04-002451 Agency For Health Care Administration vs. Kensington Manor, Inc., D/B/A Kensington Manor Status: Closed Recommended Order on Friday, February 4, 2005.

Summary: Allegations that nursing home staff abused one resident and neglected two others were not supported by a preponderance of evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2 451

)

KENSINGTON MANOR, INC., d/b/a )

KENSINGTON MANOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing in this proceeding on December 2, 2004,

in Sarasota, Florida, on behalf of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petit ioner: Gerald L. Pickett, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330K

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

For Respondent: Alfred W. Clark, Esquire

117 South Gadsden Street, Suite 201

Post Office Box 623

Tallahassee, Florida 32302 - 0623

STATEMENT OF THE ISSUES

The issues are whether Responden t committed the violations

alleged in the Administrative Complaint concerning three nursing

home residents, whether Petitioner should impose a civil penalty

of $2,500 for each violation, whether Petitioner should change

the status of Respondent's license f rom standard to conditional,

and whether Petitioner should recover investigative costs.

PRELIMINARY STATEMENT

Petitioner charged Respondent with the violations at issue

in this proceeding in an Administrative Complaint dated May 24,

2004, containing fiv e counts (Counts I through V). Respondent

timely requested an administrative hearing. Petitioner referred

the matter to DOAH to assign an ALJ to conduct the hearing.

The parties resolved some factual allegations in a Joint

Prehearing Stipulation and p roceeded to hearing on the remaining

disputed issues of fact. At the outset of the hearing, the ALJ

granted Respondent's Motion to Strike portions of Count III of

the Administrative Complaint in subparagraphs 1 through 4 in

paragraph 99 and paragraphs 110 through 144 concerning residents

of the facility identified in the record as Residents 14, 18,

30, 31, 4, 5, and 16. The stricken portions of Count III did

not allege facts that, if proven, constituted the charged

violation. The ALJ provided Petitioner with an opportunity to

proffer evidence relevant to the stricken allegations, but

Petitioner declined to proffer any evidence.

The parties submitted evidence concerning the remaining

disputed issues, including one joint exhibit. Petitioner

presented the testimony of one witness and submitted eight

exhibits for admission into evidence. Petitioner stipulated

that those portions of the admitted exhibits consisting of a

preliminary charging document identified in the record as CMS

Form 2567L, were not of fered for the truth of the facts asserted

therein. Respondent presented the testimony of three witnesses

and submitted three exhibits for admission into evidence.

Pursuant to the agreement of the parties during the hearing,

Petitioner filed the depositio n testimony of one witness on

January 19, 2005, and Respondent filed the deposition testimony

of two witnesses on January 12, 2005.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the one - volume Transcript of the

hearing filed with DOAH on December 13, 2004. Petitioner and

Respondent timely filed their respective Proposed Recommended

Orders (PROs) on January 18 and 14, 2005.

FINDINGS OF FACT

1 . Petitioner is the state agency responsible for

licensing and regul ating nursing homes in Florida. Respondent

is licensed to operate an 87 - bed nursing home located at

3250 12th Street, Sarasota, Florida (the facility).

2. From February 9 through 11, 2004, Petitioner's staff

inspected the facility pursuant to regulato ry requirements for

an annual survey of such facilities (the survey). At the

conclusion of the survey, Petitioner issued a document

identified in the record as CMS Form 2567L (the 2567 form).

The 2567 form alleges violations of federal nursing home

regul ations that Petitioner has adopted by rule.

3. The Administrative Complaint incorporates the factual

allegations from the 2567 form and charges Respondent with

committing four violations alleged to be Class II violations

defined in Subsection 400.23(8) (b), Florida Statutes (2003).

Counts I through III in the Administrative Complaint allege that

facility staff committed acts involving residents identified in

the record as Residents 14, 7, and 8. Count IV alleges that the

allegations in Counts I through III show that Respondent

administered the facility in a manner that violated relevant

regulatory provisions. Counts I through IV propose an

administrative fine of $2,500 for each alleged violation and the

recovery of unspecified investigative costs. Cou nt V alleges

that the allegations in Counts I through III require Petitioner

to change Respondent's license rating from standard to

conditional while the alleged deficiencies remained uncorrected.

