02-003951 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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 02 - 3950

) 02 - 3951

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

ROCKLEDGE HEALTH AND )

REHABILITATION CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

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

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

APPEARANCES

For Petitioner: Joanna Daniels, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

For Respondent: Alex Finch, Esquire

Goldsmith, Grout & Lewis, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florida 32790 - 2011

STATEM ENT OF THE ISSUES

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

Rockledge Health and Rehabilitation Center, should be given a

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

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

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

PRELIMINARY STATEMENT

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

Administration, filed two Administrative Complaints notifying

Respondent that it intended to (1) impose a Conditional

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

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

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

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

400.022(3), 400.102(1)(a), 400.102 (2), 400.121(1), and

400.23(8)(b), Florida Statutes.

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

filed its Amended Petitions for Formal Administrative Hearing,

Motions to Dismiss and Answers in the Alternative to

Administrative Complaints.

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

Division of Administrative Hearings advising of Respondent's

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

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

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

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

On November 5, 2002, the consolidated cases were scheduled

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

December 19, 2002.

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

was entered. Petitioner had filed a Motion to Strike

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

not docketed by the Clerk of the Division of Administrative

Hearings. Denying Respondent's Motion to Dismiss effectively

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

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

2003, is granted.

The final hearing took place as scheduled on December 19,

2002. Petitioner presented o ne witness, Theresa DeCanio, R.N.,

who was qualified as an expert witness, and presented ten

exhibits which were received into evidence and marked

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

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

in the Transcript, was also considered. Respondent presented

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

exhibits.

The Transcript was filed with the Division of

Administrative Hearings on January 10, 2003. By agreement of

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

30 days from the filing of the Transcript to submit proposed

recommended orders. Both parties timely filed Proposed

Recommended Orders, which were thoughtfully considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of fact are made:

1. Respondent operates a skilled nursing home located at

587 Barton Boulevard, Rockledge, Brevard County, Florida.

2. Petitioner is the State of F lorida agency responsible

for licensure and regulation of nursing home facilities in

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

licensed by Petitioner and required to comply with applicable

rules, regulations, and statutes, including S ections 415.1034

and 400.022, Florida Statutes.

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

complaint survey of Respondent.

4. Petitioner's surveys and pleadings assign numbers to

residents in order to maintain the residents' privacy and

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

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

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

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

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

dementia, back pain from multiple falls, hypertension,

osteoarthritis, recurrent bronchitis, and chronic obstructive

pulmonary disease.

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

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

Florida Statutes.

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

certified nursing assistant employed by Respondent went into

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

yelling.

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

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

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

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

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

certified nursing assistant who investigated the yelling "pulled

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

9. There were no prescriptions or written orders

justifying the restraint of Resident number 1.

10. The certified nursing assistant who found Resident

number 1 in the above - described position identified a different

certified nursing assistant, one provided to Respondent by a

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

The alleged abusi ve act was perpetrated by the certified nursing

assistant provided by the staffing agency.

11. The certified nursing assistant provided by the

staffing agency placed Resident number 1 in a position that was

contraindicated for a person with a diagnosis of chronic

obstructive pulmonary disease.

12. Respondent's certified nursing assistant waited

approximately two days before reporting the alleged abusive act

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

Director of Nursing.

13. A medical rec ord review indicated that Resident number

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

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

breathing and lung congestion. The History and Physical from

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

number 1 was sent to the hospital because of progressive

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

documented to have been severely edematous with "skin changes

subsequent to chronic stasis and edema with excoriation, loss of

circulation, blisters, etc."

14. The certified nursing assistant provided by the

staffing agency had a full resident assignment and cared for

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

discovery of the alleg ed abuse, the certified nursing assistant

provided by the staffing agency continued to care for Resident

number 1 and other residents assigned to her for approximately

one hour or until the end of her shift.

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

agency, confirmed that the certified nursing assistant provided

by the staffing agency did have education in the current rules

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

16. Petitioner's surveyor believed that the failure to

immediately report the alleged abuse constituted a Class II

deficiency because the certified nursing assistant provided by

the staffing agency was allowed to continue to care for Resident

number 1 and other residents until the shift ended and could

have further abused Resident number 1 or other residents in her

care.

CONCLUSIONS OF LAW

17. Division of Administrative Hearings has jurisdiction

over the parties and subject matter of this proceeding. Section

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

18. Petitioner is the regulatory authority responsible for

licensure and enforcement of all applicable statutes and rules

governing nursing home facilities pursuant to Chapter 400, Part

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

C ode.

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

that the allegations contained in the Administrative Complaints

warrant the imposition of a Conditional license and an

administrative fine. Florida Department of Transportation v.

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

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

349 (Fla. 1st DCA 1977).

