02-003405 Agency For Health Care Administration vs. Delta Health Group, D/B/A Rosewood Manor Status: Closed Recommended Order on Friday, June 6, 2003.

Summary: Respondent permitted the door to a bio-hazard storage area to remain open which presented an accident hazard, resulting in a resident being punctured by used hypodermic needles.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

) Case No. 02 - 3405

vs. )

)

DELTA HEALTH GROUP, d/b/a )

ROSEWOOD MANOR, )

)

Respondent. )

)

RE COMMENDED ORDER

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

before Harry L. Hooper, Administrative Law Judge, Division of

Administrative Hearings, on October 24 - 25, 2002, in Pensacola,

Florida.

APPEARANCES

For Petit ioner: Lori Desnick, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Building 3

Mail Stop 3

Tallahassee, Florida 32308

For Respondent: R. Davis Thomas, Jr., Esquire

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent violated S ection 400.23, Florida

Statutes, and Rule 59A - 4.1288, Florida Administrative Code, by

failing to ensure that the facility's environment remained as

free of accident hazards as possible.

PRELIMINARY STATEMENT

Petitioner (AHCA) filed an Administrative Compl aint against

Respondent Delta Health Group doing business as Rosewood Manor

(Rosewood), which sought to impose a $2,500 fine against

Rosewood based upon an alleged, Class II violation of Title 42

Code of Federal Regulations, Section 483.25(h)(1), which is

incorporated into Rule 59A - 4.1288, Florida Administrative Code.

Title 42 Code of Federal Regulations, Section 483.25(h)(1)

requires that nursing homes be as free of accident hazards as

possible. The event precipitating the allegation in the

Administrativ e Complaint was identified in a survey of Rosewood

conducted on September 11, 2001.

Respondent timely filed a Petition challenging the

allegations of the Administrative Complaint and the validity of

the proposed fine asserted by AHCA. The Petition was thereafter

referred by AHCA to the Division of Administrative Hearings.

The Administrative Law Judge consolidated Rosewood’s

Petition with three other related Petitions filed by AHCA. All

four Petitions were scheduled for a two - day hearing in Pensacola

beginning October 25, 2002.

Four days prior to the hearing, Rosewood filed a Motion to

Dismiss AHCA’s Administrative Complaint in this case on the

grounds that it was barred by the doctrine of res judicata .

Because Rosewood filed the Motion within four d ays of the

scheduled hearing, AHCA’s counsel did not have an opportunity to

respond to it prior to hearing. The Administrative Law Judge

agreed to proceed with the evidentiary hearing in all of the

underlying cases, but withheld any ruling on the Motion t o

Dismiss to allow AHCA’s counsel to file a response thereto.

At the hearing, AHCA presented the testimony of Marcia

Steele, RN; Judith Brown, RN; Sandra Corcoran, RN; and Judith

Salpeter, RN. Nurse Steel and Nurse Salpeter were both

recognized as expert s in nursing practices and procedures.

Nurse Brown was recognized as an expert on pressure sores. AHCA

had 14 exhibits admitted into evidence. Rosewood called one

witness, Howard Thomas Hulsey, RN, and had seven exhibits

admitted into evidence.

A Trans cript was filed on November 12, 2002.

On October 28, 2002, AHCA filed its Response to Rosewood’s

Motion to Dismiss. The Administrative Law Judge held a hearing

on that Motion on October 31, 2002. On November 7, 2002, the

Administrative Law Judge issued a Recommended Order granting

Rosewood’s request and suggesting to AHCA that the

Administrative Complaint should be dismissed based on

Petitioner's unlawful splitting of claims against Rosewood.

On April 9, 2003, AHCA entered a Final Order rejecting the

conclusion of law of the Administrative Law Judge in his

November 7, 2002, Recommended Order, which recommended that

AHCA’s Administrative Complaint be dismissed. The Final Order

further remanded the case to the Division of Administrative

Hearings so that the Administrative Law Judge could conduct

further proceedings in accordance with the instructions

contained in the Final Order.

Because the facts surrounding the complaint were fully

elucidated at the October 2002 hearing, the parties agreed that

the t aking of further evidence was not required. Subsequent to

a case management conference, the parties agreed to submit

Proposed Recommended Orders in this case on May 20, 2003. Both

parties timely submitted Proposed Recommended Orders.

Subsequently, Respo ndent filed a Motion to Strike Portions of

Petitioner's Proposed Recommended Order. Because the parties

agreed that the end - date for communication to the Administrative

Law Judge would be May 20, 2003, the matters contained in the

Motion were not consider ed. The Proposed Recommended Orders

submitted on May 20, 2003 were considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. AHCA is the state agency responsible for licensure and

enforcement of all applicable statutes and rule s governing

nursing homes in Florida pursuant to Sections 400.021 and

400.23(7), Florida Statutes.

2. Rosewood is a skilled nursing facility located at 3107

North H Street, Pensacola, Florida, holding AHCA license no.

SNF1482096.

3. AHCA conduc ted a survey of Rosewood on September 11,

2001. Resident 1 was considered during the survey. He suffered

from dementia, congestive heart failure, and epilepsy. He had a

history of psychiatric problems and was cognitively impaired.

He was known by the s taff to engage in aggressive behavior.

Resident 1 was a "wanderer," which, in nursing home jargon, is a

person who moves about randomly and who must constantly be

watched.

