02-001586 Agency For Health Care Administration vs. The Healthcare Center Of Port Charlotte, D/B/A Charlotte Harbor Healthcare
 Status: Closed
Recommended Order on Thursday, February 13, 2003.


View Dockets  
Summary: Discontinuation of facility sponsored off-site trips policy and lack of appropriate supervision and documentation for 93-year-old resident prone to falling led to Conditional licensure status and $5,000 fine.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8AGENCY FOR HEALTH CARE )

13ADMINISTRATION, )

15)

16Petitioner, )

18)

19vs. ) Case No. 02 - 1586

26)

27THE HEALTHCARE CENTER OF PORT )

33CHARLOTTE, d/b/a CHARLOTTE )

37HARBOR HEALTHCARE, )

40)

41Respondent. )

43)

44CHARLOTTE HARBOR HEALTHCARE, )

48)

49Petitioner, )

51)

52vs. ) Case No. 02 - 1917

59)

60AGENCY FOR HEALTH CARE )

65ADMINISTRATION, )

67)

68Respondent. )

70)

71RECOMMENDED ORDER

73Pursuant to Notice, a formal hearing was held in this case

84on September 24, 2002, in Punta Gorda, Florida. The hearing was

95conducted by Fred L. Buckine, Administrative Law Judge, Division

104of Administrative Hearings (DOAH). The authority for conducting

112the hearing is set forth in Sections 120.569 and 120.57(1),

122Florida Statutes.

124APPEARANCES

125For Agency for Health Care Administration:

131Gerald L. Pickett, Esquire

135Agency for Health Care Administration

140525 Mirror Lake Dri ve, North

146Sebring Building, Room 310H

150St. Petersburg, Florida 33701

154For The Healthcare Center of Port Charlotte, d/b/a

162Charlotte Harbor Healthcare:

165Thomas W. Caufman, Esquire

169Gallagher & Howard, P.A.

173505 East Jackson Street, Suite 302

179Tampa, Florida 33602 - 4935

184STATEMENT OF THE ISSUES

188The issues for determination are: (1) whether the

196noncompliance as alleged during the August 30, 2001, survey and

206iden tified as Tags F324 and F242, were Class II deficiencies;

217(2) whether the "Conditional" licensure status, effective

224August 30, 2001, to September 30, 2001, based upon noncompliance

234is appropriate; and (3) whether a fine in the amount of $5,000

247is appropri ate for the cited noncompliance

254PRELIMINARY STATEMENT

256The Agency for Health Care Administration (hereinafter

263AHCA), by letter dated September 12, 2001, informed The

272Healthcare Center of Port Charlotte, d/b/a Charlotte Harbor

280Healthcare (hereinafter Charlot te) that it intended to assign a

290conditional licensure status based on the referenced

297deficiencies related to discontinuation of facility - sponsored

305field trips and failure to prevent repeated falls by a resident

316from the survey completed on August 30, 2001 . Charlotte's

326request of October 2, 2001, for a formal hearing was forwarded

337to DOAH and assigned Case No. 01 - 4333. By Order dated April 8,

3512002, DOAH Case No. 01 - 4333 was closed without prejudice by the

364assigned Administrative Law Judge. Charlotte file d a motion to

374reopen DOAH Case No. 01 - 4333. The reopened complaint was

385assigned DOAH Case No. 02 - 1917.

392AHCA filed a two - count Administrative Complaint dated

401March 13, 2002, based upon the same referenced deficiencies

410related to discontinuation of field t rips and failure to prevent

421repeated falls by a resident from the August 30, 2001, survey.

432This administrative complaint was assigned DOAH Case No. 02 - 1586

443and alleged that Charlotte violated various provisions of the

452Florida Statutes and the Florida Admi nistrative Code and sought

462to impose a $5,000 fine. Charlotte filed a motion to

473consolidate DOAH Case No. 01 - 4333 and 02 - 1586, and by order

487dated May 14, 2002, DOAH Case Nos. 02 - 1586 and 02 - 1917 (formerly

502Case No. 01 - 4333) were consolidated.

509By stipulati on, the parties agreed that AHCA bore the

519burden of proof in this proceeding to show that there was a

531basis for the two intended fines of $2,500 each for a total of

545$5,000.

547At the final hearing, AHCA presented the testimony of two

557witnesses, each who is an AHCA employee: Nancy Furdell, a

567Surveyor, and Maria Garcia Donohue, a Surveyor and Team Leader.

577AHCA offered two composite exhibits in evidence, identified as

586AHCA's Exhibit numbered R - 1, documents relating to Resident 24,

597and AHCA's Exhibit numbered R - 2, documents relating to provision

608of outside activities of all residents. Charlotte presented the

617testimony of: Grace Glasser, an expert in nursing; Dr. John

627Janick (via deposition), a medical doctor; and three Charlotte

636employees, Deborah Francis, a Licensed Practical Nurse; Lynn

644Finnerman, Director of Nursing; and Matthew Logue, Charlotte's

652Administrator. Charlotte offered three exhibits into evidence:

659two composite exhibits, identified as Charlotte's Exhibit P - A,

669Resident 24's complete facility fi le, and Charlotte's Exhibit

678P - C, a compilation of exhibits and demonstrative aids; and one

690transcript of Dr. Janick's deposition testimony, identified as

698Charlotte's Exhibit P - B. Charlotte's Exhibit P - A, after being

710admitted in evidence and by agreement of the parties, was

720returned to Charlotte's counsel for redaction of names and other

730means of identification and was to be returned to the court

741reporter after redaction.

