04-004151 Agency For Health Care Administration vs. Haven Of Our Lady Of Peace, Inc. Status: Closed Recommended Order on Friday, June 24, 2005.

Summary: Petitioner did not prove that Respondent failed to provide adequate supervision or protective devices to try to prevent resident`s fall, which occurred in an unforseeable manner and was an isolated incident.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4151

)

HAVEN OF O U R LADY OF PEAC E , )

INC., )

)

Respondent. )

)

RECOMM ENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its designated Administrative Law Judge, P. Michael

Ruff, held a final hearing in the above - styled case in

Pensacola , Florida , on February 16, 2005 .

APPEARANCES

For Petition er: Janis L. Rosenthal , Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Station No. 3

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

For Respondent: Karen Goldsmith, Esquire

Jonathon Grout, Esquire

Goldsmith, Grout & Lewis, P.A.

2180 Park Avenue North, Suite 100

Post Office Box 2011

Winter Park, Florida 32790 - 2011

STATEMENT OF THE ISSUE S

The issues to be resolved in this proceeding concern

whether the Respondent is guilty of a violation known as a

"Class II violation " or " deficiency" and , if so , whether a

$2,500.00 fine a nd conditional licensure status should be

imposed upon the Respondent facility.

PRELIMINARY STATEMENT

This cause arose based upon a survey conducted by the above -

named agency on July 20, 2004, which was a nursing home

compliance survey. In the course o f the survey or upon its

conclusion the Agency for Health Care Administration cited the

facility, Respondent, for failure to comply with 42 CFR Section

483.25(h)(2) , t he federal regulation applicable to this

proceeding. This was deemed by the Agency to am ount to a "Class

II deficiency."

Because of this preliminary investigatory finding, the

Agency filed an Amended Administrative Complaint against the

facility seeking to impose a $2,500.00 fine and a conditional

licensure status based upon the violation. It is the position of

the nursing home, the Respondent , that the fine and conditional

licensure rating are not justified and that the deficiency upon

which those sanctions are sought to be imposed did not exist or

at least did not exist of the severity o f a Class II deficiency.

The Respondent chose to contest the Agency's position in a

formal proceeding before the Division of Administrative Hearings.

The cause ultimately came on for hearing as noticed at which the

parties presented testimony and evidenc e. The Petitioner Agency

presented the testimony of three witnesses and offered 16

exhibits . Exhibits P - 1 through P - 10, P - 12, P - 13, and Composite

P - 16 were admitted into evidence for all purposes. Exhibit 15

was admitted as corroborative hearsay only. The Respondent

presented three witnesses and three exhibits , all of which were

admitted into evidence . Upon conclusion of the proceeding a

transcript thereof was ordered and the parties requested the

opportunity to file proposed recommended orders. There after an

extension on the filing time for proposed recommended orders w as

stipulated to by the parties and granted by the undersigned. The

Proposed Recommended Orders have been timely filed, therefore,

and considered in the rendition of this Recommended O rder.

FINDINGS OF FACT

1. The Agency for Health Care Administration ( AHCA or

Agency ) is the regulatory agency charged with licensure and

enforcement of all applicable statutes and rules governing

skilled nursing facilities and the appropriate provision of

nursing and other elements of care in such facilities in Florida.

2. The Respondent Haven of Our Lady of Peace, Inc., (Haven)

owns and operates a skilled nursing facility , which is a 120 bed

facility located in Pensacola, Florida.

3. On July 20, 2 004, a survey was conducted by AHCA of the

Haven facility . One Agency representative was on the premises on

July 20, 2004, to investigate a complaint received by the Agency.

When the survey was made the facility was operating under a

standard license (Nu mber SNF11970951) issued by the Agency , with

an effect ive date of July 1, 2004 through June 30, 2005.

4. Haven was cited for a Class II deficiency and issued

Notice of a Conditional License and a $2,500.00 fine as a result

of the survey . It chose to c ontest this initial Agency action by

availing itself of the right to a formal proceeding pursuant to

Section 120 .57(1) , Florida Statutes.

