. From interviewing Washington Manor personnel and

reviewing records such as the facility's 24-Hour Nursing Report

and service reports prepared by Steritech Group, Inc.

("Steritech"), the facility's pest control contractor, the

surveyors were introduced to the hypothesis that fire ants may

have entered Room 303 through some sort of "crack" or "crevice"

in the wall.

9. The nursing report notes that upon discovering the fire

ant attack, staff had attempted to kill the ants and block an

opening around the window air conditioning unit. This suggests

that the first person or persons on the scene — who actually saw

fire ants in Room 303 and were therefore in the best position to

observe the means by which the pests had invaded the building —

believed that a gap or opening associated with the air

conditioner might have been the portal. Because none of these

individuals testified at hearing, however, the record is silent

as to why staff had suspected the air conditioner.

10. The surveyors searched for empirical data in support

of the explanation that implicated the air conditioner .

Examining Room 303, one surveyor observed that between the air

conditioner and the windowsill or frame there existed a thin

space through which sunlight could be seen. Similar "gaps" or

"crevices" were noticed in other rooms as well.

11. These discoveries led the surveyors to accept the

theory that the fire ants responsible for the Memorial Day

assault had penetrated Room 303 through the "gap" between air

conditioner and window. The surveyors also suspected that some

nearby trees and railroad ties may have harbored or attracted

the pests and perhaps facilitated their incursion into the

facility. 2

12. The trees were a matter of some concern, the surveyors

having come to believe that Washington Manor had disregarded

Steritech's recommendations to trim nearby palm trees and

vegetation as a means of controlling ants' access to the

building. No employee of Steritech testified at hearing,

however, so the fact-finder was deprived of the opportunity to

see and hear from the person who had made the recommendations.

According to the service reports in evidence, a pest control

technician had visited Washington Manor 14 times between the

beginning of the year and May 25, 2000, which was the date of

the last visit before Memorial Day. On three of these

occasions, the technician had recommended that the facility trim

"palm trees" (Jan 10, February 14, and March 3, 2000); once,

"vegetation" (March 28, 2000); and, one other time, simply

"trees" (May 25, 2000). On March 3, 2000, for the first and

only time, the technician had linked the trees with ants,

writing: "Please have palms trimmed. Ants are active on them

and gaing [ sic ] access to bldg." After the fire ant attack, the

Steritech technician had visited the facility on June 1, 2, 5,

6, and 8, 2000. He had made no recommendations regarding

landscaping, however, until June 8, 2000, when he had written:

"Please have trees trimmed along east-side of bldg, palms along

court yard. This will restrict access to bldg."

13. That the technician had visited the facility 6 times

during the nearly two months after March 28 and before May 25,

2000, without once having mentioned the trees in his written

reports reasonably supports the inference that Washington Manor

had been following the technician's advice; otherwise,

presumably, he would have continued to press the point. That

inference is reinforced by the technician's silence on the

subject of tree trimming in his first two reports immediately

following the fire ant attack; presumably, if the technician had

watched his previous recommendations fall on deaf ears, he would

have renewed the request to trim back the trees at his earliest

opportunity after the tragedy. There is, moreover, no evidence

that the palm trees, vegetation, and trees to which the

technician had referred (both before and after Memorial Day)

were the same trees, visit after visit, or whether different

trees or other vegetation needed attention at various points in

time. In short, the evidence does not persuasively establish

that Washington Manor had been heedless of the pest control

technician's recommendations.

14. The survey team members believed that Washington

Manor's residents remained at risk of being attacked by fire

ants because, they surmised, various "gaps" in the facility's

outer walls could potentially provide ingress for this pestilent

purpose, and (to a lesser extent) because they concluded that

certain trees needed to be trimmed. None, however, thought a

fire ant raid was imminent.

15. Consequently, on the morning of the survey's third

day, June 7, the surveyors called Angela Mayo-Davis, an Agency

supervisor, to report their findings and recommend that

Washington Manor be cited for a "G-II" deficiency in respect of

the ant bite incident — meaning, under the federal system, an

isolated deficiency involving actual harm that is not immediate

jeopardy which, for purposes of the state classification scheme,

would fall concomitantly in Class II.

