04-003848 Agency For Health Care Administration vs. Coral Terrace Retirement Home, Inc., D/B/A Coral Terrace Retirement Home Status: Closed Recommended Order on Tuesday, March 21, 2006.

Summary: Petitioner sought to revoke assisted living facility`s license. The evidence was not clear and convincing with respect to the alleged predicate violations, which included improper patient restraints and verbal abuse.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3848

)

CORAL TERRACE RETIREMENT )

HOME, INC., d/b/a CORAL )

TERRACE RETIREMENT HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case on September 15 - 16, 2005, via video teleconference at

sites in Miami and Tallahassee, Florida, before Florence

Snyder Rivas, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Nelson E. Rodney, Esquire

Agency for Health Care Administration

Spokane Building, Suite 103

8350 Northwest 52nd Terrace

Miami, Florida 33166

For Respondent: Judd Aronowitz, Esquire

Judd Aronowitz, P.A.

1570 Madruga Avenue, Suite 311

Coral Gables, Florida 33146

STATEMENT OF THE ISSUE

Whether Petitioner, the Agency for Health Care

Administration (AHCA o r Petitioner), proved by clear and

convincing evidence that Respondent committed the violations

alleged in the Second Amended Administrative Complaint, and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Second Amended Administrative Compl aint dated April

25, 2005 (the “Complaint”), AHCA notified Respondent, Coral

Terrace Retirement Home Inc., d/b/a/ Coral Terrace Retirement

Home (Respondent or Coral Terrace), of its intent to impose an

administrative fine of $1,000 for each of three allege d Class

II violations. Pursuant to Section 400.414(1)(e), Florida

Statutes (2005), upon a finding of three Class II violations,

the licensee’s license may be revoked. AHCA sought to revoke

Coral Terrace’s license upon a finding of the three alleged

Class II violations.

Respondent timely requested an administrative hearing to

contest the proposed action(s).

The identity of the witnesses and exhibits and attendant

rulings are set forth in the two - volume transcript of hearing

filed on September 15, 2005.

The parties requested and were granted, for good cause

shown, enlargements of time to December 13, 2005, to file

Proposed Recommended Orders, which have been duly considered.

References to statutes are to the Florida Statutes

(2004). References to rules are to the Florida Administrative

Code (2004).

FINDINGS OF FACT

1. AHCA is the state agency responsible for licensing

and regulating assisted living facilities in Florida.

Respondent is

a licensed assisted living facility (ALF) located in Miami,

Florida.

2 . On July 12 and 19, 2004, AHCA conducted a survey of

Coral Terrace and formulated allegations of the three

violations, each of which AHCA alleges constituted a Class II

violation, giving rise to this proceeding.

3. Count One of the Complaint alleges tha t Coral Terrace

failed to ensure that residents were not restrained by full -

bed rails; Count Two of the Complaint alleges that Coral

Terrace failed to ensure that residents were free from abuse

and neglect; Count Three of the Complaint alleges that Coral

T errace failed to ensure that residents were able to transfer,

with assistance, in order to meet admission and retention

criteria. The law and relevant factual underpinnings of each

Count will be discussed separately.

COUNT I

4. Count I alleges that Cora l Terrace violated Rule 58A -

5.0182(6)(h), which states, in its entirety:

(h) Pursuant to section 400.441, Florida

Statutes, the use of physical restraints

shall be limited to half - bed rails, and

only upon the written order of the

resident's physician, who shall review the

order biannually, and the consent of the

resident or the resident's representative.

Any device, including half - bed rails,

which the resident chooses to use and can

remove or avoid without assistance shall

not be considered a physical res traint.

5. The rule is enacted pursuant to Section

400.441(1)(k), Florida Statutes, which states, in pertinent

part (leaving out language subsequent to this portion,

pertaining only to “the use of chemical restraints”):

(k) The use of physical or chemic al

restraints. The use of physical restraints

is limited to half - bed rails as prescribed

and documented by the resident's physician

with the consent of the resident or, if

applicable, the resident's representative

or designee or the resident's surrogate,

guardian, or attorney in fact.

6. AHCA surveyors found full side bed rails in 11 rooms,

with residents in some of them. AHCA alleged that this

violated Rule 58A - 5.0182(6)(h).

7. The evidence established that Coral Terrace uses

adjustable bed rails that may be attached to each of the

facility's beds for occasions when their use is appropriate.

For example, terminally ill residents who have been placed on

hospice may require a full bed rail.

8. Based on the language of the rule, Respondent argues

that A HCA was required to disprove that the residents were in

the beds with full rails by choice. In other words, if a

resident was in a bed with a full rail by choice, this

particular resident’s occupation of the bed with the full rail

would not violate the ru le. This defense fails because in

order for a full - bed rail to be used voluntarily, the resident

would have to not only choose to be in a bed with a full rail,

but would also have to be able to “remove or avoid” the bed

rail “without assistance.” While i t might be possible for an

ALF resident to “remove or avoid” a half - bed rail “without

assistance” by climbing out of the bed via the half of the bed

where there is no rail, an ALF resident with a full - bed rail

would require the assistance of someone on the floor to remove

the bed rail in order to exit the bed.

