02-003950 Agency For Health Care Administration vs. Rockledge Nh, L.L.C., D/B/A Rockledge Health And Rehabilitation Center
 Status: Closed
Recommended Order on Tuesday, February 18, 2003.


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Summary: Certified nursing assistant reported suspected abuse 48 hours after discovery; institution improperly charged with failure to make mandatory, immediate report to the Department of Children and Family Services abuse hotline.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8AGENCY FOR HEALTH CARE )

13ADMINISTRATION, )

15)

16Petitioner, )

18)

19vs. ) Case Nos. 02 - 3950

26) 02 - 3951

30ROCKLEDGE NH, L.L.C., d/b/a )

35ROCKLEDGE HEALTH AND )

39REHABILITATION CENTER, )

42)

43Respondent. )

45)

46RECOMMENDED ORDER

48Pursuant to notice, the Division of Administrative

55Hearings, by its duly - designated Administrative Law Judge,

64Jeff B. Clark, held a formal administrative hearing in this case

75on Dec ember 19, 2002, in Viera, Florida.

83APPEARANCES

84For Petitioner: Joanna Daniels, Esquire

89Agency for Health Care Administration

942727 Mahan Drive, Mail Stop 3

100Tallahassee, Florida 32308

103For Respondent: Alex Finch, Esquire

108Goldsmith, Grout & Lewis, P.A.

1132180 North Park Avenue, Suite 100

119Post Office Box 2011

123Winter Park, Florida 32790 - 2011

129STATEM ENT OF THE ISSUES

134(1) Whether Respondent, Rockledge NH, L.L.C., d/b/a

141Rockledge Health and Rehabilitation Center, should be given a

"150Conditional" or "Standard" license effective February 12, 2002,

158or March 7, 2002; (2) Whether Respondent is subject to an

169a dministrative fine in the amount of $2,500.

178PRELIMINARY STATEMENT

180On August 6, 2002, Petitioner, Agency for Health Care

189Administration, filed two Administrative Complaints notifying

195Respondent that it intended to (1) impose a Conditional

204licensure status e ffective March 7, 2002, based on one Class II

216deficiency as defined by Subsection 400.23(8)(b), Florida

223Statutes (2001), and (2) impose an administrative fine in the

233amount of $2,500 pursuant to Subsections 400.022(1)(o),

241400.022(3), 400.102(1)(a), 400.102 (2), 400.121(1), and

247400.23(8)(b), Florida Statutes.

250On September 20, 2002, and October 2, 2002, Respondent

259filed its Amended Petitions for Formal Administrative Hearing,

267Motions to Dismiss and Answers in the Alternative to

276Administrative Complaints.

278On Oc tober 11, 2002, Petitioner forwarded a Notice to the

289Division of Administrative Hearings advising of Respondent's

296request for formal administrative hearing. On October 14, 2002,

305an Initial Order was sent to both parties. On October 28, 2002,

317Respondent f iled a Motion to Consolidate in both cases. On

328November 1, 2002, an Order of Consolidation was entered.

337On November 5, 2002, the consolidated cases were scheduled

346for final hearing in Viera, Brevard County, Florida, on

355December 19, 2002.

358On November 15, 2002, an Order Denying Motions to Dismiss

368was entered. Petitioner had filed a Motion to Strike

377Respondent's Motion to Dismiss on November 8, 2002, which was

387not docketed by the Clerk of the Division of Administrative

397Hearings. Denying Respondent's Motion to Dismiss effectively

404denies Petitioner's Motion to Strike. Petitioner's Motion to

412Supplement Docket filed January 29, 2003, as amended January 30,

4222003, is granted.

425The final hearing took place as scheduled on December 19,

4352002. Petitioner presented o ne witness, Theresa DeCanio, R.N.,

444who was qualified as an expert witness, and presented ten

454exhibits which were received into evidence and marked

462Petitioner's Exhibits 1 through 10. A portion of the

471December 12, 2002, deposition of Theresa DeCanio, as i dentified

481in the Transcript, was also considered. Respondent presented

489one witness, Elaine Leslie, R.N. Respondent did not offer any

499exhibits.

500The Transcript was filed with the Division of

508Administrative Hearings on January 10, 2003. By agreement of

517th e parties, confirmed by the undersigned, the parties had

52730 days from the filing of the Transcript to submit proposed

538recommended orders. Both parties timely filed Proposed

545Recommended Orders, which were thoughtfully considered.