16. The surveyors were well-intentioned and sincere, yet

their estimate of the proximity of danger was excessive — at

least when viewed, after the fact, in the light of all the

evidence presented at hearing. The facility's interior was

neither being nor about to be overrun with ants, flying insects,

or rodents. Rather, Washington Manor's exterminator, Steritech,

was treating the facility and its exterior grounds regularly for

pests, including ants, and was doing so effectively, the Agency

stipulated at hearingue, as the pest control contractor's

service reports for the months leading up to May 29, 2000,

document, there were periodic complaints about various rodents

and insects ( e.g. mice, flies, and ants) turning up in one place

or another inside the facility. And once — on May 22 — fire

ants were reported coming through windows in several rooms. But

these reports give no indication (and there is no other

evidence) that this level of activity was atypical or evinced an

infestation. Given the lack of evidence with which to make a

meaningful comparison, this record would as readily support a

finding that Washington Manor was reasonably pest-free for its

size, age, location, and use.

17. Further, the surveyors' theory that the so-called

"gap" had served as the ants' entry point into Room 303 was

merely a plausible guess. None is an entomologist, and none

claimed special knowledge of fire ants. More important, the

Agency introduced no substantial competent evidence concerning

the likelihood that fire ants would enter through such a "gap"

as opposed to other places at which the inside inescapably

communicates with the outside ( e.g. doors, vents, the air

conditioner itself). For that matter, no evidence was adduced

regarding the probability (or improbability) of a similar fire

ant attack occurring under the best of circumstances (however

defined) – or under seemingly "worse" conditions ( e.g. open,

unscreened windows; no pest control). 3 Weighing against the

"gap" theory, the Steritech operator responsible for treating

Washington Manor (who, from experience in the trade, should have

been familiar with the ways of fire ants) evidently never

noticed the various openings observed by the surveyors, or did

not consider them to be dangerous if he did, for he never

checked the boxes on his service report form that would have

recommended such pertinent remedial actions as:

Wall / floor junction must be sealed

Repair holes, cracks and loose tiles

Simply put, the evidence presented at hearing does not

substantiate the surveyors' assessment that fire ants directly

or immediately threatened Washington Manor’s residents.

18. Agency higher-ups, however, viewed the purported risk

with much alarm. In a late-afternoon telephone call on June 7,

2000, the survey team was informed that Washington Manor must be

"tagged" for an isolated "immediate jeopardy" deficiency at the

federal scope and severity level of J, elevating the violation

to state Class I. At hearing, Ms. Mayo-Davis shed light on the

Agency's rationale for sounding a red alert:

[S ]ince the situation had occurred on the

29th, there [were] still holes that were

found in the air-condition[er]s, which is

possibly the way that the ants had gotten

into the resident's room in the first place,

since those holes still existed then there

still was a potential or a probability that

ants could still gain entry into the

building and that would make the

residents['] environment just as we had

said, unsafe and uncomfortable for

residents.

T-300 (emphasis added). 4 Thus did a possibility give birth to a

potential that spawned a probability which matured into

"immediate jeopardy."

19. The "J-I" deficiency for which the Agency cited

Washington Manor was identified by "Tag Number F465." This

particular tag incorporates the standard contained in Title 42,

Code of Federal Regulations, Section 483.70(h), and signifies an

allegation that the facility failed to provide a safe,

functional, sanitary, and comfortable environment for the

residents, staff, and the public.

20. When the surveyors concluded their inspection and left

Washington Manor on June 8, 2000, the Tag F465 deficiency was

downgraded to a "G-II." This reclassification resulted from a

determination that there were no fire ants presently in the

facility, coupled with the Agency's satisfaction that Washington

Manor had undertaken to remedy areas of concern by, among other

things, caulking the gaps, trimming some trees, and removing

railroad ties. Nevertheless, on the allegation that a Class I

deficiency had existed, the Agency assigned Washington Manor a

conditional licensure status, effective June 8, 2000, and sought

to impose a $10,000.00 civil penalty.

21. The Agency conducted a follow-up survey of Washington

Manor on June 29, 2000, and determined that the F465 deficiency

had been corrected. Convinced that the facility timely and

completely had corrected the deficiency, the Agency upgraded

Washington Manor's licensure status from conditional to

standard, effective June 29, 2000.

Ultimate Factual Determinations

22. There is no evidence that the Washington Manor's

environment was nonfunctional — e.g. unsuitable, impractical,

inoperable. Nor is there any evidence that the conditions at

the facility were unclean, filthy, contaminated, or otherwise

unsanitary. Finally, the record contains no convincing proof

that, because of the surroundings, Washington Manor's occupants

were ill at ease, insecure, discontented, or uncomfortable in

any way. In sum, the Agency failed to establish — and, in

fairness, made little or no attempt to prove — that Washington

Manor did not afford a functional, sanitary, and comfortable

environment for its occupants.

