08-004582 Agency For Health Care Administration vs. Sandalwood Nursing Center Status: Closed Recommended Order on Wednesday, August 5, 2009.

Summary: Respondent is not guilty of a widespread Class I deficiency related to the new law on smoke detectors and a fully sprinklered facility.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 08-4582

)

SANDALWOOD NURSING CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this

case via video teleconference between sites in Daytona Beach,

and Tallahassee, Florida, on May 6, 2009, before Ella Jane P.

Davis, a duly-assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Shaddrick Haston, Esquire

Agency for Health Care Administration

Fort Knox Building, Mail Stop 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

For Respondent: John E. Terrel, Esquire

Law Offices of John F. Gilroy, III, P.A.

1695 Metropolitan Circle, Suite 2

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

Whether Respondent nursing home has committed a violation of Section 400.102 (1), Florida Statutes (2007), by an

intentional or negligent act materially affecting the health or

safety of nursing home residents, so that Petitioner may impose

a $15,000, administrative fine, a "survey fee" of $6,000, for

surveys every six months for two years, and a conditional

license for the period of April 24, 2008, through and including

May 5, 2008, based on a cited Class I widespread deficiency.

PRELIMINARY STATEMENT

By an Administrative Complaint, dated July 28, 2008,

Petitioner sought the aforementioned sanctions. Respondent

timely requested a disputed-fact hearing, and the cause was

referred to the Division of Administrative Hearings (DOAH) on or

about September 18, 2008.

DOAH's file reflects all pleadings, notices, and orders

intervening before final hearing on May 6, 2009, including but

not limited to, an Amended Administrative Complaint filed

October 24, 2008. Petitioner amended the Administrative

Complaint to allege that Respondent had also violated Florida

Administrative Code Rule 59A-4.1288, encompassing Federal

Regulation 42 C.F.R. Section 483.70.

At hearing, Petitioner presented the oral testimony of Don

Gray and had Exhibits P-2, P-3, and P-5, admitted in evidence.

Respondent presented the oral testimony of Anthony Mongelluzzo,

Lewis Hubbard, Richard Feldman, and Linda Walker. Respondent

had Exhibits R-1, R-2, R-3, R-4, R-5, R-6, R-7, R-8, R-10, R-11,

R-12 (attached to Exhibit R-15), R-13, R-14, R-15, and P-6,

admitted in evidence. Exhibit R-15 is the after-filed

deposition of Nancy Marsh, complete with attachments.

A one-volume Transcript was filed on May 21, 2009.

The parties timely-filed their Proposed Recommended Orders

on June 15, 2009.

FINDINGS OF FACT

1. Petitioner Agency for Health Care Administration (AHCA)

is the State agency responsible for licensing and evaluating

nursing homes under Chapter 400, Part II, Florida Statutes, and

Section 408.802(13), Florida Statutes.

2. Respondent Sandalwood is a skilled nursing facility

located in Daytona Beach, Florida. It is one of roughly 15

nursing facilities managed by Sterling Healthcare.

3. The dispute in this case arose from a survey conducted

by AHCA at the Sandalwood facility on April 23, 2008.

4. Effective October 23, 2006, the Code of Federal

Regulations, 42 C.F.R. Section 483.70(7), was amended to require

installation of battery-operated single station smoke alarms, in

accordance with the manufacturer's recommendation, in every

nursing home resident’s sleeping room and in common areas of all

nursing homes, unless the facility were "fully sprinklered" or

if the facility had system-based smoke detectors in residents'

rooms and common areas. "Fully sprinklered" means sprinklers

installed throughout the facility, including in each resident’s

room.

5. On November 1, 2006, the United States Center for

Medicare and Medicaid Services (CMS) issued a letter to State

Survey Agency Directors, including AHCA, advising them of this

new requirement. There was a phase-in period for this

regulation based on the cost of implementing it.

6. It is AHCA's general practice to issue letters to

nursing home facilities advising them of changes to laws that

affect them. In this situation, AHCA issued a letter to nursing

homes requiring that they become fully-sprinklered by

December 31, 2010, but AHCA did not send out a letter advising

nursing homes, including Respondent, that at least until the

nursing home became fully sprinklered, smoke detectors were

required in residents' rooms. There also may not have been any

other readily accessible private publication notifying nursing

homes in the relevant time frame. 1/

7. A telephone conference occurred on April 22, 2008,

between Polly Weaver, AHCA's Bureau Chief for Field Operations;

Skip Gregory, Chief Fire Marshal for AHCA; and all of AHCA’s

Field Office Managers, including Nancy Marsh, the Field Office

Manager for AHCA's Area Four, which comprises seven counties,

including Volusia, where Respondent is located.

