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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1586

)

THE HEALTHCARE CENTER OF PORT )

CHARLOTTE, d/b/a CHARLOTTE )

HARBOR HEALTHCARE, )

)

Respondent. )

)

CHARLOTTE HARBOR HEALTHCARE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1917

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

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

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

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

of Administrative Hearings (DOAH). The authority for conducting

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

Florida Statutes.

APPEARANCES

For Agency for Health Care Administration:

Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Dri ve, North

Sebring Building, Room 310H

St. Petersburg, Florida 33701

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

Charlotte Harbor Healthcare:

Thomas W. Caufman, Esquire

Gallagher & Howard, P.A.

505 East Jackson Street, Suite 302

Tampa, Florida 33602 - 4935

STATEMENT OF THE ISSUES

The issues for determination are: (1) whether the

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

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

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

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

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

is appropri ate for the cited noncompliance

PRELIMINARY STATEMENT

The Agency for Health Care Administration (hereinafter

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

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

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

conditional licensure status based on the referenced

deficiencies related to discontinuation of facility - sponsored

field trips and failure to prevent repeated falls by a resident

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

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

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

2002, DOAH Case No. 01 - 4333 was closed without prejudice by the

assigned Administrative Law Judge. Charlotte file d a motion to

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

assigned DOAH Case No. 02 - 1917.

AHCA filed a two - count Administrative Complaint dated

March 13, 2002, based upon the same referenced deficiencies

related to discontinuation of field t rips and failure to prevent

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

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

and alleged that Charlotte violated various provisions of the

Florida Statutes and the Florida Admi nistrative Code and sought

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

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

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

Case No. 01 - 4333) were consolidated.

By stipulati on, the parties agreed that AHCA bore the

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

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

$5,000.

At the final hearing, AHCA presented the testimony of two

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

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

AHCA offered two composite exhibits in evidence, identified as

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

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

of outside activities of all residents. Charlotte presented the

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

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

employees, Deborah Francis, a Licensed Practical Nurse; Lynn

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

Administrator. Charlotte offered three exhibits into evidence:

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

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

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

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

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

admitted in evidence and by agreement of the parties, was

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

means of identification and was to be returned to the court

reporter after redaction.

Official Recognition was taken of Chapter 42 Code of

Federal Regulations Sections 483 .15 and 483.25; Sections 120.569

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

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

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

Code.

The identity of the witnesses, exhibits , and any attendant

evidentiary rulings are set forth in the two - volume Transcript

of the hearing filed on October 10, 2002.

Proposed recommended orders were scheduled to be filed not

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

request of Charlotte for additional time to file its proposed

recommended order was granted. By these arrangements, the

parties have waived the requirement that the Recommended Order

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

Rule 28 - 106.216, Florida Administrative Code. Proposed

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

Charlotte and have been considered in rendering this Recommended

Order.

FINDINGS OF FACT

1. Charlotte is a nursing home located at 5405 Babcock

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

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

2. AHCA is the state agency responsible for evaluating

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

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

evaluate nursing homes in Florida in accordance with Section

400.23(8), Florida Statutes (2000). AHCA evaluates all Florida

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

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

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

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

nursing homes that receive Medicaid or Medicare funds.

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

survey of Charlotte's facility and alleged that there were

deficiencies. These deficiencies were organized and described

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

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

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

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

is the document used to charge nursing homes with deficiencies

that violate applicable law. The 2567 identified each a lleged

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

includes a narrative description of the allegations against

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

the Florida Administrative Code violated by the alleged

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

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

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

resident.

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

deficie ncy that it identifies during a survey. The ratings

reflect the severity of the identified deficiency, with Class I

being the most severe and Class III being the least severe

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

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

assigned each Tag a Class II deficiency rating and issued

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

Tag F242

5. Tag F242 generally alleged that Charlotte failed to

meet certain quality of li fe requirements for the residents,

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

and that Charlotte failed to adequately ensure that the

residents have a right to choose activities that allow them to

interact with members of the community outside the facility.

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

group interviews. During these interviews, 10 of 16 residents

in attendance disclosed that they had previously been permitted

to participate in various activities and inter act with members

of the community outside the facility. They were permitted to

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

Amtrans transportation vans were used to transport the residents

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

paid by Charlotte. An average of 17 to 20 residents

participated in those weekly trips to dine out with other

community members at the Olive Garden and other restaurants.