23. The occurrence of the May 29, 2000, indoor fire ant

attack does not persuade the fact-finder that Washington Manor's

environment was unsafe. For one reason, notwithstanding the

surveyors' speculation and conjecture (which is not competent

proof) and the note in the nursing report (whose author was not

called to testify at hearing), there is no satisfactory evidence

that the fire ants actually entered the facility through a "gap"

around the window air conditioner in Room 303. That is, no

causal connection between the alleged deficiency and the injury

was established — which is significant because the Agency made

no effort to prove that the alleged deficiency was dangerous

even if it were not the cause-in-fact of the fire ant stings on

Memorial Day. For another reason, prudent human foresight does

not give rise to an expectation that a similar indoor fire ant

attack is likely to be substantially caused or facilitated by

the failure to caulk around an air conditioner or to trim some

trees – especially when, as at Washington Manor, an effective

pest control program is in place.

24. In other words, though shocking and grievous, the

indoor fire ant attack at Washington Manor on Memorial Day 2000

was a freak occurrence, whether the pests entered through a

"gap" around the air conditioner (which was not proved) or found

some other way into the building. Under the unique

circumstances of this case as established by the particular

evidence in this record, evaluated in light of common human

experience, the injurious fire ant stings inflicted upon the

occupant of Room 303 on May 29, 2000, were unforeseeable and

unpredictable and thus – unfortunately – unavoidable despite the

exercise of reasonable diligence and care in the maintenance of

the facility.

25. Accordingly, the greater weight of evidence fails to

establish – by a preponderance much less clearly and

convincingly – that Washington Manor's environment was unsafe,

nonfunctional, unsanitary, or uncomfortable in violation of

Title 42, Code of Federal Regulations, Section 483.70(h), as

charged. Stated affirmatively, the record shows that Washington

Manor met its duty to maintain the facility so as to protect the

health and safety of residents, personnel, and the public.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

27. Pursuant to Section 400.23(7), Florida Statutes, the

Agency is required to evaluate each nursing home facility

operating in Florida at least every 15 months to determine

whether it is in compliance with applicable law. In addition to

the criteria set forth in Section 400.23, Florida Statutes, and

in the rules adopted by the Agency in Chapter 59A-4, Florida

Administrative Code, nursing home facilities in Florida must be

in compliance with the rules found in Title 42, Code of Federal

Regulations, Part 483.

28. The subject federal regulations govern facilities that

participate in the Medicare and Medicaid programs and arise

under the key federal statute respecting nursing home and long-

term care facilities — namely, the Nursing Home Reform Act (the

Omnibus Budget Reconciliation Act of 1987), codified at Title

42, United States Code, Section 1396r. The Florida Legislature

has directed that state licensure status be assigned based in

part on compliance with these federal rules, when applicable.

See Section 400.23(7), Florida Statutes. The Agency has adopted

and incorporated the federal regulations by reference in

Rule 59A-4.1288, Florida Administrative Code.

29. If the Agency identifies a violation as a result of a

compliance survey, the violation must be classified pursuant to

Section 400.23(8), Florida Statutes, as a Class I, Class II, or

Class III deficiency. Class I deficiencies "present an imminent

danger to the residents or guests of the nursing home facility

or a substantial probability that death or serious physical harm

would result therefrom." Section 400.23(8)(a), Florida

Statutes. Class II deficiencies " have a direct or immediate

relationship to the health, safety, or security of the nursing

home facility residents, other than class I deficiencies."

Section 400.23(8)(b), Florida Statutes. Class III deficiencies

"have an indirect or potential relationship to the health,

safety, or security of the nursing home facility residents,

other than class I or class II deficiencies."

Section 400.23(8)(c), Florida Statutes.

30. Based on the deficiencies identified during the survey

or, if none be found, on its finding that the facility is in

substantial regulatory compliance, the Agency is required to

assign a "status" of "standard" or "conditional" to the

facility's state license. Section 400.23(7), Florida Statutes.

31. A standard licensure status "means that a facility has

no class I or class II deficiencies, has corrected all class II I

deficiencies within the time specified by the agency, and is in

substantial compliance at the time of the survey with" all

applicable state and federal laws. Section 400.23(7)(a),

Florida Statutes.

