02-000868 Agency For Health Care Administration vs. Sunbelt Health Care And Subacute Center Status: Closed Recommended Order on Monday, July 15, 2002.

Summary: Agency failed to establish that facility failed to provide care and services to ensure that a resident was free from physical abuse by other residents.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0868

)

ADVENTIST HEALTH SYSTEMS/SUNBELT, )

INC., d/b/a SUNBELT HEALTH CARE )

AND SUBACUTE CENTER, )

)

Respondent. )

______ ____________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case on May 9, 2002, in Orlando and Tallahassee, Florida, via

video teleconference before Susan B. Kirkland, a designated

Administrative Law Judge of t he Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Michael P. Sasso, Esquire

Agency for Health Care Administration

525 Mirror Lake

Drive, North

Suite 310 - G

St. Petersbu rg, Florida 33701

For Respondent: Karen L. Goldsmith, Esquire

Goldsmith, Grout & Lewis, P.A.

2180 North Park Avenue

Suite 100

Winter Park, Florida 327 89

STATEMENT OF THE ISSUES

Whether Respondent violated Sections 400.022(1)(l) and

400.022(1)(o), Florida Statutes; Rule 59A - 4.1288, Florida

Administrative Code; and 42 C.F.R. Sections 483.13(b) and

483.13(c), and, if so, should Respondent be issued a

cond itional license, effective November 17, 2001.

PRELIMINARY STATEMENT

By letter dated January 10, 2002, Petitioner, Agency for

Health Care Administration (Agency), notified Respondent,

Adventist Health Systems/Sunbelt, Inc., d/b/a Sunbelt

Healthcare and Sub acute Center (Sunbelt), that the Agency

intended to impose a conditional license effective November

17, 2001, as a result of a survey completed on November 17,

2001, in which the Agency had cited Sunbelt for a Class II

deficiency for failure to provide car e and services to ensure

that a resident was free from physical abuse from other

residents. Respondent filed a Petition for Formal

Administrative Hearing. The case was forwarded to the

Division of Administrative Hearings on February 28, 2002, for

assignm ent to an Administrative Law Judge.

The case was originally assigned to Administrative Law

Judge Daniel Manry and was reassigned to Administrative Law

Judge Susan B. Kirkland to conduct the final hearing.

On April 3, 2002, an Order Granting Amended Motio n for

Leave to Serve Administrative Complaint was entered. On May

1, 2002, an Order Granting Motion for Leave to Serve an

Amended Administrative Complaint was issued.

At the final hearing, Petitioner called Mindy Seltzer and

Donna Robert as its witnesses. Petitioner's Exhibits 1 - 9 were

admitted in evidence. At the final hearing, Respondent called

the following witnesses: Diana Rodriguez, Elizabeth Wright,

Rosa Peterson, Jaymie Seward, and Amy Dickens. Respondent's

Exhibits 1 - 4 and 5B - 5G were admitted i n evidence. Respondent

requested to submit Respondent's Exhibit 5A as a late - filed

exhibit; however, as of the date of this Recommended Order,

Respondent has failed to do so.

The parties agreed to file proposed recommended orders

within ten days of the fi ling of the transcript. The

Transcript was filed on May 24, 2002. On June 7, 2002,

Petitioner filed a Motion for Extension of Time, requesting

that the time for filing proposed recommended orders be

extended to June 14, 2002. The motion was granted. Th e

parties timely filed their Proposed Recommended Orders, which

have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Sunbelt operates a licensed nursing home at 305 East

Oak Street, Apopka, Florida.

2. On November 5, 2001, Patie nt M.L., hereinafter

referred to as Resident 2, and Patient M.S., hereinafter

referred to as Resident 4, were living at the Sunbelt

facility. Resident 2 had been living at the facility for over

a year. In September 2001, staff at Sunbelt completed a

Resi dent Assessment Protocol on Resident 2 in which Resident 2

was described as follows:

[Resident 2] at times will vecome [sic]

physically combative with staff members.

She does not like showers and will slap at

the staff if they invade her personal

space. She has a dx of senile dementia,

and has a reduced ability to make herself

understood and understand others.

3. Prior to November 4, 2001, Resident 2 did not have a

history of being physically combative with other residents.

She shared a room with anoth er resident, who would approach

Resident 2 and touch Resident 2's things, including removing

food from Resident 2's plate. Resident 2 had never attempted

to harm her roommate. Her aggressive actions were directed at

Sunbelt staff members when they tried to undress her and

shower her. Nursing notes dated October 9, 2001, describe

Resident 2 as withdrawn but getting along well with other

residents.

