02-004161 Agency For Health Care Administration vs. The Christian And Missonary Alliance Foundation, Inc., D/B/A Shell Point Nursing Pavilion Status: Closed Recommended Order on Tuesday, July 1, 2003.

Summary: Agency established by clear and convincing evidence that the cited deficiency occurred, as Shell Point knew of resident`s aggressive behavior. Recommend maintaining conditional licensure status and imposing a fine of $2,500.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 02 - 4160

) 02 - 4161

THE CHRISTIAN AND MISSIONARY )

ALLIANCE FOUNDATION, INC., )

d/b/a SHELL POINT NURSING )

PAVILION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on February 20, 2003, in Fort Myers, Florida, before

Lawrence P. Stevenson, a duly - designated A dministrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Eileen O'Hara Garcia, Esquire

Agency for Health Care Administration

Sebring Building, Room 310J

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

For Respondent: Jay Adams, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302

STAT EMENT OF THE ISSUE

DOAH Case No. 02 - 4161: Whether Respondent's licensure

status should be reduced from standard to conditional.

DOAH Case No. 02 - 4160: Whether Respondent committed the

violations alleged in the Administrative Complaint dated

August 29, 2002, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 29, 2002, the

Agency for Health Care Administration ("AHCA") informed the

Christian and Missionary Alliance Foundation, d/b/a Shell Point

N ursing Pavilion ("Shell Point") that it intended to impose a

fine in the amount of $2,500 as the result of a single alleged

Class II deficiency found during the annual licensure and

certification survey of Shell Point conducted on June 3

through 6, 2002.

By a second Administrative Complaint, also dated August 29,

2002, AHCA informed Shell Point of its intent to change Shell

Point's license rating from "standard" to "conditional" as a

result of the same alleged deficiency.

On September 30, 2002, Shell Poi nt timely filed a Petition

for Formal Administrative Hearing to challenge AHCA's two

administrative complaints. On October 22, 2002, AHCA forwarded

the petition to the Division of Administrative Hearings for

assignment of an Administrative Law Judge and c onduct of a

formal administrative hearing. The proceeding related to Shell

Point's licensure status was assigned DOAH Case No. 02 - 4161.

The proceeding related to the proposed administrative fine on

Shell Point was assigned DOAH Case No. 02 - 4160. By Orde r dated

November 5, 2002, these cases were consolidated and the final

hearing was scheduled for January 10, 2003, in Fort Myers,

Florida.

On January 8, 2003, a motion hearing was held to resolve

certain discovery and prehearing issues. By stipulation of t he

parties, the final hearing was rescheduled for February 20,

2003.

At the final hearing, AHCA presented the testimony of Joan

Cagley - Knight, a registered nurse consultant for AHCA and an

expert in nursing and Alzheimer's disease. AHCA's Exhibits 1

thr ough 4 were received into evidence. Shell Point presented

the testimony of Antoinette Kushner, manager of Shell Point's

Alzheimer's unit, and Pamela Garcia, a licensed practical nurse

("LPN") who works on the Alzheimer's unit at Shell Point.

Respondent's Composite Exhibit 1 (pages 1 through 73) was

received into evidence.

A Transcript of the proceeding was filed at the Division of

Administrative Hearings on March 31, 2003. On April 29, 2003,

the parties filed a Motion for Extension of Time, requesting

th at the deadline for submitting proposed recommended orders be

extended to May 5, 2003. By Order dated May 2, 2003, the

undersigned granted the Motion. Both parties filed Proposed

Recommended Orders on May 5, 2003.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following findings of fact are made:

1. AHCA is the state agency responsible for licensure and

regulation of nursing homes operating in the State of Florida.

Chapter 400, Part II, Florida Statutes.

2. Shell Point operates a licensed nursing home at 15701

Shell Point Boulevard, Fort Myers, Florida.

