06-004755 Agency For Health Care Administration vs. Health Care District Of Palm Beach County, D/B/A Edward J. Healey Rehabilitation And Nursing Center Status: Closed Recommended Order on Tuesday, May 1, 2007.

Summary: Petitioner failed to demonstrate that Respondent had committed an isolated Class II deficiency. Recommend that the Administrative Complaint be dismissed and that Respondent be issued a standard license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 06 - 4755

)

HEALTH CARE DISTRICT OF PALM )

BEACH COUNTY, d/b/a EDWARD J. )

HEALEY REHABILITATION AND )

NURSING CENTER, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on January 30, 2007 , by video teleconference with connecting

sites in West Palm Beach and Tallahassee , Florida, before Errol

H. Powell, a d esignated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

F or Petitioner: Tria Lawton - Russell , Esquire

Agency for Health Care Administration

Spokane Building, Suite 103

83 50 Northwest 52nd Terrace

Miami, Florida 33166

For Respo ndent: Lori C. Desnick , Esquire

Zumpano Patricios & Winker, P.A.

999 Ponce de Leon Boulevard

Penthouse 1110

Cora l Gables, Florida 33134

STATEMENT OF THE ISSUE

The issue for determination is whether R espondent committed

the offense set fo rth in the Administrative Complaint and, if

so, what action should be taken.

PRELIMINARY STATEMENT

The Agency for Health Care Ad m inistration, hereinafter

AHCA, issued a one - count Admini strative Complaint against Health

Care District of Palm Beach County, d/b/a Edward J. Healey

Rehabilitation and Nursing Center, hereinafter Healey Center,

dated October 24, 2006 . AHCA charged Healey Center with

violati n g Section 400.0 22(1) (l), Florida Statutes (2005 ) , by

committing a n isolated Class II deficiency and imposed an

administrative fine of $2 ,500 and a conditional license. Healey

Center disputed the material allegations of fact and filed a

Petition for Formal Administra tive Hearing. On November 20,

2006 , this matter was referred to the Division of Administrative

Hearings.

Prior to hearing, on January 25, 2006, AHCA filed a Motion

to Relinquish Jurisdiction. S ubsequently, on January 29, 2 006,

AHCA filed an Amended Mo tion to Relinquish Jurisdiction, which

was heard at hearing and was denied. Also, prior to hearing,

the parties filed a Joint Pre - Hearing Stipulation.

At hearing, AHC A presented the testimony of one witness and

entered ten exh ibits (Petitioner’s Exhibits nu mbered 1 through

10 ) into evidence. 1 Healey Center presented the testimony of

five witnesses and entered 25 exhibit s (Respondent's Exhibit s

numbered 2 - 26 ) into evidence.

A transcript of the hearing was ordered. At the req uest of

the parties, the time for filing post - hearing submissions was

se t for ten days following the filing of the transcript. The

Transcript, consisting of one volume, was filed on February 7,

2007 . Healey Center timely filed its post - hearing submission .

AHCA requested an extension of time , by one day , to file its

post - hearing submission to which Healey Center objected; the

extension of time was granted. The parties ’ pos t - hearing

submissions have been considered in the preparation of this

Recommended O rder.

FINDINGS OF FACT

1. At all times materia l hereto, Healey Center was a 198 -

bed skilled nursing facility operating at 1200 45th Street, West

Palm Beach , Florida, and was licensed under Chapter 400, Florida

Statutes.

2. On April 17, 2006 , AHCA conduct ed a complaint survey of

Healey Center . AHCA's surveyor was Nina Ashton.

3. At the time of the survey, Healey Center's licensure

status was standard.

4 . As a result of her survey on April 17, 2007, Ms. Ashton

determined that an isolated Class III defici ency had been

committed by Healey Center, citing Tag N201, a violation of

Section 400.022(1)(l), Florida Statutes, failure to adequately

identify residents whose history render them at risk for abusing

other residents. Healey Center was given until May 17 , 2006, to

correct the deficiency.

5 . By letter dated May 4, 2006, Healey Center was

notified, among other things, that the allegation that Healey

Center "failed to properly meet the needs of a resident who acts

inappropriately" was confirmed and that Hea ley Center had to

achieve substantial compliance by May 17, 2006.

6 . A follow - up survey was conducted on June 12, 2006. By

letter dated July 10, 2006, AHCA notified Healey Center, among

other things, that the deficiency had been corrected.

7 . Subsequent ly, AHCA determined that the deficiency was

an isolated Class II deficiency. By letter dated August 8,

2006, AHCA notified Healey Center, among other things, that its

(Healey Center's) license status was being changed to

conditional, effective for the per iod April 17, 2006 through

September 30, 2006, attaching the license thereto. Also, by

separate letter of the same date, AHCA notified Healey Center,

among other things, that its (Healey Center's) license status

was being changed to standard, effective fo r the period June 8,

2006 through September 30, 2006, attaching the license thereto.