4. Resident 4 was admitted to the Sunbelt facility on

November 1, 2001. Based on the Comprehensive Resident

Assessment of Resident 4 performed by the Sunbelt staff on the

date of Resident 4's admission, Resident 4 had a diagnosis of

altered mental status, dementia, coronary artery disease,

hypertension, depression and questionable bronchial asthma.

5. By the second day of her admission, Sunbelt staff had

determined that Resident 4 would wander, would disrobe, and

would rummage among her things. It became apparent that

because of her wandering that Resident 4 was at risk for

elopement from the facility. A car e plan was developed on

November 2, 2001, to deal with these behaviors. The care plan

included trial visits to the special dementia unit, which was

a locked unit. Resident 4 was also outfitted with a wander

guard to alert staff if she tried to leave the facility.

6. At approximately 11:55 p.m. on November 4, 2001,

Resident 4, accompanied by a Certified Nursing Assistant

(CNA), was in the day room on the Floral Wing of the facility.

The day room has glass windows, making the interior of the

room visible to a person standing at the nearby nurses'

station. The CNA responded to a call light from another

resident and went to attend to the other resident, leaving

Resident 4 alone in the day room watching television. When

the CNA left Resident 4, she notified the nurse on duty and

another CNA that she was leaving Resident 4 alone. Resident 4

was calm and appeared to be engrossed in the television

program when the CNA left the room.

7. Unbeknownst to the Sunbelt Staff, Resident 4 left the

day room and went to Resident 2's room, which was located near

the day room. When Resident 2 asked Resident 4 to leave her

room, Resident 4 would not leave and hit Resident 2. Resident

2 picked up a glass vase and proceeded to beat Resident 4 with

the vase.

8. Resident 4 l eft Resident 2's room and went to the

nearby dining room, where she was found by Sunbelt staff at

approximately midnight, bleeding about the face. Resident 4

sustained a laceration on the left side of her head, a raised

area on the back of her head, a lum p under her right eye, and

the beginning of discoloration on her left arm. She was

cleaned up by Sunbelt staff and transported to the hospital by

ambulance.

9. Sunbelt has developed policies and procedures dealing

with wandering residents and prevention of residents "being

subjected to inappropriate acts by anyone . . . ." The

policies and procedures include assessment of the resident for

inappropriate behavior and development of care plans to

address the behavior.

10. In the instant case, Sunbelt did assess Resident 4

and implemented procedures to prevent her from wandering and

leaving the facility. Based on the short time that Resident 4

had been in the facility, Sunbelt had no reason to believe

that Resident 4's wandering included going uninvited i nto

other residents' rooms. The assessment did not indicate that

Resident 4 should have one - on - one supervision.

11. Sunbelt was aware of Resident 2's aggressive

behavior to staff when they would undress her and give her a

shower, thereby invading her per sonal space. A care plan had

been developed to address this inappropriate behavior. The

evidence does not establish that Resident 2 would exhibit

aggressive behavior toward other residents prior to the

incident involving Resident 4. The only notations i n the

facility records of Resident 2 showing aggression against

other residents were made after the incident in question.

12. On November 17, 2001, a complaint investigation was

conducted at the Sunbelt facility by an Agency staff member,

Mindy Seltzer. By letter dated November 20, 2001, the Agency

advised Sunbelt of alleged deficiencies that were noted during

the survey made by Ms. Seltzer. Among the deficiencies noted

was a violation of 42 C.F.R. Section 483.13(b). This

deficiency dealt with the incid ent involving Resident 2 and

Resident 4 and was labeled F223. The deficiency was

identified as a Class III deficiency.

13. An Informal Dispute Resolution was held, and the

Agency advised Sunbelt that the Agency was changing the

deficiency F223 to deficie ncy F224, which was classified as a

Class II deficiency.

14. By letter dated January 10, 2002, the Agency

notified Sunbelt that as a result of the survey conducted by

Ms. Seltzer it intended to imposed a conditional licensure

status on Sunbelt effective N ovember 17, 2001, for a Class II

deficiency for failure to provide care and services to ensure

that a resident was free from physical abuse from other

residents.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the pa rties to and the subject matter of

this proceeding. Sections 120.569 and 120.57, Florida

Statutes.