During those trips, Charlotte would send one activity staff

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

evidence that staff nurses accompanied those select few

residents on their weekly outings. The outings were enjoyed by

those participants; however, not every resident desired or was

able to partici pate in this particular activity.

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

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

year prior to the survey, Matthew Logue became Administrator of

the facility and directed his newly ap pointed Activities

Director, Debbie Francis, to discontinue facility sponsored

activities outside the facility and in its stead to institute

alternative activities which are all on - site functions. Those

residents who requested continuation of the opportun ity to go

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

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

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

alternative provided by the facility to those residents desiring

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

was for each resident to contact the social worker, activity

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

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

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

for their transportation. The facility's alternative resulted

in a discontinuation of all its involvement in "scheduling group

activities" beyond facility premises and a discontinuati on of

any "facility staff members" accompanying residents on any

outing beyond the facility's premises.

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

current activities policy is designed to provide for residents'

"interaction with the community members outside the facility,"

by having facility chosen and facility scheduled activities such

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

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

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

similar activities, are conducted by "community residents" who

are brought onto the facility premises.

9. According to the Activities Director, Charlotte's

outside activities with transportation provided by Amtrans buses

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

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

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

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

activities department and send them with the resident group on

an outing, thereby leaving the facility understaffed with

activities department employees." The evidence of record does

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

facility's activities department accompanied the residents on

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

Proposed Recommended Order.

11. Charlotte's Administrator further disclosed that

financial savings for the facility was among the factors he

considered when he instruct ed discontinuation of trips outside

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

use facility money to take people outside and too many staff

members were required to facilitate the outings."

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

residents voiced their feelings and opinions about Charlotte's

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

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

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

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

noncompliance should be a State deficiency because the

collective harm compromised resident's ability to reach or

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

how the re sidents feel about themselves and their social

relationships with members of the community.

13. Charlotte's change in its activities policy in

October of 2000 failed to afford each resident "self -

determination and participation" and does not afford the

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

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

AHCA has proved the allegations contained in Tag F242, that

Charlotte failed to meet certain quality of life requirements

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

testimonies of witnesses for AHCA and Charlotte and the

documentary evidence admitted, AHCA has proven by clear and

convincing evidence that Charlotte denied residents the right to

choose activities and schedules consistent with their interests

and has failed to permit residents to interact with members of

the community outside the facility.

Tag F324

14. As to the Federal compliance requirements, AHCA

alleged that Charlotte was not in compliance with certain of

those requirements regarding Tag F324, for failing to ensure

that each resident receives adequate supervision and assistance

devices to prevent accidents.

15. As to State licensure requirements of

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

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

determined that Charlotte had failed to comply with State

established rules, and under the Florida classification system,

classified Tag F324 noncompliance as a Class II deficien cy.

16. Based upon Charlotte's patient record reviews and

staff interviews, AHCA concluded that Charlotte had failed to

adequately assess, develop and implement a plan of care to

prevent Resident 24 from repeated falls and injuries.

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

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

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

admission. Resident 24's initial diagnoses upon admission

included, among other findings, Cor onary Artery Disease and

generalized weakness, senile dementia, and contusion of the

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

evaluated by its occupational therapist. The evaluation

included a basic standing assessment and a lower bo dy

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

to his pre - admission right hip contusion injury.

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

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

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

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

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

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

Resident 24 required limit ed assistance to transfer and to

ambulate and its review of Resident 24's Resident Assessment

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

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

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

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

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

senile dementia.

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

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

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

identified those approaches Charlotte would take to ensure that

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

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

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

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

independent ambulation; (5) placing personal items within easy

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

Resident 24 short and simple instructions. Charlotte's approach

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

monitor him for unsafe behavior, to obtain physical and

occupational therapy for strengthening, and to keep his r oom

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

plan was reasonable and comprehensive and contained those

standard fall prevention measures normally employed for

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

medical hist ory and his repeated episodes of falling imposed

upon Charlotte a requirement to document his records and to

offer other assistance or assistive devices in an attempt to

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

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

for Resident 24, considering the knowledge and experience they

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

its stated goal.

20. Charlotte's documentation revealed that Resident 24

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

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

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

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

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

by his physician to assist in monitoring his movements.

Charlotte's documentation did not indicate whether the monitor

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

been discontinued.

21. Notwithst anding Resident 24's refusal to cooperatively

participate in his care plan activities, Charlotte conducted

separate fall risk assessments after each of the three falls,

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

of the three risk assess ments conducted by Charlotte,

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

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

the risk assessment form instruction requiring Charlotte to

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

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

record contained no notations that his initial care plan of

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

was deficient.

