02-004040 Agency For Health Care Administration vs. Delta Health Group, Inc., D/B/A Rosewood Manor Status: Closed Recommended Order on Wednesday, January 8, 2003.

Summary: AHCA alleged instances of failure to supervise. Evidence demonstrated that no less then 24-hr. observation would suffice and that degree of supervision not required. AHCA alleged facility failed to prevent a pressure sore. No pressure sore was present.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 02 - 1421

) 02 - 1905

DELTA HEALTH GROUP, d/b/a ) 02 - 4040

ROSEWOOD MANOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on

October 24 and 25, 2002, in Pensacola, Florida, and conducted by

Harry L. Hooper, Administrative Law Judge with the Division of

Administrative Hea rings.

APPEARANCES

For Petitioner: Lori C. Desnick, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Mail Stop 3

Tallahassee, Florida 3 2308

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

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

In DOAH Case No. 02 - 1421, addressing a survey concluded on

October 23, 2001, the issue is whether Respondent Delta Health

Group, doing business as Rosewood Manor (Rosewood), violated

Rule 59A - 4.1288, Florida Administrative Code and should be

assessed a civil penalty and costs. In DOAH Case Nos . 02 - 1905

and 02 - 4040, addressing the survey of January 22 through January

25, 2002, the issue is also whether Rosewood violated Rule 59A -

4.1288, Florida Administrative Code. In DOAH Case No. 02 - 1905,

the issue is whether a conditional license should issu e. In

DOAH Case No. 02 - 4040, the issue is whether civil penalties and

costs should be assessed.

PRELIMINARY STATEMENT

On March 5, 2002, the Agency for Healthcare Administration

(AHCA) filed an Administrative Complaint alleging a violation of

Title 42 , Code of Federal Regulations, Section 483.25(h)(2);

Section 400.23, Florida Statutes; and Rule 59A - 4.1288, Florida

Administrative Code, in DOAH Case No. 02 - 1421. This action was

based on a survey conducted on October 23, 2001. This complaint

alleged in Count I that Rosewood failed to ensure that a

resident's environment remained as free of accident hazards as

possible and asserted that a Class II deficiency should be

found. This count suggested the imposition of a $5,000 civil

penalty and an assessment for costs related to the investigation

and prosecution of the case. Count II alleged that two Class II

deficiencies had arisen within a 60 - day period and suggested

that Rosewood be subject to a six - month survey cycle and a

$6,000 civil penalty.

On March 18, 2002, Rosewood filed a Petition for Formal

Administrative Hearing. The matter was forwarded to the

Division of Administrative Hearings (Division) where it was

filed April 10, 2002. The case was set for hearing on July 31,

2002, in Pensacola, Fl orida. On July 19, 2002, Rosewood moved

for a continuance. AHCA did not object to the continuance.

Accordingly, the parties were advised to determine an

appropriate time for the hearing. After receiving responses

from both parties, the case was set for hearing on October 22,

2002, in Pensacola, Florida. Subsequently, Rosewood moved to

consolidate this case with DOAH Case No. 02 - 3405, and in

response, an Order of Consolidation was entered.

On April 9, 2002, AHCA issued a Notice of Intent to Assign

Conditional Licensure Status as a result of a survey completed

on January 25, 2002. This action was based on alleged Class II

violations of Rule 59A - 4.1288, Florida Administrative Code, for

failure to prevent the recurrence of a pressure sore and failure

to ensure residents received adequate supervision to prevent

accidents.

On April 18, 2002, a Petition for Formal Administrative

Hearing was filed with AHCA. On May 9, 2002, the case was

forwarded to the Division for hearing. The case was set for

hea ring on August 8 and 9, 2002, in Pensacola, Florida. On

July 30, 2002, AHCA filed a Motion for Continuance.

Accordingly, the parties were advised to determine an

appropriate time for the hearing. After receiving responses

from both parties the case was set for hearing on October 23 and

24, 2002, in Pensacola, Florida.

On September 11, 2002, AHCA filed a Motion to Reschedule

Hearing. After a status conference the case was set to be heard

with DOAH Case Nos. 02 - 1421 and 02 - 3405, on October 23 and 24,

2002, in Pensacola, Florida.

