02-003512 Agency For Health Care Administration vs. America Senior Living Of Fort Walton Beach, D/B/A Westwood Health Care Status: Closed Recommended Order on Wednesday, July 9, 2003.

Summary: Pet. Agency didn`t show Class II violation; patient subjected to only minimal harm and potential harm by falling; not sufficient harm to physical well being to equal a Class II violation. Keep Standard License and $500 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 02 - 3510

) 02 - 3512

AMERICAN SENIOR LIVING OF FORT )

WALTON BEACH d/b/a WESTWOOD )

HEALTH CARE, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing before P. Michael Ruff,

duly - designated Administrative Law Judge in Shalimar, Florida,

on February 26, 2003. The appearances were as follows:

APPEARANC ES

For Petitioner: Ursula Eikman, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

For Respondent: Alex Finch, Esquire

Goldsmith, Grout & Lewis, P.A.

Post Office Box 2011

Winter Park, Florida 32790

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Respondent should be accorded a "Conditional" or

"Standard" rating as to its licensure and whether it should be

subjected to an administrative fine and, if so, in what amount.

PRELIMINARY STATEMENT

This cause arose from a survey conducted of the above -

named Respondent's facility (Westwood). Westwood is a skilled

nursing facility located in Fort Walton Beach, Florida. The

Agency conducted its annual re - certification survey on June 25 -

27, 2001. The Agency thereafter cited Westwood for a deficiency

(known by the acronym "FTag 324"). This deficiency under the

federal regulatory scheme adopted and enforce d by the Agency has

a scope of severity of "G." That severity rating equates to the

State of Florida classification of the deficiency as a "Class II

deficiency." Because of this the Agency would impose a

conditional licensure status on Westwood and an ad ministrative

fine, proposed to be $2,500.00. Westwood maintains that the

deficiency did not exist at the time of or prior to the survey,

and that Westwood is entitled to a standard license and should

not be subjected to a fine.

The Petitioner filed a for mal Administrative Complaint on

July 30, 2002, initiating this case and its transmittal to the

Division of Administrative Hearings. The Complaint set forth

allegations of fact supporting the Agency's intent to impose a

conditional licensure rating and an administrative fine. The

Respondent chose to contest the matter and timely filed a

Petition as to both the licensure case and the administrative

fine proceeding which have been accorded the DOAH Case Nos. 02 -

3510 and 02 - 3512 (now consolidated under the lo west case

number).

The cause came on for hearing as noticed. The

Petitioner/Agency called two witnesses to testify at the hearing

and offered 17 Exhibits which were admitted into evidence. The

Respondent, Westwood, called three witnesses and offered two

Exhibits which were admitted into evidence. The parties elected

to transcribe the proceedings and avail themselves of the

opportunity to submit Proposed Recommended Orders. The Proposed

Recommended Orders have been considered in the rendition of this

Re commended Order.

FINDINGS OF FACT

1. The Petitioner is an Agency of the State of Florida

which conducts licensure surveys of nursing homes on an annual

basis to ensure compliance with the state licensure requirements

and federal certification requirem ents that the Petitioner

Agency is statutorily charged with enforcing. A survey results

in a report called a "Form 2567," which lists the deficiencies

and their factual basis. A federal scope and severity

classification, identified by the letters A - L, an d a State

classification scale or system identified by I - IV are assigned

to any deficiency.

2. The Respondent is a licensed, skilled nursing home

facility located at 1001 Mar Drive, Fort Walton Beach, Florida

32548. The Respondent at all times pertinent hereto was a long -

term Medicare provider and subject to Title 42, Code of Federal

Regulation (CFR) Section 483.

3. When a deficiency is determined to exist, changes in a

facility licensure rating or status are determined by the level

or scope and severi ty of such deficiencies, as determined under

the state classification provided for in the statutory authority

cited and discussed below. Fines are also based on the scope

and severity and state classification of deficiencies.

4. Between June 25 - 27, 20 01, an annual re - certification

survey (survey) was conducted of Westwood by the Petitioner

Agency. Pursuant to that survey the Petitioner cited the

Respondent for a "Class II " deficiency "FTag 324," as to which

it was alleged that the Respondent had fail ed to provide

adequate supervision and assistive devices to prevent resident

number two from suffering falls. FTag 324 was cited under the

federal scope and severity matrix or scale as a Level "G"

deficiency. A level "G" deficiency equates to a Class II state

deficiency severity level.