5. The basis of the charge d Class II deficiency was an

incident involving Resident 3, in which she fell from a seate d

position in a wheelchair, injuring her head. At the time of the

incident an order had been written by the treating physician

assigned to Resident 3 , which read as follows:

D/C lap buddy. D/C lateral supports.

Velcro torso support while in w/c

[wheelch air]. Release Q2 for toileting,

exercise, repositioning.

6 . As a result of the survey, the Agency provided Haven

with a "Statement of Deficiencies" stating upon what basis the

purported Class II deficiency was believed to exist.

7 . Resident 3 experie nced a fall when she turned over her

wheelchair in July 2003 by leaning to far to the right. Haven,

in response to this experience, tried several approaches to help

Resident 3 when she was in the wheelchair. Lateral supports and

"lap buddy" were the firs t two interventions. The lap buddy

caused the resident aggravation and therefore was discontinued

and the torso support device was implemented. The torso support

was not a restraint, but rather was applied to assist Resident 3

in maintaining good positio n while in her wheelchair. While

Resident 3 had fallen on several occasions, she had never fallen

or leaned forward prior to the subject falling incident. If

Resident 3 had previously leaned forward, then other devices,

such as wedge cushions, would have been used rather than the

torso support. The torso support is not a good device to u se if

a resident falls forward. The torso support was not intended to

directly prevent falls.

8 . On July 17, 2004, Kathy Anderson, a Certified Nursing

Assistant (CNA), was preparing Resident 3 for bed. Ms. Anderson

took Resident 3 from the living room, at which Resident 3 had a

torso support on, in her wheelchair to the bathroom in Resident

3's room. The torso support was taken off so that the r esident

could use the bathroom. Ms. Anderson, as she had done on many

occasions while caring for Resident 3, then placed her in a good

position in the wheelchair, without applying the torso support

and pushed her several feet into the bedroom and placed the

wheelchair perpendi cular to her bed , with the wall at the right

side of the wheelchair (to prevent the feared fall to the right

based upon a past tendency of the resident to lean to the right).

Ms. Anderson had leaned Resident 3 back in the wheelchair prior

to moving her fro m the bathroom. During the many times

Ms. Anderson had cared for Resident 3 she had never leaned

forward in her wheelchair.

9. Ms. Anderson determined, while in the bathroom, that the

resident's diaper was wet and a dry diaper was needed. The

diape rs were located in a closet just outside the bathroom.

Ms. Anderson, standing at the back of the wheelchair , when it was

positioned as described above in the resident's room, was able to

reach into the closet and obtain a diaper without losing sight of

th e resident. It was not necessary for Ms. Anderson to walk to

the closet, as the distance was close enough for her to reach the

diaper without other movement. As she had done in the past, Ms.

Anderson had instructed the resident that she was getting a

dia per. The resident was still s i tting in the wheelchair when

Ms. Anderson had the diaper in hand. The resident then suddenly

leaned forward and f ell from the wheelchair and struck her head

on the bottom of the bed. Ms. Anderson tried to catch the

resident when she saw her falling , but was unsuccessful.

Ms. Anderson then called a nurse, Joyce Parks, and Resident 3 was

placed in her bed . Dr. Holmes' order (and his testimony)

provide d that the supports should be released at least every two

hours .

1 0 . Th e torso support is not worn when the resident is in

bed. The torso support must be removed to change the resident's

clothes. There was no reason for the torso support to be re -

applied after the resident used the bathroom.

1 1 . Ms. Anderson provided appr opriate supervision of

Resident 3 and her actions did not violate Dr. Holmes' s order.

The fall that occurred on July 17, 2004, was unforeseeable as the

resident had never leaned forward before, but had always leaned

to the right after she had been sitting for a long time and grew

tired. Further, the resident had been placed in the bed after

using the bathroom by Ms. Anderson using the same procedure

during the two months that Ms. Anderson had cared for the

resident. Resident 3 was in the nursing home for about two

years.