551FINDINGS OF FACT

554Based on the oral and documentary evidence presented at the

564final hearing, the following findings of fact are made:

5731. Respondent operates a skilled nursing home located at

582587 Barton Boulevard, Rockledge, Brevard County, Florida.

5892. Petitioner is the State of F lorida agency responsible

599for licensure and regulation of nursing home facilities in

608Florida. Respondent was, at all times material to this matter,

618licensed by Petitioner and required to comply with applicable

627rules, regulations, and statutes, including S ections 415.1034

635and 400.022, Florida Statutes.

6393. On or about March 7, 2002, Petitioner conducted a

649complaint survey of Respondent.

6534. Petitioner's surveys and pleadings assign numbers to

661residents in order to maintain the residents' privacy and

670confide ntiality. The resident who was the subject of the Class

681II deficiency from the March 7, 2002, complaint survey has been

692identified as Resident number 1, with the initials "H.C."

7015. Resident number 1 is 82 years old and was admitted to

713Respondent's facili ty on January 19, 2002, with diagnoses of

723dementia, back pain from multiple falls, hypertension,

730osteoarthritis, recurrent bronchitis, and chronic obstructive

736pulmonary disease.

7386. At all times material to this matter, Resident number 1

749was a "vulnerable adult" as defined in Subsection 415.102(26),

758Florida Statutes.

7607. On February 5, 2002, at approximately 9:50 p.m., a

770certified nursing assistant employed by Respondent went into

778Resident number 1's room to see why Resident number 1 was

789yelling.

7908. Upon e ntering the room, the certified nursing assistant

800found Resident number 1's bed positioned in such a way that his

812head was down and his feet were up. A blanket had been tied

825across the "up" end of the bed securing Resident number 1's feet

837allowing him to be held in a "head down" position. The

848certified nursing assistant who investigated the yelling "pulled

856on the blanket to verify that it was tied down."

8669. There were no prescriptions or written orders

874justifying the restraint of Resident number 1.

88110. The certified nursing assistant who found Resident

889number 1 in the above - described position identified a different

900certified nursing assistant, one provided to Respondent by a

909staffing agency, as the caregiver for the shift in question.

919The alleged abusi ve act was perpetrated by the certified nursing

930assistant provided by the staffing agency.

93611. The certified nursing assistant provided by the

944staffing agency placed Resident number 1 in a position that was

955contraindicated for a person with a diagnosis of chronic

964obstructive pulmonary disease.

96712. Respondent's certified nursing assistant waited

973approximately two days before reporting the alleged abusive act

982to the abuse hotline, Respondent's abuse coordinator or the

991Director of Nursing.

99413. A medical rec ord review indicated that Resident number

10041 was sent to the hospital on February 22, 2002, for shortness

1016of breath and again on February 26, 2002, for difficulty in

1027breathing and lung congestion. The History and Physical from

1036the hospital, dated February 23, 2002, revealed that Resident

1045number 1 was sent to the hospital because of progressive

1055shortness of breath. Resident number 1's lower extremities were

1064documented to have been severely edematous with "skin changes

1073subsequent to chronic stasis and edema with excoriation, loss of

1083circulation, blisters, etc."

108614. The certified nursing assistant provided by the

1094staffing agency had a full resident assignment and cared for

1104several residents the day of the alleged abusive act. After the

1115discovery of the alleg ed abuse, the certified nursing assistant

1125provided by the staffing agency continued to care for Resident

1135number 1 and other residents assigned to her for approximately

1145one hour or until the end of her shift.

115415. Documentation, dated March 8, 2002, from th e staffing

1164agency, confirmed that the certified nursing assistant provided

1172by the staffing agency did have education in the current rules

1183and regulations related to the abuse and neglect of the elderly.

119416. Petitioner's surveyor believed that the failure to

1202immediately report the alleged abuse constituted a Class II

1211deficiency because the certified nursing assistant provided by

1219the staffing agency was allowed to continue to care for Resident

1230number 1 and other residents until the shift ended and could

1241have further abused Resident number 1 or other residents in her

1252care.

1253CONCLUSIONS OF LAW

125617. Division of Administrative Hearings has jurisdiction

1263over the parties and subject matter of this proceeding. Section

1273120.569 and Subsection 120.57(1), Florida Statut es.

128018. Petitioner is the regulatory authority responsible for

1288licensure and enforcement of all applicable statutes and rules

1297governing nursing home facilities pursuant to Chapter 400, Part

1306II, Florida Statutes, and Chapter 59A - 4, Florida Administrative

1316C ode.