32. 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 all

applicable state and federal laws. Section 400.23(7)(b),

Florida Statutes. (This subsection further provides that if

"the facility comes into substantial compliance at the time of

the followup survey, a standard licensure status may be

assigned." Id. )

33. In addition to assigning a conditional licensure

status, the Agency may punish a facility found to have one or

more deficiencies by exacting a civil penalty. For each class I

deficiency, the facility is subject to a fine "in an amount not

less than $5,000 and not exceeding $25,000" regardless whether

the deficiency is corrected. Section 400.23(8)(a), Florida

Statutes. If, however, the violation is a less serious class II

or class III deficiency, then the Agency may impose a civil

penalty for that only if (a) the facility fails to correct the

problem within the time specified by the Agency or (b) the

deficiency is a repeated offense.

34. The Agency has the burden of proving not only the

grounds for assigning a conditional licensure status to

Washington Manor for the period from June 8, 2000 to June 29,

2000, but also the facts upon which a fine may be levied against

the facility. Emerald Oaks v. Agency for health Care

Administration , 774 So. 2d 737, 738 (Fla. 2d DCA 2000) ; Beverly

Enterprises-Florida v. Agency for Health Care Administration ,

745 So. 2d 1133, 1136 (Fla. 1st DCA 1999) ; Florida Department of

Transportation v. J.W.C. Company, Inc ., 396 So. 2d 778, 789

(Fla. 1st DCA, 1981) ; Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA

1977).

35. The alleged Tag F465 deficiency purportedly associated

with the Memorial Day fire ant attack is the factual predicate

for each of the sought-after sanctions. At hearing, the Agency

stipulated that the facility timely had corrected the alleged

Tag F465 deficiency and also that the alleged deficiency had not

been a repeated offense. Thus, as the sole basis for imposing a

$10,000 fine, the Agency contends, as it must, that this alleged

deficiency satisfied the criteria for and was properly assigned

to class I at the time of the survey. To justify the assignment

of a conditional licensure status, the Agency must demonstrate

that the alleged Tag F465 deficiency was at least serious enough

for class II classification, if not so serious as to be called

class I.

36. In sum, if the alleged deficiency were appropriately

placed in class I, then both the civil penalty and a conditional

licensure status were justifiably imposed. If it were a class

II deficiency, then the conditional license was warranted, but

the $10,000 fine would not be authorized. Finally, if the

alleged deficiency were put in class III (or, of course, if

there were no deficiency), then neither the conditional

licensure status nor an administrative fine would be allowed to

stand.

37. The standard of proof required to make a case for

assignment of a conditional licensure status is not necessarily

as demanding as that for imposing a fine — even when, as here,

the factual foundation for both purposes is identical.

38. The Florida Supreme Court has determined conclusively

that the standard of proof for imposing an administrative fine

is clear and convincing evidence, because a fine is penal in

nature and "deprives the person fined of substantial rights in

property." Department of Banking and Finance v. Osborne Stern

and Co. , 670 So. 2d 932, 935 (Fla. 1996). On this standard,

there is and can be no argument.

39. The rationale for requiring clear and convincing proof

of facts alleged to warrant the levy of a fine appears to apply

with equal force when the goal is to downgrade a nursing home's

licensure status. As the administrative law judge explained

persuasively in Heritage Health Care & Rehab Center v. Agency

for Health Care Administration , DOAH Case No. 99-1892, 1999 WL

1486586, *6 (Recommended Order issued Nov. 12, 1999), "[t ]he

imposition of a Conditional license adversely affects the

reputation of a nursing facility with the public, and thus

affects its ability to operate." In addition, a stricter

standard of proof is consistent with the Administrative

Procedure Act. See Section 120.57(1)(j)("Findings of fact shall

be based upon a preponderance of the evidence, except in penal

or licensure discipline proceedings . . . .").

