03-000193 Agency For Health Care Administration vs. Englewood Health Care Associates, Llc, D/B/A Englewood Healthcare And Rehabilitation Center Status: Closed Recommended Order on Friday, August 22, 2003.

Summary: Facility practice related to tobacco use by residents does not constitute a Class I violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 03 - 0192

) 03 - 0193

ENGLEWOOD HEALTH CARE )

ASSOCIATES, LLC, d/b/a )

ENGLEWOOD HEALTHCARE AND )

REHABILITATION CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 3 and 4, 2003, a formal administrative hearing in

these cases was held in Punta Gorda, Florida, before William F.

Quattlebaum, Administrative Law Judg e, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Joanna Daniels, Esquire

Ursula Eikman, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

For Respondent: R. Davis Thomas, Jr.

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in these cases is whether the allegation s of the

Administrative Complaints filed by the Petitioner against the

Respondent are correct, and if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

By Administrative Complaints filed on December 30, 2002,

the Agency for Health Care Administ ration (Petitioner) alleged

that Englewood Health Care Associates, LLC, d/b/a Englewood

Healthcare and Rehabilitation Center (Respondent) failed to

ensure the safety of three residents who smoke cigarettes. In

DOAH Case No. 03 - 0192 (AHCA Case No. 20020459 48), the Petitioner

seeks to impose administrative fines and fees totaling $26,000.

In DOAH Case No. 03 - 0193 (AHCA Case No. 2002046867), the

Petitioner seeks to impose a conditional license status on the

Respondent. (Based on a settlement agreement betwe en the

parties reached shortly prior to commencement of the formal

hearing, jurisdiction in previously consolidated DOAH

Case No. 03 - 0191 has been relinquished by separate order to the

Petitioner for such further activity as is warranted.)

At the heari ng, the Petitioner presented the testimony of

two witnesses and had exhibits numbered 1 - 9, 11 - 17 (including

17A), 18 - 21 and 24 admitted into evidence. The Respondent

presented the testimony of three witnesses and had exhibits

numbered 1 - 10 admitted into evidence.

A Transcript of the hearing was filed on July 11, 2003. By

agreement, both parties filed Proposed Recommended Orders on

July 28, 2003, that were considered in the preparation of this

Recommended Order.

All citations are to Florida Statutes (2002) unless

otherwise indicated.

FINDINGS OF FACT

1. The Petitioner is the state agency responsible for

licensure and regulation of nursing homes operating in the State

of Florida.

2. The Respondent operates a licensed skilled nursing

facility in Eng lewood, Florida.

3. The Petitioner surveyed the facility on July 26, 2002.

Based on the surveyor's observations, the facility was charged

with failure to ensure the safety of three residents who smoke

tobacco. For purposes of maintaining the residents ' privacy,

the residents are identified in the survey and in this

Recommended Order as Residents 4, 6 and 7.

4. The Petitioner imposed a "conditional" license rating

on the facility and imposed an administrative fine and survey

fee forming the basis for t his proceeding.

5. The Respondent was resurveyed on August 5, 2002, and

Petitioner determined that the deficiency had been remedied. As

of August 26, 2002, the Respondent's license returned to

"standard" rating.

6. The facility has a smoking are a in a courtyard, which

lies in the center of the building and which is surrounded by

the facility. The courtyard is visible from inside the

facility. The Respondent's employees who smoke do so in the

courtyard along with the facility's residents.

7. Generally at the time of admission, incoming residents

who smoke are assessed as to their ability to do so safely.

8. The Petitioner asserts that the alleged failure of the

facility to assess or to reassess the ability of smoking

residents constitutes neglect of the residents.

9. The parties do not dispute that facility residents have

the "right" to smoke cigarettes if they chose to do so.

10. There is no requirement that smokers wear protective

clothing while smoking. Such clothing (such as a " smoker's

apron") may be offered to smokers but the facility may not

require that a resident use the clothing. The evidence

establishes that two of the three residents (4 and 6) discussed

herein had been offered smoking aprons and declined to use them.

11. The facility may encourage residents to smoke during

"group" smoking situations, but the facility may not require a

resident to participate and may not limit a resident's smoking

to such events.

12. There is no legal requirement that cigarette smoke rs

be supervised on a one - to - one basis.

13. The evidence fails to establish that the observations

of the Petitioner's surveyor caused, or were likely to cause,

serious injury to the residents addressed herein. There is no

credible evidence of any injury to any resident. Given the

apparent frequency of smoking behavior by residents, it is

reasonable to expect that there would be evidence of at least a

minor injury to a smoker if such activity posed a credible

threat of injury.