1 2 . Dr. Holmes advocated that the residents be restrained

as little as possible. According to Dr. Holmes, Resident 3 was a

" delightful lady " and the applying of a restraint would have

negatively impacted her quality of life. The relev ant regulation

applicable to nursing facilities requires that anything that

restricts a resident be classified as a restraint ; therefore ,

Haven was required to list the torso support as a restraint. In

actuality , the torso support was not and d id not fu nction as a

restraint.

1 3 . A torso support is applied to position the resident

more straight and in a better position in a wheelchair. A torso

support allows a resident to sit more straight for a longer

period of time , to be more comfortable and thereby enjoy a better

quality of life.

1 4 . It was reasonable for Ms. Anderson to be standing

behind the wheelchair when she wheeled Resident 3 out of the

bathroom and into the bedroom . The resident's ability to reach

her highest practicable mental, physical a nd psycho - social well -

being was not compromised by the Haven staff in this instance.

Resident 3 received adequate supervision and assistance devi c es

on July 17, 2004, when this incident occurred.

CONCLUSIONS OF LAW

1 5 . The Division of Administrative Hear ings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004) .

1 6 . 42 CFR Section 483.25(h)(2) , provides that each

resident must receive supervision and assistance devices to

prevent accide nts.

17 . Section 400.23(8), Florida Statutes (200 4 ), requires

the Agency to classify alleged deficiencies "according to the

nature and scope of the deficiency" and to cite the scope as

"isolated, patterned or widespread." Section 400.23(8) provides

the definition of an isolated deficiency as:

. . . a deficiency affecting one or a very

limited number of residents, or involving

one or a very limited number of staff . . .

18 . There is no dispute that the scope of the alleged

deficiency in this case is is olated.

19 . Section 400.23(8), Florida Statutes (2003), also

allows AHCA to classify every alleged deficiency in terms of a

class in accordance with statutory definitions of classes, which

are set forth below:

(b) A Class II deficiency is a deficiency

th at the Agency determines has compromised

the resident's ability to maintain his/her

highest practicable physical, mental, and

psychosocial well - being as defined by an

accurate and comprehensive resident

assessment, plan of care and provisions of

services. A Class II deficiency is subject

to a civil penalty of $2,500.00 for an

isolated deficiency, . . . A fine shall be

levied notwithstanding the cor rection of the

deficiency.

* * *

2 0 . Section 400.23(7)(b), Florida Statutes (2004), permits

the Agency to impose a conditional license on a nursing home

provider which receives a Class II deficiency.

2 1 . The Agency has the burden of proving by a

preponderance of the evidence, the existence of a violation as

to the conditional rating and the Agency has the b urden of

proving, by clear and convincing evidence, the existence of a

violation as to the fine case. Department of Banking and

Finance Division of Secur i ties and Investor Pro tection v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996) . Clear and

convinc ing evidence requires that the evidence ". . . must be

found to be credible; the facts to which the witnesses testified

must be distinctly remembered; the testimony must be precise and

the witnesses must be lacking confusion as to the facts in

issue. The evidence must be of such a 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 sought to

be established." Inquiry Concerning Judge Davey , 645 So. 2d

398, 404 (Fla. 199 4) (quoting Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983)).

2 2 . The Agency must demonstrate by clear and convincing

evidence both the existence of a violation and the

classification of the deficiency alleged in the Administrative

Complaint . Agency for Health Care Administration v. Blue - Haven

Retirement, Inc. , DOAH Case No. 02 - 4170 (final order pending).

See also Agency for Health Care Administration v. Marisa's Home

Care, Inc. , DOAH Case No. 03 - 0162 (May 2003).

2 3 . Moreover, the Agency is limited to the allegation in

the Administrative Complaint, the charging document. See Tampa

Health Care Center v. Agency for Health Care Administration ,

DOAH Case No. 01 - 0734 (August 2001). "Notice of intent to

assign conditional licensure status cons titutes the charging

document which . . . only mat t ers placed in issue by the Notice

of Intent to assign conditional licensure status were considered

during the hearing, and in the preparation of this Recommended

Order." See Vista Manor v. Agency for Heal th Care

Administration , DOAH Case No. 00 - 0547 (September 2000).

