04-000335 Agency For Health Care Administration vs. Lake Mary Health Care Associates, Inc., D/B/A Lake Mary Health &Amp; Rehabilitation Center Status: Closed Recommended Order on Tuesday, June 8, 2004.

Summary: Factual allegations in the Administrative Complaint, if proven, did not violate requirements to maintain and to implement anti-neglect policy. Petitioner is not guilty of violating requirements based upon allegations in Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0335

)

LAKE MARY HEALTH CARE )

ASSOCIATES, INC., d/b/a LAKE )

MARY HEALTH & REHABILITATION )

CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing in this proceeding on behalf of the

Division of Administrative Hearings (DOAH) on April 16, 2004, in

S anford, Florida.

APPEARANCES

For Petitioner: Gerald L. Pickett, Esquire

Agency for Health Care Administration

Sebring Building, Room 330K

525 Mirror Lake Drive, North

St. Petersburg, Florida 33 701

For Respondent: R. Davis Thomas, Jr.

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Fl orida 32302 - 1300

STATEMENT OF THE ISSUES

The issues are whether Respondent violated regulatory

requirements to maintain and to implement a written policy that

prohibits the neglect of nursing home residents; whether

Petitioner should have changed the st atus of Respondent's

license from Standard to Conditional; and whether Petitioner

should fine Respondent $2,500 and recover investigative costs.

PRELIMINARY STATEMENT

On December 24, 2003, Petitioner issued an Administrative

Complaint alleging that Respon dent committed two Class I

violations of nursing home regulations involving a resident who

suffered ant bites. In relevant part, the Administrative

Complaint notified Respondent that Petitioner had changed

Respondent's license rating from Standard to Cond itional;

alleged that Respondent had failed to maintain an effective pest

control system; proposed two administrative fines of $12,500

each; proposed a six - month survey cycle and a $6,000 survey fee;

and sought to recover investigative costs.

Respondent timely requested an administrative hearing.

Petitioner referred the matter to DOAH to conduct the hearing.

On April 4, 2004, Respondent filed a motion seeking attorney's

fees pursuant to Section 57.105, Florida Statutes (2003).

At the hearing, Petiti oner withdrew allegations of an

ineffective pest control system, with prejudice; reduced the

classification of the alleged violation from a widespread

Class I deficiency to an isolated, Class II deficiency; and

limited the proposed agency action in this pr oceeding to a

$2,500 fine, recovery of investigative costs, and a change in

license status from Standard to Conditional. Thereafter,

Respondent withdrew its motion for attorney's fees.

The parties stipulated to some facts alleged in the

Administrative Complaint. Petitioner presented the testimony of

two witnesses and submitted two composite exhibits for admission

into evidence. Respondent presented the testimony of one

witness and submitted one composite exhibit.

The identity of the witnesses and ex hibits and any

attendant rulings are set forth in the two - volume Transcript of

the hearing filed on April 28, 2004. Pursuant to an Order

granting a joint request for an extension of time to file

proposed recommended orders (PROs), the parties timely filed

their respective PROs on May 10, 2004.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

licensing and regulating nursing homes in Florida pursuant to

Subsection 400.23(7), Florida Statutes (2003). Respondent is

licensed to operate a nu rsing home located at 710 North Sun

Drive, Lake Mary, Florida 32746 (the facility).

2. The facility admitted Resident 1 on November 20, 2000.

Resident 1 was immobile and could not communicate verbally. She

depended on a feeding tube for nourishment.

3. On August 10, 2003, facility staff found ants in

Resident 1's room. The ants had not bitten Resident 1. Staff

sprayed the room with bug spray and then called the pest control

company responsible for providing pest control at the facility

(the pest control company).

4. On August 12, 2003, the pest control company treated

all of the rooms on the affected wing of the facility with ant

bait gel and noted in the facility's pest control log that the

problem in the affected area was "resolved." On the same day,

another company treated the grounds outside the facility.

5. During the early morning of August 20, 2003, facility

staff found Resident 1 in her bed with ants and ant bites on her

body. Staff immediately removed Resident 1 from her bed,

show ered her, called her doctor, and obtained orders for

medications to treat the ant bites. Facility staff also treated

the room and removed any ants that staff observed. Resident 1

went to the hospital briefly and then returned to the facility.

6. Respo ndent notified Petitioner of the incident, and

Petitioner sent two surveyors to the facility on August 22,

2003. Thereafter, Petitioner charged that the facility

committed a Class II violation of 42 C.F.R. Section

483.13(c)(1).

7. The relevant federal regulatory requirements are also

set forth in what is identified in the record as Tag F224. Tag

F224 requires the facility to maintain and to implement written

policies and procedures that prohibit the neglect, abuse, and

mistreatment of residents (an ant i - neglect policy).