4. Count I alleges that a staff nurse at the facility

abu sed Resident 14, an elderly female. The substance of the

allegation is that the nurse "intentionally caused pain" to

Resident 14 by raising the resident's left hand above her head

so the resident would open her mouth and allow the nurse to

ensure the resi dent had swallowed her medication.

5. Respondent admitted Resident 14 to the facility on

January 31, 2000, with multiple health problems, including

anxiety, paranoia, psychosis, delusions, and disorientation due

to dementia. Resident 14 was not ambulato ry and suffered poor

wheel chair positioning for which she had been evaluated and

received therapy. Resident 14 was non - verbal, angry,

aggressive, combative with staff and other residents, displayed

territorial aggression, and a tendency to strike out at others.

Prior to admission, Resident 14 had suffered a fracture of the

left arm resulting in a limited range of motion in her left

shoulder of 60 degrees. At the time of the survey, Resident 14

was approximately 93 years old.

6. Two surveyors observe d a staff nurse administering

medication to Resident 14 while the resident was sitting in her

wheel chair in her room. Resident 14 did not respond to

repeated cues from the nurse to open her mouth so the nurse

could ensure the resident had swallowed her m edication. The

nurse continued to observe Resident 14 for some indication the

resident had not swallowed her medication and offered pudding to

the resident. Resident 14 remained unresponsive. The nurse

directed a certified nurse assistant (CNA) to give Resident 14

breakfast and left to care for other residents.

7. The surveyors asked the nurse to return to the room to

ensure that Resident 14 had swallowed her medication.

Resident 14 did not respond to additional cues from the staff

nurse to open her mouth because the resident was distracted by

the surveyors. The staff nurse attempted to redirect the

attention of the resident to the nurse's cues to open her mouth

by holding the resident's left hand and raising her hand and

arm. Resident 14 opened he r mouth, and the staff nurse observed

no medication in the resident's mouth.

8. The disputed factual issues call into question how

quickly and how high the staff nurse raised the left hand of

Resident 14, whether the resident suffered pain, and wheth er the

staff nurse knew the action would cause pain. Although

Resident 14 was non - verbal, Count I alleges, in relevant part,

that Resident 14 cried "OW" when the staff nurse, without

warning, raised the resident's hand over her head.

9. A preponderance of evidence does not show that the

staff nurse lifted the hand of Resident 14 in an abrupt manner.

During cross - examination of the surveyor, counsel for Respondent

conducted a reenactment of the alleged incident. The witness

verified the manner in which the person acting as the staff

nurse in the reenactment raised the left hand and arm of the

person acting as Resident 14. The demonstration did not show

the staff nurse acted abruptly.

10. The reenactment showed that the description of the

incident by the surveyor was less than persuasive. Petitioner

admits in its PRO that a determination of whether the staff

nurse raised the resident's hand gently or abruptly is a "matter

of perspective." Petitioner argues unpersuasively at page 14 in

its PRO that t he surveyor's perception should be accepted

because:

Clearly, the surveyor would not have made

comment if the resident had been treated in

a gentle manner.

11. Petitioner cites no evidence or law that precludes the

written statement provided by the s taff nurse during the

facility's investigation of the incident from enjoying a

presumption of credibility equivalent to that Petitioner claims

for the report of the surveyor. The staff nurse had been a

nurse at the facility for 19 years without any previo us

complaints or discipline and had ample experience with residents

that suffered from dementia. The nurse had cared for

Resident 14 for most of the four years that Resident 14 had been

a resident at the facility.

12. Irrespective of how fast and high the staff nurse

raised the hand of Resident 14, a preponderance of evidence does

not show that Resident 14 suffered an injury or harm that is

essential to a finding of abuse. The surveyor asked Resident 14

if the resident had been in pain prior to the in cident.

Resident 14 was "unable to speak," according to the surveyor,

but nodded affirmatively. Resident 14 did not indicate the

source or location of any pain, and there is no evidence that

the surveyor asked Resident 14 to indicate to the surveyor wher e

the resident was experiencing pain.

13. After the incident, the surveyors undertook no further

inquiry or investigation, did not question the nurse or the

resident further, and refused a request by facility

administrators for a written statement desc ribing the incident.

The surveyors at the facility did not make a determination of

whether the incident resulted in "harm" to Resident 14. Rather,

the allegation of harm arises from Petitioner's employees who

did not testify at the hearing. The determin ation of harm is

uncorroborated hearsay, and the trier of fact has not relied on

that determination for any finding of fact.