3. The standard form used by AHCA to document survey

findings, titled "Statement of Deficiencies and Plan of

Correction," is commonly referred to as a "2567" form. The

individual deficiencies are noted on the form by way of

identifying numbers commonly called "Tags." A Tag identifies

the applicable regulatory standard that the surveyors believe

has been viol ated and provides a summary of the violation,

specific factual allegations that the surveyors believe support

the violation, and two ratings which indicate the severity of

the deficiency.

4. One of the ratings identified in a Tag is a "scope and

severity" rating, which is a letter rating from A to L with A

representing the least severe deficiency and L representing the

most severe. The second rating is a "class" rating, which is a

numerical rating of I, II, or III, with I representing the most

severe defi ciency and III representing the least severe

deficiency.

5. On June 3 through 6, 2002, AHCA conducted an

annual licensure and certification survey of Shell Point to

evaluate the facility's compliance with state and federal

regulations governing the operation of nursing homes.

6. The survey team alleged several deficiencies during the

survey, only one of which is at issue in these proceedings. At

issue is a deficiency identified as Tag N201 (violation of

Section 400.022(1)(l), Florida Statutes, r elating to a

resident's right to adequate and appropriate health care and

protective and support services, if available; planned

recreational activities; and rehabilitative services consistent

with the resident's care plan, with established and recognized

practice standards within the community, and with rules as

adopted by the agency).

7. The deficiency alleged in the survey was classified as

Class II under the Florida classification system for nursing

homes. A Class II deficiency is "a deficiency that the agency

determines has compromised the resident's ability to maintain or

reach 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." Section 400.23(8)(b), Florida Statutes. The

deficiency was noted as "isolated" in scope.

8. Based on the alleged Class II deficiency in Tag N201,

AHCA imposed a conditional license on IHS, effective June 6,

2002. A follow - up survey was condu cted by AHCA on July 9, 2002.

AHCA found that Shell Point had corrected all deficiencies noted

in the Form 2567, and the agency restored Shell Point's license

rating to "standard" on July 9, 2002.

9. The survey found one instance in which Shell Point

all egedly failed to provide appropriate health care and

protective services. The surveyor's observation on Form 2567

concerned Resident 14:

N201 – 400.022(1)(l), F.S. Right to

Adequate and Appropriate Health Care

400.022(1)(l) The right to receive adequa te

and appropriate health care and protective

and support services, if available; planned

recreational activities; and therapeutic and

rehabilitative services consistent with the

resident care plan, with established and

recognized practice standards within the

community, and with rules adopted by the

agency.

This Rule is not met as evidenced by:

Based on observations, record review and

staff interviews, the facility failed to

provide care and protective services for 2

of 3 sampled residents (#14 and #15) on the

second floor dementia unit. This is

evidenced by the continued resident - to -

resident altercations without facility staff

providing on - going interventions,

implementation of facility abuse policy, or

development of a therapeutic plan of care.

The fi ndings include:

1. During the initial tour of the second

floor on 6/03/02 at approximately 9:30 AM,

Resident #14 was identified by nursing staff

as having "injured" another resident (#15)

the night before (6/02/02). According to

the nurses notes for Res ident #15 on 6/02/02

at 1745 (5:45 PM) "_________(resident's

name) was knocked to the ground by another

resident. She hit her head and tore open

the L (left) forearm. Her L. knee has a

quarter - sized abrasion - – instantly

swollen . . . had a small abrasio n L. side

of head – - ice applied." L. knee abrasion

with obvious pain and swelling - – ice

applied to knee also. Lg. (large) hematoma

(bruise) from L. wrist to mid forearm with

lg. deep skin tear. Skin reapproximated and

steri - stripped – - dressed with te lfa and

Kling per Dr. ______." The physician was

called and noted the presence of a

"contusion" of the L. parietal area (the

head). Review of Resident #15's record

showed a nurse's note dated 5/19/02 at 2100,

"Hit in back of head by another resident for

no apparent reason." Interview with nursing

staff on 6/04/02 at approximately 11:00 AM

revealed the resident had been struck by

Resident #14 during this incident as well.

However, no injuries were noted during this

altercation.

2. Review of facility Pol icy Related to

"Abuse, Neglect, or Misappropriation of

Property" dated 12/12/00 revealed "5.