On October 10, 2002, counsel for AHCA signed an

Administrative Complaint, in the case of Rosewood, which was

also based on the survey completed January 25, 2002. This

complaint sought civil penalties and an assessment for costs

related to the investigation and prosecution of the case. This

action alleged violations of Rule 59A - 4.1288, Florida

Administrative Code, based on allegations that Rosewood failed

to ensure that a resident with pressure sores received necessary

treatment and services to promote healing, to prevent infection,

and to prevent new sores from developing.

Rosewood filed a Petition for Formal Administrative Hearing

on October 11, 2002. The matter was filed with the Division on

October 17, 2002. It was agreed by the parties that this case,

DOAH Case No. 02 - 4040, would be consolidated with DOAH Case Nos.

02 - 1421, 02 - 1905, and 02 - 3405, on October 24 and 25, 2002.

On October 24 the hearing commenced on all four cases.

Rosewood moved for a rec ommended order of dismissal in DOAH Case

No. 02 - 3405, based on res judicata . AHCA objected for failure

to comply with the time periods set forth in Rule 28 - 106.204,

Florida Administrative Code. Accordingly, the motion was not

decided and evidence was tak en on all four cases.

On October 31, 2002, in a telephonic hearing, argument was

heard on the motion. On November 7, 2002, a Recommended Order

of Dismissal was entered in DOAH Case No. 02 - 3405. No final

order in this case has been provided to the Administrative Law

Judge. This Recommended Order is written on the basis that Case

No. 02 - 3405 has been concluded.

At the final hearing AHCA called the following witnesses:

Marcia Steel, R.N.; Sandra Corcoran, R.N.; and Judith Salpetr,

R.N.; and ha d 14 exhibits admitted into evidence. Rosewood

called one witness, Howard Thomas Hulsey, R.N., and had seven

exhibits admitted.

A Transcript was filed on November 12, 2002. Proposed

Recommended Orders were timely filed on December 4, 2002, by

both p arties and 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 rules governing

nursing homes in Florida pursuant to Sections 4 00.021 and

400.23(7), Florida Statutes.

2. Rosewood is a skilled nursing facility located at 3107

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

SNF1482096, which was issued by AHCA.

3. Although not found in any rule, an unofficial sta ndard

in the industry requires that a resident be observed every two

hours. This standard, when complied, is usually not documented.

4. On September 11, 2001, AHCA conducted a survey of

Rosewood's skilled nursing facility. During the survey AHCA

co ncluded that the facility failed to ensure that a resident's

environment remained as free as possible of accident hazards.

Specifically, the AHCA surveyors determined that the door to a

bio - hazardous storage area had been, either purposely or

inadvertedly , propped open instead of being locked, and as a

result, a resident entered the area, and injured himself with

used hypodermic needles stored therein.

5. Subsequently, on December 6, 2001, AHCA filed a Notice

of Intent to Assign Conditional Licensu re Status, based on the

September 11, 2001, survey. The Notice was dated November 29,

2001. The Notice had attached to it an Election of Rights for

Notice of Intent. Prior to December 10, 2001, the Election of

Rights for Notice of Intent was returned to AHCA indicating that

the factual allegations contained in the Notice of Intent to

Assign Conditional Licensure Status were not disputed.

6. On January 30, 2002, ACHA filed its Final Order. This

Final Order incorporated the Notice of Intent dated November 29,

2001, and recited, that by not disputing the facts alleged,

Rosewood admitted the allegations of fact. However, Rosewood

did not admit the facts alleged. Rosewood merely stated that it

would not contest the facts.

The Survey of September 11, 2001.

7. Resident 1 suffered from dementia, congestive heart

failure, and epilepsy. He had a history of psychiatric

problems. He was known by the staff 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.

8. On May 24, 2002, Resident 1 attempted to get in another

resident's bed and when a staff member attempted to prevent

this, he swung at her but missed.

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

in the biohazard storage room, which was unlocked and unguarded.