5. The Agency cited Westwood under Section 400.23(8)(b),

Florida Statutes (2001), for failure to provide the necessary

care and services, thereby compromising Resident two's ability

to attain or maintain her highest pract icable physical, mental

and psychosocial well - being, in accordance with a resident

assessment and plan of care.

6. The deficiency was originally cited by the four

licensed surveyors on the survey team as being a Class III

deficiency, but was later change d to a Class II deficiency (more

severe) after the completion of an informal dispute resolution

(IDR) process. In that dispute resolution process the

Respondent was allowed to participate, but was not allowed to

argue the scope and severity of the alleged deficiency and was

not accorded the right to counsel.

7. The Agency at hearing presented the testimony of

Ms. Jackie Klug, a licensed surveyor who is trained and is

registered as dietician. She was a surveyor responsible for the

clinical record review , as to Resident two, and for interview of

the staff at the Westwood facility, relating to the care

provided to Resident two. She performed a limited clinical

review of the records of Resident two. Ms. Klug is not a

licensed nurse and does not have nursi ng training.

8. The Agency also presented the testimony of

Ms. Susan Acker, who is the Agency representative responsible

for supervision of the long - term care, quality monitoring

program and who is responsible for determining compliance of

facilities re ceiving Medicare and Medicaid funding. She was

qualified as an expert in nursing practice, surveying and survey

practices. She was the Agency representative responsible for

making the final determination as to the federal scope and

severity of any potent ial deficiency and therefore the

appropriate state classification of the deficiency.

9. Ms. Acker performed a limited record review of portions

of Resident two's records supplied by facility representatives

after an informal dispute resolution hearing. Ms. Acker did not

perform an independent clinical review of the resident, but

relied upon the records gathered by Ms. Klug.

10. After reviewing the documents provided to her after

the IDR hearing, Ms. Acker determined that a federal scope and

severity level of "G" existed, which equates to a state Class II

deficiency or violation.

11. State surveyors apply a Long - Term Care Facility

Enforcement Grid to determine the scope and severity of a

potential deficiency. After the scope and severity is

determin ed under the federal scale, a corresponding state

classification is assessed. There is not a separate state

classification determination apart from the federal scope and

severity determination. When a level "G" federal scope and

severity is determined, a state classification of Class II

deficiency is automatically applied.

12. Under the Long - Term Care Facility Enforcement Grid and

the state classification system, the alleged deficient practice

must result in more than actual minimal harm and more than

m inimal discomfort in order to support a Class II designation.

13. Resident two was admitted to the facility on

November 10, 2000. She was admitted to the facility with the

diagnoses of tardive dyskinesia, Alzheimer's disease and an

unsteady gait.

14. Within 11 days of being admitted to the facility,

Resident two was assessed, which triggered a resident assessment

plan or profile, and was determined to be at risk for falls.

Resident two experienced approximately five falls starting on

April 30, 2001, th rough June 23, 2001.

15. Resident two suffered no physical injuries after any

of the falls except for the fall on June 23, 2001. She suffered

minor injuries in that fall, consisting of a bruised chin and

abrasion in the area of her eye and a small ski n tear to her

right wrist. The injuries were minimal in nature and required

only basic first aid normally associated with common minor skin

abrasions.

16. Resident two suffered no discomfort as a result of any

fall other than the fall of June 23, 2001. Resident two was

able to communicate pain or discomfort and had done so to the

facility staff on a number of occasions. The records of

Resident two contain no indication of any complaints of pain or

discomfort resulting from any of the falls, and Residen t two

denied experiencing discomfort or pain as a result of any of the

falls, including the fall of June 23, 2001.

17. The facility documents and the testimony of the

Respondent's witnesses established that Resident two exhibited

no sign of decreased or limited functioning subsequent to any

recorded fall incidents. Resident two continued her daily

social, mental and physical activities in the same manner as

prior to any fall, after each of the falls she experienced.

Resident two experienced no falls fro m the time of her admission

on November 10, 2001, through April 29, 2002.

18. The Respondent was cited by the Petitioner in the Form

2567 for failure to provide adequate supervision and adequate

assistive devices to prevent falls. Neither of the Agency

witnesses at hearing was able to testify as to the exact level

of supervision provided Resident two by the facility staff, nor

could either witness testify as to the manner of the supervision

of Resident two by the facility. Neither Agency witness

provid ed any concrete evidence or recommendation as to what

might constitute adequate supervision sufficient to ensure fall

prevention of a resident in Resident two's physical and mental

status and condition.