40. Yet, anomalously, the less stringent, preponderance-

of-evidence standard has been applied routinely in license

reduction hearings. E.g. Agency for Health Care Administration

v. Beverly Savana Cay Manor, Inc., etc., et al. , DOAH Case

No. 00-2465, 2001 WL 298545, *10 (Recommended Order issued

March 22, 2001); Quality Health Care Center v. Agency for Health

Care Administration , DOAH Case No. 00-3356, 2001 WL 246776, *8

(Recommended Order issued March 9, 2001); Capital Health Care

Center v. Agency for Health Care Administration , DOAH Case

No. 00-1996, 2000 WL 1867290, *9 (Recommended Order issued

December 1, 2000); Vista Manor v. Agency for Health Care

Administration , DOAH Case No. 98-5471, 1999 WL 1486416, *8

(Recommended Order issued June 8, 1999); Wellington Specialty

Care and Rehab Center (Vantage Healthcare Corp.) v. Agency for

Health Care Administration , DOAH Case No. 98-4690, 1999 WL

1486337, *6 (Recommended Order issued May 17, 1999); Agency for

Health Care Administration v. Hobe Sound Geriatric Vill., Inc.,

etc., et al. , DOAH Case No. 98-1270, 1999 WL 1483658, *25

(Recommended Order issued May 10, 1999); but see Heritage Health

Care , 1999 WL 1486586, *7 (Agency must prove grounds for

conditional licensure status by clear and convincing evidence).

Although appellate courts have discussed the Agency's burden of

proof in license reduction proceedings, see Emerald Oaks , 774

So. 2d at 738 ; Beverly Enterprises-Florida , 745 So. 2d at 1136,

the standard of proof seems not to have received appellate

attention.

41. It is paradoxical that the Agency should be permitted

to assign a conditional licensure status on proof that might not

support the imposition of a fine, since the former punishment is

likely to be as economically damaging to the facility, if not

more so, than the latter. Here, however, any debate regarding

the standard of proof is rendered academic by the Agency's

failure to prove its allegations by the greater weight of

evidence. Because the Agency is not entitled, even under this

least demanding standard, to sanction Washington Manor with a

conditional license, there is no reason to reach the question

whether clear and convincing evidence is required to assign a

conditional licensure status. Accordingly, that decision is

deferred to another day.

42. To be clear, then, on the licensure status dispute,

bowing to the weight of authority, the Agency has been afforded

the benefit of the preponderance standard of proof.

The Facility Was In Compliance As a Matter of Law

43. The regulation that forms the basis for Tag F465 is

Title 42, United States Code, Section 483.70(h). That federal

rule provides as follows:

§ 483.70 Physical environment.

The facility must be designed, constructed,

equipped, and maintained to protect the

health and safety of residents, personnel

and the public.

* * *

(h ) Other environmental conditions. The

facility must provide a safe, functional,

sanitary, and comfortable environment for

the residents, staff and public . The

facility must--

(1 ) Establish procedures to ensure that

water is available to essential areas when

there is a loss of normal water supply;

(2 ) Have adequate outside ventilation by

means of windows, or mechanical ventilation,

or a combination of the two;

(3 ) Equip corridors with firmly secured

handrails on each side; and

(4 ) Maintain an effective pest control

program so that the facility is free of

pests and rodents.

(Emphasis added.) Specifically, the Agency alleges that

Washington Manor violated the standard prescribed in the

underlined sentence above. Significantly, it does not contend

that the facility violated subpart (4), having stipulated at

hearing that Washington Manor was in compliance with the

discrete duty to maintain an effective pest control program.

44. In the regulation's first and overarching provision,

which precedes eight paragraphs of particulars that conclude

with paragraph (h), Section 483.70 plainly prescribes a broad

general duty, one aspect of which is relevant to the instant

proceeding : the duty to maintain the facility so as to protect

the health and safety of its occupants. 5 This general duty

comprises numerous specific subsidiary duties, including those

described in subparts (1) through (4) of paragraph (h).

According to the Agency, the first full sentence of paragraph

(h) effectively imposes another broad general duty, that being

to provide a safe, functional, sanitary, and comfortable

environment for the facility's occupants.

45. Read in the context of Section 483.70 as a whole,

however, the specific sentence of paragraph (h) under which the

Agency travels does not seem to have been intended to establish

a sweeping primary duty that would encompass not only subparts

(1) through (4) but also, were that its aim, paragraphs (a)

through (g) of the section as well. Instead, the sentence

appears to reiterate and further define the standard against

which a facility's performance of the specific duties must be

measured. Thus, when deciding, for example, whether a

facility's pest control program is "effective" within the

dictate of subpart (4), it is necessary to consider whether the

facility's environment is safe, functional, sanitary, and

comfortable. If the answer is "no" because of the presence of

pests or rodents, then the facility is in violation of Section

483.70(h)(4).