744Official Recognition was taken of Chapter 42 Code of

753Federal Regulations Sections 483 .15 and 483.25; Sections 120.569

762and 120.57(1), Florida Statutes; Chapter 400, Part II,

770Sections 409.175, 400.23(7), and 400.23(8), Florida Statutes;

777and Rules 59A - 4.1288 and 28 - 106.216, Florida Administrative

788Code.

789The identity of the witnesses, exhibits , and any attendant

798evidentiary rulings are set forth in the two - volume Transcript

809of the hearing filed on October 10, 2002.

817Proposed recommended orders were scheduled to be filed not

826later than 20 days after the filing of the transcript. The

837request of Charlotte for additional time to file its proposed

847recommended order was granted. By these arrangements, the

855parties have waived the requirement that the Recommended Order

864be entered within 30 days of receipt of the hearing transcript.

875Rule 28 - 106.216, Florida Administrative Code. Proposed

883Recommended Orders were filed on November 27, 2002, by AHCA and

894Charlotte and have been considered in rendering this Recommended

903Order.

904FINDINGS OF FACT

9071. Charlotte is a nursing home located at 5405 Babcock

917Street, Northeast, Fort Myers, Florida, with 180 residents and

926is duly licensed under Chapter 400, Part II, Florida Statutes.

9362. AHCA is the state agency responsible for evaluating

945nursing homes in Florida pursuant to Section 400.23(7), Florida

954Statutes. As such , in the instant case it is required to

965evaluate nursing homes in Florida in accordance with Section

974400.23(8), Florida Statutes (2000). AHCA evaluates all Florida

982nursing homes at least every 15 months and assigns a rating of

994standard or conditional to e ach licensee. In addition to its

1005regulatory duties under Florida law, AHCA is the state "survey

1015agency," which, on behalf of the federal government, monitors

1024nursing homes that receive Medicaid or Medicare funds.

10323. On August 27 through 30, 2001, AHCA co nducted an annual

1044survey of Charlotte's facility and alleged that there were

1053deficiencies. These deficiencies were organized and described

1060in a survey report by "Tags," numbered Tag F242 and Tag F324.

1072The results of the survey were noted on an AHCA form entitled

"1084Statement of Deficiencies and Plan of Correction." The parties

1093refer to this form as the HCFA 2567 - L or the "2567." The 2567

1108is the document used to charge nursing homes with deficiencies

1118that violate applicable law. The 2567 identified each a lleged

1128deficiency by reference to a Tag number. Each Tag on the 2567

1140includes a narrative description of the allegations against

1148Charlotte and cites a provision of the relevant rule or rules in

1160the Florida Administrative Code violated by the alleged

1168defic iency. To protect the privacy of nursing home residents,

1178the 2567 and this Recommended Order refer to each resident by a

1190number ( i.e. , Resident 24) rather than by the name of the

1202resident.

12034. AHCA must assign a class rating of I, II or III to any

1217deficie ncy that it identifies during a survey. The ratings

1227reflect the severity of the identified deficiency, with Class I

1237being the most severe and Class III being the least severe

1248deficiency. There are two Tags, F242 and F324 at issue in the

1260instant case, and , as a result of the August 2001 survey, AHCA

1272assigned each Tag a Class II deficiency rating and issued

1282Charlotte a "Conditional" license effective August 30, 2001.

1290Tag F242

12925. Tag F242 generally alleged that Charlotte failed to

1301meet certain quality of li fe requirements for the residents,

1311based on record review, group interviews, and staff interviews,

1320and that Charlotte failed to adequately ensure that the

1329residents have a right to choose activities that allow them to

1340interact with members of the community outside the facility.

13496. On or about August 24, 2001, AHCA's surveyors conducted

1359group interviews. During these interviews, 10 of 16 residents

1368in attendance disclosed that they had previously been permitted

1377to participate in various activities and inter act with members

1387of the community outside the facility. They were permitted to

1397go shopping at malls, go to the movies, and go to restaurants.

1409Amtrans transportation vans were used to transport the residents

1418to and from their destinations. The cost of tr ansportation was

1429paid by Charlotte. An average of 17 to 20 residents

1439participated in those weekly trips to dine out with other

1449community members at the Olive Garden and other restaurants.

1458During those trips, Charlotte would send one activity staff

1467member for every four to six residents. The record contains no

1478evidence that staff nurses accompanied those select few

1486residents on their weekly outings. The outings were enjoyed by

1496those participants; however, not every resident desired or was

1505able to partici pate in this particular activity.