Should abuse be expected (suspected?) to be

resident - to - resident initiated, the

residents will be separated, the environment

will be reviewed as to the stimuli th at may

have triggered a catastrophic

response. . . . Corrections to the

environment will be implemented, the

residents will be evaluated for injury, the

residents will be interviewed (where

practicable)."

3. Review of the clinical record for

Resident #1 4 showed documentation in the

nurse's notes for 6/02/02 of escalating

behavior throughout the day i.e. "She has

had one confrontation after another today

with residents – - not staff." There is no

documentation to indicate any interventions

until resident #14 injured resident #15.

Review of the plan of care (both current and

past) showed no interventions for

aggressive, assaultive behavior by this

resident or environmental review for

stimuli. Interview with the Social Worker

on 6/04/02 at approximately 1:3 0 PM revealed

no interventions had been planned or written

by him for the aggressive behavior, although

the psychiatric nurse had been called

regarding reinstating the use of an

antipsychotic medication. Interview with

the R.N. in charge of the unit as we ll as

the DON (Director of Nursing) revealed no

changes in the plan of care had been

implemented since the altercation.

4. Further review of the clinical record

for Resident #14 disclosed at least 12 other

incidents since March 9th of 2002 in which

the r esident struck, slapped or pushed other

residents (3/09, 4/07, 4/18, 4/21, 4/30,

5/03, 5/04, 5/13, 5/18, 5/19, 5/24, and

5/25). The resident's record revealed her

to have "expressive aphasia due to CVA

(Cerebrovascular Accident)" and to be

moderately impa ired for cognition. The

resident was observed pacing around the 2nd

floor dining unit and in the dining room for

lunch on 6/04/02. She was minimally able to

communicate with gestures. Review of the

"Behavior/Intervention monthly Flow Record"

showed the behaviors being monitored as the

following: "Mood changes, Delusions,

Depressed, and Compulsive."

Interview with the DON on 6/04/02 at

approximately 3:30 PM verified these

"behaviors" were inappropriate for this

resident, unable to be observed, and

emoti ons unable to be verbalized by the

resident.

5. The clinical record and interviews with

administrative nursing staff on 6/05/02 at

approximately 3:30 PM revealed interventions

at the time of an incident included 1:1

monitoring and removal to her room.

Me dication had been utilized but

discontinued. There was no documented plan

of care outlining interventions to prevent

this resident from continuing to injure

herself or others.

10. Resident 14 was a 85 - year - old female admitted to Shell

Point on June 29, 2001. Her primary diagnoses on admission were

anorexia, weight loss, and multiinfarct dementia, a form of

organic brain disease that is indistinguishable from Alzheimer's

disease in terms of treatment. Resident 14 had secondary

diagnoses of hypertension and depression.

11. Alzheimer's disease is a progressive disease. Its

initial signs are usually confusion and short - term memory loss.

As the disease progresses, the patient suffers greater overall

loss of memory and reduced cognition. In the middle s tages of

the disease, the patient loses the ability to follow directions,

to perform her activities of daily living and to take care of

her own needs.

12. Another common symptom of Alzheimer's disease is the

loss of inhibition and social awareness. The loss of social

awareness can cause the patient to invade the space of others,

unaware of her effect on those around her.

13. Another common effect of the progression of

Alzheimer's disease is increased aggression, again the result of

an inability to und erstand how one's actions affect others.

Joan Cagley - Knight, AHCA's expert on Alzheimer's disease,

estimated that at any given time, 20 percent to 40 percent of

the residents in the Alzheimer's unit of a nursing home will

demonstrate aggressive or violent behavior. Aggressive behavior

in Alzheimer's residents cannot be eliminated, as it is simply a

part of the progression of the disease.

14. One way in which Alzheimer's patients are treated is

to place them in secured, locked Alzheimer's units. Such un its

allow the residents greater freedom within the unit while

allowing the nursing home to provide greater supervision.

Secure Alzheimer's units also provide reduced stimulation for

the residents, lessening the potential for extraneous sights and

sounds t o cause agitation.