14. Upon learning of the incident, Respondent's nursing

staff immediately examined Resident 14 for injuries, had

Resident 14 exam ined by her physician, and had Resident 14

x - rayed for possible injuries. No injury was found.

Resident 14 did not complain of pain when her physician

performed a range of motion examination on the suspect arm.

15. Resident 14 was able to move both of her arms without

pain. The medical records for Resident 14 and the testimony of

her occupational therapist show that the resident had use of her

left arm. Resident 14 frequently flailed both arms in an effort

to strike others. Notes in the medical re cords show that

Resident 14 "lashes out," "swings her arms," was "physically

abusive to staff when attempting to provide care," and "refused

to open mouth and became agitated and combative."

16. The limited range of motion in the left shoulder of

R esident 14 did not prevent Resident 14 from raising her left

hand above her head while seated in a wheel chair. Resident 14

sat in a wheel chair with a forward pelvic thrust, causing her

to slump with a lateral lean to the left. The wheel chair

position effectively lowered the resident's head, reduced the

distance between her head and left hand, and enabled the

resident to raise her left hand above her head without pain.

17. Count II alleges that Respondent failed to assist

Resident 7 in "coping with changes in her living arrangements in

a timely manner" after Resident 7 became upset that her guardian

was selling her home. The allegation is not supported by a

preponderance of evidence.

18. Respondent admitted Resident 7 to the facility in

September of 2003. Prior to admission, the circuit court for

Sarasota County, Florida, entered an order appointing a guardian

for Resident 7. In relevant part, the court order authorized

the guardian to determine residency of Resident 7 and to manage

her property.

19. Prior to December 28, 2003, Resident 7 was reasonably

content. Social service's notes in October 2003, show that

Resident 7 was "alert with no mood or behaviors." Nurses notes

in November 2003, show Resident 7 to be "pleasant" with a "sense

of hu mor."

20. On December 28, 2003, Resident 7 became angry when her

guardian revealed plans to sell the resident's home. Resident 7

continued to exhibit anger for several weeks.

21. On January 6, 2004, Respondent conducted a care plan

conference with the guardian for Resident 7, discussed

Resident 7's emotional state, and obtained the guardian's

consent for counseling. Pursuant to the care plan, Respondent's

social services staff met with Resident 7 regularly and provided

psychological counseling twi ce a week.

22. Facility staff did not undertake discharge planning

for Resident 7. Staff provided other assistance to the

resident, but that assistance was minimal and consisted mainly

of giving Resident 7 telephone numbers to contact the Long Term

Ca re Ombudsman in the area and the attorney for the guardian.

23. The sufficiency of the other assistance provided by

Respondent is not material because the court convened a second

hearing to consider the objections of Resident 7 to her guardian

and to c onsider a competency examination by another physician.

On February 6, 2004, the court entered an order denying the

resident's suggestion of capacity and authorizing the guardian

to sell the residence.

24. The allegation that Respondent should have under taken

discharge planning is not supported by a preponderance of the

evidence. Pursuant to two court orders, Resident 7 continued to

be in need of a nursing home level of care, and her expectations

for discharge to a lower level of care were unrealistic.

25. Count III alleges that a facility staff nurse failed

to administer analgesic medication to Resident 8 causing

"continued pain and emotional stress to the resident."

Resident 8 experienced chronic pain from a joint disorder. A

care plan for pain m anagement, in relevant part, authorized

Tylenol as needed. A preponderance of evidence does not show

that Respondent failed to provide Tylenol to Resident 8 in

accordance with the care plan.

26. During the survey, a surveyor observed staff at the

faci lity reinserting a catheter into a vein of Resident 8. The

witness for Petitioner testified that the procedure did not

cause Resident 8 to experience pain. It is undisputed that

Resident 8 did not request pain medication and that no pain

medication was m edically required prior to the procedure.

Respondent did provide Resident 8 with a prescription medication

to calm the resident.

27. The preponderance of evidence does not show that

Respondent failed to ensure that Resident 8 obtained optimal

improvem ent or that Resident 8 deteriorated. Petitioner

submitted no evidence that Resident 8 experienced any lack of

improvement or decline in functioning or well - being.