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

license from Standard to Conditional is a prepondera nce of the

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

of proof required to impose an administrative fine is clear and

convincing evidence. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne St ern

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

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

21. In its Administrative Complaints, Petitioner asserts

that Respondent violated Section 415.1034, Florida Statutes,

which requires nursing home staff to immed iately report abuse of

a vulnerable adult to the central abuse hotline; that the

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

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

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

abuse, corporal punishment, extended involuntary seclusion, and

from physical and chemical restraints, except those restraints

authorized in writing by a physician for a specified and limited

period of time or as are necessitated by emergency . Petitioner

alleges this inaction was also an intentional or negligent act

materially affecting the health or safety of the residents of

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

Statutes.

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

pertinent part, as follows:

(a) Any person, including, but not

limited to, any:

* * *

4. Nursing home staff; assisted living

facility staff; adult day care center staff;

adult family - care home staff; social worker;

or other profe ssional adult care,

residential, or institutional staff;

* * *

who knows, or has reasonable cause to

suspect, that a vulnerable adult has been or

is being abused, neglected, or exploited

shall immediately report such knowledge or

suspicion to the central abuse hotline.

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

follows:

(1) All licensees of nursing home

facilities shall adopt and make public a

statement of the rights and responsibilities

of the residents of such facilities and

shall treat such residents in accordance

with the provisions of that statement. The

statement shall assure each resident the

following:

* * *

(o) The right to be free from mental and

physical abuse, corporal punishment,

extended involuntary s eclusion, and from

physical and chemical restraints, except

those restraints authorized in writing by a

physician for a specified and limited period

of time or as are necessitated by an

emergency. In case of an emergency,

restraint may be applied only by a qualified

licensed nurse who shall set forth in

writing the circumstances requiring the use

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

chemical restraint, a physician shall be

consulted immediately thereafter.

Restraints may not be used in lieu of staff

supervision or merely for staff convenience,

for punishment, or for reasons other than

resident protection or safety.

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

follows:

(3) Any violation of the resident's

rights set forth in this section s hall

constitute grounds for action by the agency

under the provisions of s. 400.102. In

order to determine whether the licensee is

adequately protecting residents' rights, the

annual inspection of the facility shall

include private informal conversations with

a sample of residents to discuss residents'

experiences within the facility with respect

to rights specified in this section and

general compliance with standards, and

consultation with the ombudsman council in

the local planning and service area of t he

Department of Elderly Affairs in which the

nursing home is located.

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

follows:

(1) Any of the following conditions shall

be grounds for action by the agency against

a licensee:

(a) An intentio nal or negligent act

materially affecting the health or safety of

residents of the facility;

(b) Misappropriation or conversion of the

property of a resident of the facility;

(c) Failure to follow the criteria and

procedures provided under part I of chapter

394 relating to the transportation,

voluntary admission, and involuntary

examination of a nursing home resident;

(d) Violation of provisions of this part

or rules adopted under this part;

(e) Fraudulent altering, defacing, or

falsifying any m edical or nursing home

records, or causing or procuring any of

these offenses to be committed; or

(f) Any act constituting a ground upon

which application for a license may be

denied.

26. Petitioner has failed to demonstrate the applicability

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

licensure status and imposition of an administrative fine.

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

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

Statutes, provides criminal penalties for "a person who

knowingly and willfully fails to report a case of known or

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

Protective Services Act (Chapter 415, Florida Statutes) to

penalize a facility for failure of its emp loyees to report

abuse.

27. The Adult Protective Services Act makes a nursing home

facility immune from vicarious liability for the acts or

omissions of its agents or employees for civil actions brought

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

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

there is an extensive discussion of legislative intent related

to civil and criminal penalties and immunity. While dismissing

a tort action against a nursing home facility based on the

failure of an employee to report abuse, the court indicated

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

1988) (express mention of one thing implies the exclusion of

another). Had the legislature intended the Adult Protective

Services A ct to extend responsibility to nursing homes for the

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

could have done so.

28. Had Respondent been charged with abuse of a resident

through the acts of an employee for improperly restraining a

resident, a violation may have existed. Unfortunately, the

surveyor charged Respondent with failing to immediately report

abuse of a vulnerable adult to the central abuse hotline.

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

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

the alleged or suspected abuse.

29. Assuming, arguendo , that the certified nursing

assistant who discovered the suspected abuse had immediately

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

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

the type of suspected abuse in the instant case would have

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

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

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

the position asserted by Petitioner that immediate reporting

would have protected Resident number 1 and other residents from

abuse.

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

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

Florida Statutes, does not equate to the failure to report

suspected abuse in violation of Chapter 415, Florida Statutes.

RECOMMENDATION

Based on the Foregoing Findings of Fact and Conclusions of

L aw, it is

RECOMMENDED that the Administrative Complaints in this

matter be dismissed and Respondent's licensure status be

returned to Standard for the period it was Conditional and that

no administrative fine be levied.

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

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

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 18th day of February, 2003.

COPIES FURNISHED :

Joanna Daniels, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Alex Finch, Esquire

Goldsmith, Grout & Lewis, P.A.

2180 North Park Avenue, Suite 100

Post Office Box 2011

Winter Park, Florida 32790 - 2011

Lealand McCharen, Agency Clerk

Agency for Health Care Administ ration

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 EXCEPTIO NS

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 issue the Final Order in this case.