"Evidence of any alleged deficiency not contained in the express

terms of the charging document are not relevant and material to

the allegations in the charging document."

2 4 . In the instan t proceeding the Agency did not establish

by clear and convincing evidence or by a preponderance of the

evidence that Resident 3's ability to reach the highest

practicable mental, physical and psycho - social well - being was

compromised by the staff of Haven.

2 5 . The Agency did not prove by clear and convincing

evidence or by a preponderance of the evidence that the resident

did not receive adequate supervision and assistance devices on

July 17, 2004 . The Agency also did not prove by clear

convincing or a p reponderance of the evidence that the matters

alleged in Count I of the Complaint constituted a Class II

deficiency.

2 6 . Deficiencies purportedly discovered during surveys

must be classified as Class I, II, III, or IV deficiencies.

Sanctions may be impo sed based upon certain classifications of

deficiencies. A conditional license may be assigned if the

facility has a Class I, Class II, or an uncorrected Class III

deficiency. The Agency may also impose a fine if the facility

has a Class I, II or uncorrec ted Class III deficiency.

Deficiencies originally classified as Class III and corrected

or , as Class IV , whether they are corrected or not, do not

result in a conditional license or fine.

27 . In deciding the issue in this proceeding as to whether

ther e was a violation of Tag F324, and thus whether the facility

failed to maintain the highest practicable physical, mental, and

psycho - social well - being of Resident 3, federal decisions as

well as state decision which are germane may be considered

because Ta g F324 is based on 42 CFR Section 483.25(h)(2), which

has been adopted by virtue of Florida Administrative Code Rule

59A - 4.1288. A single violation of Tag F324 was purportedly

found by the Agency, in the July 20, 2004 survey, based upon the

one resident w ho f ell . The Agency contends that it was a Class

II level of deficiency and thus proposes imposing a conditional

license and a fine against the Respondent. The Respondent

contends that the fall was accidental and did not constitute a

violation. Tag F324 states:

(h) Accidents. The facility must ensure

that - . . .

(2) Each resident receives adequate

supervision and assistance devices to

prevent accidents.

Substantial Compliance

28 . In determining whether a licensure requirement has

been violated the concept of substantial compliance must be

applied. Facilities need not achieve perfection . T hey must

substantially meet the requirements of law.

29 . The concept of substantial compliance is adopted in

several cases. In Agency for Health Care Administ ration v. Oak

Terrace Specialty Care Center , it was stated by Judge Davis:

"A standard rating must be issued to a

facility if there are no Class I or II

deficiencies, no Class III deficiencies that

have not been corrected within the time set

by AHCA, or th e facility is in 'substantial

compliance' with all applicable regulatory

standards. A facility is in 'substantial

compliance' with regulations even if

deficiencies are identified, provided these

deficiencies present 'no greater risk to

resident health or safety than the potential

for causing minimal harm.'

Citing 42 CFR § 488.301; and Tampa Health Care Center v. Agency

for Health Care Administration , DOAH Case No. 01 - 0704 (Final

Order April 30, 2002) cited at page 30 of Agency for Health Care

Administrat ion v. Oak Terrace Specialty Care Center , DOAH Case

Nos. 01 - 1607, 01 - 1985 (Final Order, March 6, 2003).

Foreseeability

3 0 . A facility cannot be held strictly liable for every

incident that occurs. It must take steps to prevent accidents

and provide a ssistive devices where appropriate when the

incident is foreseeable.

3 1 . Both parties agree that Resident 3 was identified as

at risk for falls. In fact, facility records document that the

resident had had falls in the past. However, the fall upon

wh ich the Agency based this deficiency was a fall forward from a

wheelchair and this resident had never experienced a fall of

that nature in the past.

3 2 . Prior to the July 17th fall, th e resident had fallen

to the right, pulling over her wheelchair. She had a tendency

when she had been sitting for extended periods of time to become

tired and lean to the right. This caused her to view the world

in a horizontal position. As a result, her attending physician,

Dr. Holmes, prescribed a torso support, which h ad the effect of

maintaining her erect posture. By not leaning to the right she

had not pulled her wheelchair over again after this assistive

device was applied.