Resident 1 succeeded in opening a Sharp's container which was

used for the storage of used hypodermic needles. His handling

of these needles resulted in numerous puncture wounds. These

wounds could result in Resident 1 contracting a variety of

undesirable diseases. Because he died soon after of other

causes it was not determined if he contracted any diseases as a

result of the needle sticks.

10. This incident resulted from Rosewood's failure to

prevent Resident 1 from wandering and from Rosewood's failure to

ensure that harm did not befall their resident.

The Survey of October 23, 2001.

Resident 1A

11. Resident 1A was admitted to Ros ewood on May 31, 2001.

At times pertinent he was 87 years of age. He suffered from a

urinary tract infection, cardiomyopathy, congestive heart

failure, hypertension, degenerative joint diseases, and a past

history of alcoholism.

12. On May 16, 20 01, he struck a nursing assistant.

13. He was diagnosed by a psychiatrist on October 31,

2001, as having dementia. He was also known by Rosewood staff

to be a wanderer.

14. On September 7, 2001, this resident engaged in combat

with his roomma te. Resident 1A was the loser in this contest.

When found by staff, his fellow combatant had him in a headlock

and was hitting him with a metal bar. The resident suffered

facial lacerations as a result. The facility responded to this

event by moving Resident 1A into another room.

15. Resident 1A's care plan of September 10, 2001, had a

goal which stated that, "Resident will have no further incident

of physical abuse toward another resident by next care plan

review."

16. On October 4, 2001 , the resident entered the room of a

female resident and physically abused her. This resulted in

this resident's being beaten by the resident with the help of

another. Resident 1A suffered cuts and bruises from this

encounter. As a result, Rosewood impl emented a plan on October

4, 2001, which required that Resident 1A be observed every 15

minutes. Prior to that time he was observed at least every two

hours, which is the standard to which Rosewood aspires.

Subsequent to this altercation Resident 1A was evaluated by a

psychiatrist. The psychiatrist did not recommend additional

observation.

17. On October 5, 2001, early in the morning, the resident

was physically aggressive to staff and backed a wheelchair into

another resident. The other resident struck Resident 1A twice

in response. Later in the day, the resident also attempted to

touch a female nurse's breasts and to touch the buttocks of a

female nursing assistant.

18. The evening of October 21, 2001, Resident 1A was found

holding anoth er resident by the collar while another was hitting

the resident with his fist. Resident 1A suffered skin tears as

a result.

19. There was no documentation that Resident 1A was or was

not observed every 15 minutes as required by the care plan of

Oct ober 4, 2001. He was provided with drugs on October 5, 2001,

and October 17, 2001, in an attempt to ameliorate his aggressive

behavior; however, the pharmaceuticals provided were unlikely to

modify his behavior until four to six weeks after ingestion. On

October 31, 2001, Resident 1A was discharged because he was

determined to be a danger to others. He died in November 2001.

Resident 5

20. Resident 5 was admitted to Rosewood August 15, 1998.

21. Resident 5 suffered from atrial fibrillati on,

cardiovascular accident, and pneumonia, among other maladies.

Resident 5 was at high risk for accidents. Specifically, he was

at risk from falling. In his admissions history dated

August 15, 1998, it was noted by Dr. Michael Dupuis that, "If he

att empts to stand, he falls." Indeed, the record reveals dozens

of falls which occurred long before the survey of October 23,

2001.

22. In response to Resident 5's propensity to fall,

Rosewood tried self - opening seat belts while in his wheelchair,

pl acement in a low bed, instituted a two - hour toileting

schedule, and attempted to increase the resident's "safety

awareness." Rosewood prepared a "Rehabilitation Department

Screen" on June 8, 2001, to address the risk. This document

indicated that the res ident needed assistance with most

activities.

23. In the evening of July 28, 2001, Resident 5 was found

on the floor of his room. It was believed that he fell when

trying to self - transfer from his bed to his wheelchair. He

suffered no apparent inju ry.

24. On August 14, 2001, Resident 5 was found on the floor

in the bathroom. He stated that he was trying to get into his

wheelchair. He was not injured.