8. During that April 22, 2008, telephone conference, a

decision was made to survey all nursing home facilities on a

list of 26 nursing homes (out of a total of 670 such homes in

the State) that were not yet fully sprinklered. The impetus for

the telephone conference had been a fire at a nursing home

outside Area Four and unrelated to Respondent Sandalwood.

Ms. Marsh may not even have been aware of the smoke detector

issue until shortly before April 22, 2008.

9. After the April 22, 2008, conference, Ms. Marsh

telephoned Lewis Hubbard, the licensed nursing home

administrator of Respondent Sandalwood. Ms. Marsh inquired as

to whether Sandalwood had smoke detectors in each resident’s

room, and Mr. Hubbard candidly admitted there were not.

Ms. Marsh did not indicate any urgency concerning her inquiry,

did not mention anything about issuing a complaint against

Sandalwood, and did not alert Mr. Hubbard that an emergency

survey was about to occur.

10. Mr. Hubbard has been Respondent's administrator since

March 2006. He first became licensed in 2004, and is an expert

in nursing home administration.

11. On April 23, 2008, Ms. Marsh sent Don Gray, an AHCA

Fire Protection Specialist from AHCA's Area Seven, to Respondent

Sandalwood, which is in Area Four, to do a "pinpoint" survey to

see if the facility had smoke detectors in residents’ rooms.

Mr. Gray had never inspected Sandalwood. Nick Linardi is the

AHCA surveyor who normally inspects Sandalwood.

12. On April 23, 2008, Mr. Gray inspected Sandalwood for a

"fully-sprinklered" system and checked for smoke detectors in 30

residents' sleeping rooms. Informed that there were no smoke

detectors in any of the residents’ sleeping rooms, Mr. Gray did

not inspect the remaining sleeping rooms.

13. At his request, Sandalwood provided Mr. Gray with a

resident census and condition report that gave the surveyor a

synopsis of the type of residents currently at the facility on

the day of his inspection: 14 Medicare patients and 53 Medicaid

patients, which meant the facility was subject to CMS

regulations. At the time of the survey, seven patients were

bedfast and would require special assistance from staff if an

emergency situation occurred, such as a fire. Mr. Gray assessed

a risk of harm that could possibly befall at least 53 Sandalwood

residents who would need help in moving to a secure area if a

fire broke out.

14. Respondent Sandalwood is a nursing home built in 1962,

and composed basically of concrete. Its ceilings and the walls

between residents' rooms are made of concrete. It is in the

shape of a big "capital H". There are two nurses' stations on

each wing, so that staff can view all the residents' rooms.

15. On the day of Mr. Gray’s pinpoint survey, Respondent

Sandalwood had six designated fire zones. There also were smoke

detectors placed about every 15 feet throughout the hallways.

This placed smoke detectors in close proximity to the door of

each resident’s room. Smoke detectors were also located in all

the common areas (dining area, receptionist desk, etc.)

Sandalwood utilizes a Def-Con fire detection system, so that if

any smoke detector sounds, the alert goes immediately to the

nearest nurses' station and simultaneously to the local fire

department. This type of system is called a "core” smoke

detection system.

16. On April 23, 2008, Respondent Sandalwood also had

sprinklers located in the utility and linen closets.

17. On April 23, 2008, Respondent Sandalwood had plans in

place to have the facility "fully-sprinklered" by the

established deadline of December 31, 2010. That deadline has

since been extended by CMS/AHCA to December 2013.

18. Mr. Gray normally completes handwritten notes during,

or immediately after, his survey or whenever he “gets time."

His notes for this case reflect an inspection for battery-

operated smoke detectors in residents’ rooms and a check for

sprinkler heads.

19. A conference call was held later on April 23, 2008,

among Ms. Weaver, Mr. Gregory, Jim Tinkin (AHCA Administrator

for Safety and Life Safety for Tallahassee), Brian Smith, Molly

McKistry (sic), Bernard Hudson, Joel Libby, a Paul (last name

unknown but as recalled by Mr. Gray) and Nick Linardi, the

previously unavailable AHCA surveyor. They discussed Mr. Gray’s

findings that the facility was not "fully-sprinklered" and that

there were no battery-operated smoke detectors in residents'

rooms. Based on Mr. Gray's notes, a consensus was reached to

charge the lack of sprinklers and lack of smoke detectors as a

"K023 & F454, violation."