15. At the time of the survey, Shell Point's secure

Alzheimer's unit, where all of the relevant incidents took

place, consisted of 58 beds. Ms. Cagley - Knight testified that

most special care units for dementia have a maximum of twen ty

beds. She opined that the larger size of Shell Point's unit

made it more difficult to manage, because residents with

Alzheimer's require more supervision and less stimulation in

their environment than do healthy residents. Evidence at the

hearing esta blished that ambulatory residents were allowed to

interact in the common areas of the Shell Point Alzheimer's

unit, though always within sight of facility staff.

16. Shell Point employed staff persons to work exclusively

in the Alzheimer's unit, and assi gned those staff persons to

care for the same residents on each shift. These assignments

allowed the staff to become familiar with each resident's needs,

abilities, and behaviors.

17. A nursing home's ability to deal with aggression in an

Alzheimer's u nit is limited. The facility cannot simply lock a

resident in her room. Physical restraints tend to worsen the

situation, and in any event violate the Resident's Bill of

Rights, Section 400.022(1)(o), Florida Statutes, unless

authorized by a physician or necessitated by an emergency.

18. Among the permissible initial responses to aggressive

behavior are redirection and increased supervision. If these

responses fail to control the resident's aggressive behavior,

the resident can be medicated, though the facility is required

to maintain the use and dosage of psychotropic drugs at the

lowest level practicable.

19. Finally, if all else fails, an overly aggressive

nursing home resident who presents an immediate threat to

herself or others may be involunt arily committed to a mental

health facility through the "Baker Act", Section 394.467,

Florida Statutes. Ms. Cagley - Knight testified that a facility

should do anything it can to avoid "Baker Acting" its residents,

short of allowing one resident to hurt ano ther. She stated that

the decision as to "Baker Acting" a resident is a judgment call

based on an evaluation of all the circumstances.

20. At the time of her admission, Resident 14 was

independent regarding her activities of daily living and

required m inimal care. Pamela Garcia, an LPN on the Alzheimer's

unit, described Resident 14 as part of the "out and about"

group, able to participate in outings and group activities.

21. Over time, however, Resident 14 suffered cognitive

decline and the symptom s of her dementia worsened. At one

point, Resident 14 became overly protective and "motherly"

toward her roommate, so much so that the facility had to

separate the two women.

22. Resident 14 then transferred her affections to a newly

admitted male resi dent. She behaved very protectively toward

him and became jealous when other female residents approached

him. Eventually, Resident 14 adopted two more male residents

for this jealous, protective behavior.

23. Resident 15 was another female resident on the

Alzheimer's unit. Due to her loss of inhibitions and lack of

social awareness, Resident 15 would get physically close to

other residents, much closer than is normally considered

acceptable. When she would get too close to one of

Resident 14's gentle men friends, Resident 14 would become angry

and would slap at Resident 15.

24. As quoted above, the Form 2567 states that Resident 14

was involved in 12 incidents in which she "struck, slapped, or

pushed other residents." Ms. Cagley - Knight, the surveyo r who

made the observations and findings as to Resident 14, conceded

that most of the 12 incidents did not involve physical contact

with another resident. Ms. Cagley - Knight maintained that the

non - physical incidents, which involved taunting, arguing, and

slapping at other residents without making contact, were

nonetheless significant resident - to - resident altercations that

should have triggered some response by the facility.

25. The nurses' notes for March 9, 2002, contained a care

plan note indicating that the facility was aware of, and

concerned about, Resident 14's tendency toward aggressive

behavior. The note stated "Resident [14] rarely displays sexual

behavior now. Her meds seem well - adjusted. She does have

episodes of anger directed at certain female residents for no

apparent reason. She will redirect during these episodes but

will glare at the residents or taunt the other residents

verbally."

26. The first incident involving Resident 14 was recorded

in the nurses' notes of April 7, 2002. The note stated,

"Resident [14] acting out in dining room. Picked a fight with

another female resident. [Resident 14] was returned to 2nd

floor. Stood staring at everyoneying to 'get in someone's

face' - – very obvious foul mood and attitude." The nurses' note

gave no indication that "picking a fight" involved anything more

than a verbal confrontation.