8 . As a result of AHCA ’s determin ation that an isolated

Class II deficiency had been committed, it filed an

Administrative Complaint against Healey Center.

9 . Ms. Asht on's survey focused on Resident No. 1,

involving in cidents documented in the Nurse s Notes from

March 10, 2006 through April 17, 2006. Also, she met with the

Director of Nursing (DON), Ingrid Kerindongo, because the

administrator of Healey Center was on va cation; with Healey

Center's social worker, Jackie Loving; and with the unit

manager, Edgar Francois. Further, Ms. Ashton reviewed the

medication administration record (MAR).

10 . On October 20, 2005, Resident No. 1 was admitted to

Healey Center from St. Mary's Medical Center. He was suffering

from traumatic brain injury and had a diagnosis of bipolar

disorder. He was prescribed medication for his bipolar

disorder. Resident No. 1 was homeless and had no family members

who were willing or able to take ca re of him. He had resided in

an assisted living facility but the facility refused to re - admit

him.

11 . Resident No. 1 was placed in an all male unit, Held 3

unit, in a semi - private room . Healey Center has two other

units, Held 1 and 2 units, wherein bot h male and female

residents are housed.

12 . Healey Center was unable to provide Resident No. 1

with 24 - hour male nursing staff but used its best efforts to

as sign male staff to Resident No. 1. Healey Center employs 35 -

40 licensed practical nurses (LPNs) of which one is male and 75 -

78 certified nursing assistants (CNAs) of which two are male.

13 . On or about March 10, 2006, Re sident No. 1' s behavior

began to escalate.

14 . Resident No. 1 was involved in numerous incidents with

staff wherein he displayed sexually aggressive behavior -- using

sexually inappropriate words, making sexually inappropriate

propositions, and inappropriately t ouching them. One particular

incident occurred on March 22, 2006, involving a fem ale on the

laundry staff. While placing clot hes in the closet, she tur ned

around to find Resident No. 1 too close in proximity to her and

blocking the exit door with his wheelchair . 2 Resident No. 1

indicated to the staff person that he wanted to touch her hands.

The staff person managed to exi t the room and reported the

incident. Resident No. 1 was counseled not to be so close to

the staff, not to talk to the staff, and not to make sexual

offers to th e staff. Further, Resident No. 1's physician and

psychiatrist were notified of his behavior.

15 . Approximately a week later, on March 30, 2006,

Resident No. 1 was acting in an aggressive and threatening

manner towards staff , resulting in law enforcement being

contacted . He approached a CNA in his wheelchair and was making

biting actions at the C NA, acting as if he were going t o bite

her. Also, Resident No. 1 was being verbally abusive and

sexually aggressive towards ano ther staff member, wh o notified

security, who removed Resident No. 1 from the unit and secured

him . Law Enforcement was summone d, and the officers determined

that the incident did not constitute a crime but was a matter

for Healey Center to address. Resident No. 1's physician was

notified, who , the night before, had presc ribed Zyprexa to

address Resident No. 1's es calated aggress ive behavior.

16 . Furthermore, on March 30, 2006, the physician o rdered

Ms. Loving, the social worker , to discharge Resident No. 1 to

the 45th Mental Health Center . Ms. Loving discussed the

discharge with Resident No. 1, and he refused to go to the

Menta l Health Center. She contacted the Mental Health Center to

come to Healey Center to assess Resident No. 1 , but the Mental

Health Center refused to do so. Resident No. 1 remained at

Healey Center.

17 . As to the incidents in which Resident No. 1 was

verba lly abusive, aggressive, and sexually aggressive towards

staff, Ms. Ashton determined that Healey Center had addressed

the incidents appropriately and used appropriate interventions,

where necessary.

18 . Additionally, Resident No. 1 became verbally abusi ve

towards other residents. One particular incident occurred on

March 15, 2006 and involved his roommate in which Resident No. 1

was upset because his roommate would not turn - off the

television. The supervisor was notified and the staff counseled

both, R esident No. 1 and his roommate. Afterwards, Resident

No. 1 went to sleep in his room.

19 . In another incident occurring on March 22, 2006,

Resident No. 1 was arguing with another resident in a loud voice

and in a threatening manner, using threatening wor ds. The staff

talked with Resident No. 1 to determine why he w as upset. After

determining the reason for Resident No. 1 being upset and

calming both residents , the staff counseled Resident No. 1 and

the other resident and re - directed them .

20 . As to the incidents in which Resident No. 1 was

verbally abusive to other residents, and in particular the two

incidents previously mentioned, Ms. Ashton determined that

Healey Center appropriately addressed the incidents and was

effective in resolving them, and th at the interventions were

effective.