20. During the foregoing conference call, Mr. Gray was the

first one to recommend a Class I violation, claiming that there

was an issue of immediate jeopardy. However, this opinion, as

he recollected it at final hearing, was based on his assessment

that Sandalwood’s situation "could possibly, potentially cause

harm to a client or resident," or “could be fatal . . .

harmful."

21. Mr. Gray gave examples of fires which had occurred in

other facilities in his home Region in the prior month, none of

which fires had started in residents’ rooms, and one of which

had occurred outside on a smoking patio to a resident in a

wheelchair. It is difficult to see how smoke detectors in

sleeping rooms would have prevented the foregoing situations.

He was additionally concerned with arson attempts, sometimes by

residents.

22. According to Mr. Gray’s handwritten notes, before

leaving the facility on April 23, 2008, he advised Respondent's

administrator, Mr. Hubbard, that Mr. Hubbard would have to

correct the smoke detector issue in the "next few days."

23. Mr. Hubbard wanted clarification concerning the codes

regarding these issues. Apparently, Mr. Gray called the

administrator on April 24, 2008, to confirm the need for smoke

detectors in all the residents' rooms.

24. Early on April 24, 2008, Mr. Hubbard began searching

nearby stores to locate smoke detectors. He purchased 10 smoke

detectors meeting the Federal requirements. Identifying the

Mr. Hubbard assisted in placing the smoke detectors in the rooms

of residents who were smokers and residents who used oxygen,

whether or not they were smokers.

25. Later on April 24, 2008, Linda Walker, another AHCA

surveyor, appeared at Respondent facility. Ms. Walker is a

Registered Nurse Specialist and does nursing surveys of nursing

homes for AHCA.

26. If this had been a normal complaint survey or a

periodic survey, Ms. Walker and Mr. Gray would have surveyed

Sandalwood at the same time on the same date, and deferred to

each other in their respective areas of control/expertise. In

this instance, Ms. Walker’s superiors had sent her to

Respondent’s facility after Mr. Gray’s survey, specifically to

assess, from a nursing perspective, any danger to certain types

of residents. Mr. Gray, in addition to being a Fire Specialist,

is also a Licensed Practical Nurse, but he stated that he would

defer to Ms. Walker on all nursing issues.

27. Among other things, Registered Nurse Walker was sent

to the facility to check on the progress of the smoke detector

installation and the status of resident smokers and those

residents using oxygen. Ms. Walker did more than a "pinpoint"

inspection involving just a few sprinkler heads, smoke

detectors, and a patient census.

28. In this case, Registered Nurse Walker’s survey

amounted to a more thorough assessment of any jeopardy to the

resident population in Respondent’s facility than Mr. Gray’s

assessment.

29. Ms. Walker determined that when a resident is admitted

to Sandalwood, she/he is assessed on whether she/he is, or is

not, a smoker. An assessment form is filled out to determine if

the resident is safe to smoke on his or her own. A care plan is

also established concerning smoking for each resident who

smokes.

30. To keep an ongoing assessment of each resident in

regards to smoking, Sandalwood also utilizes quarterly

assessments for each of their smokers.

31. Ms. Walker observed "No Smoking" signs on the doors of

residents who used oxygen.

32. Ms. Walker also observed that the one smoker on the

well-ventilated smoking porch was wearing a smoking apron. A

smoking apron is a flame-resistant apron used for residents who

may have difficulty holding a cigarette. It protects the

designated resident if a cigarette, match, or lighter is

dropped. Such a precaution would have eliminated one of

Mr. Gray's examples of potential concern. ( See Finding of Fact

No. 21.) Ms. Walker also observed ashtrays and a fire

extinguisher on the smoking porch.

33. Ms. Walker interviewed various residents concerning

Sandalwood’s smoking policy and procedures, and all reflected an

understanding of the policies and procedures. Two residents

were identified as those with oxygen orders. One of these

residents was interviewed and understood the need not to smoke

around oxygen, even though she no longer used oxygen. The other

resident could only smoke with supervision of staff.