27. The nurses' notes of April 18, 2002, provide

documentation of a second incident: "Caregiver reports that

[Resident 14] is slapping out at othe rs in peer group. Will

monitor behavior and report findings to [physician]." The

referenced caregiver was not a Shell Point employee, but a

private duty person who came in regularly to tend to

Resident 14.

28. The nurses' notes of April 21, 2002, lab eled "weekend

summary," reflect that "Resident [14] was in a very foul mood

all weekend. She verbally taunted several female residents

Saturday and Sunday. She took 2 male residents to her room

dozens of times and was angry with staff when redirected. S he

sat on a male resident's lap and when the CNA removed her -- she

shook her breasts at him. Sunday a female resident was knocked

down by [Resident 14] and she bragged to staff that she did it.

She continued to taunt the injured resident after the incid ent."

29. In response to Resident 14's increased aggression and

sexually inappropriate behavior, the facility had her

reevaluated by a neuropsychiatrist on April 25, 2002, four days

after the weekend incidents were recorded in the nurses' notes.

The n europsychiatrist noted that Resident 14 "does well in

activities and tends to act out during non - structured events,"

and that she was "at risk to harm others." The

neuropsychiatrist increased Resident 14's dose of Depacote

(divalproex sodium), a psychotro pic drug.

30. The nurses' notes of April 30, 2002, record that

Resident 14 "became aggressive with another resident in

hallway – - as other female resident walked by, [Resident 14]

reached out to grab – - other resident pushed hand away and

[Resident 14] b egan to swing at other resident. Did not make

contact and did state 'Well did you see her.' When informed of

inappropriateness stated 'I'm sorry.' No further episode."

31. The nurses' notes of May 3, 2002, record that

"Resident [14] was confrontatio nal with nurse and with another

resident, closed door on nurse, attempted to slap other

resident, but was redirected in time."

32. The nurses' notes of May 4, 2002, record that

"Resident had behavioral problems all day. She verbally

attacked many resi dents. She slapped 2 female residentsied

to get a male resident to her room repeatedly. She stood

staring at Mr. [resident name] for hours trying to get him to go

with her. She paced the entire day with her arms crossed just

looking at residents an d staff. Not easily redirected."

33. In response to this episode, Shell Point again had

Resident 14 evaluated by her neuropsychiatrist, this time on

May 9, 2002, five days after the incident. After reviewing

Resident 14's drug regimen, the neuropsychi atrist decided not to

change her prescriptions at that time because he had just

increased the dosage on April 26. At this time Resident 14 was

taking 750 mg of Depakote, and 7.5 mg of Remeron daily. Remeron

(mirtazapine) is an antidepressant.

34. The n urses' notes of May 13, 2002, reflect that

Resident 14 "took male resident to her room repeatedly and into

the bathroom once. She verbally attacked 2 female residents – -

paced most of the evening."

35. The nurses' notes of May 18, 2002, record that

Res ident 14 was "very aggressive with other residents who

approached her room or a particular male resident. Paced the

entire day -- took 2 male residents to her room repeatedly."

The nurses' notes for the afternoon of May 19, 2002, record that

Resident 14 "keeps dragging a particular male resident out of

his chair and taking him down the hall to her room. Very

taunting to multiple other residents. Very boisterous toward 2

females at one point. Paces continually -- will not be

redirected by staff."

36. The nurses' notes for the evening of May 19, 2002,

record that Resident 14 was "aggressive this evening. Hit

another resident in back of head - – not causing any injury.

Verbally abusive to other residents."

37. The nurses' notes of May 24, 2002, record that

Resident No. 14 had "multiple confrontations with other

residents early part of this shift. CNA's and nurses had to

redirect her from stalking another resident. She struck out at

several other residents – - paced a good portion of the evening -

– staf f removed her from the lobby to her room where she

remained for the night."