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

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

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

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

walking unaided down a corridor. A staff member observed this

incident and reported that while Resident 24 was walking

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

broke his hip.

23. Charlotte should have provided "other assistance

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

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

had a residential history of falls and suffered with senile

dementia. Charlotte did not document other assistive

alternatives that could have been utilized for a person in the

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

by clear and convincing evidence regarding the allegations

contained in Tag F324.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties and subject matt er of this cause

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

25. The Agency is authorized to license nursing home

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

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

facilities and assign ratings.

26. Section 400.23, Florida Statutes, provides that when

minimum standards are not met, such deficiency shall be

classified according to the nature and scope of the deficiency.

27. Charlotte is a nursing home license d under

Chapter 400, Part II, Florida Statutes.

28. AHCA evaluates nursing home facilities at least every

15 months to determine the degree of compliance by the licensee

with regulatory rules adopted under Chapter 400, Florida

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

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

29. The license status assigned to the nursing home

following the periodic evaluation is either a standard license

or a conditional license.

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

(2000), defines Standard and Conditional licensure status and

sets forth criteria for evaluation as follows:

(a) A standard licensure status means

that a facility has no class I or class II

deficiencies, has cor rected all class III

deficiencies within the time established by

the agency, and is in substantial compliance

at the time of the survey with criteria

established under this part, with rules

adopted by the agency. . . .

(b) A conditional licensure statu s 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 establ ished under this

part, with rules adopted by the

agency. . . .

31. If deficiencies are found during the periodic

evaluation, they are classified in accordance with the

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

Statutes (2000), which st ate as follows:

(a) Class I deficiencies are those which

the agency determines 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. . . .

(b) Class II deficiencies are those which

the agency determines have a direct or

immediate relationship to the health,

safety, or security of the nursing home

facility residents, other than class I

deficiencies. . . .

(c) Class III deficie ncies are those

which the agency determines to 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. . . .

32. AHCA has authority to adopt rules to classify

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

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

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

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

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

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

is substantially affected by the issuance of the Conditional

license for the period in question. See Daytona Manor Nursing

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

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

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

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

of proof of alleg ed deficiencies and consequences for the

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

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

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

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

conditional rating is by a preponderance of the evidence,

failing a contrary instruction set forth in Chapter 400, Part

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

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

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

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

is by clear and convincing evidence. Department of Banking and

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

1996).

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

quality rating on the basis of its substantial compliance with

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

quality rating of nursing homes is unique to the State of

Florida. While federal law deficiencies, for purposes of

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

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

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

lim its the consideration of federal deficiencies to those

federal deficiencies constituting "substandard quality of care."

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

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

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

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

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

1996, and was recognized in rule challenge proceedings as an

appropriate ref erence to federal law in Florida Health Care

Association v. Agency for Health Care Administration , 18

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

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

scheme of deficiencies is simply broader than the federal

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

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

intended for the statutory definitions to be limited by federal

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

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

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

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

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

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

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

rating of a nursing home.

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

(formally Health Care Financing Administration) data tags

assigned to e ach of the Federal regulatory requirements for long

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

37. Interpretive guidelines are found in the State

Operations Manual required of the states in conducting surveys

for Medicare and Medicaid c ertification. In conducting a

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

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

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

states that:

A facility must care for its residents in

a manner and in an environment that promotes

maintenance or enhancement of each

resident's quality of life.

* * *

(b) Self - determination and participation.

The resident has the right to --

(1) Choose activities, schedules, and

health care consistent with his or her

interests, assessments, and plans of care;

(2) Interact with members of the

community both inside and outside the

facility; and

(3) Make choices about aspects of his or

her life in the facility that are

s ignificant to the resident.

38. Since 1985 Charlotte sponsored and provided weekly

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

participate. The weekly restaurant outing program was

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

"choose activities and schedules consistent with his or her

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

outside the facility."

39. Charlotte's current activity program of

discontinuation of off - site - sponsored outings is not in

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

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

position that "bringing outside activities and people from the

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

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

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

40. 42 C.F.R. Section 483.25(h)(2), in relevant part,

states that:

Each resident must receive and the

facility must provide the necessary care and

services to attain or ma intain the highest

practicable physical, mental, and

psychosocial well being, in accordance with

the comprehensive assessment and plan of

care.

* * *

(h) Accidents. The facility must ensure

that --

* * *

(2) Each resident receives a dequate

supervision and assistance devices to

prevent accidents.