25. On August 29, 2001, Resident 5 was found lying on his

side on the floor in a bathr oom because he had fallen. He

received two small skin tears in the course of this event.

26. On September 12, 2001, Resident 5 was found on the

floor holding onto his bed rails. He was on the floor because

he had fallen. He told the nurse that he fell while trying to

get in bed. He did not suffer any injury during this event.

27. On October 5, 2001, Resident 5 was found lying on the

floor in a puddle of blood. He had fallen from his wheelchair.

28. On October 7, 2001, Resident 5 fel l in the bathroom

while trying to get on the toilet.

29. On October 8, 2001, Resident 5 fell out of his

wheelchair and was found by nursing staff lying on the floor in

a puddle of blood. This event required a trip to a hospital

emergency room. He r eceived three stitches on his forehead and

suffered a skin tear on his lower left forearm.

30. On October 14, 2001, Resident 5 was discovered by a

nurse to be crawling on the floor. He denied falling and stated

that he was just trying to get back in his wheelchair.

31. On October 20, 2001, Resident 5 fell out of his

wheelchair.

32. Resident 5's care plan dated September 19, 2001, noted

a history of falls and injury to himself and defined as a goal

to prevent fall with no report of injury or incidents due to

falling by the next review date. Methods to be used in

preventing falls included assistance with all transfers,

verbally cuing resident not to stand or transfer without

assistance, ensurance that a call light and frequently used

items were in reach, the provision of frequent reminders, and

ensurance that his living areas were kept clean and free from

clutter. Rosewood implemented a plan to encourage the resident

to ask for assistance when transferring.

33. Subsequent to the June 8, 2001, evaluation, and the

September 19, 2001, care plan, which called for a number of

interventions, as noted above, Resident 5 continued to

experience falls. Resident 5's feisty personality and

determination to transfer himself without assistance made it

difficult for the facility to guarantee that he did not

experience falls. It was noted by Nurse Steele that a care plan

requiring one - on - one supervision is not required by AHCA. Nurse

Steele, however, opined that perhaps one - on - one supervision

would be the only practice which would guarantee that the

resident would experience no falls.

The Survey of January 22 - 25, 2002.

Resident 12

34. Resident 12 suffered from osteoporosis, dementia,

hyperthyroidism, transient ishemic attacks, urinary trac t

infection, urinary incontinence, anemia, and hypoglycemia, among

other things.

35. Resident 12 was receiving nutrition through a tube so

it was necessary to elevate the head of her bed to prevent

pneumonia or aspiration.

36. Resident 12, at t imes pertinent, was immobile and was

dependent on facility staff to accomplish all of her transfers

and all activities of daily living including turning and

repositioning.

37. As evidenced by numerous observations recorded on the

"Braden Scale for Pr edicting Pressure Sore Risk," Resident 12

was at risk for developing pressure sores.

38. Resident 12 was observed by the facility with a

pressure sore on the coccyx on December 21, 2001. A care plan

had been created on October 12, 2002, providing th at she was to

be turned every two hours, and was to be provided with a

pressure reduction mattress, and was to be kept clean and dry,

among other actions. On December 24, 2001, it was noted in a

"Data Collection Tool," that the resident's coccyx area was

healed. On January 10, 2002, it was noted in Resident 12's care

plan that the sore was fully healed.

39. During the survey Nurse Brown on one occasion observed

a member of the facility's staff change a dressing over the

resident's coccyx, observed the area, and determined that the

resident had a pressure sore.

40. A pressure sore is a wound, usually over a bony area,

such as the coccyx, which is caused by the weight of the body

compressing flesh between the bony area and a bed or chair.

Depe nding on the severity of the sore, pressure sores require a

substantial period of time to heal. Pressure sores are graded

as Stages I, II, III, or IV, with Stage IV being the most

severe. Nurse Brown evaluated Resident 12 as having a Stage II

pressure so re during the survey.

41. Nurse Brown observed Resident 12 on two occasions on

January 22, 2002; on four occasions on January 23, 2002; on two

occasions on January 24, 2002; and on four occasions on

January 25, 2002. On each of these occasions Resi dent 12 was

lying on her back with her head elevated. She also observed the

resident on several occasions sitting in a wheelchair. A

wheelchair does not cause pressure on the coccyx.