15137. Since 1985, outside - the - facility activities had been

1524the facility's written policy. However, in August 2000, one

1533year prior to the survey, Matthew Logue became Administrator of

1543the facility and directed his newly ap pointed Activities

1552Director, Debbie Francis, to discontinue facility sponsored

1559activities outside the facility and in its stead to institute

1569alternative activities which are all on - site functions. Those

1579residents who requested continuation of the opportun ity to go

1589shopping at the mall or dine out with members of the community

1601were denied their request and given the option to have food from

1613a restaurant brought to the facility and served in - house. The

1625alternative provided by the facility to those residents desiring

1634to "interact with members of the community outside the facility"

1644was for each resident to contact the social worker, activity

1654staff member, friends or family who would agree to take them off

1666the facility's premises. Otherwise, the facility would assist

1674each resident to contact Dial - A - Ride, a transportation service,

1686for their transportation. The facility's alternative resulted

1693in a discontinuation of all its involvement in "scheduling group

1703activities" beyond facility premises and a discontinuati on of

1712any "facility staff members" accompanying residents on any

1720outing beyond the facility's premises.

17258. As described by its Activities Director, Charlotte's

1733current activities policy is designed to provide for residents'

"1742interaction with the community members outside the facility,"

1750by having facility chosen and facility scheduled activities such

1759as: Hospice, yard sales, barbershop groups for men and

1768beautician's day for women, musical entertainment, antique car

1776shows, and Brownie and Girl Guides visit s. These, and other

1787similar activities, are conducted by "community residents" who

1795are brought onto the facility premises.

18019. According to the Activities Director, Charlotte's

1808outside activities with transportation provided by Amtrans buses

1816were discon tinued in October of 2000 because "two to three

1827residents had been hurt while on the out trip, or on out - trips." 1

184210. Mr. Logue's stated reason for discontinuing outside

1850activities was, "I no longer wanted to take every member of the

1862activities department and send them with the resident group on

1872an outing, thereby leaving the facility understaffed with

1880activities department employees." The evidence of record does

1888not support Mr. Logue's assumption that "every member of the

1898facility's activities department accompanied the residents on

1905any weekly group outings," as argued by Charlotte in its

1915Proposed Recommended Order.

191811. Charlotte's Administrator further disclosed that

1924financial savings for the facility was among the factors he

1934considered when he instruct ed discontinuation of trips outside

1943the facility. "The facility does not sponsor field trips and

1953use facility money to take people outside and too many staff

1964members were required to facilitate the outings."

197112. During a group meeting conducted by the Su rvey team,

1982residents voiced their feelings and opinions about Charlotte's

1990no longer sponsoring the field trips on a regular basis in terms

2002of: "feels like you're in jail," "you look forward to going

2013out," and being "hemmed in." AHCA's survey team determi ned,

2023based upon the harm noted in the Federal noncompliance, that the

2034noncompliance should be a State deficiency because the

2042collective harm compromised resident's ability to reach or

2050maintain their highest level of psychosocial well being, i.e.

2059how the re sidents feel about themselves and their social

2069relationships with members of the community.

207513. Charlotte's change in its activities policy in

2083October of 2000 failed to afford each resident "self -

2093determination and participation" and does not afford the

2101re sidents the "right to choose activities and schedules" nor to

"2112interact with members of the community outside the facility."

2121AHCA has proved the allegations contained in Tag F242, that

2131Charlotte failed to meet certain quality of life requirements

2140for the residents' self - determination and participation. By the

2150testimonies of witnesses for AHCA and Charlotte and the

2159documentary evidence admitted, AHCA has proven by clear and

2168convincing evidence that Charlotte denied residents the right to

2177choose activities and schedules consistent with their interests

2185and has failed to permit residents to interact with members of

2196the community outside the facility.

2201Tag F324

220314. As to the Federal compliance requirements, AHCA

2211alleged that Charlotte was not in compliance with certain of

2221those requirements regarding Tag F324, for failing to ensure

2230that each resident receives adequate supervision and assistance

2238devices to prevent accidents.

224215. As to State licensure requirements of

2249Sections 400.23(7) and (8), Florida Statutes ( 2000), and by

2259operation of Florida Administrative Code, Rule 59A - 4.1288, AHCA

2269determined that Charlotte had failed to comply with State

2278established rules, and under the Florida classification system,

2286classified Tag F324 noncompliance as a Class II deficien cy.

229616. Based upon Charlotte's patient record reviews and

2304staff interviews, AHCA concluded that Charlotte had failed to

2313adequately assess, develop and implement a plan of care to

2323prevent Resident 24 from repeated falls and injuries.

233117. Resident 24 was a dmitted to Charlotte on April 10,

23422001, at age 93, and died August 6, 2001, before AHCA's survey.

2354He had a history of falls while living with his son before his

2367admission. Resident 24's initial diagnoses upon admission

2374included, among other findings, Cor onary Artery Disease and

2383generalized weakness, senile dementia, and contusion of the

2391right hip. On April 11, 2001, Charlotte staff had Resident 24

2402evaluated by its occupational therapist. The evaluation

2409included a basic standing assessment and a lower bo dy

2419assessment. Resident 24, at that time, was in a wheelchair due

2430to his pre - admission right hip contusion injury.

243918. On April 12, 2001, two days after his admission,

2449Resident 24 was found by staff on the floor, the result of an

2462unobserved fall, and th us, no details of the fall are available.