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

assign a conditional licensure status to a facility, the Agency

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

"substa ntial compliance" with the criteria established under

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

substantial compliance with a particular statute, rule,

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

assuring that in circumstanc es where a known and identified

hazard or propensity of a particular resident could cause, may

cause or in the past has caused injury to that particular

resident, the hazard or propensity would be closely monitored

and preventative measures taken to preclu de and prevent that

particular resident from becoming a victim of the identified

hazard or propensity.

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

Charlotte made an assessment of Resident 24 upon his admission

into their facility and his known risks were identified. From

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

continuously assessed and determined by Charlotte's staff to be

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

2001, diagnosis revealed, among other problems, s enile dementia,

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

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

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

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

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

was found to have suffered a fractured hip resulting from a

fall. After each fall, Charlotte completed the required risk

fall assessments. AHCA maintains that no documentation to

supp ort or demonstrate that Charlotte provided or attempted to

provide alternative assistive devices sufficient to prevent

further falls and injury. Those "alternative assistive" devices

AHCA maintains Charlotte should have documented are not defined

by eithe r statute or rule.

43. The documentary and testimonial evidence presented by

both the parties, clearly and convincingly, demonstrates that

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

that Charlotte compromised his ability to maintain or reach his

highest practicable physical, mental and psychosocial well - being

as defined by an accurate and comprehensive resident assessment,

plan of care and provisions for service. The record contains

testimony that Charlotte's staff actually witnessed one episode

of Resident 24 falling, for no apparent reason other than

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

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

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

closer supervision by staff, time checks, strict monitoring or

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

assistant monitor his unaided walks are alternatives that are

not cost prohibitive. The record contains no evidence that

the se or other reasonable alternatives were documented by

Charlotte's nursing staff.

44. The documentary and testimonial evidence presented by

both AHCA and Charlotte clearly and convincingly demonstrates

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

Charlotte to provide the residents with opportunities to select

and participate in activities with members of the community

outside the facility premises is intentionally not being

fulfilled. Under direction of the Administrator, the current

Activ ities Director offers no facility - sponsored activities

outside (off premises) the facility of which residents may

select or participate. Based upon the testimony of the

Administrator and the testimony of the Activities Director, it

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

that outside activities that were once provided under the policy

in effect since 1985 until discontinued by the Administrator are

no longer provided. It is equally clear that residents were

quite vocal in their dis approval of being denied those

opportunities to select an activity sponsored by the facility

wherein they went into the community and interacted with members

of the community. The absence of facility sponsored outside -

the - facility activities clearly and c onvincingly compromised the

residents' ability to reach their highest practicable

psychosocial well being, and is a Class II deficiency.

Accordingly, AHCA has proven by clear and convincing evidence

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

failed and refused to provide the residents with opportunities

to select and to participate in facility sponsored activities

with members of the community outside facility premises.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclu sions

of Law, it is RECOMMENDED that:

The Agency enter a final order upholding the assignment of

the Conditional licensure status for the period of August 30,

2001 through September 30, 2001, and impose an administrative

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

deficiencies for a total administrative fine in the amount of

$5,000.

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

Tallahassee, Leon County, Florida.

___________________________________

FRED L. BUCKINE

Administrative Law Judg e

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 Administrative Hearin gs

this 13th day of February, 2003.

ENDNOTES

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

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

more, is insufficient to support a finding of fact that

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

from her statement, a proper and reasonable inference is that

the determinative concern of the facility's administration, in

its decision to discontinue facility sponsored off premise

activities for the residents, was financial.

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

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

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

2001), as controlling, is not on point. Substantial compl iance

is determined from specific factual circumstances of each given

situation. In Beverly, there were 11 residents who suffered

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

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

cost was reasonable. Based upon a totality of those

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

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

one resident triggered for falls, Resident 24. Additionally,

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

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

documented as having been considered by Charlotte's staff.

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

"investigation after each fall" equates to substantial

compliance ignores the particular circumstances and known

medical conditions and facts pertinent to Resident 24. A closer

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

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

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

achievable.

COPIES FURNISHED :

Thomas W. Caufman, Esquire

Gallagher & Howard, P.A.

505 East Jackson Street, Suite 302

Tampa, Florida 33602 - 4935

Gerald L. Pickett, Esquir e

Agency for Health Care Administration

525 Mirror Lake Drive, North

Sebring Building, Suite 310H

St. Petersburg, Florida 33701

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

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 with in

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.