3 3 . Dr. Holmes' order required that Resident 3 be released

form this support every two ho urs for a "toileting, etc." He

testified that he wrote the order in this way to assure that the

r esident was released a minimum of every two hours. H e

anticipate d that she would be released at other times and he

felt that would be better for this residen t and her quality of

life.

3 4 . When the occurred, Resident 3 had been released to use

the bathroom, prior to going to bed. Her aide then moved her

out of the bathroom and placed her in the wheelchair in her

room. The aide did not re - apply the torso sup port because she

was in the process of preparing the resident for bed. It is

important to note that the right side of the wheelchair was

placed against the wall so if the resident had leaned to the

right, she could not have pulled her wheelchair over and fallen.

3 5 . The area where the wheelchair was placed was an adult

arm's length wide. The closet was immediately opposite the wall

where the resident sat. Ms. Anderson reached over to get the

resident a brief or diaper from the closet. As she watched the

resident , the resident pitched forward and hit her head against

the bed. Ms. Anderson was simply not able to grab her quickly

enough , even though she was standing right next to the

wheelchair and the resident.

3 6 . Ms. Anderson had cared for Residen t 3 on a number of

occasions and was familiar with her. Neither Ms. Anderson, nor

any other person who testified in this proceeding had ever known

the resident to fall in a forward direction from her wheelchair.

The resident's records show no fall in a f orward direction.

37 . AHCA has relied on two cases to support its legal

position. Both cases are distinguishable. There are two

examples in The Moorings, Inc., d/b/a The Chateau at Moorings

Park v. Agency for Health Care Administration , DOAH Case Nos.

02 - 4795 and 02 - 4796 (August 7, 2003). The example relied upon

by AHCA is distinguishable from the case at bar, but the second

example , in which the ALJ found no liability is on point. In

the example in the Chateau case relied upon by AHCA, a resident

was walking from his bathroom into his room with an aide. The

resident had previously fallen in the bathroom. The fall upon

which the deficiency was charged in that case occurred while the

resident was walking, an activity for which he had been

identified a s " at risk. " His CNA had left him at the bathroom

while she retrieved his glasses. The CNA involved had taken a

couple of steps away from the resident to get his glasses and

had averted her eyes away from him when he fell.

38 . In the case at bar, th e aide never took her eyes off

the resident but was clearly supervising her. The resident had

never fallen forward, but only to the side. Ms. Anderson had

placed the wheelchair against the wall which would prevent the

resident from falling to the right a s she had done in the past.

39 . In the instant case, the very function performed by

Ms. Anderson had been performed before without incident. I n the

Chateau case the resident's care plan was specific that he

needed close supervision while ambulating , whi ch is what he was

doing when he fell . There is no such specificity in the case at

bar.

4 0 . There was a second incident in the Chateau case ; one

for which the ALJ did not find the facility liable. In that

situation, the resident was also identified as a t risk for falls

and, in fact, had fallen on several occasions. She needed

verbal cuing for her posture. She would commonly sit round

shouldered with her head forward and leaning to the left. She

had balance problems and was assessed as needing total

as sistance when toileting.

4 1 . Among resident 's previous falls was one in which she

slid to the bathroom floor while an aide was assisting her in

dressing. She tended to lean back and to the left while she was

on the toilet and had fallen backward but nev er had fallen

forward in her wheelchair.

4 2 . In the incident in that case the resident had been

taken to the bathroom and placed on the toilet. The aide left

the room. The resident fell forward off the toilet injuring

herself.

4 3 . The resident had a three - sided commode to prevent her

from falling back or to the side, an anticipated outcome absent

intervention. She had no protection for the front of the

commode because she had never fallen in that direction before.

4 4 . Likewise, in the instant case, Resident 3 had a torso

support to keep her from leaning to the right in her wheelchair,

the only known balance problem she had demonstrated. The aide

who was in the process of preparing her for bed placed the

wheelchair with the right side against the wa ll, which would

prevent her from fall ing to the right. She was appropriately

protected from the danger which has previously been identified

for her.