28. Count IV in the Administrative Complaint alleges that

the allegations in Counts I thro ugh III show that Respondent

failed to administer the facility in a manner that enabled the

facility to use its resources effectively and efficiently to

maintain the highest practical well - being of Residents 14, 7,

and 8. For reasons previously stated, th e preponderance of

evidence does not show that Respondent committed the acts

alleged in Counts I through III. Without the violations charged

in Counts I, II, or III, the charges in Count IV are moot.

29. Assuming arguendo that the staff nurse abused

R esident 14, a preponderance of evidence does not show that

Respondent failed to take action that could have prevented such

abuse. Petitioner's surveyor was unable to explain in her

testimony how Respondent could have prevented the alleged abuse.

30. The surveyor did not report the incident to management

at the facility for approximately 1.5 hours. Management

immediately suspended the staff nurse and undertook an

investigation required by law. Petitioner's surveyors refused

to provide written statement s describing the incident. The

staff nurse provided a written statement that Respondent

included as part of its investigation and report to Petitioner.

31. Respondent maintains adequate policies and procedures

for background screening and regular traini ng for its staff

relating to abuse and neglect of residents. Respondent had

accomplished all background screening and abuse training

requirements for the staff nurse involved in the incident.

Respondent had no information in the nurse's history that woul d

have enabled the facility to predict any potential for this

staff nurse to intentionally harm a resident.

32. A preponderance of evidence does not show that

Respondent failed to administer the facility in a manner that

would ensure the highest practica l well - being for Resident 7.

Two court orders determined that Resident 7 was incompetent and

authorized the guardian to sell the resident's real property.

The opinion of a surveyor that Resident 7 was "clearly

competent" does not eviscerate the findings of the court.

33. A preponderance of evidence does not show that

Respondent failed to administer the facility in a manner that

would ensure the highest practical well - being for Resident 8.

Respondent maintained an adequate pain management care plan for

Resident 8 that included Tylenol as needed. It is undisputed

that the care plan did not require Tylenol before or after the

re - insertion of the catheter into the vein of Resident 8, that

insertion of the catheter caused Resident 8 no pain, that

Tylenol wa s not medically required before or after the

procedure, and that Respondent provided Resident 8 with a

stronger prescription medication for anxiety.

34. Count V of the Administrative Complaint alleges that

the allegations in Counts I through IV require P etitioner to

change the status of Respondent's license from standard to

conditional. In the absence of the violations charged in

Counts I through IV, there is no factual basis to support the

proposed change in the status of Respondent's license.

CONCLU SIONS OF LAW

35. DOAH has jurisdiction over the parties and the subject

matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

(2003). DOAH provided the parties with adequate notice of the

administrative hearing.

36. In response to the Motion t o Strike, Petitioner

stipulated that the presence of "harm" is a prerequisite to a

finding of a Class II violation. Count III expressly provides

that the relevant allegations "are not cited at the harm level."

37. Petitioner argued at the hearing that m ultiple

deficiencies at a level below Class II, i.e. , without harm, can

accumulate to a Class II violation. Petitioner cited no legal

authority, either at the hearing or in its PRO, to support its

argument.

38. Petitioner has the burden of proof conce rning the

allegations and charges other than those stricken from Count III

in the Administrative Complaint. Beverly Enterprises - Florida

v. Agency for Health Care Administration , 745 So. 2d 1133 (Fla.

1st DCA 1999). Petitioner must show by a preponderan ce of

evidence that Petitioner should change the status of

Respondent's license from standard to conditional and the

duration of the change. Florida Department of Transportation v.

J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

Petitioner must show by clear and convincing evidence that

Respondent committed the acts for which Petitioner proposes an

administrative fine and the reasonableness of the proposed fine.

Department of Banking and Finance v. Osborne Stern and Company ,

670 So. 2d 932 (Fla . 1996); Latham v. Florida Commission on

Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997).

39. Petitioner did not show by even a preponderance of

evidence that Respondent committed the violation charged in

Count I relating to Resident 14. Petitioner agreed dur ing the

hearing that "harm" is a necessary requirement for a finding of

a Class II deficiency, and a preponderance of evidence does not

support a finding that Resident 14 suffered any harm.

40. The requirement of harm derives from analogous federal

pro visions that Petitioner has adopted by rule. The federal

severity "Level 3" is the federal equivalent to a state Class II

deficiency. A "Level 3" severity requires noncompliance that

results in a negative outcome that has compromised the

resident's well - being. A "Level 3" severity does not include a

deficient practice that could or has caused limited consequence

to a resident.