38. The nurses' notes of May 25, 2002, record that

"Resident [14] touched lower extremity of another resident. He

reached up and slapped left side of face as witness[ed] by CNA ."

39. The nurses' notes for the morning of June 2, 2002,

record that "Resident has paced all day with arms crossed. She

has had one confrontation after another today with residents --

not staff. She has been redirected repeatedly with no effect.

Very defiant. She has been very physical with a male resident.

She will not leave him alone. Families were complaintive [sic]

during lunch about her behavior with male residents." The

nurses notes for the same afternoon record that "[Resident 14]

knocked ano ther resident down. Other resident injured.

[Resident 14] taken to room 214 per Dr. Hicks and supervisor.

Will be monitored by CNA." Resident 15, the victim of this

incident, suffered cuts, skin tears, and bruises caused by her

fall after being slapped b y Resident 14.

40. The chief allegation under Tag N201 is that Shell

Point allowed resident - to - resident altercations to continue

without effective interventions, implementation of an abuse

policy, or development of a therapeutic care plan for

Resident 14 to address her ongoing problems of aggression and

sexual acting out.

41. The most recent care plan on file for Resident 14 was

dated March 27, 2002, and did not address her aggressive

behavior. Resident 14's inappropriate sexual behavior had been

addre ssed in a prior care plan, but as of March 27, 2002, Shell

Point considered this issue "resolved" because "resident no

longer exhibits this behavior." The nurses' notes indicated

that Resident 14 resumed this behavior no later than April 21,

2002, when sh e was first recorded taking male residents to her

room, but no update to the care plan was made to address this

resumption of inappropriate sexual behavior.

42. AHCA faulted Shell Point for failing to prepare a care

plan for Resident 14 so that all staff members would know when

her needs were greater and what interventions were working with

her, and for failing to identify and remove those stimuli that

caused Resident 14 to become aggressive. However, the evidence

established that Shell Point knew that t he aggravating stimulus

was female residents coming too close to the male residents whom

Resident 14 had adopted for her special attention.

43. Shell Point contended that the preparation of a care

plan for Resident 14 would not have resulted in a diffe rent

approach by the staff. Shell Point maintained flow sheets and

cards on each resident in the Alzheimer's unit, and used these

flow sheets rather than the care plan to track the residents'

progress. At the conclusion of each shift, staff would prepare

a report for the next shift detailing anything of note that

occurred on their shift. Shell Point's contention that

preparation of a care plan would not have changed its approach

is credited, though it begs the question of whether that

approach was defici ent as to the care and protection of the

residents involved in these altercations.

44. Ms. Cagley - Knight testified that the appropriate

response to resident - on - resident aggression in a secure

Alzheimer's unit must be evaluated on a case - by - case basis. T he

response depends on the number and seriousness of the incidents.

Shell Point attempted to minimize the seriousness of

Resident 14's actions, pointing out that only four of the 12

documented incidents resulted in actual physical contact and

that only th e incident of June 2 resulted in physical harm to a

resident. Shell Point also pointed out that in each instance of

Resident 14 hitting or attempting to hit another resident, she

did so suddenly and was quickly redirected by facility staff.

45. Thus, S hell Point contends that the level of danger

presented by Resident 14 was relatively low and that Shell

Point's response was sufficient. This contention is not

credited. Even those incidents that did not involve actual

physical contact did involve slappi ng out at and abusive

language toward other residents, who had a right not to be

exposed to such a fearful, oppressive situation.

46. The evidence established that Shell Point routinely

identified when Resident 14 was becoming agitated or aggressive.

St aff would attempt to redirect her when she displayed

aggressive behavior, but were not always successful in doing so.

When redirection was ineffective, the staff at Shell Point would

increase their supervision of Resident 14. Staff was generally

aware of the need to monitor Resident No. 14 and her location

was monitored at all times. When she was acting out, they would

increase her supervision to one - on - one. However, even with this

close supervision, Resident 14's behavior could not always be

stopped.