14. The Respondent's sub mission of a required plan of

correction does not establish that a cited deficiency existed at

the time of the survey.

Resident 4

15. Resident 4 was afflicted with "Fredereich's Ataxia" a

degenerative condition which results in diminution of fine motor

skills. She spoke and moved in a slow manner. Her head would

"bob" in a manner that could suggest she was dozing off.

16. Despite her condition, Resident 4's cognitive

abilities were undiminished. She used a motorized wheelchair

and was able to leave the facility on her own volition. She

used a computer and could operate a television remote control

without assistance. She could handle coins and obtain snacks

from a vending machine.

17. Resident 4's care plan provided that the resident

could smoke cigarettes independently.

18. Based on review of a nurse's notes, the Petitioner

asserts that the Resident 4's smoking ability should have been

reassessed following an incident on July 4, 2002, during which a

"bib" lying on the floor nearby Resident 4 was discovered

smoldering after ash from Resident 4's cigarette landed on it.

The "bib" was extinguished, and there were no injuries.

19. Although there is evidence that following the burning

"bib" incident the staff was advised to monitor Resident 4's

smoking more closely, there is no evidence that a formal smoking

reassessment was completed for Resident 4. The evidence further

establishes that the staff determining that Resident 4's smoking

assessment did not need to be re - addressed was unaware of th e

"bib" incident. The monitoring advisory was not documented in

Resident 4's care plan. The written care plan is the document

which all facility staff access to determine the current status

and condition of a resident.

20. The Petitioner further asserts that the Respondent

should have reassessed Resident's 4's ability to smoke

cigarettes safely based on burn holes in her clothing and the

appearance of an alleged burn mark on a leg brace used by

Resident 4.

21. The evidence establishes that Resident 4 wore clothing

with burn holes, allegedly caused by the dropping of burning

ashes on the clothing. There is no evidence as to the age of

the clothing or the frequency with which such burn holes

occurred.

22. The evidence establishes that the Respondent's

surveyor observed what she believed to be a burn mark on a leg

brace worn by Resident 4. The evidence fails to establish that

a burning cigarette caused the mark observed by the surveyor.

The mark, located on a leather portion of a brace, exhibited no

vi sible charring. No credible analysis of the mark was

performed.

23. The evidence establishes that Resident 4 reported to

the Respondent's surveyor that she burned her thumb while

smoking. The evidence fails to establish that a mark visible on

Resident 4's thumb was the result of a cigarette burn.

24. At the time of the survey, the Resident 4 was observed

smoking in the courtyard area. The Respondent was wearing a

cloth respiratory mask that was hanging freely from one ear.

For reasons related to e ither physical condition or medication,

the Respondent appeared to be periodically dozing as she was

smoking. The evidence fails to establish whether Resident 4 was

actually "nodding off" or whether the appearance was related to

the head "bob" resulting f rom her diagnosis.

25. The evidence fails to establish that additional

smoking restrictions for Resident 4 were necessary. The

evidence fails to establish that Resident 4, who apparently

strongly valued her independence, would have accepted smoking

res trictions or additional supervision.

Resident 6

26. Resident 6 was admitted to the facility subsequent to

suffering a stroke. His cognitive abilities were not impaired.

Resident 6's care plan provided that he could smoke with minimal

supervision.

27. The Respondent's surveyor observed Resident 6 smoking

in the facility's courtyard. A staff person was present, as was

another resident. Resident 6 had cigarette ashes on his

clothing.

28. Articles of clothing in Resident 6's closet had burn

holes in t hem. There is no evidence as to the age of the

clothing or the frequency with which such burn holes occurred.

29. The evidence fails to establish that Resident 6's plan

of care was violated or that the Respondent was negligent in

supervising the Resident 6's cigarette smoking.

Resident 7

30. Resident 7 was admitted to the facility on July 17,

2002, with a diagnosis of organic brain syndrome. Although

Resident 7's cognition was moderately impaired, he was permitted

to move freely about the facility and smoked in the smoking

area.

31. At the time of the survey, Resident 7's care plan did

not address his cigarette smoking. On July 25, 2002, a smoking

evaluation was completed and included in Resident 7's written

care plan. His cigarettes were stored for him and supplied to

him upon request. He was to be accompanied by staff when he

smoked.

32. Resident 7 was also known to rummage through ashtrays

looking for additional smoking material. Although the facility

obtained tamper - resistant ashtrays, Resident 7 was nonetheless

apparently able to obtain additional smoking material when staff

was not present.