8. Respondent does not dispute that the ant bites to

Resident 1 on August 20, 2003, constituted harm sufficient to

support a Class II violation, if Respondent violated the

requirements to maintain and to implement an anti - neglect

pol icy. The preponderance of evidence does not show that

Respondent violated those requirements.

9. Respondent maintained an anti - neglect policy that

satisfied the requirements in Tag F224. In relevant part, the

policy sets forth the standards and proces ses for identifying

potential incidents of neglect of residents; investigating those

incidents; and reporting them to appropriate agencies.

10. Petitioner was unable to identify any component of

Respondent's anti - neglect policy that violated the require ments

of Tag F224. Petitioner also was unable to identify any other

required policy that Respondent failed to maintain.

11. Respondent implemented its anti - neglect policy.

Facility staff identified the potential risk of harm,

investigated the risk, implemented professional pest control

treatments to all rooms on the same wing of the facility as the

affected room, and treated the lawn outside the facility. The

facility reported the incident to Petitioner. Petitioner was

unable to identify any compon ent of the anti - neglect policy, or

that of any other policy, that Respondent did not implement to

prevent the incident involving Resident 1.

12. Irrespective of the anti - neglect policy that

Respondent maintained and implemented, Petitioner sought to

prove at the hearing that Respondent violated quality of care

requirements. The Administrative Complaint does not allege that

Respondent violated a quality of care requirement. If it were

determined that the ALJ has authority to find Respondent guilty

o f violating a quality of care requirement not alleged in the

Administrative Complaint, the preponderance of evidence does not

show that the quality of care exercised by facility staff after

they discovered ants on August 10, 2003, was deficient.

13. Pet itioner sought to prove that Respondent violated

quality of care requirements by failing to provide adequate pest

control service to the affected room. Petitioner did not

identify any additional pest control procedures that applicable

law required the fac ility to provide. Nor did Petitioner

identify any pest control treatment or service that the facility

could or should have provided to prevent the ant bites to

Resident 1 on August 20, 2003.

14. Petitioner also sought to prove that Respondent

violated quality of care requirements by failing to increase

monitoring of Resident 1. Petitioner failed to cite any legal

standard that required facility staff to increase their

monitoring of Resident 1 between August 10 and 20, 2003.

15. The standard of pract ice in nursing homes is to

monitor residents every two hours. No standard required a

higher level of monitoring after August 10, 2003. There was no

evidence that Respondent failed to monitor Resident 1 every two

hours between August 10 and 20, 2003.

16 . Strict liability is not the appropriate standard for

determining whether Respondent is responsible for the harm

suffered by Resident 1 on August 20, 2003. The preponderance of

evidence does not show that Respondent failed to provide any

required goods or services to Resident 1. The ant bites on

August 20, 2004, occurred despite the reasonable care undertaken

by Respondent to prevent the ant bites.

CONCLUSIONS OF LAW

17. DOAH has jurisdiction over the parties and subject

matter of this proceeding pur suant to Section 120.569 and

Subsection 120.57(1), Florida Statutes (2003). DOAH provided

the parties with adequate notice of the administrative hearing.

18. If the factual allegations in the Administrative

Complaint were deemed proven, they would not v iolate the

requirements in Tag F224 to maintain and to implement an anti -

neglect policy. The requirements in Tag F224 are substantially

the same as those found in 42 C.F.R. Section 483.13(c)(1)(i).

In relevant part, the regulation provides that a facilit y:

[M]ust develop and implement written

policies and procedures that prohibit

mistreatment, neglect and abuse of residents

and misappropriation of resident property.

19. Administrative appeals board decisions from the agency

responsible for promulgati ng the federal regulation at issue

in Tag F224, hold that a single incident of neglect, if proven,

does not violate the requirements to maintain and to implement

an anti - neglect policy. In Life Care Center of Hendersonville

v. Health Care Financing Admini stration , Department of

Health and Human Services, Departmental Appeals Board

Decision No. CR542 (July 22, 1998) (available at

http://www.os.dhhs.gov/progorg/dab), the federal ALJ stated:

In evaluating a long - term care facility’s

compliance with the regula tion, the

questions that must be answered are:

(1) has the facility developed written

policies and procedures that prohibit abuse,

mistreatment or neglect of residents; and

(2) have those policies been implemented?

The question [regarding implementation]

cannot be answered simply by identifying

random episodes of abuse, mistreatment or

neglect which may have occurred at a

facility. A conclusion that a facility has

failed to implement anti - abuse, mistreatment

or neglect policies does not necessarily

follo w from evidence of an isolated episode

or episodes of abuse, mistreatment or

neglect. A facility may be found to have

implemented the required policy even if an

isolated instance of abuse, mistreatment or

neglect occurs at the facility despite the

facilit y’s best efforts.

That is underscored by the guidance which

HCFA gives to State survey agency Surveyors.