47. Shell Point correctly noted that AHCA did not identify

any other specific interventions that Shell Point should have

tried. However, Shell Point failed to demonstrate that the AHCA

surveyors are required or even qualified to identify specific

interv entions for Shell Point residents, based upon a record

review and a day or two of observation. The AHCA survey is a

critique of the facility's practices in light of state and

federal requirements. It is the task of the facility, not the

AHCA surveyors, t o devise a plan of correction in response to

that critique.

48. Ms. Cagley - Knight acknowledged that a resident's first

incident of aggression cannot be predicted, and that planned

interventions may not always be effective. However, Ms. Cagley -

Knight al so concluded that the interventions in place for

Resident 14 plainly were not working to curb her aggressiveness

or at least prevent her from harming other residents.

Ms. Cagley - Knight's conclusion was reasonable, based on the

dozen instances of aggressiv e behavior by Resident 14 over a

two - month period, four of which involved physical contact.

Given her limited exposure to Resident 14, Ms. Cagley - Knight was

in no position to prescribe specific interventions, and her

inability to do so does not excuse the facility's failure to

explore different approaches in curbing Resident 14's

aggressiveness.

49. Shell Point correctly noted that staff was always

observant of Resident 14 and always acted quickly to minimize

the harm she caused to other residents. Howe ver, swift reaction

to Resident 14's outbursts does not excuse the facility's

failure to try different approaches that might have prevented

the outbursts in the first place.

50. Shell Point argued that the only way to eliminate the

stimulus causing the a ggressive behavior would have been to

remove the other residents, which would be impractical, or to

isolate Resident 14, which would violate her resident rights.

Shell Point contended that, given the limited responses

available to a nursing home to respon d to aggressive behavior by

a resident with Alzheimer's, the only other option available was

to "Baker Act" Resident 14. Shell Point contended that "Baker

Acting" was not necessary for Resident 14, based on the judgment

of the professionals charged with h er care, and that second -

guessing their judgment should not form the basis for a finding

of deficiency and issuance of a conditional license.

51. The fact that staff at Shell Point understood the

stimuli that triggered Resident 14's outbursts should have led

to some form of intervention designed to prevent her exposure to

those stimuli. If the facility lacked a means, short of

complete isolation, to keep Resident 14 apart from the residents

who triggered her violent outbursts, then it should have

concede d its inability to provide adequate care to Resident 14

and taken steps to have her moved to a facility better suited to

cope with her needs. This is not a matter of second - guessing

the professional judgment of Shell Point's staff, but a finding

based on the manifest evidence that Shell Point was unable or

unwilling to devise intervention strategies that would respect

both the dignity of Resident 14 and the safety of the residents

around her.

52. In summary, based upon all the evidence adduced at the

fin al hearing, AHCA's finding of a deficiency under Tag N201 was

demonstrated by clear and convincing evidence.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

54. AHCA is authorized to license nursing home facilities

in the State of Florida, and pursuant to Chapter 400, Part II,

Florida Statutes, is required to evaluate nursing home

facilities and assign rati ngs.

55. AHCA has the burden to establish the allegations that

would warrant the imposition of a conditional license. Beverly

Enterprises - Florida v. Agency for Health Care Administration ,

745 So. 2d 1133 (Fla. 1st DCA 1999). AHCA must show by a

prepon derance of the evidence that there existed a basis for

imposing a conditional rating on Shell Point's license. Florida

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981); Balino v. Department of Health and

Rehabilitat ive Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

56. As to the imposition of an administrative fine, the

standard of proof is clear and convincing evidence. Department

of Banking and Finance v. Osborne Stern and Co. , 670 So. 2d 932,

935 (Fla. 1996); Fe rris v. Turlington , 510 So. 2d 292 (Fla.

1987).

57. The "clear and convincing" standard requires:

[T]hat the evidence must be found to be

credible; the facts 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 trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations soug ht to be

established.

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

58. Section 400.23, Florida Statutes, provides in

pertinent part:

(7) The agency shall, at least every 15

months, evaluate all nursing home facilities

and make a de termination as to the degree of

compliance by each licensee with the

established rules adopted under this part as

a basis for assigning a licensure status to

that facility. The agency shall base its

evaluation on the most recent inspection

report, taking into consideration findings

from other official reports, surveys,

interviews, investigations, and inspections.