42. A "Data Collection Tool" with an assessment date of

January 1 8, 2002, indicated that on January 20, 2002, that there

was present on Resident 12, a "coccyx split .25 cm superficial

open area, left buttocks 2 cm dark gray rough area." On

January 21, 2002, the "tool" noted, "left buttocks 2 cm open

area darkened, coc cyx split .25 cm remains." A "tool" dated

January 25, 2002, noted, "open area on coccyx 2 cm." A "tool"

dated February 1, 2002, noted "red area on buttocks" as did a

"tool" dated February 8, 2002. A "tool" dated February 15,

2002, noted, "excoriation on buttocks" and on February 22, 2002,

the notation was "red area on buttocks." A "Data Collection

Tool" dated March 1, 2002, noted, "No open areas."

43. There is nothing in the records maintained by the

facility which indicate that subsequent to th e healing of the

pressure sore on January 10, 2002, another pressure sore

developed on Resident 12's coccyx.

44. Nurse Brown was an expert on pressure sores and she

saw the area on the coccyx and determined it was a Stage II

pressure sore. Thomas Hu lsey, also a nurse and also an expert

in nursing, observed the wound and concluded that it was merely

a skin split or excoriation likely caused by the resident's

urinary incontinence. He also observed that after a short

passage of time the wound disappear ed, which is inconsistent

with a pressure sore.

45. Considering the evidence as a whole, it is determined

that the redness described subsequent to January 20, 2002, was

something other than a pressure sore. The absence of a pressure

sore tends, more over, to indicate that what Nurse Brown observed

was not indicative of the general care Resident 12 was typically

receiving.

Resident 10

46. Resident 10, a woman 64 years of age, suffered from

cardiovascular accident, dysphasia, decubitus ulcers, ur inary

tract infections, sclera derma, and seizures. She was unable to

move any part of her body except for her left arm. Two to three

caregivers were required to accomplish transfers.

47. On December 16, 2001, at about 9:45 in the morning,

Lula And rews, a certified nursing assistant, reported finding

Resident 10 lying on her side or back on the floor of her room.

At 9:10 a.m. Resident 10 had been seen in her bed so she could

have been residing on the floor for as long as 35 minutes.

Ms. Andrews a nd two other certified nursing assistants put her

back in her bed. Resident 10 weighed about 150 pounds.

48. Ms. Andrews inquired of Resident 10 as to how she came

to be resting on the floor and she replied she had, "blackened

out." Resident 10 did not receive injuries in connection with

this event. The bed was three to four feet above the floor.

Ms. Andrews was suspended during an investigation of this

incident.

49. Based on the evidence of record it could be deduced

that Resident 10 fell f rom her bed or it could be deduced that

Ms. Andrews attempted to transfer Resident 10 without assistance

with the result that Resident 10 was dropped or deposited on the

floor due to Ms. Andrews' inability to cope with Resident 10's

bulk. The evidence of record fails to provide a basis for

resolving this question. Neither scenario demands a finding

that there was a failure to provide adequate supervision.

Resident 16

50. Resident 16 had a diagnosis of schizophrenia. She

also had a seizure diso rder, osteoarthritis, and hypothyroidism.

She had a care plan addressing her potential to suffer falls.

51. On May 4, 2001, Resident 16 had a grand mal seizure

while sitting on a piano stool. The 72 - hour report generated by

this event noted that sh e was not injured and refused all

medications.

52. On September 29, 2001, Resident 16 had a seizure while

sitting on a piano bench. She was playing the piano prior to

suffering the seizure. As a result of the seizure she fell

backward and bumped he r head. She denied experiencing pain from

this event.

53. On October 3, 2001, Resident 16 was in the visitor's

bathroom, alone, washing her hands. She was upright before the

lavatory and when she attempted to sit down in her wheelchair

she did not notice that it was not directly behind her.