34. One resident, who was observed by Ms. Walker, had been

identified by the nursing staff as being unsafe to smoke when

alone, needing supervision, and needing to wear a smoking apron.

That resident's cigarettes and lighter were kept at the nursing

station, except when actually in use. Ms. Walker noted that

particular resident's file contained the resident’s assessment

and care plan, and quarterly reviews of the resident’s care

plan.

35. Ms. Walker further noted that Respondent’s smoking

assessments and care plans were proper. She concluded that

Respondent’s quarterly assessments of smokers which are used by

some, but not all, nursing homes, were complete for all smokers

at Respondent's facility. There is evidence herein that the

nursing home fire which started this chain of events (see

Finding of Fact No. 8) did not have adequate care plans.

36. Respondent's staff was also interviewed by Ms. Walker.

They expressed an understanding of the facility’s smoking policy

and procedures, including the rule that smokers could not smoke

in their rooms.

37. During Ms. Walker’s survey on April 24, 2008,

Sandalwood's maintenance director and Mr. Hubbard were already

placing smoke detectors in 10 residents' rooms. Mr. Hubbard had

purchased as many of the appropriate smoke detectors as he

could, and these detectors were being placed in the rooms of the

nine residents who used oxygen and/or who smoked. After placing

those nine smoke detectors, the tenth smoke detector was placed

in a randomly selected room.

38. Ms. Walker completed a three-page handwritten note

about her survey on April 24, 2008, and followed-up with a typed

report of the same date.

39. Ms. Walker returned to Sandalwood on April 25, 2008.

By that time, Mr. Hubbard had purchased enough smoke detectors

for the remaining residents’ rooms, and Ms. Walker determined

that a compliant smoke detector had, in fact, been placed in

every resident’s room by April 25, 2008.

40. The smoke detectors had been placed out of reach of

the residents and were affixed with heavy-duty "two-way" tape,

mostly to ceilings, but occasionally to walls. It would be

extremely difficult to remove the smoke detectors from the

concrete walls.

41. Affixing the smoke detectors to the ceilings and walls

arguably constituted a change to the physical facility.

42. On April 28, 2008, Mr. Hubbard prepared a "Plan of

Correction," indicating that all smoke detectors had already

been installed in all residents' rooms on April 25, 2008. He

forwarded this "Plan of Correction" to Petitioner AHCA.

43. On May 5, 2008, AHCA sent Mr. Hubbard a 2567 survey

form. He added his foregoing Plan of Correction ( see , supra .)

to this form, signed it, and sent it back to AHCA the same day.

However, as noted previously, the corrections had already been

made as of April 25, 2008, even though AHCA did not issue its

survey form mandating the corrections until May 5, 2008.

44. According to Ms. Marsh, the single station battery-

operated smoke detectors located in residents' rooms in nursing

homes only need to be checked annually by AHCA surveyors in

order to comply with the applicable rules and regulations.

45. Ms. Marsh testified that in the future, surveyors

would only check on a yearly basis to determine if nursing home

facilities met the requirement concerning smoke detectors.

Presumably, this would be to check on the timely replacement of

batteries, because the smoke detector batteries last

approximately one year. Mr. Hubbard testified that his Plan of

Correction called for Sandalwood staff to check each battery

monthly.

46. Anthony Mongelluzzo has been Daytona Beach's Fire

Inspector for 20 years, 15 years of which have involved

inspecting 150 nursing homes. He is an expert in Fire Safety

Inspections. He has inspected the Sandalwood facility on an

annual basis and is familiar with its physical plant.

47. Mr. Mongelluzzo had completed his most recent annual

inspection of Respondent in March 2008, the month preceding the

material time frame of AHCA’s pinpoint survey.

48. Mr. Mongelluzzo’s March 2008, inspection noted that

there were only two corrections that Sandalwood needed to make.

Both corrections involved an extension cord deficiency and the

use of multi-plug power strips. Both issues were subsequently

corrected, and Mr. Mongelluzzo sent a letter acknowledging that

fact to Mr. Hubbard.

49. Mr. Mongelluzzo also had reviewed the Fire Safety Plan

that Sandalwood had submitted to the City of Daytona Beach for

the year 2008. As a result, he had issued an April 15, 2008,

letter, approving Sandalwood's 2008 Fire Safety Plan. This

approval occurred approximately nine days before AHCA targeted

Sandalwood and sent in AHCA surveyors, Mr. Gray and Ms. Walker.