The State Operations Manual provides that:

the intent of . . . [42 C.F.R. §483.13] is

to assure that the facility has in place an

effective system that . . . prevents

mistreatment, neglect, and abuse of

resident . . . However, such a system

cannot guarantee that a resident will not be

abused; it can only assure that a facility

does whatever is within its control to

prevent . . . neglect and abuse. . . .

20. Another appeals board decision has reached a similar

result. In Haverhill Care Center v. HCFA , Departmental Appeals

Board Decision No. CR522 (March 10, 1998) (available at

http://www.os.dhhs.gov/progorg/dab), the federal ALJ stated:

This regulation is directed against

medically unnecessary use of restraints,

abuse, corporal punishment, involuntary

seclusion, mistreatment, neglect and

misappropriation of property. This

regulation is not meant to address every

type of policy or procedure wh ich addresses

resident care.

21. Department Appeals Board decisions are persuasive.

They are final decisions of the Secretary of the Department of

Health and Human Services; the federal agency responsible for

promulgating the regulation that is the st andard by which

violations of Tag F224 are measured. Because these decisions

are final decisions of an agency addressing the interpretation

and application of its own regulations, the decisions are

entitled to substantial deference. South Valley Health C are

Center v. Health Care Financing Administration , 223 F.3d 1221,

1223 (10th Cir. 2000) (courts give substantial deference to

agency's interpretation of its own regulations).

22. Petitioner has incorporated the relevant federal

regulation by reference i n Florida Administrative Code

Rule 59A - 4.1288. Petitioner's application of a different

requirement in this proceeding is inconsistent with Petitioner's

own Rule. Subsection 120.68(7)(e)2., Florida Statutes (2003),

requires an appellate court to remand to Petitioner any action

that is inconsistent with Petitioner's ruling. In construing

federal regulations incorporated in the state Rule, courts give

substantial deference to the federal agency's interpretation of

its own regulation. South Valley , 223 F.3d at 1223.

23. In a separate DOAH proceeding, the ALJ concluded that

one incident of alleged neglect does not violate the

requirements in Tag F224 to maintain and to implement an anti -

neglect policy. AHCA v. Beverly Health and Rehabilitation

Services – Palm Bay , Case No. 01 - 1605 (DOAH March 4, 2002)

(Final Order March 14, 2003). In relevant part, the ALJ cited

the same two Department Appeals Board decisions that the ALJ has

cited in the instant proceeding. Petitioner adopted the

Recommended Order in to to in its Final Order. Petitioner is

bound by the doctrine of administrative stare decisis to follow

its previous final order because no factual or legal basis

exists to exclude this proceeding from Petitioner's legal

conclusion in the previous matter tha t a single act of neglect,

if proven, is not a violation of the requirements to maintain

and to implement an anti - neglect policy. Gessler v. Department

of Business and Professional Regulation , 627 So. 2d 501, 503 - 504

(4th DCA 1993). See also Caserta v. D epartment of Business and

Professional Regulation , 686 So. 2d 651, 653 (5th DCA 1996) (the

statutory requirement for subject - matter indexing of final

agency orders begins on March 1, 1992, when the Legislature

amended the statute).

24. Neither DOAH nor Pe titioner can find Respondent guilty

of violating the anti - neglect requirements in Tag F224 based on

evidence of facts not alleged in the Administrative Complaint.

To do so would negate the right to an administrative hearing to

contest the allegations in a n Administrative Complaint, and it

would eviscerate fundamental principles of due process. Cotrill

v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla. 1st DCA

1996). See also Hamilton v. Department of Business and

Professional Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000);

Lusskin v. State of Florida Agency for Health Care

Administration, Board of Medicine , 731 So. 2d 67, 68 (Fla. 4th

DCA 1999); Ghani v. Department of Health , 714 So. 2d 1113, 1115

(Fla. 1st DCA 1998); Arpayoglou v. Department of Prof essional

Regulation , 603 So. 2d 8 (Fla. 1st DCA 1992); Board of Trustees

of the Internal Improvement Trust Fund of the State of Florida

v. Barnett , 533 So. 2d 1202, 1206 (Fla. 3d DCA 1988); Sternberg

v. Department of Professional Regulation, Board of Medic al

Examiners , 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v.

Department of Professional Regulation , 458 So. 2d 842, 844

(Fla. 2d DCA 1984); Wray v. Department of Professional

Regulation, Board of Medical Examiners , 435 So. 2d 312, 315

(Fla. 1st DCA 1 983).

25. Allegations of a single act of neglect are relevant to

quality of care requirements rather than requirements in

Tag F224 to maintain and to implement an anti - neglect policy.

In Haverhill , the federal administrative law judge stated:

[This] Resident’s . . . situation is

actually a question of compliance with a

general nursing standard of care, which is

better addressed under 42 C.F.R. §483.25

Quality of Care.