2474On April 23, 2001, Resident 24 was transferred to the "secured

2485unit" of the facility. The Survey Team's review of Resident

249524's Minimum Data Set, completed April 23, 2001, revealed that

2505Resident 24 required limit ed assistance to transfer and to

2515ambulate and its review of Resident 24's Resident Assessment

2524Protocols (RAPs), completed on April 23, 2001, revealed that

2533Resident 24 was "triggered" for falls. Charlotte's RAP stated

2542that his risk for falls was primarily due to: (1) a history of

2555falls within the past 30 days prior to his admission; (2) his

2567unsteady gait; (3) his highly impaired vision; and (4) his

2577senile dementia.

257919. On April 26, 2001, Charlotte developed a care plan for

2590Resident 24 with the stated goal that the "[r]esident will have

2601no falls with significant injury thru [sic] July 25, 2001," and

2612identified those approaches Charlotte would take to ensure that

2621Resident 24 would not continue falling. Resident 24's care plan

2631included: (1) place a call lig ht within his reach; (2) do a

2644falls risk assessment; (3) monitor for hazards such as clutter

2654and furniture in his path; (4) use of a "Merry Walker" for

2666independent ambulation; (5) placing personal items within easy

2674reach; (6) assistance with all transfers; and (7) give

2683Resident 24 short and simple instructions. Charlotte's approach

2691to achieving its goal was to use tab monitors at all times, to

2704monitor him for unsafe behavior, to obtain physical and

2713occupational therapy for strengthening, and to keep his r oom

2723free from clutter. All factors considered, Charlotte's care

2731plan was reasonable and comprehensive and contained those

2739standard fall prevention measures normally employed for

2746residents who have a history of falling. However, Resident 24's

2756medical hist ory and his repeated episodes of falling imposed

2766upon Charlotte a requirement to document his records and to

2776offer other assistance or assistive devices in an attempt to

2786prevent future falls by this 93 - year - old, senile resident who

2799was known to be "trigger ed" for falls. Charlotte's care plan

2810for Resident 24, considering the knowledge and experience they

2819had with Resident 24's several falling episodes, failed to meet

2829its stated goal.

283220. Charlotte's documentation revealed that Resident 24

2839did not use the c all light provided to him, and he frequently

2852refused to use the "Merry Walker" in his attempts of unaided

2863ambulation. On June 28, 2001, his physician, Dr. Janick,

2872ordered discontinuation of the "Merry Walker" due to his refusal

2882to use it and the cost invo lved. A mobility monitor was ordered

2895by his physician to assist in monitoring his movements.

2904Charlotte's documentation did not indicate whether the monitor

2912was actually placed on Resident 24 at any time or whether it had

2925been discontinued.

292721. Notwithst anding Resident 24's refusal to cooperatively

2935participate in his care plan activities, Charlotte conducted

2943separate fall risk assessments after each of the three falls,

2953which occurred on April 12, May 12, and June 17, 2001. In each

2966of the three risk assess ments conducted by Charlotte,

2975Resident 24 scored above 17, which placed him in a Level II,

2987high risk for falls category. After AHCA's surveyors reviewed

2996the risk assessment form instruction requiring Charlotte to

"3004[d]etermine risk category and initiate t he appropriate care

3013plan immediately," and considered that Resident 24's clinical

3021record contained no notations that his initial care plan of

3031April 23, 2001, had been revised, AHCA concluded that Charlotte

3041was deficient.

304322. On May 13, 2001, Dr. Janick vi sited with Resident 24

3055and determined that "there was no reason for staff to change

3066their approach to the care of Resident 24." Notwithstanding the

3076motion monitors, on June 17, 2001, Resident 24 fell while

3086walking unaided down a corridor. A staff member observed this

3096incident and reported that while Resident 24 was walking

3105(unaided by staff) he simply tripped over his own feet, fell and

3117broke his hip.

312023. Charlotte should have provided "other assistance

3127devices," or "one - on - one supervision," or "other (n onspecific)

3139aids to prevent further falls," for a 93 - year - old resident who

3153had a residential history of falls and suffered with senile

3163dementia. Charlotte did not document other assistive

3170alternatives that could have been utilized for a person in the

3181cond ition of Resident 24. AHCA has carried its burden of proof

3193by clear and convincing evidence regarding the allegations

3201contained in Tag F324.

3205CONCLUSIONS OF LAW

320824. The Division of Administrative Hearings has

3215jurisdiction over the parties and subject matt er of this cause

3226pursuant to Sections 120.659 and 120.57(1), Florida Statutes.

323425. The Agency is authorized to license nursing home

3243facilities in the State of Florida and, pursuant to Chapter 400,

3254Part II, Florida Statutes, is required to evaluate nursing home

3264facilities and assign ratings.

326826. Section 400.23, Florida Statutes, provides that when

3276minimum standards are not met, such deficiency shall be

3285classified according to the nature and scope of the deficiency.

329527. Charlotte is a nursing home license d under

3304Chapter 400, Part II, Florida Statutes.

331028. AHCA evaluates nursing home facilities at least every

331915 months to determine the degree of compliance by the licensee

3330with regulatory rules adopted under Chapter 400, Florida

3338Statutes, as a means to a ssign a license status to the nursing

3351home facility. Section 400.23(7), Florida Statutes (2000).

335829. The license status assigned to the nursing home

3367following the periodic evaluation is either a standard license

3376or a conditional license.