50. The Fire Safety Plan submitted by Sandalwood to the

City of Daytona Beach sets forth the facility’s procedures in

the event of a fire, such as closing doors, evacuation of all

occupants of the facility, and where the residents and staff are

to rendezvous outside of the facility in order for there to be a

meaningful headcount. It is specific, where Mr. Gray's

assessment of evacuation situations was more general or an

estimate. ( See , supra .)

51. In issuing the City of Daytona Beach’s approval letter

for Sandalwood’s Fire Safety Plan, Mr. Mongelluzzo did not imply

that the facility was not required to follow federal laws.

Mr. Mongelluzzo is not familiar with 42 C.F.R. Section 483.70.

The City of Daytona Beach’s Plan approval letter only approved

Sandalwood's procedures, staff, and the staff’s assigned

responsibilities in case of a fire, in connection with the Life

Safety Code, National Fire Protection Association (NFPA) 101,

which standard is utilized by municipalities across the State of

Florida and which standard has been adopted by the City of

Daytona Beach. The Life Safety Code NFPA-101 is the Code that

Mr. Mongelluzzo relies upon when inspecting nursing home

facilities.

52. The Life Safety Code NFPA-101, addresses construction,

protection, and occupancy features necessary to minimize danger

to life from the effects of fire, including smoke, heat, and

toxic gases created by fire. The Life Safety Code also

addresses features and systems, building services, operating

features, maintenance activities, and other provisions in

recognition of the fact that to achieve an acceptable degree of

Life Safety depends on additional safeguards providing adequate

facility egress, time for that egress, and protection for people

exposed to a fire.

53. However, 42 C.F.R. Section 483.70(a), states that

facilities must meet the applicable provisions in the 2000

Edition of the Life Safety Code of the National Fire Protection

Association. Florida Administrative Code Rule 59A-4.130, also

states that a licensee must comply with the Life Safety Code

requirements and Building Code standards applicable at the time

of departmental approval of the facility’s Third-Stage

construction documents. The Life Safety Code NFPA-101 does not

require smoke detectors in residents’ rooms when a facility has

a core smoke detection system, like the one utilized by

Sandalwood. ( See Finding of Fact No. 15.)

54. Sandalwood also had been surveyed in standard rotation

by Respondent AHCA on a regular basis over the years, the most

recent survey having occurred on April 10 , 2007, approximately a

year before the survey in the instant case. AHCA issued a

survey report thereafter which was signed by the Administrator,

Mr. Hubbard, in May 2007.

55. AHCA’s survey on April 10, 2007, had not identified as

a deficiency the lack of smoke detectors in residents' rooms.

There is no competent evidence that the AHCA surveyors at that

time even looked for them, even though the CMS requirement

therefor would have applied at that time.

56. Respondent AHCA also makes quarterly monitoring

reports on nursing home facilities. These are confidential

reports for the facility to use for purposes of correcting any

issues identified by the monitor. The monitor has the same or

better qualifications than a typical nursing home surveyor.

Monitor reports contain a disclaimer that the report is not to

be construed as evidence of compliance or noncompliance with

applicable sections of Florida Statutes, the Florida

Administrative Code, or the Code of Federal Regulations.

However, the quarterly monitoring reports are designed to advise

the facility of any perceived issue and to advise of any

unusual, out of character, or problematic issues.

57. Sandalwood had received AHCA monitoring reports for

May 17, 2007, October 15, 2007, January 22, 2008, and May 5,

2008. There was no mention of the need for smoke detectors in

residents' rooms in any of the AHCA reports prior to the May 5,

2008, report, which post-dated the survey at issue herein. In

the May 5, 2008, report, the notation was included under the

heading "Safety Issues."

58. CMS compiles what is termed a "Special Focus Facility"

list that identifies facilities that it believes need to be

monitored closely. Sandalwood is not on this list.

59. Two unrelated facilities are on this list. AHCA has

filed administrative complaints against each of those

facilities. The allegations in those cases appear to be more

severe than in the instant case.

60. Ms. Marsh completed a "Request for Sanctions" (RFS)

form in which she recommended a Class I penalty for Sandalwood.

61. Section 120.53, Florida Statutes, requires that

agencies compile a list of prior final orders in a subject

matter index, so as to ensure uniformity and fairness in

assessing penalties in cases before each respective Agency. The

Subject Matter Index is supposed to be used as administrative

precedent and should be made public.