Haverhill , supra (available at http://www.os.dhhs.gov/progorg/dab).

26. The Administrative Complaint does not allege that

Respondent violated quality of care requirements. Neither DOAH

nor Petitioner can find Respondent guilty of violating quality

of care requirements not referred to in the Administrative

Complaint. To do so wou ld negate the right to an administrative

hearing to contest the violations alleged in the Administrative

Complaint, and it would eviscerate fundamental principles of due

process. B.D.M. Financial Corporation v. Department of Business

and Professional Regu lation , 698 So. 2d 1359, 1362 (Fla. 1st DCA

1997); Willner v. Department of Professional Regulation, Board

of Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA 1990); Celaya v.

Department of Professional Regulation , 560 So. 2d 383, 384

(Fla. 3d DCA 1990); Kinney v. Department of State, Division of

Licensing , 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Federgo

Discount Center v. Department of Professional Regulation, Board

of Pharmacy , 452 So. 2d 1063, 1065 (Fla. 3d DCA 1984).

27. Relevant judicial decisions p reclude the ALJ from

reaching issues concerning the burden of proof, standard of

proof, and sufficiency of evidence in this proceeding. As

previously stated, the factual allegations in the Administrative

Complaint, if proven, do not violate requirements i n Tag F224 to

maintain and to implement an anti - neglect policy; and the ALJ

cannot find Respondent guilty of violating Tag F224 based on

evidence of facts not alleged in the Administrative Complaint.

If the factual allegations were sufficient to prove a v iolation

of quality of care requirements, the ALJ cannot find that

Respondent violated quality of care requirements not alleged in

the Administrative Complaint.

28. This Recommended Order discusses issues concerning

the burden of proof, standard of pr oof, and sufficiency of

evidence only as an alternative analysis. Petitioner has the

burden of proving each violation that Petitioner asserts is at

issue. Beverly Enterprises - Florida v. Agency for Health Care

Administration , 745 So. 2d 1133, 1136 (Fla. 1 st DCA 1999).

29. Petitioner must satisfy its burden of proof in this

proceeding by two separate evidentiary standards. Petitioner

must prove by a preponderance of evidence that Respondent

committed the deficiencies alleged as a basis for sustaining th e

change in Respondent's license rating from Standard to

Conditional. Florida Department of Transportation v. J.W.C.

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

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DC A 1977). Petitioner must show by clear and

convincing evidence that Respondent committed the deficiencies

alleged as a basis for the proposed administrative fine.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborn e Stern and Company , 670 So. 2d

932, 935 (Fla. 1996).

30. The preponderance of evidence does not prove that

Respondent violated the requirements in F224 to maintain and to

implement an anti - neglect policy. Rather, Respondent maintained

and implemented th e requisite anti - neglect policy.

31. The preponderance of evidence does not prove that

Respondent violated any quality of care requirements. For

purposes of Tag F224, 42 C.F.R. Section 488.301 defines the term

"neglect" to mean the "failure to provide goods and services

necessary to avoid physical harm, mental anguish, or mental

illness." Petitioner did not provide evidence that Respondent

failed to provide required goods and services to Resident 1.

32. Strict liability does not apply in this proce eding.

See Washington Manor Nursing and Rehabilitation Center v. AHCA,

Case No. 00 - 4035 (DOAH May 7, 2001) (Final Order September 13,

2001) [Subsection 483.70(h), Florida Statutes (2001), is not

intended to impose absolute or strict liability, but is inte nded

to require reasonable care]. Respondent is not responsible for

the harm suffered by Resident 1 unless Petitioner shows that

Respondent failed to use reasonable care. The evidence shows

that Resident 1 suffered ant bites despite Respondent's best

eff orts to prevent them.

33. Petitioner did not prove a Class I or II deficiency,

or an uncorrected Class III deficiency, within the meaning of

Subsection 400.23(7)(a), Florida Statutes (2003). Nor did

Petitioner prove a violation for which Subsection 400.23(8),

Florida Statutes (2003), authorizes an administrative fine.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that Petitioner enter a final order deleting

the disputed deficiencies from the Survey Report for August 20,

2003; replacing the Conditional rating from August 22, 2003,

until October 15, 2003, with a Standard rating; finding

Respondent not guilty of the remaining allegations in the

Administrative Complaint; and denying the proposed fine an d

recovery of investigative costs.

DONE AND ENTERED this 8th day of June, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 A palachee 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 8th day of June, 2004.

COPIES FURNISHED :

Gerald L. Pickett, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330K

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

Donna Holshouser Stinson, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 113 00

Tallahassee, Florida 32302 - 1300

R. Davis Thomas, Jr.

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Drawer 11300

Tallahassee, Florida 32302 - 1300

Lealand McCharen, 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have th e 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.