46. Under this interpretation, the principal purpose of

paragraph (h), including its subparts, is to prescribe four

additional subsidiary duties that the regulation's drafters

evidently felt did not fit neatly within any of the foregoing

seven paragraphs — not to create a broad, section-level duty,

its scope exemplified by, but not limited to, four particular,

non-exclusive obligations described in subparts (1) through (4).

From this it follows that a facility can properly be found in

violation of Section 483.70(h)(x), with x being a number from 1

to 4, but not Section 483.70(h), where no pinpointing subpart is

cited.

47. Consequently, by stipulating at hearing that

Washington Manor at all times material had been in compliance

with subpart (4) — that, in other words, the facility had

maintained an effective pest control program and kept the

premises free of pests and rodents — the Agency effectively

eviscerated its case: admitting this material fact was

tantamount to conceding that there had been no deficiency as a

matter of law.

48. But even if the first full sentence of paragraph (h)

were construed to impose an independent duty that is broader in

scope than the sum of its four subparts, the question would

become: Can a facility that has fulfilled the specific duty to

maintain an effective pest control program, as Washington Manor

undisputedly did, nevertheless be found to have violated the

standard of care as it relates to guarding environmental

functionality, safety, sanitation, and comfort against all

threats of damage to those qualities posed by "pests and

rodents," including fire ants? Put another way, does satisfying

the specific duty prescribed in subpart (4) necessarily fulfill

the general duty to maintain the facility so as to protect the

health, safety, and comfort of its occupants against harm from

pests and rodents?

49. The answer is found in a well-established rule of

interpretation which holds that

"where there is in the same statute a

specific provision, and also a general one

that in its most comprehensive sense would

include matters embraced in the former, the

particular provision will nevertheless

prevail; the general provision will be taken

to affect only such cases as are not within

the terms of the particular provision."

Psychiatric Institute of Delray, Inc. v. Keel , 717 So. 2d 1042,

1043 (Fla. 4th DCA 1998)(quoting Fletcher v. Fletcher , 573

So. 2d 941, 942 (Fla. 1st DCA 1991)).

50. Clearly, the first complete sentence of paragraph (h),

if it were considered the source of a general duty, would

embrace the specific matters set forth in subparts (1) through

(4). Therefore, applying the interpretive principle just

discussed, paragraph (h) must be deemed to affect only those

situations that are not covered by one of the particular

provisions.

51. Accordingly, where, as here, the alleged deficiency is

based on a charge that the facility's environment was unsafe,

nonfunctional, unsanitary, or uncomfortable due to the presence

of pests or rodents inside the building, the Agency must prove a

violation of subpart (4), because the specific duty prescribed

in that particular provision prevails over the general duty, if

any, provided for in paragraph (h)'s introductory sentence.

52. The Agency's stipulation that Washington Manor had

obeyed subpart (4) compels the conclusion that there was no

deficiency associated with the Memorial Day fire ant attack, as

a matter of law.

The Facility Was In Compliance As a Matter of Fact

53. Suppose, alternatively, that paragraph (h) imposes a

duty to guard against dangers posed by pests or rodents that are

beyond the zone of risk against which an effective pest control

program should reasonably and foreseeably protect. Putting

aside issues that would arise concerning the required standard

of conduct — about which there is no evidence in this case — the

Agency still would need to prove that the facility was unsafe in

fact as a result of the alleged deficiency, to establish the

deficiency. For, obviously, if the facility's environment were

safe, then the facility necessarily was meeting its legal

obligation, whatever that obligation may require in terms of

conduct.

54. On the question of safety of the physical environment,

the circumstances of this case require that attention be paid to

the probative value of an actual injury. Although it is not

necessary for the Agency to show that an injury actually

occurred as a result of an alleged deficient practice, the fact

of an injury on the premises would tend to show that the

facility's environment was unsafe if the act or omission alleged

to constitute the deficiency were the cause-in-fact of the harm.

By establishing that an actual injury would not have occurred

but for the deficiency, the Agency would demonstrate that the

facility had failed to maintain a safe environment, provided the

injury were a foreseeable one – a separate issue discussed

below. Conversely, if the alleged deficiency were not the

cause-in-fact of an injury that actually had occurred, then that

injury would have no probative value on the question of

environmental safety; it would be irrelevant. The Agency might

still manage to prevail, but to do so it would need to offer

independent proof – as though there had been no injury – that

the alleged deficiency could, in fact, cause the foreseeable

harm allegedly threatened thereby.