62. Ms. Marsh did not know what a Subject Matter Index is,

or rely on a Subject Matter Index in assessing the penalty in

this case. Instead, she relied on prior RFSs, which are not

public documents. She testified that the Agency's

recommendation for sanctions takes into account the class and

severity of a deficiency which is established through Agency

procedure, protocol, and guidelines. She described parameters

related to Class I, Class II, and Class III, deficiencies, as

set out in the Florida Statutes. From her viewpoint, Sandalwood

either had two Class I deficiencies or a single Class I

deficiency in a specified timeframe, when consideration is given

to the prior history of the facility. In light of Sandalwood's

excellent survey history, the foregoing viewpoint was not fully

explained.

63. Despite AHCA’s sudden cessation of prior notification

of changes in the law, Ms. Marsh brooks no excuse for a facility

administrator not knowing his facility must be in compliance

with State laws. She considered Sandalwood’s history of not

having been previously cited for the absence of smoke detectors

by an AHCA survey as of minimal importance.

CONCLUSIONS OF LAW

64. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of this cause,

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2008).

65. In its Amended Administrative Complaint, AHCA alleged

that Respondent violated Section 400.102(1), Florida Statutes

(2007), by committing an intentional or negligent act materially

affecting the health or safety of residents of the facility in

such a way that Respondent failed to maintain construction,

protection, and occupancy features necessary to minimize dangers

to life from smoke, fumes, or panic, should a fire or similar

emergency occur. AHCA further alleged that this violation is a

widespread Class I deficiency. AHCA seeks to impose a fine of

$15,000, conditional licensure status from April 24, 2008, until

May 5, 2008, requiring a six month survey cycle for a period of

two years, and to assess a $6,000 "survey fee." The prayer for

relief further requests attorney's fees and costs.

66. Section 400.102 (1), Florida Statutes, provides:

400.102 Action by agency against licensee;

grounds. – In addition to the grounds listed

in part II of chapter 408, any of the

following conditions shall be grounds for

action by the agency against a licensee:

(1) An intentional or negligent act

materially affecting the health or safety of

residents of the facility;

67. Section 400.19, Florida Statutes, provides, in

pertinent part, as follows:

(3) The agency shall every 15 months

conduct at least one unannounced inspection

to determine compliance by the licensee with

statutes, and with rules promulgated under

the provisions of those statutes, governing

minimum standards of construction, quality

and adequacy of care, and rights of

residents. The survey shall be conducted

every 6 months for the next 2-year period if

the facility has been cited for a class I

deficiency, has been cited for two or more

class II deficiencies arising from separate

surveys or investigations within a 60-day

period, or has had three or more

substantiated complaints within a 6-month

period, each resulting in at least one class

I or class II deficiency. In addition to

any other fees or fines in this part, the

agency shall assess a fine for each facility

that is subject to the 6-month survey cycle.

The fine for the 2-year period shall be

$6,000, one-half to be paid at the

completion of each survey. The agency may

adjust this fine by the change in the

Consumer Price Index, based on the 12 months

immediately preceding the increase, to cover

the cost of the additional surveys. The

agency shall verify through subsequent

inspection that any deficiency identified

during inspection is corrected. However,

the agency may verify the correction of a

class III or class IV deficiency unrelated

to resident rights or resident care without

re-inspecting the facility if adequate

written documentation has been received from

the facility, which provides assurance that

the deficiency has been corrected . . .

68. Section 400.23, Florida Statutes, reads, in pertinent

part, as follows:

Section 400.23 Rules; evaluation and

deficiencies; licensure status. –

(7) The agency shall, at least every 15

months, evaluate all nursing home facilities

and make a determination as to the degree of

compliance by each licensee with the

established rules adopted under this part as

a basis for assigning a licensure status to

that facility. The agency shall base its

evaluation on the most recent inspection

report, taking into consideration findings

from other official reports, surveys,

interviews, investigations, and inspections.

In addition to license categories authorized

under part II of chapter 408, the agency

shall assign a licensure status of standard

or conditional to each nursing home.

* * *

(b) A conditional licensure status means

that a facility, due to the 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 rules adopted by the agency. If

the facility has no class I, class II, or

class III deficiencies at the time of the

follow-up survey, a standard licensure status

may be assigned.