41. The federal severity "Level 2" is the federal

equivalent to a state Class III deficiency. A "Level 2"

severity requires noncompliance that will result in no more than

minimal physical, mental, or psychosocial discomfort to the

resident or has the potential to compromise a resident's well -

being.

42. Even a Class III deficiency, therefore, requires

either harm or potentia l for harm in the form of discomfort.

For reasons stated in the Findings of Fact, a preponderance of

evidence does not show that Resident 14 suffered any harm during

the incident at issue.

43. Assuming arguendo that the staff nurse at the facility

commi tted the abuse alleged in Count I of the Administrative

Complaint, there is no evidence that the abuse shows that

Respondent committed the violations charged in Count IV. There

is no evidence that the alleged abuse was anything but an

isolated episode. A n isolated episode of abuse, when the

facility has implemented adequate anti - abuse policies and

procedures, would not violate requirements cited in Count IV of

the Administrative Complaint for Respondent to administer the

facility in a manner that implemen ts an adequate anti - neglect

policy. Lifecare Center of Hendersonville v. Health Care

Financing Administration , Departmental Appeals Board Decision

No. CR542 (July 22, 1998); Haverhill Care Center v. Health Care

Finance Administration , Departmental Appeals Board Decision No.

CR522 (March 10, 1998).

44. Petitioner has determined in a previous administrative

hearing that one incident of alleged neglect does not violate

requirements to maintain and implement anti - neglect policies.

Agency for Health Care Adm inistration v. Beverly Health and

Rehabilitation Services -- Palm Bay , DOAH Case No. 01 - 1605

(Final Order March 14, 2003). Pursuant to the doctrine of

administrative stare decisis , Petitioner may not deviate in this

case from conclusions of law in previou s final orders that are

not distinguishable by law or fact. Gessler v. Department of

Business and Professional Regulation , 627 So. 2d 501, 504 (Fla.

4th DCA 1993) dismissed, 634 So. 2d 624 (Fla. 1994).

45. Petitioner did not show by even a preponderan ce of

evidence that Respondent committed the violations charged in

Counts II and III of the Administrative Complaint. Petitioner

presented no evidence of a legal standard that required more

services than the facility provided to Residents 7 and 8.

Petiti oner cited no legal precedent that would authorize

Respondent to provide discharge services to Resident 7 in

defiance of two court orders finding Resident 7 to be

incompetent and authorizing her legal guardian to determine her

residence. A preponderance o f evidence did not show that

Resident 8 needed pain medication that she did not receive.

46. Counts IV and V are legally moot. The charge in each

count depends upon facts that Petitioner did not establish by a

preponderance of evidence.

47. Petiti oner may have had probable cause to initiate

this proceeding based on information available to the surveyors

at the conclusion of the survey. However, a proceeding

conducted pursuant to Subsection 120.57(1), Florida Statutes

(2003), is a de novo proceedin g intended to formulate final

agency action, not to review agency action taken preliminarily

when Petitioner issued the Administrative Complaint. Young v.

Department of Community Affairs , 625 So. 2d 831, 833 (Fla.

1993); McDonald v. Department of Banking and Finance , 346 So. 2d

569, 584 (Fla. 1st DCA 1977). The ALJ does not review

preliminary action taken by the agency based on evidence

gathered by surveyors, but recommends final agency action based

on that and other evidence of record through the date of the

hearing. See McDonald , 346 So. 2d at 584 (approving admission

of evidence of changed conditions and circumstances subsequent

to preliminary agency action that proposed denial of

application).

RECOMMENDATION

Based upon the foregoing Findings of Fac t and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a final order finding

Respondent not guilty of committing the violations charged in

the Administrative Complaint.

DONE AND ENTERED this 4th day of February, 2005, in

Tallahassee, Leon Coun ty, Florida.

S

DANIEL MANRY

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 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of February, 2005.

COPIES FURNISHED :

Alfred W. Clark, Esquire

117 South Gadsden Street, Suite 201

Post Office Box 623

Tallahassee, Florida 32302 - 0623

Gerald L. Pickett, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330K

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

Richard Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Alan Levine, Secretary

Agency for Health Care Administration

Fort Knox Bu ilding, Suite 3116

2727 Mahan Drive

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 Orde r should be filed with the agency that

will issue the Final Order in this case.