4 5 . Resident 3 was able to sit for periods of time without

leaning. She leaned only when she was tire d and had been

sitting for a long time. There is no evidence that the resident

was tired or had been sitting for any significant period of

time. There was every reason to believe that the resident would

be safe in the situation involved where Ms. Anderso n was

preparing her for bed.

4 6 . There is no evidence that Ms. Anderson failed to

properly supervise Resident 3. She maintained eye contact on

the resident at all times and was never in a position where she

could not reach the wheelchair. She was stand ing within arm ' s

length of the wheelchair and the resident when the accident

happened. The accident happened so quickly that Ms. Anderson

could not react quickly enough to break the fall. The resident

was supervised ; however , s upervision does not require constant

hands - on care.

47 . It is clear from the facts in this case that it more

closely parallels the second example in the Chateau case for

which the administrative law judge found no liability.

48 . The second case cited by the Agency, Agency for Health

Care Administration v. Life Care Center of Port St. Lucie , 2002

WL 1592255 (Fla. Div. Admin. Hrgs.) is also distinguishable from

the instant case. In that case, a resident fell from a shower

chair. On June 5, 2001, a nurse observed the resident le aning

forward in her wheelchair, which was a new behavior for her.

Three days later, her physician observed the same behavior. On

the next day she was observed leaning so far forward that she

was almost falling out of her chair. On June 9, her doctor

or dered a "lap buddy , " a device designed to prevent leaning

forward in a chair. The lap buddy was in use on June 11, 2001.

On that evening, the resident had been showered and was seated

in the shower chair wearing her night gown. The CNA moved to

the back of the shower chair to push the resident to her room.

The lap buddy was not then in place. The resident fell forward

and was injured.

49 . The judge in that case found several points upon which

the facility had been deficient. First, her identified te n dency

to lean forward was not noted on her care plan so the staff

could be aware. In the case at hand, the records appropriately

reflect the resident's tendency to lean to the right.

5 0 . In the Life Care case, the necessity for the lap buddy

was not noted in the resident's records. Here there was an

order for the supportive device, but no order for a lap buddy,

because the resident had never fallen forward before. A lap

buddy had been used in the past, but was determined to be to o

restrictive for he r and since she did not fall forward, was

discontinued. As Dr. Holmes testified, using restrictive

devices hampers the resident's quality of life so he did not

order a lap buddy.

5 1 . In the Life Care case, a lap buddy would not have been

appropriate for the shower chair, but there are other assistive

devices that could have been used to prevent what was there a

previously recognized danger. Further, the former Director of

Nursing testified in that case that the C NA was a new employee

and had not been pr operly briefed regarding this resident. He

lack of knowledge contributed to the fall. In this case,

neither of these factors exist.

5 2 . I n Beverly Healthcare of North Okaloosa v. Agency for

Health Care Administration , Judge Cleavinger found no basis fo r

the Agency to impose a conditional license or fine upon the

provider. In that case, she stated:

Unfortunately, falls are a common occurrence

in nursing homes and cannot always be

prevented. The goal is to balance the need

to prevent falls and the need to keep

residents free from restraints given

physical, cognitive, and treatment

limitations. Falls can result regardless of

adequate supervision. There is no standard

of care which requires one - on - one

supervision of any res ident . However, such

one - on - one supervision would not necessarily

prevent all falls.

2003 WL 1816017 (Florida Division of Administrative Hearings

Case No. 02 - 3405).

5 3 . In the case at hand there was one - on - one supervision

but it also could not prevent the fall. Ms. Anderson could not

have anticipated that the resident would fall forward. She did

protect the resident's right side, the direction in which the

resident was prone to lean, by placing the wheelchair against

the wall. This was because this tendency had been displa yed in

the past so the staff was aware of and could take measures to

prevent the tendency to lean or fall to the right. Ms. Anderson

kept her eyes on the resident and despite the supervision the

resident fell forward anyway.