A. Cause-in-Fact

55. In the instant case, the decisional framework for the

Agency's theory looks like this:

(A) Fire ants stung a resident in her bed as she slept.

(B) Ipso facto , Washington Manor's environment was unsafe.

(C) The facility failed to caulk around window air

conditioners, failed to patch small openings in the

building, and neglected to trim some trees.

(D) The omissions described in (C) may have allowed fire

ants to enter Room 303 and might have created

favorable conditions for a future fire ant invasion.

(E) Therefore, the omissions described in (C) constituted

a breach of 42 C.F.R. § 483.70(h), i.e. were a

deficiency.

56. As set forth in the Findings of Fact above, however,

the Agency failed to prove by a preponderance of evidence that

but for alleged omissions (C), injury (A) would not have

occurred — and situation (B) would have been avoided.

Therefore, perhaps ironically, the fact of the Memorial Day fire

ant attack is irrelevant to the determination whether Washington

Manor failed to maintain a safe physical environment for its

occupants.

57. The Agency made no appreciable attempt and therefore

failed to prove that the facility's failure to caulk around some

air conditioners and seal other openings, or its failure to trim

some trees, or a combination of these purported omissions,

endangered the residents of Washington Manor by exposing them to

the threat of fire ant attacks. The Agency’s hypothesis (D) was

simply too speculative and conjectural to carry that load. In a

nutshell, there is no persuasive evidence in this record that

the alleged deficiency (C) could in fact cause the allegedly

threatened injury: an indoor fire ant attack.

58. Consequently, there is no evidential support for a

finding that Washington Manor’s physical environment was unsafe

due to the threat of fire ants entering the building through

unsealed cracks and crevices; without that finding, there is no

deficiency as a matter of fact.

B. Foreseeability

59. The incorporation of Section 483.70(h) into the

Florida Administrative Code — which allows the Agency to enforce

this federal standard as a state rule — cannot have been

intended to impose absolute or strict liability under Florida's

regulatory scheme, so that no matter what the cause, a facility

would be in violation whenever an occupant suffers an injury on

the premises. Such a goal would have been unreasonable and

unfair and hence contrary to the legislative intent, expressed

in the statutes delegating rule-making authority to the Agency,

that nursing homes be required to comply with "reasonable and

fair" criteria. Section 400.23(2), Florida Statutes; see also

Section 400.23(1)("It is further intended that reasonable

efforts be made to accommodate the needs and preferences of

residents to enhance the quality of life in a nursing

home.")(emphasis added). Therefore, for state law purposes at

least, Section 483.70(h) must be construed to impose a duty to

make reasonable efforts or use reasonable care — not to make

nursing homes guarantors of occupant safety under all

circumstances.

60. As a result, the fact question whether the facility

was unsafe must entail the concept of foreseeability, else the

duty imposed by paragraph (h) — the existence of which, recall,

we have assumed for this discussion — would be absolute, a

legally impermissible outcome. Unless a reasonable, prudent

person would consider the condition created by the alleged

deficiency likely to be the substantial cause of the harm that

the Agency contends is imminently, immediately, or potentially

threatened, then it cannot reasonably be said that the facility

is unsafe. Put another way, a facility cannot reasonably be

expected to guard against an injury caused by a freakish or

improbable chain of events; rather, the injury — or threatened

injury — must be "proximate" to the alleged deficiency. 6

61. As the Florida Supreme Court has explained, "harm is

'proximate' in a legal sense if prudent human foresight would

lead one to expect that similar harm is likely to be

substantially caused by the specific act or omission in

question. In other words, human experience teaches that the

same harm can be expected to recur if the same act or omission

is repeated in a similar context." McCain v. Florida Power

Corp. , 593 So. 2d 500, 503 (Fla. 1992). "Foreseeability, as it

relates to the proximate cause, is generally a question of fact

left for the fact-finder." Florida Power & Light Co. v.

Periera , 705 So. 2d 1359, 1361 (Fla. 1998).

62. With that in mind, using the shorthand initiated in

paragraph 55 above, even if it is assumed that (C) was the

cause-in-fact of (A), there is yet insufficient evidence of (B).