131819. Petitioner has the burden of proof. It must establish

1328that the allegations contained in the Administrative Complaints

1336warrant the imposition of a Conditional license and an

1345administrative fine. Florida Department of Transportation v.

1352J.W.C. Co mpany, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino

1365v. Department of Health and Rehabilitative Services , 348 So. 2d

1375349 (Fla. 1st DCA 1977).

138020. The quantum of proof required to change Respondent's

1389license from Standard to Conditional is a prepondera nce of the

1400evidence. Subsection 120.57(j), Florida Statutes. The quantum

1407of proof required to impose an administrative fine is clear and

1418convincing evidence. Department of Banking and Finance,

1425Division of Securities and Investor Protection v. Osborne St ern

1435and Company , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

1446510 So. 2d 292 (Fla. 1987).

145221. In its Administrative Complaints, Petitioner asserts

1459that Respondent violated Section 415.1034, Florida Statutes,

1466which requires nursing home staff to immed iately report abuse of

1477a vulnerable adult to the central abuse hotline; that the

1487foregoing constitutes a violation of Subsections 400.022(1)(o)

1494and 400.022(3), Florida Statutes, which require Respondent to

1502ensure the residents' right to be free from mental and physical

1513abuse, corporal punishment, extended involuntary seclusion, and

1520from physical and chemical restraints, except those restraints

1528authorized in writing by a physician for a specified and limited

1539period of time or as are necessitated by emergency . Petitioner

1550alleges this inaction was also an intentional or negligent act

1560materially affecting the health or safety of the residents of

1570the facility, a violation of Subsection 400.102(1), Florida

1578Statutes.

157922. Subsection 415.1034(1), Florida Statutes, reads, in

1586pertinent part, as follows:

1590(a) Any person, including, but not

1596limited to, any:

1599* * *

16024. Nursing home staff; assisted living

1608facility staff; adult day care center staff;

1615adult family - care home staff; social worker;

1623or other profe ssional adult care,

1629residential, or institutional staff;

1633* * *

1636who knows, or has reasonable cause to

1643suspect, that a vulnerable adult has been or

1651is being abused, neglected, or exploited

1657shall immediately report such knowledge or

1663suspicion to the central abuse hotline.

166923. Subsection 400.022(1)(o), Florida Statutes, reads, as

1676follows:

1677(1) All licensees of nursing home

1683facilities shall adopt and make public a

1690statement of the rights and responsibilities

1696of the residents of such facilities and

1703shall treat such residents in accordance

1709with the provisions of that statement. The

1716statement shall assure each resident the

1722following:

1723* * *

1726(o) The right to be free from mental and

1735physical abuse, corporal punishment,

1739extended involuntary s eclusion, and from

1745physical and chemical restraints, except

1750those restraints authorized in writing by a

1757physician for a specified and limited period

1764of time or as are necessitated by an

1772emergency. In case of an emergency,

1778restraint may be applied only by a qualified

1786licensed nurse who shall set forth in

1793writing the circumstances requiring the use

1799of restraint, and, in the case of use of a

1809chemical restraint, a physician shall be

1815consulted immediately thereafter.

1818Restraints may not be used in lieu of staff

1827supervision or merely for staff convenience,

1833for punishment, or for reasons other than

1840resident protection or safety.

184424. Subsection 400.22(3), Florida Statutes, reads as

1851follows:

1852(3) Any violation of the resident's

1858rights set forth in this section s hall

1866constitute grounds for action by the agency

1873under the provisions of s. 400.102. In

1880order to determine whether the licensee is

1887adequately protecting residents' rights, the

1892annual inspection of the facility shall

1898include private informal conversations with

1903a sample of residents to discuss residents'

1910experiences within the facility with respect

1916to rights specified in this section and

1923general compliance with standards, and

1928consultation with the ombudsman council in

1934the local planning and service area of t he

1943Department of Elderly Affairs in which the

1950nursing home is located.