Therefore she missed the seat of the wheelchair and landed on

the floor. She sustained no injuries. Nurse Brown opined that

had Resident 16 been supervised properly this fall would not

have occurred.

54. On December 17, 2001, Resident 16 was sitting on a

piano bench when it appeared that she was fainting. One of the

staff prevented her from actually falling over. The resident

insisted that she was fine.

55. On January 18, 2002, a facility staff pe rson saw

Resident 16 about to fall forward from her wheelchair and

attempted to catch her before she reached the floor. The staff

member was unsuccessful and the resident struck her head on the

floor, which resulted in a four - centimeter by four - centimeter

bump on her head.

56. Resident 16's care plan required that facility staff

closely supervise the resident. The facility also failed to

ensure that she received adequate doses, and properly prepared

doses of her anti - seizure medicine.

Resident 20

57. Resident 20, during times pertinent, was a man of 96

years of age. He had a history of seizure disorder, depression,

vascular dementia, gastro esophageal reflux disease, peptic

ulcer disease, chronic obstructive pulmonary disease, coronary

ar tery disease, and osteoporosis. He entered the facility on

January 22, 1995.

58. On September 7, 2001, Resident 20 had a physical

encounter with Resident 1A, who was his roommate. Resident 20

was found holding Resident 1A in a headlock and was poun ding

Resident 1A with a metal seat spine. As a result, Resident 1A

received cuts and bruises. The facility was negligent in

permitting Resident 20 access to the metal seat spine which

could be used as a weapon.

59. The facility staff determined tha t Resident 20 was

very territorial and that the appropriate solution would be to

assign him a room so that he could be alone. Nevertheless, on

November 10, 2001, a roommate was assigned to Resident 20. The

resident complained and the new roommate was mov ed to another

room. Resident 20's care plan was not revised to reflect his

territorial nature.

60. On December 28, 2001, another resident was moved into

Resident 20's room. On January 2, 2002, Resident 20 told a

nursing assistant that the new roomm ate was wearing his,

Resident 20's, clothes. The nursing assistant pacified Resident

20 and left the room. Shortly thereafter Resident 20 attacked

his new roommate with a reach/grab device causing the new

roommate to receive a cut. One of the surveyors, Nurse Salpetr

opined that the nursing assistant was derelict in leaving

Resident 20 alone with his new roommate. As a result of this

incident Resident 20, pursuant to the Baker Act, was sent to a

psychiatric hospital for evaluation.

CONCLUSIONS OF LAW

61. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.57(1) and 435.07(3), Florida

Statutes.

62. DOAH Case No. 02 - 1905 seeks to impose a conditional

licens e upon the facility for violations of Rule 59A - 4.1288,

Florida Administrative Code. In these types of cases the agency

has the burden to show by a preponderance of the evidence the

facts alleged as the basis for the change in license statutes.

Section 12 0.57(1)(j), Florida Statutes, and Florida Department

of Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981). DOAH Case Nos. 02 - 1421 and 02 - 4040 seek civil

penalties and costs from the facility. In cases where the

demand is for a ci vil penalty, the agency has the burden of

proving by clear and convincing evidence that the facts allege

support a civil penalty. Department of Banking and Finance v.

Osborne Stern & Company , 670 So. 2d 932, 935 (Fla. 1996).

63. Section 59A - 4.128 provid es as follows:

59A - 4.128. Evaluation of Nursing Homes and

Licensure Status.

(1) The agency shall, at least every 15

months, evaluate and assign a licensure

status to every nursing home facility. The

evaluation and licensure status shall be

based on the facility's compliance with the

requirements contained in this rule, and

Chapter 400, Part II, F.S.

(2) The evaluation shall be based on the

most recent licensure survey report,

investigations conducted by the AHCA and

those persons authorized to inspect n ursing

homes under Chapter 400, Part II, F.S.

(3) The licensure status assigned to the

nursing home facility will be either

conditional or standard. The licensure

status is based on the compliance with the

standards contained in this rule and Chapter

400 , Part II, F.S. Non - compliance will be

stated as deficiencies measured in terms of

scope and severity.