9. Next, Respondent argues that the evidence fails to

prove whether the “hospice exception” applied to any or all of

the persons who were observed in full - rail beds at the time of

the survey. A hosp ice patient is exempt from the general bed

rail rule pursuant to Section 400.609(3), Florida Statutes,

which provides that hospice

care and services, to the extent

practicable and compatible with the needs

and preferences of the patient, may be

provided by the hospice care team to a

patient living in an assisted living

facility. . . . A resident or patient

living in an assisted living facility . . .

or other facility subject to state

licensing who has been admitted to a

hospice program shall be considered a

hospice patient, and the hospice program

shall be responsible for coordinating and

ensuring the delivery of hospice care and

services to such person pursuant to the

standards and requirements of this part and

rules adopted under this part.

10. The part ies concurred that under this provision, the

hospice rules, regulations, standards and requirements

supplanted the general assisted living facility rules,

regulations, standards and requirements — including the bed -

rail rule — for a hospice patient living in an ALF.

11. Pursuant to the statute, Rule 58A - 5.0181(4)(c)

states that a “terminally ill resident who no longer meets the

criteria for continued residency may continue to reside in the

facility if . . . the resident qualifies for, is admitted to,

and c onsents to the services of a licensed hospice which

coordinates and ensures the provision of any additional care

and services that may be needed; [and] Continued residency is

agreeable to the resident and the facility.”

12. In support of Count I, Petition er offered the

testimony of AHCA surveyor Alfonso Martin (Martin). Martin

testified that on July 19, 2004, he observed full - bed rails on

13 beds. Although Martin remembered that one or more of these

beds was occupied, he could not remember and had no not es on

how many were occupied. To the extent a patient or patients

were in bed with full - bed rails, Martin could not identify any

such patient(s) and has no knowledge regarding their medical

condition or status or whether any or all of them were hospice

pa tients.

13. Moreover, even if a violation were proven with

respect to Count I, the violation would not be a Class II

violation because there was no persuasive evidence that the

bed rails observed by Martin constituted a threat to the

physical or emotional safety of any resident.

14. AHCA’s counsel conceded that it was the Agency’s

burden to prove that a specific patient observed in a full -

rail bed during the survey was not a hospice patient, yet AHCA

offered no such proof. There was evidence that of 21 o r 22

patients in the facility on July 19, 2004, five of them were

in hospice. For all the evidence showed, it is possible that

all the persons observed by AHCA in full - rail beds during the

survey were persons who were lawfully and appropriately in

full - ra il beds under the supervision of hospice. Therefore,

AHCA failed to prove the violation alleged in Count I by clear

and convincing evidence.

COUNT II

15. Count II alleges that on July 19, 2004, the facility

administrator, Alberto Rodriguez (Rodriguez), violated Section

400.428(1), Florida Statutes. 1 This citation refers to the

opening paragraphs of the “Resident bill of rights,” and

states, in pertinent part:

(1) No resident of a facility shall be

deprived of any civil or legal rights,

benefits, or pr ivileges guaranteed by law,

the Constitution of the State of Florida,

or the Constitution of the United States as

a resident of a facility. Every resident

of a facility shall have the right to: (a)

Live in a safe and decent living

environment, free from abuse and neglect.

(b) Be treated with consideration and

respect and with due recognition of

personal dignity, individuality, and the

need for privacy.

16. AHCA attempted to show that Rodriguez committed

“abuse” of a patient as prohibited by the residen t bill of

rights. Respondent argues that Section 400.428(1) is not the

appropriate statutory vehicle for a charge of abuse, but

concurs that abuse of an ALF resident would be a violation of

some other statute. Under the following analysis, it makes no

di fference which source of authority is applicable under the

circumstances.

17. In the instance of the alleged “abuse,” Rodriguez

was required by surveyors to demonstrate that M.T., an elderly

resident who spoke only Spanish, could transfer with

assistance from her wheelchair to her bed. At least six

people were present, including a Metro - Dade police officer

assigned to investigate the possibility of “criminal

violations” underway at Respondent’s facility. As the survey

team, members of Respondent's staff, and the police officer

crowded around M.T.’s wheelchair in her small room, the

administrator attempted to comply with the surveyors' demand

that he demonstrate that M.T. could transfer.

18. Rodriguez is fluent in Spanish, and M.T. spoke only

Spanish. Th erefore, Rodriguez spoke in Spanish to M.T. when

he asked her to stand up. M.T. did not transfer on

Rodriguez’s request. Continuing to press M.T. to stand,

Rodriguez became agitated and raised his voice.