5 4 . In Vista Manor v. Agency for Health Care

Administration , 1999 WL 1486416 (Florida Division of

Administrative Hearings Case No. 98 - 5471), Judge Kilbride held

that the regulation cited in that case does not "authorize the

Agency to base a deficiency solely on the fact that the resi dent

fell once or multiple times." Finding that the facility was not

responsible for the fall in that case, Judge Kilbride held that

the facility cannot be liable unless "there is a specific

intervention that [it] should have identified and could have

pro vided to the resident to prevent a fall."

5 5 . In this case, the facility could not anticipate a

forward fall, for which certain restrictive intervention s are

available, such as a lap buddy. Absent a known need for such an

intervention, however, it shoul d not be used because it is an

annoyance to the resident and interferes with the resident's

quality of life.

5 6 . There is no strict liability imposed on nursing homes.

Several cases hold that for e seeability must be shown in order to

find responsibility. Agency for Health Care Administration v.

Eastbrooke Health Care Associates, LLC, d/b/a Heron Pointe

Health and Rehabilitation ( Florida Division of Administrative

Hearings Case No. 03 - 0164) .

57 . Because the relevant federal regulation cited herein

have been adopted into state law through Florida Administrative

Code Rule 59A - 4.1288, federal decisions are germane to a

complete resolution of the issues herein. There are a number of

cases involving Tag F324. In none of them was l iability found

for an unfor eseen fall. R unning through the cases is a common

thread : that a nursing home provider is not an insurer that an

accident will not happen; rather, that the nursing home must

exercise reasonable precautions in protecting its residents.

58 . In the case o f Lineville Nursing Facility , DAB CR 947

(August 30, 2002) a resident had had recurrent falls. The

administrative law judge and the Department Appeals Board

therein held that Tag F324 was not violated. The resident had

been identified at high risk for fa lls. Nine days after she was

admitted to the facility she fell off the toilet. She had been

left in the bathroom while a CNA was outside the door, and she

experience d injuries. The judge in that case stated:

The regulations do not impose strict

liabilit y on a long term care facility with

regard to the residents ' accidents. A

facility is not required to assure its

residents never sustain accidents. Rather,

the regulation s require that the facility

provide adequate supervision and assistance

devices to i ts residents as a safeguard

against accidents. A facility satisfies the

requirements of the regulations if it take s

reasonable precautions to protect the health

and safety of its residents against

accidental injuries.

59 . Further, there is a failure to provide adequate

supervision when there is knowledge of a pattern of events or

behaviors by a resident which could adversely affect the

resident, and there is a failure by the provider or the facility

to take steps to prevent accidents. The question is whether

there is pre - existing behavior which would have alerted the

facility to tighten its procedures related to that particular

resident or whether the accident was an event without precedent.

See Lineville at p . 12, citing South Ridge Nursing and

Re habilitation Center , DAB CR 744 (2001).

6 0 . The judge in the Lineville case focused not on whether

the resident fell, but rather, whether the facility should have

anticipated the fall. The resident in the Lineville case had

had previous falls and needed extensive assistance. She had

never had a fall in the same manner as the fall which

precipitated the deficiency case. In the case at hand the same

is true. Resident 3 had fallen but had never shown a tendency

to fall forward. Until that occurred the f acility could not

anticipate the need to supply preventive devices against such a

fall. A fall to the right could have been anticipated and it

was. Ms. Anderson placed the wheelchair against the wall so as

to prevent a fall to the right.

6 1 . In the Lin eville case the judge and subsequently the

Department Appeals Board, found that no deficiency existed

because:

A facility is not held to strict liability;

The facility need only take reasonable

safeguards;

The staff must have had knowledge of the

behavio rs and history in relation to the

fall which occurred.

6 2 . In this case the facility did impose reasonable

safeguards to prevent the type of fall by Resident 3 of which

its staff had knowledge. The fall which occurred was of a type

never before observe d in this resident. The facility did not

violate the regulations relative to this fall because there was

no knowledge of any tendency to fall in this manner . T herefore

there is no deficiency.