4. On the morning of August 28, 2001, Resident 1 wandered,

unnoticed by staff , into the bio - hazard storage room, which was

unlocked and unguarded. Access to the room, which is usually

maintained in a locked condition, may have been possible because

a broom or rake handle had been placed or had fallen in such a

way that the door re mained in an open position.

5. While in the bio - hazard storage room, Resident 1

succeeded in opening a Sharp's container that was used for the

storage of used hypodermic needles. Resident 1 obtained some of

the needles stored in the Sharp's contai ner and suffered

numerous self - inflicted puncture wounds to his body as a result.

6. These wounds might have resulted in Resident 1's

contracting a variety of diseases. However, because he died

soon after this incident, of other causes, it was nev er

determined if he actually contracted any diseases as a result of

the needle punctures.

7. Rosewood had a standing procedure that required staff

to keep the door locked to the bio - hazard storage area. The

procedure required that the key be kept in a place where

residents could not gain access to it. Moreover, the door was

self - closing and self - locking.

8. That these procedures were inadequate, or not always

followed, was demonstrated by the fact that Resident 1 gained

access to the room. It is concluded, therefore, that Rosewood

failed to ensure that the nursing home premises was as free of

accident hazards as possible.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and the subject m atter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

10. Pursuant to Section 400.102(1)(d), Florida Statutes,

AHCA is empowered to take action against entities it licenses

should those entities violate a provision of Part II of Chapte r

400, Florida Statutes.

11. AHCA, the party seeking to prove the affirmative of

the issue, has the burden of proof. 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).

12. AHCA seeks to impose a civil penalty on Respondent,

pursuant to Section 400.23(8)(b), Florida Statutes, in the form

of a fine in the amount of $2,500 because of a Class II

violation. The im position of an administrative fine or civil

penalty is punitive and penal in nature. Therefore, AHCA must

prove its case by clear and convincing evidence. Department of

Banking and Finance v. Osborne Stern & Company , 680 So. 2d 932,

935 (Fla. 1996).

13. Pursuant to Section 400.23, Florida Statutes, and

Rule 59A - 4.1288, Florida Administrative Code, nursing homes of

the category addressed herein are to follow certification rules

and regulations found in Title 42, Code of Federal Regulations,

Sectio n 483.

14. Title 42, Code of Federal Regulations, Section

483.25(h)(1), provides as follows:

483.25 Quality of care.

Each resident must receive and the facility

must provide the necessary care and services

to attain or maintain the highest

practicabl e physical, mental, and

psychosocial well being, in accordance with

the comprehensive assessment and plan of

care.

* * *

(h) Accidents. The facility must ensure

that --

(1) The resident environment remains as

free of accident hazards as is possible; and

(2) Each resident receives adequate

supervision and assistance devices to

prevent accidents.

15. With regard to Title 42, Code of Federal Regulations,

Section 483.25(h)(1), AHCA has published a State Operations

Manual that elucidates with specificity w hat constitutes an

"accident hazard." That manual states in part:

Accident hazards area defined as physical

features in a NF (nursing facility)

environment that can endanger a resident's

safety, including but not limited to:

physical restraints

poorly ma intained resident equipment

bathing facilities that do not have

nonslip surfaces

hazards (e.g., electrical appliances

with frayed wires, cleaning supplies

easily accessible to cognitively

impaired residents, wet floors that

are not obv iously labeled and to

which access is not blocked)

Handrails not securely fixed to the

wall, difficult to grasp, and/or with

sharp edges/splinters; and

Water temperature in hand sinks or bath

tubs which can scald or harm

residents.

16 . A room used as a bio - hazard storage area clearly is a

physical feature that can endanger a resident's safety.

Accordingly, Rosewood failed to comply with the requirements of

Title 42, Code of Federal Regulations, Section 483, and thus

failed to comply with the requirements of Section 400.23(8)(b),

Florida Statutes.

17. Section 400.121(10), Florida Statutes, provides as

follows:

400.121 Denial, suspension, revocation of

license; moratorium on admissions;

administrative fines; procedure; orde r to

increase staffing. --

* * *

(10) In addition to any other sanction

imposed under this part, in any final order

that imposes sanctions, the agency may assess

costs related to the investigation and

prosecution of the case. Payment of agency

costs shall be deposited into the Health Care

Trust Fund.

18. AHCA alleged and proved a violation of Section

400.23(8)(b), Florida Statutes, and proved that the violation

was a Class II deficiency that permits a fine of $2,500. Having

proved the allegations of th e complaint, means that AHCA may

require Rosewood to pay the costs related to the investigation

and prosecution of the case pursuant to Section 400.121(10),

Florida Statutes.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That a final order be entered which:

(1) finds Rosewood to have committed a Class II isolated

deficiency;

(2) assesses a fine of $2,500; and

(3) assesses costs in an amount that reflects the actual

costs of investigation and prosecution.

DONE AND ENTERED this 6th day of June, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 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 Hearings

this 6th day of June, 2003.

COPIES FURNISHED :

Lori C. Desnick, Esquire

Agency for He alth Care Administration

2727 Mahan Drive, Building 3

Mail Stop 3

Tallahassee, Florida 32308

R. Davis Thomas, Jr., Esquire

Qualified Representative

Broad & Cassel

215 South Monroe Street, Suite 400

Tallahassee, Florida 32302

Valda Clark Christian, Gener al Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

Rhonda M. Medows, M.D., Secretary

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3116

Tallahasse e, 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 is sue the Final Order in this case.