19. The Complaint alleges that M.T. cried out, “I can’t

stand! I can’t stand!” However, Rodriguez credibly testified

that she actually said, “ No quiero! No quiero! ” which means,

“ I don’t want to! I don’t want to! ”

20. Count II is based solely on AHCA’s contention that

Rodriguez’s conduct in this exc hange was an “abuse” of M.T.

Surveyors and the police officer directed Rodriguez to cease

insisting that M.T. stand and transfer. The evidence clearly

and convincingly establishes that the resident was quickly

overwhelmed and upset, and unable to assist in the transfer at

that moment.

21. Not only did Petitioner fail to prove the basic

“abuse” allegation of Count II by clear and convincing

evidence, but under Petitioner’s evidence, it appeared more

probable that M.T.’s emotional distress was caused by t he

unexpected presence of a large number of strangers, who were

crowded into her room, upset with one another, and speaking in

two languages, rather than any action taken by the

administrator at the request of AHCA surveyors and under their

supervision.

22. Th erefore, the Petitioner failed to prove Count II

by clear and convincing evidence.

COUNT III

23. Rule 58A - 5.0181(4) states that the criteria for

continued residency are the same as the criteria for

admission, including the requirement that an individual b e

able “to transfer, with assistance from staff if necessary.”

Rule 58A - 5.0131(5) defines Assistance with Transfer as:

providing verbal or physical cuing or

physical assistance or both while the

resident moves between bed and a standing

position or betwee n bed and chair or

wheelchair.

24. Count III alleges that Coral Terrace failed to

ensure that residents were able to transfer, with assistance,

in order to meet admission and retention criteria, a violation

of Rule 58A - 5.0181(1)(d).

25. On July 19, 2004 , two residents, H.C. and Z.E., were

unable to transfer, even with assistance. On the evidence

presented, there is no question about this.

26. However the Respondent defends on the basis of

Section 400.426(9), Florida Statutes, which requires that,

when AHCA finds a resident of an ALF “appears to need care

beyond that which the facility is licensed to provide,” AHCA

must notify the facility and allow the facility 30 days to

relocate the resident.

27. In addition, the Respondent points to Rule 58A -

5.0181 (4)(a), which allows that a resident may be temporarily

bedridden for up to seven days; and Rule 58A - 5.0181(5), which

provides that, when a patient no longer meets the admission

criteria, the facility has at least 30 days, and perhaps 45

days, to cause the resident’s transfer. Finally, the

Respondent points out the aforementioned “hospice exception.”

See § 400.426(1), Fla. Stat. (2005).

28. While proving that H.C. and Z.E. were unable to

transfer, even with assistance, on one day in July, the

Petitioner offered inadequate evidence as to whether either or

both of them were in a temporary status, on that day, that

would have defined their inability to transfer as not being a

violation of Rule 58A - 5.0181(1)(d). AHCA therefore failed to

prove, by clear and c onvincing evidence, that the inability of

H.C. and Z.E. to “transfer with assistance” on July 19, 2004,

was a violation of the Florida Administrative Code subject to

sanctions.

29. In sum, Petitioner has failed to prove the material

allegations of any of the three counts of the Complaint.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Section 120.569(1), Florida Statutes, (2005).

31. The burden of proof in t his proceeding to

demonstrate that the fines or revocation are justified falls

upon the Petitioner. The standard of proof for the imposition

of a fine is clear and convincing evidence. Dep’t. of Banking

and Finance v. Osborne Stern and Co. , 679 So. 2d 93 2, 935

(Fla. 1996).

32. Section 400.419(2)(b), Florida Statutes, states:

Class "II" violations are those conditions

or occurrences related to the operation and

maintenance of a facility or to the

personal care of residents which the agency

determines dire ctly threaten the physical

or emotional health, safety, or security of

the facility residents, other than class I

violations. The agency shall impose an

administrative fine for a cited class II

violation in an amount not less than $1,000

and not exceeding $5,000 for each

violation. A fine shall be levied

notwithstanding the correction of the

violation.

RECOMMENDATION

Based upon the foregoing, it is hereby recommended that AHCA

enter its final order dismissing the Complaint.

DONE AND ENTERED this 21st day of March, 2006, in

Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 21st day of March, 2006.

ENDNOTE

1/ The Complaint at paragraphs 11 - 12 made these allegations

against Mr. R odriguez. Also within Count II of the Complaint,

at paragraph 13, other, unrelated allegations were made

against the Respondent. At trial, AHCA abandoned and withdrew

the allegations of paragraph 13.

COPIES FURNISHED :

Nelson E. Rodney, Esquire

Agency for Health Care Administration

Spokane Building, Suite 103

8350 Northwest 52nd Terrace

Miami, Florida 33166

Judd Aronowitz, Esquire

Judd Aronowitz, P.A.

1570 Madruga Avenue, Suite 311

Coral Gables, Florida 33146

Richard Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Christa Calamas, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Alan Levine, Secr etary

Agency for Health Care Administration

Fort Knox Building, 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 Rec ommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.