64. Pursuant to Section 400.23, Florida Statutes, and Rule

59A4.1288, 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,

Section 483.

65. Title 42, Code of Federal Regulations, Section

483.25(h), provides as follows:

Section 483.25 Quality of care.

Each resident must rece ive and the facility

must provide the necessary care and services

to attain or maintain the highest

practicable physical, mental, and

psychosocial well - being, in accordance with

the comprehensive assessment and plan of

care.

* * *

(h) Accidents. The fac ility must ensure

that --

* * *

(2) Each resident receives adequate

supervision and assistance devices to

prevent accidents.

66. In deciding this case the fact - finder is guided by the

definition of clear and convincing evidence provided in

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983) and

quoted with approval by the Florida Supreme Court in In Re

Davey , 645 So. 2d 398, 4004 (Fla. 1994).

. . . clear and convincing evidence

requires that the evidence must be found to

be credible; the fac ts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidence must be of such weight

that it produces in the mind of the tr ier -

of - fact a firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

67. Count I of DOAH Case No. 02 - 1421 alleged a failure to

supervise Residents 1A and 5. Other than evidence as to

unofficial st andards requiring two - hour observations, no

information is contained in the record which provides a written

standard as to the requirements of "adequate supervision."

Certainly 24 - hour supervision would prevent most fights and

falls as alleged in Count I. It is apparent, however, that

nonstop supervision would be cost prohibitive and would encroach

on the privacy of residents. Moreover, AHCA, according to Nurse

Steele, does not require one - on - one supervision. Additionally,

there are practical and legal limitations on the degree of

restraint which may be applied to residents.

68. The issue of aggressive behavior was addressed in

Woodstock Care Center v. HCFA , Decision No. CR623, U.S.

Department of Health and Human Services, Departmental Appeals

Boar d, dated November 1, 1999. Although this case does not

define adequate supervision it does relate facts in which

supervision was found to be inadequate. In Woodstock , one

resident, 70 years of age, manifested 107 episodes of verbal

aggression, 25 episode s of physical aggression, and was

combative with caregivers on 28 occasions. Another resident

attacked his fellow residents on at least six occasions. Many

of these attacks were vicious and brutal and resulted in the

victims being transported to the hosp ital.

69. In contrast, Resident 1A engaged in six recorded acts

of violence and came out on the losing end of the combat in

almost every case. Neither Resident 1A nor his victims suffered

any serious injury. With the exception of the May 16, 2001,

attack, all of the incidents occurred within a seven - week period

leading up to his discharge from the facility.

70. In the case of Count I, addressing Resident 1A, AHCA

did not prove by clear and convincing evidence that Rosewood

failed to supervis e the resident.

71. Resident 5 experienced at least nine documented falls

during the period July 11, 2001, and October 20, 2001. At least

one of the falls required a trip to the hospital. The genesis

of most of these falls was the resident attempti ng to transfer

himself out of the presence of caregivers, after he had been

told repeatedly not to do so.

72. AHCA suggests that the cause and effect with regard to

Resident 5 is obvious. In other words, it is postulated that

because Resident 5 fe ll at least nine times during the time

covered by the survey there was a lack of supervision. For that

matter, Resident 5's record reveals that over a four - year period

he fell dozens of times. His records also reveal a host of

interventions. Nurse Steel e had no suggestion as to how the

falls could have been prevented absent one - on - one supervision.

73. The falls could have been a product of insufficient

supervision. They also could have been, and likely were, the

result of Resident 5's failure to adhere to instructions to

request assistance. They could have been the result of bad luck

or because Resident 5 was a risk taker. Because there are

explanations for the falls other than poor supervision, it

cannot be found by clear and convincing eviden ce that Rosewood

failed to adequately supervise Resident 5. Therefore Count I of

DOAH Case No. 02 - 1421 is not proven as to Resident 5. Because

the bases for Count II were not proven, that count is not proven

either.

74. Case No. 02 - 4040 alleged in Count I that the facility

failed in the case of a resident's having a pressure sore, to

provide necessary treatment for it, and to prevent new sores

from developing. This was based on the survey of January 22 - 25.