19. Neither the facility personnel nor the Agency

p ersonnel testifying were able to determine a cause or pattern

for the falls of Resident two. Agency witnesses were unable to

determine what, if any, facility action or inaction might have

caused the falls. There is some indication in the evidence that

Re sident two may have experienced fluctuations in blood pressure

which under certain circumstances can cause dizziness and,

potentially, falling. Additionally, as to one of the falls,

there is indication in the evidence that the resident's shoes or

type of shoes and the edge or corner of a carpet may have caused

her to trip. If it has not already done so, the Respondent

should take all possible steps to ensure that areas where

Resident two, or any other resident, may walk are free of

hazards which might con tribute to falling, should closely

monitor blood pressure and take appropriate clinical steps to

ensure, if possible, the stability of blood pressure to try to

prevent falls. Similar steps should be taken as to any other

medical or clinical condition whic h may contribute to falling.

20. Tardive dyskinesia is a condition resulting from the

long - term use of psychotropic drugs. Although tardive

dyskinesia may contribute to falls, if motor skills are

affected, not all people affected by tardive dyskinesia h ave

symptoms affecting their gait or ambulation. Resident two did

not exhibit physical dysfunction to gross motor skills, but

rather exhibited "tongue thrusting" and "spitting." Ms. Acker,

the Agency nursing expert testifying, indicated that tardive

dysk inesia could not be determined within reasonable medical

certainty to be the cause of any of Resident two's falls.

21. Although Resident two suffered from fluctuating blood

pressure, which can contribute to falls if attendant dizzy

spells occur, Resident two did not exhibit blood pressure

symptoms or complications which actually caused physical

dysfunction to her motor skills. Ms. Ackers indicated that

blood pressure symptoms could not definitely be determined to be

the cause of Resident two's falls. Wh ile such a fluctuation in

blood pressure could not be determined to be the cause, based

upon the evidence offered by Ms. Ackers or otherwise at the

hearing, blood pressure fluctuation as a possible cause of the

falling cannot be ruled out.

22. Resident t wo was subject to the facility's general

falls policy and a special fall prevention program known as

"falling leaves." The facility's fall prevention policies were

in conformance with generally accepted nursing home standards

and customary policies utiliz ed within the skilled nursing

community or industry. The representatives of the Agency did

not review the fall prevention policies of the facility when

determining the existence of a deficiency and were unaware of

the content of the facility policies for fall prevention at the

time of the hearing.

23. The fall prevention policies of the Respondent's

facility were applied to Resident two. The Respondent

supervised Resident two by placing her at a nurses station,

within four feet of a charge nurse, so tha t she could be closely

monitored. The Respondent also provided assistive devices in

the form of a walker, to assist Resident two in safely

ambulating. The walker is intended and designed to prevent

falling which might result from the unsteady gait of Res ident

two.

24. Resident two suffered from Alzheimer's disease. She

was thus unable to remember simple instructions or to use

assistive devices provided to her by the facility on a

consistent basis. This behavior is consistent with certain

stages of Al zheimer's disease, where patients or residents are

unable to remember even simple instructions for any period of

time.

25. The Respondent did provide memory assistive devices,

such as tethered alarms and visual aids, on her walker to assist

Resident two in remembering to use her walker. She would

sometimes impulsively arise and walk on her own, without the

protection of using a walker.

26. Physical therapy training to assist Resident two in

ambulation was not appropriate. Resident two was unable to

as similate, incorporate and remember such training in her daily

activities because of her Alzheimer's condition. Ms. Watson, a

trained physical therapist, testified that physical therapy

would have been unavailing in regard to Resident two,

essentially beca use she was unable to remember physical therapy

instructions or training modalities.

27. In fact, Resident two was physically able to quickly

rise from a sitting position and to ambulate without any real

notice to staff members. Although staff members w ere positioned

in close proximity to Resident two on a frequent basis, Resident

two could still begin to ambulate quickly, without notice in

time for the staff to act to protect her in all circumstances.

As a result of her Alzheimer's condition, restraint s were an

inappropriate measure to prevent unexpected ambulation. Prior

to using restraints, a treating physician must provide a

physician's order for such restraints. The treating physician

for Resident two was aware of her falls, but still did not

prov ide an order for restraints.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Section 120.57, Florida Statutes, and Section

120.569, Florida Statutes, (2001).