338030. Subsections 400.23(7)(a) and (b), Florida Statutes

3387(2000), defines Standard and Conditional licensure status and

3395sets forth criteria for evaluation as follows:

3402(a) A standard licensure status means

3408that a facility has no class I or class II

3418deficiencies, has cor rected all class III

3425deficiencies within the time established by

3431the agency, and is in substantial compliance

3438at the time of the survey with criteria

3446established under this part, with rules

3452adopted by the agency. . . .

3459(b) A conditional licensure statu s means

3466that a facility, due to the presence of one

3475or more class I or class II deficiencies, or

3484class III deficiencies not corrected within

3490the time established by the agency, is not

3498in substantial compliance at the time of the

3506survey with criteria establ ished under this

3513part, with rules adopted by the

3519agency. . . .

352331. If deficiencies are found during the periodic

3531evaluation, they are classified in accordance with the

3539definitions at Sections 400.23(8)(a) through (c), Florida

3546Statutes (2000), which st ate as follows:

3553(a) Class I deficiencies are those which

3560the agency determines present an imminent

3566danger to the residents or guests of the

3574nursing home facility or a substantial

3580probability that death or serious physical

3586harm would result therefrom. . . .

3593(b) Class II deficiencies are those which

3600the agency determines have a direct or

3607immediate relationship to the health,

3612safety, or security of the nursing home

3619facility residents, other than class I

3625deficiencies. . . .

3629(c) Class III deficie ncies are those

3636which the agency determines to have an

3643indirect or potential relationship to the

3649health, safety, or security of the nursing

3656home facility residents, other than class I

3663or class II deficiencies. . . .

367032. AHCA has authority to adopt rules to classify

3679deficiencies. Sections 400.23(2) and (8), Florida Statutes.

3686Rule 59A - 4.128, Florida Administrative Code, refers to nursing

3696homes participating in Title XVIII or XIX and the need to follow

3708certification rules and regulations found at 42 C.F.R. Chapter

3717483. Charlotte must comply with 42 C.F.R. Chapter 483.

372633. The parties assert, and it is accepted, that Charlotte

3736is substantially affected by the issuance of the Conditional

3745license for the period in question. See Daytona Manor Nursing

3755Home v. AHCA , 21 FALR 119 (AHCA 1998). Thus, Charlotte has

3766standing to oppose AHCA's intent to rate Charlotte's nursing

3775home license as Conditional for the period of January 8, 2001

3786through March 5, 2001. In this context, AHCA bears the burden

3797of proof of alleg ed deficiencies and consequences for the

3807deficiencies. Florida Department of Transportation v. J.W.C.

3814Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v.

3827Department of Health and Rehabilitative Services , 348 So. 2d 349

3837(Fla. 1st DCA 1977). A HCA's burden of proof relating to

3848conditional rating is by a preponderance of the evidence,

3857failing a contrary instruction set forth in Chapter 400, Part

3867II, Florida Statutes. Section 120.57(1)(j), Florida Statutes.

3874The burden of proof is on AHCA. See B everly Enterprises v.

3886Agency For Health Care Administration , 745 So. 2d 1133 (Fla. 1st

3897DCA 1999). The burden of proof to impose an administrative fine

3908is by clear and convincing evidence. Department of Banking and

3918Finance v. Osborne Stern and Company , 67 0 So. 2d 932 (Fla.

39301996).

393134. A nursing home licensed in this state is given a

3942quality rating on the basis of its substantial compliance with

3952two independent bodies of law: state law and federal law. The

3963quality rating of nursing homes is unique to the State of

3974Florida. While federal law deficiencies, for purposes of

3982sanctions, may fall under any of the regulations in 42 C.F.R.

3993Part 483, Rule 59A - 4.128, Florida Administrative Code, effective

4003October 13, 1996 through May 5, 2002, for rating purposes,

4013lim its the consideration of federal deficiencies to those

4022federal deficiencies constituting "substandard quality of care."

"4029Substandard quality of care" refers only to a certain level of

4040noncompliance with three particular sections of 42 C.F.R. Part

4049483: to wit, Sections 483.13, 483.15, and 483.25. Florida

4058Administrative Code Rule 59A - 4.128's use of "substandard quality

4068of care" was added by the amendment to the rule of October 13,

40811996, and was recognized in rule challenge proceedings as an

4091appropriate ref erence to federal law in Florida Health Care

4101Association v. Agency for Health Care Administration , 18

4109F.A.L.R. 3458, 3471 (DOAH 7/16/96).

411435. The state "Class I," "Class II," and "Class III"

4124scheme of deficiencies is simply broader than the federal

"4133subst andard quality of care" scheme. There is no indication in

4144Chapter 400, Part II, Florida Statutes, that the legislature

4153intended for the statutory definitions to be limited by federal

4163law. Thus, under Rule 59A - 4.128(4), Florida Administrative

4172Code, effect ive October 13, 1996 through May 5, 2002, a nursing

4184home is rated as conditional if one of the state "class"

4195deficiencies is found, or if one of the federal "substandard

4205quality of care" deficiencies is found. In summary, a separate

4215inquiry into substanti al compliance with (1) state law and

4225(2) federal law is required to ascertain the proper quality

4235rating of a nursing home.