This allegation involved Resident 12. Re sident 12 was observed

with a pressure sore on December 21, 2001. She was cured of

this by January 10, 2002. AHCA presented the testimony of Nurse

Brown, an expert in the field of nursing, that Resident 12

acquired a Stage II pressure sore on her coccyx during the

course of the survey. Nurse Hulsey, also an expert, opined that

it was a skin split. The wound healed rapidly which is

inconsistent with a Stage II pressure sore. Accordingly, AHCA

failed to prove by clear and convincing evidence that Rosewoo d

failed to prevent a new sore from developing. There being no

Class II deficiency, Count II also fails of proof.

75. The second Count II of the complaint alleges

inadequate supervision in the case of Residents 10, 16, and 20.

76. Resident 1 0, a person who had no means of locomotion,

was found on the floor, when she should have been in her bed.

This probably occurred because of the negligence of a nursing

assistant; however, no certain evidence of how Resident 10 came

to be found on the floo r was adduced. Accordingly, it cannot be

concluded by clear and convincing evidence that Rosewood failed

in its duty to supervise.

77. Resident 16 had at least three falls which staff

failed to prevent, and another during which staff attempted, but

failed, to catch Resident 16, who was in the process of falling.

All of the discussion with regard to Resident 5, in regard to

matters of one - on - one supervision, the degree of physical

restraint which could be used, and the privacy of the resident

apply t o this resident also. Moreover, the absence of any

standards by which to judge adequacy of supervision make

evaluating Rosewood's efforts in this regard difficult.

78. It is a fact that Rosewood failed in its attempts to

reduce seizures by failing t o be adequately informed as to the

requirements for administering seizure medication. This

resulted in the seizure medication being rendered ineffectual.

Although this failure may have contributed to Resident 16's

spills, it does not help prove a failure to supervise. In any

event, AHCA failed to prove by clear and convincing evidence

that Rosewood failed to adequately supervise Resident 16.

79. Resident 20 was the other party in the altercation

involving Resident 1A which occurred on September 7, 2002, and

which is addressed in paragraph 14, above. The facility

determined that Resident 20 was very territorial and determined

to address the matter by providing him with a room where he

would be the sole occupant.

80. On November 10, 2002, Rose wood attempted to move

another person in with Resident 20. He complained and the

facility removed the roommate. On December 28, 2001, another

attempt to move a roommate in with Resident 20 resulted in

combat on January 2, 2002. As a result of this actio n, the

resident was removed from the facility pursuant to the Baker

Act, Section 394.451, et seq ., Florida Statutes.

81. Additionally, the pleadings with regard to Resident 20

indicate that Resident 20 was a female and that his victim in

the Septembe r 7, 2001, altercation was a female. The evidence

of record, and AHCA's Proposed Recommended Order, address

Resident 20 as a male, leaving the fact - finder nonplussed with

regard to whom the pleading refers. For that reason, and the

reasons discussed in d etail above, AHCA did not prove by clear

and convincing evidence that the facility failed to adequately

supervise Resident 20. Accordingly, Count II of Case

No. 02 - 4040 is not proven.

82. DOAH Case No. 02 - 1905 seeks to impose a conditional

license based on the survey of January 22 - 25, 2002. This is

based on the same evidence adduced in DOAH Case No. 02 - 4040.

The standard of proof in this case is proof by a preponderance

of the evidence, as noted above.

83. A review of the evidence developed with regard to

Residents 10, 12, 16, and 20, using the lesser standard of

proof, results in the same conclusion.

RECOMMENDATION

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

is

RECOMMENDED: That a final order be entered dismissing,

DOAH Case Nos. 02 - 1421, 02 - 1905, and 02 - 4040.

DONE AND ENTERED this 8th day of January, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buil ding

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 8th day of January, 2003.

COPIES FURNISHED :

Lori C. Desnick, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Suite 3431

Fort Knox Building, III

Tallahassee, Florida 32308

R. Davis Thomas, Jr., Esquire

Broad & Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallaha ssee, Florida 32302

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Fort Knox Building III

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

2727 M ahan 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

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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.