2 9. Chapter 59A - 4, Florida Administrative Code, is the

applicable administrative code chapter governing nursing home

facilities. The Petitioner Agency has the authority to survey

and rate skilled nursing home facilities pursuant to Section

400.23(7), Flor ida Statutes (2001). It has jurisdiction over

the Respondent, pursuant to Chapter 400, Part II, Florida

Statutes, and Chapter 59A - 4, Florida Administrative Code.

Moreover, the Agency has the authority under Section 400.23(8),

Florida Statutes (2001), to indicate the classification of a

deficiency, and under Section 400.23(7)(b), Florida Statutes

(2001), to assign a conditional rating.

30. Section 400.23(7)(b), Florida Statutes (2001),

provides in part that "A conditional license status means that a

faci lity, due to the presence of one or more Class I or Class II

deficiencies . . . is not in substantial compliance at the time

of the survey."

31. Through Section 400.23(2)(f), Florida Statutes (2001),

the federal statutes and regulations relating to ". . . the

care, treatment, and maintenance of residents and measurement of

the quality and adequacy thereof" have been adopted in state

law. The Agency has adopted the federal matrix as the

determination of a deficiency classification.

32. The Agency has th e burden of proof and persuasion in

this matter in that it is asserting the affirmative of the

issue. See 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 Rehabilitativ e Services , 348 So. 2d 349

(Fla. 1st DCA 1977).

33. Section 400.23(8), Florida Statutes, defines class

deficiencies as follows:

(a) A Class II deficiency is a deficiency

that the agency determines has compromised

the resident's ability to maintain or re ach

his or her highest practicable physical,

mental, and psychosocial well - being, as

defined by an accurate and comprehensive

resident assessment, plan of care, and

provision of services. . .

(b) A Class III deficiency is a deficiency

that the agency de termines will result in no

more than minimal physical, mental or

psychosocial discomfort to the resident or

has the potential to compromise the

resident's ability to maintain or reach his

or her highest practicable physical, mental,

or psychosocial well - be ing as defined. . .

(emphasis added)

(c) A Class IV deficiency is a deficiency

that the agency determines has the potential

for causing no more than a minor negative

impact on the resident . . . Section

400.23(8)(b), Florida Statutes, (2001).

34. Sec tion 400.34(7)(b), Florida Statutes (2001),

provides that the Petitioner shall issue a Conditional License

to the Respondent if the Respondent has any Class I or II

deficiencies at the time of an inspection or any Class III

deficiencies that are uncorrecte d on re - inspection. This matter

involves an alleged Class II deficiency.

35. The Agency must show by clear and convincing evidence

that there exists a deficiency warranting the imposition of a

conditional license or rating an administrative fine. See

D epartment of Banking and Finance Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So . 2d 778 (Fla. 1st DCA 1981).

36. Applying this standard of proof, the Petitioner has

not established that a deficiency, under FTag 324, sufficient to

support a Class II violation and imposition of conditional

licensure against the Respondent, existed at the time of the

survey. The Agency has asserted a violation of 42 CFR 483, a

failure to provide appropriate supervision and adequate

assistive devices to prevent falls. The Agency did not

establish the precise manner of supervision or assistive devices

and their nature including memory assistive methods provided for

Resident two by the facility. The Agency witnesses, in essence,

opined that they were inadequate because the resident was

falling.

37. The Petitioner did not establish that the supervision

and assistive measures provided were inadequate or insufficient

to ensure that Resident two or persons with a similar clinical

condition, would have a decreased risk of falls, although it is

undisputed that she did suffer the five falls between the dates

i n question.

38. Ms. Ackers, the Agency expert, however had no

definitive opinion as to what further assistive devices or

measures, in addition to those actually utilized by the

facility, could have been taken to help prevent the falling by

Resident two. The Petitioner, through its witness, conceded

that the fact that a fall occurs is not necessarily evidence of

a deficient or failed practice or level of care by a facility.

39. Nevertheless, Resident two had started as of

April 29, 2001, to exhib it a pattern of falling, having fallen

five times in less than two months. Consequently, it certainly

may be inferred that heightened supervision and preventive

devices, methods or modalities should have been employed to

prevent such falling in the future , to the extent possible.