This is because the specific harm at issue here — multiple fire

ant stings inflicted on a patient sleeping in her bed — is not

the reasonably foreseeable consequence of the omissions

described in (C). Under the factual details of this case, a

reasonable person simply would not expect such harm to occur (or

recur) as a result of failing to caulk around a window air

conditioner or to trim some trees.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency enter a final order in

DOAH Case No. 00-4035 that: (a) restores Washington Manor's

license to the status of "standard" for the period from June 8

through June 29, 2000, and (b) requires or effects an amendment

of the Form 2567 report of the June 2000 survey to omit the

unsubstantiated charges concerning the alleged Tag F465

deficiency. It is further RECOMMENDED that the Agency enter a

final order in DOAH Case No. 00-4735 dismissing the Amended

Administrative Complaint with prejudice.

DONE AND ENTERED this 7th day of May, 2001, in Tallahassee,

Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 7th day of May, 2001.

ENDNOTES

1 / To the extent the next few paragraphs discuss the law, the

perspective is that of the fact-finder, who needed to know

something of (and was presented evidence concerning) the legal

environment in which the actors were operating.

2 / None of the surveyors saw ants in the facility, however, or

ants crawling through gaps or holes in residents' rooms. One

surveyor observed two or three active fire ant mounds outdoors,

in the gravel of the parking area, about ten feet from the

building and in the vicinity of Room 303. Another also saw some

ants on the outside, but he did not identify what type or what

number he saw.

3 / If fire ants were inclined to enter dwellings through thin

gaps and thereafter sting human inhabitants, as the Agency

presupposed, then such attacks should be commonplace in areas

where fire ants are found. For, as common experience teaches,

no dwelling is airtight, and many must be more vulnerable to

fire ant invasion than Washington Manor was shown to be. Yet,

although there is no evidence in the record on which to make a

finding on this point, common knowledge suggests that indoor

fire ant attacks on humans such as the one that occurred at

Washington Manor are rare events, making the Agency's premise

counterintuitive. Thus, the Agency's failure to offer any proof

concerning the degree and proximity of risk that fire ants pose

to persons sheltered inside buildings is a striking defect of

its case.

4 / Ms. Mayo-Davis also frankly revealed her telling opinion that

a nursing home is always "at fault" when fire ants sting a

resident because the facility is "responsible for all things

that are happening [inside]." T-288.

5 / The Agency neither alleged nor attempted to prove any

deficiencies either in the design or construction of, or

concerning the sufficiency of equipment at, Washington Manor.

6 / The focus here is on whether the facility’s environment was

unsafe. Foreseeability in this context is concerned with

whether the injury which occurred (or is alleged to have been

threatened) could reasonably have been expected to be caused by

the act or omission alleged to constitute the deficiency. If a

reasonable person could not foresee the injury in question, then

the facility was “safe” under any fair and reasonable

understanding of that term.

Foreseeability of harm, as that concept is understood in

relation to causation, must be distinguished from the related

but distinct notion of proximity of danger, which is pertinent

to the assessment of a deficiency’s severity. The former (which

looks at the actual or threatened injury) raises the question:

Is this injury likely to be substantially caused by this

condition? It bears on the question whether the facility’s

environment was unsafe. The latter (which looks at the actual

or potential cause) poses the question: If this condition is

not corrected, is the foreseeable injury likely to occur

momentarily (imminent danger), soon (immediate relationship), or

sometime (indirect relationship)? It is the factor that

determines the severity of the deficiency if the environment was

unsafe. A negative answer to the first question obviates the

need to consider the second.

To appreciate the difference between these two concepts, imagine

a resident who is in imminent danger of suffering an

unforeseeable harm. The facility would reasonably be considered

safe up to the point of the resident’s injury, the proximity of

danger being unperceived. Therefore, the facility's environment

could not fairly be deemed unsafe – and the facility held

accountable for a Class I deficiency — after the unpredictable

harm had occurred, despite the fact, apparent only in hindsight,

that the proximity of danger would have satisfied the Class I

criteria could the potential for harm reasonably have been

appreciated. Conversely, imagine a handrail that is gradually

becoming loose due to inattention. A patient could fall and

break a hip as a result of this deficient condition: the injury

is foreseeable. Yet, even though the injury may be highly

foreseeable, the danger may not be imminent or even immediate;

rather, depending on how loose the handrail is, the threatened

danger may be merely potential, warranting the assignment of a

Class III rating to the deficiency.

COPIES FURNISHED:

Alba M. Rodriguez, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street

Miami, Florida 33166

R. Davis Thomas, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Julie Gallagher, General Counsel

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

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 R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.