424036. "F" Tags are Center for Medicare and Medicaid Services

4250(formally Health Care Financing Administration) data tags

4257assigned to e ach of the Federal regulatory requirements for long

4268term care facilities and are found in 42 C.F.R., Section 483.

427937. Interpretive guidelines are found in the State

4287Operations Manual required of the states in conducting surveys

4296for Medicare and Medicaid c ertification. In conducting a

4305survey, the Agency's surveyors rely on these guidelines in

4314determining whether a facility is in compliance with 42 C.F.R.,

4324Chapter 483. 42 C.F.R., Section 483.15(b), in relevant part,

4333states that:

4335A facility must care for its residents in

4343a manner and in an environment that promotes

4351maintenance or enhancement of each

4356resident's quality of life.

4360* * *

4363(b) Self - determination and participation.

4369The resident has the right to --

4376(1) Choose activities, schedules, and

4381health care consistent with his or her

4388interests, assessments, and plans of care;

4394(2) Interact with members of the

4400community both inside and outside the

4406facility; and

4408(3) Make choices about aspects of his or

4416her life in the facility that are

4423s ignificant to the resident.

442838. Since 1985 Charlotte sponsored and provided weekly

4436outside - the - facility trips for those residents who wished to

4448participate. The weekly restaurant outing program was

4455consistent and in full compliance with the resident's r ight to

"4466choose activities and schedules consistent with his or her

4475interests" and "[I]nteract with members of the community . . .

4486outside the facility."

448939. Charlotte's current activity program of

4495discontinuation of off - site - sponsored outings is not in

4506c ompliance with the stated purpose of 42 C.F.R. Section

4516483.15(b). Neither does Administrator Logue's interpreted

4522position that "bringing outside activities and people from the

4531community into the facility" permits the residents to "interact"

4540with the commu nity, suffice to meet the minimum intended purpose

4551of 42 C.F.R. Section 483.15(b).

455640. 42 C.F.R. Section 483.25(h)(2), in relevant part,

4564states that:

4566Each resident must receive and the

4572facility must provide the necessary care and

4579services to attain or ma intain the highest

4587practicable physical, mental, and

4591psychosocial well being, in accordance with

4597the comprehensive assessment and plan of

4603care.

4604* * *

4607(h) Accidents. The facility must ensure

4613that --

4615* * *

4618(2) Each resident receives a dequate

4624supervision and assistance devices to

4629prevent accidents.

463141. Pursuant to Section 400.23(7), Florida Statutes, to

4639assign a conditional licensure status to a facility, the Agency

4649must show, at the time of the survey, the facility was not in

"4662substa ntial compliance" with the criteria established under

4670Part II of Chapter 400 of the Florida Statutes. Thus,

4680substantial compliance with a particular statute, rule,

4687standard, or requirement under this Part, would appear to mean

4697assuring that in circumstanc es where a known and identified

4707hazard or propensity of a particular resident could cause, may

4717cause or in the past has caused injury to that particular

4728resident, the hazard or propensity would be closely monitored

4737and preventative measures taken to preclu de and prevent that

4747particular resident from becoming a victim of the identified

4756hazard or propensity.

475942. In the instant case, with regard to Tag F324,

4769Charlotte made an assessment of Resident 24 upon his admission

4779into their facility and his known risks were identified. From

4789the date of his admission until his death, Resident 24 was

4800continuously assessed and determined by Charlotte's staff to be

"4809triggered" for falls. His initial assessment of April 23,

48182001, diagnosis revealed, among other problems, s enile dementia,

4827a decreased awareness of safety, highly impaired vision, and a

4837history of falls. On May 12, 2001, Resident 24 was discovered

4848on the floor with an abrasion of his knee. No knows how this

4861falls occurred. On June 17, 2001, he was discovered with a

4872laceration on his head resulting from falling. Still later, he

4882was found to have suffered a fractured hip resulting from a

4893fall. After each fall, Charlotte completed the required risk

4902fall assessments. AHCA maintains that no documentation to

4910supp ort or demonstrate that Charlotte provided or attempted to

4920provide alternative assistive devices sufficient to prevent

4927further falls and injury. Those "alternative assistive" devices

4935AHCA maintains Charlotte should have documented are not defined

4944by eithe r statute or rule.

495043. The documentary and testimonial evidence presented by

4958both the parties, clearly and convincingly, demonstrates that

4966Resident 24 was faced with more than a minimal risk for harm and

4979that Charlotte compromised his ability to maintain or reach his

4989highest practicable physical, mental and psychosocial well - being

4998as defined by an accurate and comprehensive resident assessment,

5007plan of care and provisions for service. The record contains

5017testimony that Charlotte's staff actually witnessed one episode

5025of Resident 24 falling, for no apparent reason other than

5035tripping over his feet, as he walked unaided down the hallway.

5046From that fact alone, one could find reason to agree that "one -

5059on - one" supervision may have been cost prohibitive. 2 Howe ver,

5071closer supervision by staff, time checks, strict monitoring or

5080spot checking of Resident 24 and/or having a certified nursing

5090assistant monitor his unaided walks are alternatives that are

5099not cost prohibitive. The record contains no evidence that

5108the se or other reasonable alternatives were documented by

5117Charlotte's nursing staff.