16. The agency has the burden to establish the

allegations in the Amended Administrative Complaint that would

warrant the imposition of a conditional licen se. Beverly

Enterprises - Florida v. Agency for Health Care Administration ,

745 So. 2d 1133 (Fla. 1st DCA 1999). The Agency has alleged

that Sunbelt violated Sections 400.022(1)(l) and

400.022(1)(o), Florida Statutes, and Rule 59A - 4.1288, Florida

Administr ative Code, which adopts by reference 42 C.F.R.

Sections 483.13(b) and 483.13(c).

17. Sections 400.022(1)(l) and 400.022(1)(o), Florida

Statutes, provide:

(1) All licensees of nursing home

facilities shall adopt and make public a

statement of the rig hts and

responsibilities of the residents of such

facilities and shall treat such residents

in accordance with the provisions of that

statement: The statement shall assure each

resident the following:

* * *

(l) The right to receive adequate and

appro priate health care and protective

support services, including social

services; mental health services, if

available; planned recreational activities;

and therapeutic and rehabilitative services

consistent with the resident care plan,

with established and r ecognized practice

standards within the community, and with

rules as adopted by the agency.

* * *

(o) The right to be free from mental

and physical abuse . . . .

18. Rule 59A - 4.1288, Florida Administrative Code,

incorporates by reference 42 C.F.R. Se ctions 483.13(b) and

483.13(c), which provide:

(b) Abuse. The resident has the right

to be free from verbal, sexual, physical,

and mental abuse, corporal punishment, and

involuntary seclusion.

(c) Staff treatment of residents. The

facility must dev elop and implement written

policies and procedures that prohibit

mistreatment, neglect, and abuse of

residents and misappropriation of resident

property.

19. Section 400.23(7)(b), Florida Statutes, provides

that the Agency may impose a conditional licens ure status on a

facility when a Class II deficiency is found during a survey

performed by the Agency. A Class II deficiency is defined in

Section 400.23(8)(b), Florida Statutes, as a "deficiency that

the agency determines has compromised the resident's ab ility

to maintain or reach his or her highest practicable physical,

mental, and psychosocial well - being, as defined by an accurate

and comprehensive resident assessment, plan of care, and

provision of services."

20. The evidence does not establish that Su nbelt is

guilty of the violations as set forth in the Amended

Administrative Complaint. Sunbelt had performed assessments

and created plans of care for both Resident 2 and Resident 4.

The assessment of Resident 2 revealed that she had aggressive

behavior s toward staff when they tried to undress or bathe

her, and Sunbelt developed a plan to address those behaviors.

Because there was no history of physical aggression by

Resident 2 toward other residents there was no need to develop

and implement a care pla n that dealt with that behavior. The

nurses' notes indicate that Resident 2 got along well with the

other residents.

21. Sunbelt's assessment of Resident 4 showed that

Resident 4 was a wanderer, but that her wandering was related

to exiting the building rather than visiting other residents'

rooms. Sunbelt addressed Resident 4's wandering behavior by

placing a wander guard on her and putting her in the dementia

unit, which was a locked unit, thereby preventing her from

leaving the unit and eloping. Sunbe lt's assessment of

Resident 4 did not reveal that Resident 4 was in need of one -

on - one supervision.

22. When the CNA left Resident 4 in the day room alone,

she advised the other CNA and the nurse on duty that she was

leaving Resident 4 alone. The day ro om was visible from the

nursing station. When the CNA left the day room, Resident 4

was calm, watching a television program, and exhibiting no

signs of wandering. Sunbelt cannot be an absolute insurer

that no physical harm will come to a resident. Sunbe lt took

the necessary measures to prevent the behaviors that their

assessments of Resident 2 and Resident 4 revealed.

23. Having failed to establish the deficiencies alleged

in the Amended Administrative Complaint, the Agency does not

have a basis for the imposition of a conditional license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a Final Order be entered eliminating the

imposition of the conditional licensure status effective

November 17, 2001 .

DONE AND ENTERED this 15th day of July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administr ative

Hearings

this 15th day of July, 2002.

COPIES FURNISHED:

Karen L. Goldsmith, Esquire

Goldsmith, Grout & Lewis, P.A.

2180 North Park Avenue, Suite 100

Winter Park, Florida 32789

Michael P. Sasso, Esquire

Agency for He alth Care Administration

525 Mirror Lake Drive, North

Suite 310 - G

St. Petersburg, Florida 33701

William Roberts, Acting General Counsel

Agency for Health Care Administrative

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

Vi rginia A. Daire, Agency Clerk

Agency for Health Care Administrative

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

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.