* * *

(8) The agency shall adopt rules pursuant to

this part and part II of chapter 408 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. A patterned deficiency is a

deficiency where more than a very limited

number of residents are affected, or more

than a very limited number of staff are

involved, or the situation has occurred in

several locations, or the same resident or

residents have been affected by repeated

occurrences of the same deficient practice

but the effect of the deficient practice is

not found to be pervasive throughout the

facility. A widespread deficiency is a

deficiency in which the problems causing the

deficiency are pervasive in the facility or

represent systemic failure that has affected

or has the potential to affect a large

portion of the facility's residents. The

agency shall indicate the classification on

the face of the notice of deficiencies as

follows:

(a) A class I deficiency is a deficiency

that the agency determines presents a

situation in which immediate corrective

action is necessary because the facility's

noncompliance has caused, or is likely to

cause, serious injury, harm, impairment, or

death to a resident receiving care in a

facility. The condition or practice

constituting a class I violation shall be

abated or eliminated immediately, unless a

fixed period of time, as determined by the

agency, is required for correction. A class

I deficiency is subject to a civil penalty of

$10,000 for an isolated deficiency, $12,500

for a patterned deficiency, and $15,000 for a

widespread deficiency. The fine amount shall

be doubled for each deficiency if the

facility was previously cited for one or more

class I or class II deficiencies during the

last licensure inspection or any inspection

or complaint investigation since the last

licensure inspection. A fine must be levied

notwithstanding the correction of the

deficiency.

69. Florida Administrative Code Rule 59A-4.1288 Exception,

states as follows,

Nursing homes that participate in Title

XVIII or XIX must follow certification rules

and regulations found in 42 CFR 483,

requirements for Long Term Care Facilities,

September 26, 1991, which is incorporated by

reference. Non-certified facilities must

follow the contents of this Rule and the

standards contained in the Conditions of

Participation found in 42 CFR 483,

Requirements for Long Term Care Facilities,

September 26, 1991, which is incorporated by

reference with respect to social services,

dental services, infection control, dietary

and the therapies.

70. The applicable C.F.R. regulation amendment imposed via

Florida law required, at the time of the survey(s), that nursing

homes be "fully sprinklered" by December 31, 2010. That date

has now been pushed back to 2013. Sandalwood had plans and

financing in place to meet that deadline. All indications are

that if an earlier deadline had been set, Sandalwood would have

targeted its sprinkler upgrade for that earlier date. The

regulations also require that any facility not "fully

sprinklered" have smoke detectors in place in all residents’

rooms. Apparently, AHCA saw fit to do nothing to publicize this

second CMS requirement and further saw fit to not enforce it,

via any of its surveys or monitorings until April 2008. While

Sandalwood cannot escape having the duty to know and follow

applicable laws, "ignorance of the law being no excuse," it is

clear that AHCA has done nothing to encourage compliance or to

fulfill its legislative mandate and administrative purpose to

protect nursing home residents in this regard. Ms. Marsh’s late

awareness that smoke detectors were a federal issue and the

Agency’s inaction in this regard from 2006, through mid-2008,

raises the question, “Can the Agency really believe that the

absence of smoke detectors constitutes any significant threat to

residents?”

71. A Class I violation requires proof that noncompliance

has "caused, or is likely to cause, serious injury, harm,

impairment, or death" to a resident receiving care in a

facility. At the very most, AHCA produced Mr. Gray, who

testified that the lack of smoke detectors in residents' rooms

"could possibly potentially cause harm." The situation herein

is not precisely a case of "selective enforcement," and there is

no estoppel against the State by a theory of “failure of the

State to enforce." However, the evidence herein falls short of

demonstrating that Respondent’s inadvertent noncompliance was

likely to cause serious injury, harm, impairment, or death.

72. Mr. Gray did not inspect the facility in the thorough

way that Ms. Walker did on her visits of April 24-25, 2008. His

inspection of Sandalwood did not check for smoking plans,

quarterly appraisals, or the facility procedure of using a

smoking apron for residents who had trouble holding cigarettes.

Ms. Walker checked for these fire safety protocols and was

satisfied with Sandalwood’s policies and procedures. Mr. Gray

presented a "parade of imaginary horribles" that the evidence as

a whole shows are inapplicable to this case, and even he stated

he would defer to Ms. Walker on nursing issues.