512044. The documentary and testimonial evidence presented by

5128both AHCA and Charlotte clearly and convincingly demonstrates

5136that with regard to Tag F242, the requirement impos ed upon

5147Charlotte to provide the residents with opportunities to select

5156and participate in activities with members of the community

5165outside the facility premises is intentionally not being

5173fulfilled. Under direction of the Administrator, the current

5181Activ ities Director offers no facility - sponsored activities

5190outside (off premises) the facility of which residents may

5199select or participate. Based upon the testimony of the

5208Administrator and the testimony of the Activities Director, it

5217is unclear what Charlot te's current policy may be. It is clear

5229that outside activities that were once provided under the policy

5239in effect since 1985 until discontinued by the Administrator are

5249no longer provided. It is equally clear that residents were

5259quite vocal in their dis approval of being denied those

5269opportunities to select an activity sponsored by the facility

5278wherein they went into the community and interacted with members

5288of the community. The absence of facility sponsored outside -

5298the - facility activities clearly and c onvincingly compromised the

5308residents' ability to reach their highest practicable

5315psychosocial well being, and is a Class II deficiency.

5324Accordingly, AHCA has proven by clear and convincing evidence

5333the allegation made in support of Tag F242 that Charlott e has

5345failed and refused to provide the residents with opportunities

5354to select and to participate in facility sponsored activities

5363with members of the community outside facility premises.

5371RECOMMENDATION

5372Based upon the foregoing Findings of Fact and Conclu sions

5382of Law, it is RECOMMENDED that:

5388The Agency enter a final order upholding the assignment of

5398the Conditional licensure status for the period of August 30,

54082001 through September 30, 2001, and impose an administrative

5417fine in the amount of $2,500 for ea ch of the two Class II

5432deficiencies for a total administrative fine in the amount of

5442$5,000.

5444DONE AND ENTERED this 13th day of February, 2003, in

5454Tallahassee, Leon County, Florida.

5458___________________________________

5459FRED L. BUCKINE

5462Administrative Law Judg e

5466Division of Administrative Hearings

5470The DeSoto Building

54731230 Apalachee Parkway

5476Tallahassee, Florida 32399 - 3060

5481(850) 488 - 9675 SUNCOM 278 - 9675

5489Fax Filing (850) 921 - 6847

5495www.doah.state.fl.us

5496Filed with the Clerk of the

5502Division of Administrative Hearin gs

5507this 13th day of February, 2003.

5513ENDNOTES

55141/ The mere hearsay statement of the Activities Director, "two

5524or three resident had been hurt while on the out trip," without

5536more, is insufficient to support a finding of fact that

5546residents were, in fact, hurt while on an out trip. However,

5557from her statement, a proper and reasonable inference is that

5567the determinative concern of the facility's administration, in

5575its decision to discontinue facility sponsored off premise

5583activities for the residents, was financial.

55892/ Charlotte's citing of Beverly Enterprises v. A.H.C.A. , 20

5598F.A.L.R. (AHCA 1998), cited with approval in Pasadena Manor,

5607Inc. v. A.H.C.A , 23 F.A.L.R. 3683 at 3691, paragraph 42 (AHCA,

56182001), as controlling, is not on point. Substantial compl iance

5628is determined from specific factual circumstances of each given

5637situation. In Beverly, there were 11 residents who suffered

5646falls. Under those circumstances, the fact - finder's rejection

5655of one - on - one staff care for each of the 11 residents because of

5671cost was reasonable. Based upon a totality of those

5680circumstances, there was no preventable cause for any of the 11

5691residents who fell. In the case at bar however, there is only

5703one resident triggered for falls, Resident 24. Additionally,

5711other preve ntable assistive devices for Resident 24 ( i.e. more

5722and/or closer supervision, specific spot checks, etc.) were not

5731documented as having been considered by Charlotte's staff.

5739Acceptance of AHCA's position that "written care plans" and

"5748investigation after each fall" equates to substantial

5755compliance ignores the particular circumstances and known

5762medical conditions and facts pertinent to Resident 24. A closer

5772level of supervision of Resident 24 would not have "required a

5783tremendous increase in staff" nor w ould it "result in a

5794tremendous cost to the facility and its residents" and it was

5805achievable.

5806COPIES FURNISHED :

5809Thomas W. Caufman, Esquire

5813Gallagher & Howard, P.A.

5817505 East Jackson Street, Suite 302

5823Tampa, Florida 33602 - 4935

5828Gerald L. Pickett, Esquir e

5833Agency for Health Care Administration

5838525 Mirror Lake Drive, North

5843Sebring Building, Suite 310H

5847St. Petersburg, Florida 33701

5851Lealand McCharen, Agency Clerk

5855Agency for Health Care Administration

58602727 Mahan Drive, Mail Stop 3

5866Tallahassee, Florida 32308

5869Valda Clark Christian, General Counsel

5874Agency for Health Care Administration

58792727 Mahan Drive

5882Fort Knox Building, Suite 3431

5887Tallahassee, Florida 32308

5890NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5896All parties have the right to submit written exceptions with in