195425. Subsection 400.102(1), Florida Statutes, reads, as

1961follows:

1962(1) Any of the following conditions shall

1969be grounds for action by the agency against

1977a licensee:

1979(a) An intentio nal or negligent act

1986materially affecting the health or safety of

1993residents of the facility;

1997(b) Misappropriation or conversion of the

2003property of a resident of the facility;

2010(c) Failure to follow the criteria and

2017procedures provided under part I of chapter

2024394 relating to the transportation,

2029voluntary admission, and involuntary

2033examination of a nursing home resident;

2039(d) Violation of provisions of this part

2046or rules adopted under this part;

2052(e) Fraudulent altering, defacing, or

2057falsifying any m edical or nursing home

2064records, or causing or procuring any of

2071these offenses to be committed; or

2077(f) Any act constituting a ground upon

2084which application for a license may be

2091denied.

209226. Petitioner has failed to demonstrate the applicability

2100of Secti on 415.1034, Florida Statutes, to the reduction of

2110licensure status and imposition of an administrative fine.

2118Chapter 415, Florida Statutes, specifically calls upon "persons"

2126to report abuse, not "facilities." Section 415.111, Florida

2134Statutes, provides criminal penalties for "a person who

2142knowingly and willfully fails to report a case of known or

2153suspected abuse . . ." There is no provision in the Adult

2165Protective Services Act (Chapter 415, Florida Statutes) to

2173penalize a facility for failure of its emp loyees to report

2184abuse.

218527. The Adult Protective Services Act makes a nursing home

2195facility immune from vicarious liability for the acts or

2204omissions of its agents or employees for civil actions brought

2214under Section 415.1111, Florida Statutes. In Mora v . South

2224Broward Hospital District , 710 So. 2d 633 (Fla. 4th DCA 1998),

2235there is an extensive discussion of legislative intent related

2244to civil and criminal penalties and immunity. While dismissing

2253a tort action against a nursing home facility based on the

2264failure of an employee to report abuse, the court indicated

2274reliance on PW Ventures, Inc. v. Nichols , 533 So. 2d 281 (Fla.

22861988) (express mention of one thing implies the exclusion of

2296another). Had the legislature intended the Adult Protective

2304Services A ct to extend responsibility to nursing homes for the

2315failure of its employees to report cases of suspected abuse, it

2326could have done so.

233028. Had Respondent been charged with abuse of a resident

2340through the acts of an employee for improperly restraining a

2350resident, a violation may have existed. Unfortunately, the

2358surveyor charged Respondent with failing to immediately report

2366abuse of a vulnerable adult to the central abuse hotline.

2376Chapter 415, Florida Statutes, does not require the facility, as

2386opposed t o the employees of the facility, to immediately report

2397the alleged or suspected abuse.

240229. Assuming, arguendo , that the certified nursing

2409assistant who discovered the suspected abuse had immediately

2417reported it at 9:50 p.m. to the Department of Children and

2428Family Services abuse hotline, it is unlikely that a report of

2439the type of suspected abuse in the instant case would have

2450evoked an "immediate" response, as defined in Section 415.103,

2459Florida Statutes, as opposed to a "24 hour or next working day"

2471res ponse. In any event, no evidence was presented to support

2482the position asserted by Petitioner that immediate reporting

2490would have protected Resident number 1 and other residents from

2500abuse.

250130. A vulnerable adult's right to be free from physical

2511abuse an d restraint as contemplated by Subsection 400.022(1)(o),

2520Florida Statutes, does not equate to the failure to report

2530suspected abuse in violation of Chapter 415, Florida Statutes.

2539RECOMMENDATION

2540Based on the Foregoing Findings of Fact and Conclusions of

2550L aw, it is

2554RECOMMENDED that the Administrative Complaints in this

2561matter be dismissed and Respondent's licensure status be

2569returned to Standard for the period it was Conditional and that

2580no administrative fine be levied.

2585DONE AND ENTERED this 18th day of February, 2003, in

2595Tallahassee, Leon County, Florida.

2599___________________________________

2600JEFF B. CLARK

2603Administrative Law Judge

2606Division of Administrative Hearings

2610The DeSoto Building

26131230 Apalachee Parkway

2616Tallahassee, Florida 32399 - 3060

2621(850) 488 - 9675 SUNCOM 278 - 9675

2629Fax Filing (850) 921 - 6847

2635www.doah.state.fl.us

2636Filed with the Clerk of the

2642Division of Administrative Hearings

2646this 18th day of February, 2003.

2652COPIES FURNISHED :

2655Joanna Daniels, Esquire

2658Agency for Health Care Administration

26632727 Mahan Drive, Mail Stop 3

2669Tallahassee, Florida 32308

2672Alex Finch, Esquire

2675Goldsmith, Grout & Lewis, P.A.