21 . Further, Resident No. 1 engaged in inappropriate

sexual behavior towards and ina ppropriate touching of staff. In

particular, o n April 15, 2006, while answering Resident No. 1's

call bell, a CNA found him naked , wa iting for her . Also, on

April 16, 2006, Resident No. 1 attempted to grab a nurse's

buttocks.

22 . Further more , Resident No. 1 engaged in several

incidents involving inappropriate touching of other residents.

Two incidents occurred on April 16, 2006, the day before AHCA's

survey. One incident involved Resident No. 1 being in another

unit, during lunch time, and the staff observing him touching

the breast of a female resident, who was ambulating to the

dining room, under the pretense of assisting the femal e resident

to the dining room. The supervisor was immediately notified

and, upon hearing the notification to the supervisor, Resident

No. 1 left the unit. The other incident on April 16, 2006,

involved the staff observing Resident No. 1 kissing another

r esident on the forehead. This incident was also reported.

23 . Another incident, involving inappropriate touching of

another resident, occurred on April 17, 2007, the day of the

survey. Resident No. 1 was observed rubbing the shoulders of

another residen t, as if massaging the shoulders . The staff

advised him not to touch the other residents, and he left.

However, he soon returned, rubbing his own shoul ders. The staff

again advised Resident No. 1 not to touch the other residents at

which time he laughed and walked away. This incident was also

reported.

24 . Resident No. 1 had been refusing to take his

medication which was prescribed to control his behavior and

included Zyprexa, Seroquel, and Effexor . Numerous entries were

made on the MAR indicating hi s refusal, including March 15, 16,

18, 19, 21, 23, 24 and April 11, 12, 13, and 14, 2006.

25 . The evidence did not demonstrate that Resident No. 1's

Care P lan was not appropriate, was not appropriately revised and

did not contain appropriate interventions or that the

interventions were not appropriately implemented by Healey

Center. Furthermore, the evidence did not demonstrate that the

behavior of Resident No. 1 was not ad dressed in accordance with

his Care P lan.

26 . Resident No. 1's physician and psych iatrist were kept

informed of all the incidents involving staff and other

residents and of Resident No. 1's refusal to take his

medication. Resident No. 1's psychiatrist discussed with him

his refusal to take medication and , at times, obtained

compliance and partial compli ance. Resident No. 1's Care P lan

contained interventions to obtain his compliance to take

medication, and Ms. Ashton found the interventions to be

appropriate.

27 . The evidence demonstrates that a resident has a right

to refuse medicati on and cannot be compelled to take medication.

28 . From April 1 through 6, 2006, Resident No. 1 refus ed

to take his medication. O n April 6, 2006, the necessary

documentation to Baker Act Resident No. 1 was completed by the

doctor , and Resident No. 1 was Baker Acted. On April 11, 2006,

Resident No. 1 was returned to Healey Center, and he began to

take his medication again.

29 . On April 17, 2006, the day of the survey, Resident

N o. 1 had agreed, after having a discussion with the

psychologist, to submit himself for assessment at a psychiatric

facility for voluntary admission.

30 . On the day of the survey, Ms. Ashton informed Healey

Center that it should not accept Resident No. 1 back. She was

very concerned that his aggressive and sexually inappropriate

behavior had escalated and had moved from being directed at the

staff to the residents.

31 . Ms. Ashton determined and testified at hearing that

Healey Center should have discharged Resident No. 1. Her

testimony is found to be credible. She also determi ned and

testified that, when Resident No. 1 was Baker Acted on April 6,

2006, Healey Center should not have re - accepted Resident No. 1

but should have discharged him. Her testimony is again found

credible.

32 . Ms. Ashton testified that she determined tha t Healey

Center had committed an isolated Class III deficiency. Her

supervisor , Maryanne Salerni, has final approval for the

classifications of deficiencies. Ms. Salerni agreed and

testified at hearing that the violation was an isolated Class

III deficie ncy.

33 . As to Healey Center committing an isolated Class III

deficiency, the testimony of Ms. Ashton and Ms. Salerni is found

to be credible.

34 . On May 15, 2006, Resident No. 1 was Baker Acted. On

May 16, 2006, Resident No. 1 was discharged to a menta l health

facility. At hearing, Ms. Ashton testified that the deficiency

had been corrected by May 17, 2006, because Resident No. 1 had

been discharged from Healey Center on May 16, 2007.

CONCLUSIONS OF LAW

3 5 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 1 20.57(1),

Florida Statutes (2006 ).

3 6 . To impose a fine, AHCA has the burden of proof to show

by clear and convincing evidence that Healey Ce nter c ommitted

the offense in the Administrative Complaint. Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

37 . T o impose a conditional license, AHCA has the burden

to show by a preponderance of the evidence that a basis exists

for reducing the licensure status of Healey Center from standard

to c onditional. See Florida Department of Transportation v.