Other Options

6 3 . The Agency has suggested that had the CNA put the

torso support on the resident, the resident would not have

fallen. This is speculative. There was no persuasive evidence

that a torso support would prevent a forward fall. Haven's

witnesses, including the attending physician, testified that

the y would not use a torso support for this purpose. Also, the

torso support was ordered to assist the resident in maintaining

an erect posture rather than leaning to the right , as she had

done in the past.

6 4 . The CNA had removed the support in order to toilet the

resident and moved her out of the bathroom to prepare to place

her in bed. Removing the support at the time and in th at manner

was appropriate and reasonable. The attending physician

testified that he saw nothing wrong with the CNA leaving the

support off during the process of preparing the resident for

bed . His established that this order for the support , which

included removing it every two hours , was inclusive and not

exclusive; that is, the more it was removed and the resident

allowed to m ove about her wheelchair, the better it would be for

the resident. He wrote the order so that the support should be

removed at least every two hours.

65 . In addition to the physician Dixie May, RN, the

facility risk manager , as well as the D irector of N ursing found

that the process used by Ms. Anderson was appropriate under all

the circumstances . B oth testified that with all their years of

experience they would have done nothing differently than had Ms.

Anderson. Ms. Anderson was in the room with the r esident, was

an arm's length away and had her eyes on the resident which

meets the definition of supervision.

66 . The Agency suggested that somehow the supervision was

inadequate, yet no witness testified on behalf of the Agency to

the effect that the definition of supervision was other than the

process actually followed by Ms. Anderson.

67 . The fact that the Agency can suggest alternatives to

the actions of the provider is not sufficient to show that the

facility erred . None of the witnesses for t he Agency knew the

resident. Ms. Anderson did know her, having cared for her for a

substantial period of time. The opinion of a surveyor who does

not know the resident and had little opportunity to observe her,

is of less probative value in this situatio n . Those who know

and care for the resident are better equipped to know what

behavior to expect and what behavior the resident may exhibit.

See generally Agency for Health Care Administration v. North

Florida Living Facilities, d/b/a Willow Grove Living Facility ,

(DOAH Case No. 01 - 2503). Thus, those who ha d much more

opportunity to directly observe the resident, such as witnesses

Anderson, May, and Laura Ayotte, all of whom testified that no

tendency to fall forward had ever been exhibited , gave opinions

entitled to more weight regarding the issue of the resident's

safety, supervision, and her previously exhibited behaviors .

Thus, the testimony of witnesses Anderson, May, and Ayotte are

accepted. See Marianna Convalescent Center v. Agency for Health

Car e Administration , (DOAH Case No. 02 - 0037).

68 . In summary, the preponderant weight of the evidence

establishes persuasively that this occurrence was merely an

unforeseeable accident. The above - cited authority and legal

discussion establish that the faci lity may not be held

accountable for accidents or injuries which were unforeseeable.

The fall and the injury suffered by Resident 3 was unforeseeable

in this case. The facility should not be cited for it.

R ECOMMENDATION

Based on the foregoing Findings of Fact , Conclusions of

Law, the evidence of record, the candor and demeanor of the

witnesses, and the pleadings and arguments of the parties, it

is , therefore ,

RECOMMENDED that a final order be entered by the Agency for

Health Care Administration, dismissi ng the A mended

A dministrative C omplaint in its entirety; that no fine be

a ss essed , and that the Respondent be granted a standard license

for the period of time in question.

DONE AND ENTERED this 2 4th day of June , 200 5 , in

Tallahassee, Leon County, Florida .

S

P. MICHAEL RUFF

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 2 4th day of June , 200 5 .

COPIES FURNISHED:

Janis L. Rosenthal, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Station No. 3

2727 Mahan Driv e, Building 3

T allahassee, Florida 32308

Karen Goldsmith, Esquire

Jonathon Grout, Esquire

Goldsmith, Grout & Lewis, P.A.

2180 Park Avenue North, Suite 100

Post O ffice Box 2011

Winter Park, Florida 32790 - 2011

Richard Shoop, Agency Clerk

Agency for Heal th Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

William Roberts, Acting General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

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 Order should be filed with the agency that

will issue the Final Order in this case.