Other devices may be necessary, in addition to a walker, which

would prevent the resident from suddenly arising and walking

before the staff has an opportunity to observe her ambulation,

so that she could not fall before she coul d be observed. Closer

monitoring of the patient and more aggressive steps to stabilize

the resident's blood pressure might be indicated. In any event,

inferentially, supervision needed to be closer and more

effective in order to prevent the falls.

40. T he falling did not cause other than minimal physical

discomfort, which was transitory. It does however have the

potential to compromise the resident's ability to maintain or

reach her highest practicable physical, mental or psychosocial

well - being. Conse quently, although a Class II deficiency has

not been established, the evidence does establish the existence

of a Class III deficiency because the physical discomfort was

minimal, but the falling risk has the potential to compromise

the residents ability to maintain physical well - being.

41. In order to establish a Class II deficiency, the

Agency would have to prove by clear and convincing evidence that

the resident suffered more than minimal harm or discomfort as a

result of a deficient practice. Although Section 400.23(8)(b),

Florida Statutes, does not set forth a specific standard for

determining a "compromise" of mental, physical or psychosocial

well - being, sufficient to support a Class II citation, the

Agency expert, Ms. Ackers, and the license surveyo r, Ms. Klug,

both testified that the State adopts and automatically applies a

state classification which correlates to a federal scope and

severity level. Therefore, since the Agency has adopted and

uses the federal scope and severity level "G" to corresp ond to

the state classification of Class II, the Agency must

demonstrate that, as a result of a deficient facility practice,

Resident two suffered actual harm which was more than minimal

and involved discomfort. The Agency failed to show that

Resident two suffered harm which was more than minimal in nature

and which involved discomfort. The evidence is un - controverted

that Resident two suffered physical injuries only after the fall

of June 23, 2001. These injuries were minimal in nature.

Additionally, R esident two showed no signs of and described no

discomfort after the falls. When she was asked if she was

feeling pain or discomfort, she denied having such.

42. The Agency must demonstrate the harm suffered by

Resident two caused her to fail to maintai n or attain her

highest practicable level of physical, mental or psychosocial

well - being. See Section 400.23(8)(b), Florida Statutes (2001).

The Agency did not establish that Resident two's physical,

psychosocial or mental functioning was impaired in any fashion

as a result of any of the falls. The Agency witnesses testified

that the clinical records showed no change in functioning of the

resident as a result of any fall. The overwhelming weight of

evidence was that, other than minor bruising and a scra tch,

Resident two remained essentially unchanged in all material

respects after any of the falls established by the evidence.

Therefore, the Petitioner did not establish that the mental,

psychosocial or physical well - being of Resident two was

compromised by any deficient practice of the facility or by the

occurrence of any fall.

43. Section 400.23(8)(a) - (c), Florida Statutes (2001),

provides the basis upon which the Petitioner may impose a civil

monetary penalty upon the Respondent for a cited def iciency.

This Section provides.

(b) . . . A Class II deficiency is subject

to a civil penalty in an amount not less

than $1,000.00 and not exceeding $10,000.00

for each and every deficiency. . . If a

Class II deficiency is corrected within the

time speci fied, no civil penalty shall be

imposed, unless it is a repeated offense.

(c). . . A Class III deficiency is subject

to a civil penalty in an amount not less

than $500.00 and not exceeding $2,500.00 for

each and every deficiency. . . If a Class

II I defici ency is corrected within the time

specified, no civil penalty shall be

imposed, unless it is repeated offense.

44. The Agency has the burden to establish the existence

of the violation or deficiencies. The Agency has established by

clear and convincing evidence that a Class III violation has

occurred for the reasons and in the manner delineated above. It

has not established that the violation is continuing

uncorrected.

45. Having considered the foregoing Findings of Fact,

Conclusions of Law, and the authority cited above, it is

determined that a $500.00 fine for the Class III violation

should be imposed, and that no conditional licensure should be

imposed but rather the Respondent be maintained with a standard

license.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore recommended that the Agency for

Health Care Administration enter a Final Order according a

standard license to Westwood and imposing a fine in the amount

of $500.00 for a Class III violation.

DONE AND ENTERED this 9th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of July, 2003.

COPIES FURNISHED :

Ursula Eikman, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Alex Finch, Esquire

Goldsmith, Grout & Lewis, P.A.

Pos t Office Box 2011

Winter Park, Florida 32790

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

Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommen ded Order should be filed with the agency that

will issue the final order in this case.