26802180 North Park Avenue, Suite 100

2686Post Office Box 2011

2690Winter Park, Florida 32790 - 2011

2696Lealand McCharen, Agency Clerk

2700Agency for Health Care Administ ration

27062727 Mahan Drive, Mail Stop 3

2712Tallahassee, Florida 32308

2715Valda Clark Christian, General Counsel

2720Agency for Health Care Administration

27252727 Mahan Drive

2728Fort Knox Building, Suite 3431

2733Tallahassee, Florida 32308

2736NOTICE OF RIGHT TO SUBMIT EXCEPTIO NS

2743All parties have the right to submit written exceptions within

275315 days from the date of this Recommended Order. Any exceptions

2764to this Recommended Order should be filed with the agency that

2775will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 10/21/2003
Proceedings: Final Order filed.
PDF:
Date: 10/08/2003
Proceedings: Agency Final Order
PDF:
Date: 02/18/2003
Proceedings: Recommended Order
PDF:
Date: 02/18/2003
Proceedings: Recommended Order issued (hearing held December 19, 2002) CASE CLOSED.
PDF:
Date: 02/18/2003
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 01/30/2003
Proceedings: Amended Motion to Supplement Docket (filed by Petitioner via facsimile).
PDF:
Date: 01/29/2003
Proceedings: AHCA`s Proposed Recommended Order filed.
PDF:
Date: 01/29/2003
Proceedings: Motion to Supplement Docket filed by Petitioner.
PDF:
Date: 01/29/2003
Proceedings: Respondent`s Proposed Recommended Order (filed via facsimile).
Date: 01/10/2003
Proceedings: Transcript filed.
PDF:
Date: 12/23/2002
Proceedings: Deposition (of Theresa DeCanio) filed.
Date: 12/19/2002
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 12/18/2002
Proceedings: Subpoena Duces Tecum (S. LaCour) filed.
PDF:
Date: 12/18/2002
Proceedings: Notice of Filing filed by Respondent.
PDF:
Date: 12/13/2002
Proceedings: Amended Unilateral Prehearing Order Compliance (filed by Respondent via facsimile).
PDF:
Date: 12/11/2002
Proceedings: Unilateral Prehearing Order Compliance (filed by Respondent via facsimile).
PDF:
Date: 12/11/2002
Proceedings: Request for Official/Judicial Notice filed by Respondent.
PDF:
Date: 12/10/2002
Proceedings: Notice of Taking Deposition Duces Tecum (T. Decanio) filed via facsimile.
PDF:
Date: 12/10/2002
Proceedings: Request for Official/Judicial Notice (filed by Respondent via facsimile).
PDF:
Date: 12/06/2002
Proceedings: Supplement to Petitioner`s Proposed Pre-hearing Stipulation filed.
PDF:
Date: 12/05/2002
Proceedings: Petitioner`s Proposed Prehearing Stipulation (filed via facsimile).
PDF:
Date: 11/15/2002
Proceedings: Order Denying Motion to Dismiss issued.
PDF:
Date: 11/12/2002
Proceedings: Respondent`s Response to Petitioner`s Motion to Strike (filed via facsimile).
PDF:
Date: 11/05/2002
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 11/05/2002
Proceedings: Notice of Hearing issued (hearing set for December 19, 2002; 9:00 a.m.; Viera, FL).
PDF:
Date: 11/01/2002
Proceedings: Order of Consolidation issued. (consolidated cases are: 02-003950, 02-003951)
PDF:
Date: 10/28/2002
Proceedings: Motion to Consolidate (cases requesting to be consolidated 02-3950, 02-3951) (filed by Respondent via facsimile).
PDF:
Date: 10/23/2002
Proceedings: Response to Initial Order (filed by Respondent via facsimile).
PDF:
Date: 10/21/2002
Proceedings: Unilateral Response to Initial Order filed by Petitioner.
PDF:
Date: 10/14/2002
Proceedings: Initial Order issued.
PDF:
Date: 10/11/2002
Proceedings: Administrative Complaint filed.
PDF:
Date: 10/11/2002
Proceedings: Amended Petition for Formal Administrative Hearing, Motion to Dismiss and Answer in the Alternative to Administrative Complaint filed.
PDF:
Date: 10/11/2002
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
JEFF B. CLARK
Date Filed:
10/11/2002
Date Assignment:
10/14/2002
Last Docket Entry:
10/21/2003
Location:
Viera, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related Florida Statute(s) (11):