33. The Respondent's surveyor observed Resident 7 smoking

in the facility's courtyard. At the time of the surveyor's

observation, Resident 7 appeared to be sitting alone and

unsupervised in the courtyard. It is unknown whether the

smoking material was obtained from the staff (in which case he

should have been accompanied by a staff member) or had been

obtained from the ashtray (in which case the staff was likely

unaware that he was smoking).

34. Burn holes were present in Resident 7's clothing.

There is no evidence as to the age of the clothing or the

frequency with which such burn holes occurred.

35. The Respondent asserts that prior to completion of a

written assessment, a smoking assessment care plan was orally

communicated to all staff members working in Resident 7's unit.

The evidence establishes that staff members were aware of

Resident 7's smoking habits prior to completion of the written

plan o f care.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Sections 120.569 and 120.57(1).

37. The Petitioner asserts that the failure of the

Respondent to initial ly assess or subsequently reassess the

smoking ability of certain residents constitutes a form of

neglect.

38. The Petitioner has the burden of establishing by a

preponderance of the evidence, entitlement to the relief sought,

specifically the imposition of a conditional rating and fines.

Balino v. Department of Health and Rehabilitative Services , 348

So. 2d 349 (1st DCA 1977); Florida Department of Transportation

v. JWC Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). In

this case, the burden has not been met.

39. The Petitioner asserts that the alleged deficiency at

issue in this proceeding is a violation of Sections 400.022,

400.102(1)(a), 400.121, and 400.23(8)(b).

40. Section 400.022(1)(l) sets forth a listing of

"residents' rights," which includ es the "right to receive

adequate and appropriate health care and protective and support

services." The evidence fails to establish that the Respondent

violated the residents' "right to receive adequate and

appropriate health care and protective and suppo rt services" and

therefore fails to establish that the Respondent has violated

Section 400.022.

41. Section 400.102(1)(a) provides that an "intentional or

negligent act materially affecting the health or safety of

residents of the facility" is ground for disciplinary action

against the facility. The evidence fails to establish that the

Respondent has committed an intentional or negligent act

materially affecting the health or safety of residents of the

facility and therefore fails to establish that the R espondent

has violated Section 400.102(1)(a).

42. Section 400.121 provides for the imposition of

administrative fines. The evidence fails to establish that

imposition of an administrative fine is warranted in this case.

43. The Petitioner asserts that t he deficiency at issue in

this proceeding is a Class I deficiency as defined at Section

400.23(8)(a), which provides as follows:

(a) A class I deficiency is a deficiency

that the agency determines presents a

situation in which immediate corrective

action is necessary because the facility's

noncompliance has caused, or is likely to

cause, serious injury, harm, impairment, or

death to a resident receiving care in a

facility. The condition or practice

constituting a class I violation shall be

abated or elimi nated immediately, unless a

fixed period of time, as determined by the

agency, is required for correction. A

class I deficiency is subject to a civil

penalty of $10,000 for an isolated

deficiency, $12,500 for a patterned

deficiency, and $15,000 for a wide spread

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

ann ual inspection. A fine must be levied

notwithstanding the correction of the

deficiency. (Emphasis supplied).

44. The Respondent was previously cited for a Class II

citation during a survey conducted on or about December 6, 2001.

45. The evidence fail s to establish that the circumstances

presented by the residents addressed herein have caused, or are

likely to cause, serious injury, harm, impairment, or death to a

resident receiving care in the facility. In this case, the

circumstances fail to establi sh that any resident has suffered

even a minor injury related to the Respondent's policies and

procedures related to cigarette smoking. Accordingly, the

evidence fails to establish the existence of the Class I

deficiency as charged in the Administrative C omplaints filed in

these cases.

46. The Petitioner asserts that the Respondent has

violated Rule 59A - 4.1288, Florida Administrative Code,

incorporating by reference 42 CFR Section 483.13(c), which

requires that a nursing home "develop and implement writt en

policies and procedures that prohibit mistreatment, neglect, and

abuse of residents and misappropriation of resident property."

The evidence fails to establish that the Respondent has violated

the cited rule.

RECOMMENDATION

Based on the foregoing Fi ndings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Administration

enter a final order dismissing the Administrative Complaints

filed in these cases.

DONE AND ENTERED this 22nd day of August, 2003, in

Tallahass ee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 22nd day of August, 2003.

COPIES FURNISHED :

Joanna Daniels, Esquire

Ursula Eikman, Esquire

Agency for Health Care Administration

2727 Ma han Drive, Mail Station 3

Tallahassee, Florida 32308

Donna H. Stinson, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302 - 1300

R. Davis Thomas, Jr.

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302 - 1300

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Ag ency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

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.