590715 days from the date of this Recommended Order. Any exceptions

5918to this Recommended Order should be filed with the agency that

5929will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 08/06/2003
Proceedings: Final Order filed.
PDF:
Date: 08/04/2003
Proceedings: Agency Final Order
PDF:
Date: 02/13/2003
Proceedings: Recommended Order
PDF:
Date: 02/13/2003
Proceedings: Recommended Order issued (hearing held September 24, 2002) CASE CLOSED.
PDF:
Date: 02/13/2003
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 12/04/2002
Proceedings: Letter to Judge Buckine from M. Howard enclosing diskette of Petitioner`s proposed recommended order filed.
PDF:
Date: 12/02/2002
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 11/27/2002
Proceedings: Agency`s Proposed Recommended Order (filed via facsimile).
PDF:
Date: 11/27/2002
Proceedings: Petitioner`s Proposed Recommended Order (filed via facsimile).
PDF:
Date: 11/18/2002
Proceedings: Order issued. (the parties shall have until December 1, 2002, at 5:00 p.m., to file proposed recommended orders)
PDF:
Date: 11/18/2002
Proceedings: Motion for Extension of Time to Complete Proposed Recommended Orders (filed by Petitioner via facsimile).
PDF:
Date: 10/31/2002
Proceedings: Order issued. (parties shall have until November 19, 2002, at 5:00 p.m., to file proposed recommended orders)
PDF:
Date: 10/29/2002
Proceedings: Motion for Extension of Time to Complete Proposed Recommended Order (filed by Petitioner via facsimile).
PDF:
Date: 10/21/2002
Proceedings: Exhibits filed by Petitioner.
Date: 10/10/2002
Proceedings: Transcript of Proceedings (2 Volumes) filed.
Date: 09/24/2002
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 09/12/2002
Proceedings: Third Amended Notice of Taking Deposition, J. Janick (filed via facsimile).
PDF:
Date: 09/06/2002
Proceedings: Second Amended Notice of Taking Deposition, J. Janick (filed via facsimile).
PDF:
Date: 09/04/2002
Proceedings: Notice of Service of AHCA`s Answers to Interrogatories From Petitioner (filed via facsimile).
PDF:
Date: 09/04/2002
Proceedings: Notice of Service of Respondent`s Response to Petitioner`s Amended First Request for Production (filed via facsimile).
PDF:
Date: 08/23/2002
Proceedings: Order Compelling Responses to Discovery issued.
PDF:
Date: 08/23/2002
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for September 24, 2002; 9:00 a.m.; Punta Gorda, FL).
PDF:
Date: 08/22/2002
Proceedings: Charlotte Harbor`s Unilateral Pre-Hearing Response and Objection to Continuance (filed via facsimile).
PDF:
Date: 08/22/2002
Proceedings: Motion for Continuance of the Final Hearing (filed by Respondent via facsimile).
PDF:
Date: 08/22/2002
Proceedings: Notice of Appearance and Substitution of Counsel (filed by Respondent via facsimile).
PDF:
Date: 08/21/2002
Proceedings: Motion to Compel Responses to Discovery (filed by Petitioner via facsimile)
PDF:
Date: 08/21/2002
Proceedings: Amended Notice of Taking Deposition, J. Janick (filed via facsimile).
PDF:
Date: 08/20/2002
Proceedings: Notice of Taking Deposition, J. Janick (filed via facsimile).
PDF:
Date: 08/02/2002
Proceedings: Second Amended Notice of Taking Depositions Duces Tecum N. Furdell (filed via facsimile).
PDF:
Date: 07/08/2002
Proceedings: Amended Notice of Serving Petitioner`s First Request for Production (filed via facsimile).
PDF:
Date: 07/08/2002
Proceedings: Amended Notice of Serving Petitioner`s First Set of Interrogatories to Respondent (filed via facsimile).
PDF:
Date: 07/08/2002
Proceedings: Petitioner`s Amended Notice of Serving Expert Interrogatories (filed via facsimile).
PDF:
Date: 07/02/2002
Proceedings: Amended Notice of Taking Depositions Duces Tecum, N. Furdell, G. Donahue (filed via facsimile).
PDF:
Date: 05/22/2002
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 05/22/2002
Proceedings: Notice of Hearing issued (hearing set for August 27 and 28, 2002; 9:00 a.m.; Punta Gorda, FL).
PDF:
Date: 05/21/2002
Proceedings: Joint Response to Order of Consolidation (filed via facsimile).
PDF:
Date: 05/14/2002
Proceedings: Order of Consolidation issued. (consolidated cases are: 02-001586, 02-001917)
PDF:
Date: 05/14/2002
Proceedings: Notice of Taking Depositions Duces Tecum, N. Furdell, G. Donahue (filed via facsimile).
PDF:
Date: 05/03/2002
Proceedings: Motion for Consolidation (of case nos.01-4333, 02-1586 ) filed.
PDF:
Date: 04/19/2002
Proceedings: Initial Order issued.
PDF:
Date: 04/18/2002
Proceedings: Administrative Complaint filed.
PDF:
Date: 04/18/2002
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 04/18/2002
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
FRED L. BUCKINE
Date Filed:
04/18/2002
Date Assignment:
09/17/2002
Last Docket Entry:
08/06/2003
Location:
Punta Gorda, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related Florida Statute(s) (4):