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

§ 120.57(1), Fla. Stat.(2005 ).

38 . Section 400.022, Florida Statutes (2005), provides in

pertinent part:

(1) All licensees of nursing home

facilities shall adopt and make public a

statement of rights and respon sibilities of

the residents of such facilities and shall

treat such residents in accordance with the

provisions of that statement. The statement

shall assure each resident the following:

* * *

(l) The right to receive adequate and

appropriate healt h care and protective and

support services, including social services;

mental health services, if available;

planned recreational activities; and

therapeutic and rehabilitative services

consistent with the resident care plan, with

established and recognize d practice

standards within the community, and with

rules as adopted by the agency.

39 . Sectio n 400.23, Florida Statutes (2005 ), provides in

pertinent part:

(7) The agency shall . . . assign a

licensure status of standard or conditional

to each nursing home.

(a) A standard licensure status means that

a facility has no class I or class II

deficiencies and has corrected all class III

deficiencies within the time established by

the agency.

(b) A conditional licensure status means

that a facility, due to t he presence of one

or more class I or class II deficiencies, or

class III deficiencies not corrected within

the time established by the agency, is not

in substantial compliance at the time of the

survey with criteria established under this

part or with rul es adopted by the agency.

If the facility has no class I, class II, or

class III deficiencies at the time of the

followup survey, a standard licensure status

may be assigned.

* * *

(8) The agency shall adopt rules to provide

that, when the criteria established under

subsection (2) are not met, such

deficiencies shall be classified according

to the nature and the scope of the

deficiency. The scope shall be cited as

isolated, patterned, or widespread. An

isolated deficiency is a deficiency

affecting one or a very limited number of

residents, or involving one or a very

limited number of staff, or a situation that

occurred only occasionally or in a very

limited number of locations. . . The agency

shall indicate the classification on the

face of the not ice of deficiencies as

follows:

* * *

(b) A class II deficiency is a deficiency

that the agency determines has compromised

the resident's ability to maintain or reach

his or her highest practicable physical,

mental, and psychosocial well - being, as

d efined by an accurate and comprehensive

resident assessment, plan of care, and

provision of services. A class II

deficiency is subject to a civil penalty of

$2,500 for an isolated deficiency . . . A

fine shall be levied notwithstanding the

correction of the deficiency.

(c) A class III deficiency is a deficiency

that the agency determines will result in no

more than minimal physical, mental, or

psychosocial discomfort to the resident or

has the potential to compromise the

resident's ability to maintain or reach his

or her highest practical physical, mental,

or psychosocial well - being, as defined by an

accurate and comprehensive resident

assessment, plan of care, and provision of

services. A class III deficiency is subject

to a civil penalty of $1,000 fo r an isolated

deficiency . . . A citation for a class III

deficiency must specify the time within

which the deficiency is required to be

corrected. If a class III deficiency is

corrected within the time specified, no

civil penalty shall be imposed.

40 . The Administrative Complaint charged Healey Center

with committing an isolated Class II deficiency. AHCA failed to

demonstrate that an isolated Class II deficiency existed as to

Resident No. 1 at Healey Center. The evidence demonstrates that

an isolated Class III, not Class II, deficiency existed.

Consequently, AHCA failed to demonstrate the existence of an

isolated Class II deficiency at Healey Center.

41 . Furthermore, the evidence demonstrates that the

isolated Class III deficiency was corrected withi n the required

time period.

42 . Hence, Healey Center's licensure status should have

remained standard .

43 . Further, because the evidence failed to demonstrate an

isolated Class II deficiency as charged in the Administrative

Complaint, a f ine of $2,500 s hould not be imposed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Adm inistration

enter a final order finding that Health Care District of Palm

Beach County, d/b/a Edward J . Healey Rehabilitation and Nursing

Center did not commit an isolated Class II deficiency and

dismissing the Administrative Complaint.

DONE AND ENTERED this 1st day of May 2007 , in Tallahassee,

Leon County, Florida.

S

__________________________________

ERR OL H. POWELL

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 t he

Division of Administrative Hearings

this 1st day of May, 2007 .

ENDNOTES

1/ Page 22 of Petitioner's Exhibit 1 was excluded.

2/ Resident No. 1 was not ambulatory at that time.

COPIES FURNISHED:

Tria Lawton - Russell, Esquire

Agency for Health Care Administration

Spokane Building, Suite 103

8350 Northwest 52nd Terrace

Miami, Florida 33166

Lori C. Desnick, Esquire

Zumpano Patricios & Winker, P.A.

999 Ponce de Leon Boulevard

Penthouse 1110

Coral Gables, Florida 33134

A ndrew C. Agwunobi , Secretary

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Craig H. Smith , General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Richard Shoop, Agency Cle rk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

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. A ny exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.