The agency shall assign a licensure status

of standard or conditional to each nursing

home.

* * *

(b) A conditional licensure status means

that a facility, due to the presence of one

or more class I or class II deficiencies, or

class III deficiencies not corrected within

the time established by the agency, is not

in substantial compliance at the time of the

survey with criteria established un der this

part or with rules adopted by the agency.

If the facility has no class I, class II, or

class III deficiencies at the time of the

followup survey, a standard licensure status

may be assigned.

59. Section 400.23(8)(b), Florida Statutes, defines a

Class II deficiency as:

a deficiency that the agency determines

has compromised the resident's ability to

maintain or reach his or her highest

practicable physical, mental, and

psychosocial well - being, as defined by an

accurate and comprehensive reside nt

assessment, plan of care, and provision of

services. A class II deficiency is subject

to a civil penalty of $2,500 for an isolated

deficiency, $5,000 for a patterned

deficiency, and $7,500 for a widespread

deficiency. The fine amount shall be

doubled for each deficiency if the facility

was previously cited for one or more class I

or class II deficiencies during the last

annual inspection or any inspection or

complaint investigation since the last

annual inspection. A fine shall be levied

notwithstandi ng the correction of the

deficiency.

60. The survey of Shell Point included one deficiency

identified as Tag N201 (violation of Section 400.022(1)(l),

Florida Statutes, relating to a resident's right to adequate and

appropriate health care and protectiv e and support services, if

available; planned recreational activities; and rehabilitative

services consistent with the resident's care plan, with

established and recognized practice standards within the

community, and with rules as adopted by the agency). This

deficiency was identified as Class II and thus subjected the

facility to conditional licensure from June 6, 2002, until the

deficiency was corrected on July 9, 2002.

61. AHCA established by clear and convincing evidence that

the cited deficiency oc curred. The evidence presented at

hearing established that Shell Point was aware of Resident 14's

propensity to lash out when provoked by female residents

approaching the male residents she had chosen for special

attention. The intervention measures take n by Shell Point were

entirely reactive, and not always effective in protecting other

residents from Resident 14's outbursts. Over a two - month

period, there were four documented physical attacks and another

eight incidents of attempted physical attack and /or verbal abuse

of other residents by Resident 14. That there were no serious

injuries to the residents was simply fortuitous, given their

physical and mental condition.

62. AHCA properly characterized this as a Class II

deficiency. Shell Point com promised the ability of Resident 14

and Resident 15 to maintain or reach their highest practicable

physical, mental, and psychosocial well - being as defined by an

accurate and comprehensive resident assessment, plan of care,

and provision of services.

63. Because this was an isolated Class II deficiency, an

administrative fine in the amount of $2,500 is required,

notwithstanding Shell Point's timely correction of the

deficiency. Section 400.023(8)(b), Florida Statutes.

RECOMMENDATION

Upon the foregoin g Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Agency for Health Care Administration

enter a final order upholding its notice of intent to assign

conditional licensure status to The Christian and Missionary

Alliance Foundation, d/b/ a Shell Point Nursing Pavilion, for the

period of June 6, 2002, through July 9, 2002, and imposing an

administrative fine in the amount of $2,500.

DONE AND ENTERED this 1st day of July, 2003, in

Tallahassee, Leon County, Florida.

S

_______________________ ____________

LAWRENCE P. STEVENSON

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

Fil ed with the Clerk of the

Division of Administrative Hearings

this 1st day of July, 2003.

COPIES FURNISHED :

Jay Adams, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302

Eileen O'Hara Garcia, Es quire

Agency for Health Care Administration

Sebring Building, Room 310J

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Mail Stop 3

Tallahassee, Florida 3 2308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

Rhonda M. Medows, M.D., Secretary

Agency for Health Care Administration

2727 Mahan Drive

For t Knox Building, Suite 3116

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 Recommended Order should be filed with the agency that

will issue the Final Order in this case.