73. The City of Daytona Beach recently had relied upon

Life Safety Code NFPA 101, in assessing the safety of the

facility. Prior to the current issues arising and before any

corrections were made, the City’s fire inspector had properly

assessed the construction, protection, and occupancy features of

the facility necessary to minimize dangers to life from the

effects of fire, including smoke, heat, and toxic gases created

by fire. The City’s thorough review of the facility is more

persuasive than Mr. Gray’s testimony concerning his cursory

review, or Mr. Gray’s and Ms. Marsh’s testimony concerning

comparisons based on fires and facilities not proven to be

comparable. (See Findings of Fact 8, 21, 28, 35, and 59.)

74. Respondent also promptly solved any perceived

deficiency before AHCA’s mandatory correction date of

April 28, 2008. What amounts to a 36-hour solution is very

impressive, but if one looks at Mr. Gray’s and Ms. Walker’s

inspections as constituting a single survey, then the facility

alleviated any perceived problems by April 25, 2008, before the

whole survey was even completed. The nursing home administrator

issued his own "Plan of Correction" on April 28, 2008,

demonstrating that the placement of the smoke detectors had

occurred previously on April 25, 2008, long before AHCA even

issued its 2567 survey form on May 5, 2008.

75. Moreover, the placement of the single station battery-

operated smoke detectors arguably constitutes a correction that

relates to the physical plant or physical structure of the

facility. Deficiencies related to the physical plant do not

require follow-up reviews after the Agency has determined that

correction of the deficiency has been accomplished, and that the

corrections are of a nature that continued compliance can be

reasonably expected. See § 400.19(4), Fla. Stat.

76. It is also problematic that AHCA seeks a conditional

licensure from April 24, 2008, until May 5, 2008, when

Sandalwood corrected any alleged deficiency on April 25, 2008,

and created its own plan of correction, which plan of correction

it first forwarded to AHCA on April 28, 2008. AHCA delayed on

following up on this matter until May 5, 2008, but there is no

need for a conditional license in this case.

77. To require a survey every six months for two years,

and assess Respondent the cost of $6,000, associated therewith,

is excessive, if all the Agency is going to be searching for is

dead batteries, when batteries for the smoke detectors last up

to a year.

78. Implicit in Section 120.53, Florida Statutes’

requirement for an Agency to have a subject matter index is the

concept that agency surveyors will utilize the subject matter

index for the setting of penalties. See generally Gessler v.

Dept. of Business and Professional Regulation , 627 So. 2d 501

(Fla. 4th DCA 1993); Caserta v. Dept. of Business and

Professional Regulation , 686 So. 2d 651 (Fla. 5th DCA 1996), and

Plante v. Dept. of Business and Professional Regulation ,

716 So. 2d 790 (Fla. 4th DCA 1998). Apparently, the subject

matter index was also not used for the setting of penalty.

79. Upon the evidence as a whole, it is concluded that the

lack of single station battery-operated smoke detectors in

residents' rooms under the limited circumstances of this case

was not an intentional or negligent act by Respondent which

materially affected the health or safety of residents of

Sandalwood.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law

it is RECOMMENDED:

That the Agency for Health Care Administration enter a

Final Order finding Respondent not guilty of the charges

contained in the Amended Administrative Complaint, and

dismissing the Amended Administrative Complaint.

DONE AND ENTERED this 5th day of August, 2009, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of August, 2009.

ENDNOTE

1/ The Florida Health Care Association (FHCA) is an

association in Florida that issues newsletters to individuals

and facilities, such as nursing homes. FHCA issues its

newsletters to its members. Its December 2008, newsletter was

admitted in evidence, but there was no demonstration that this

newsletter, which was published considerably after the material

time frame of this case, warned its readers of obligations under

the CMS/AHCA provisions applicable to this case. No statute,

rule, or regulation requires nursing homes or their

administrators to be members of FHCA. The FHCA newsletter is an

advisory bulletin that also contains various advertisements and

notifies members of upcoming events. The FHCA newsletter is not

an AHCA publication. Respondent's administrator, Mr. Hubbard,

testified that he pays attention to the advisory letters from

AHCA about changes in the law, as opposed to reading this

newsletter, issued by a voluntary member organization.

COPIES FURNISHED :

Jason Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Justin Senior, Acting Gen. Co.

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Holly Benson, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Shaddrick Haston, Esquire

Agency for Health Care Administration

Fort Knox Building, Mail Stop 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

John E. Terrel, Esquire

Law Offices of John F. Gilroy, III, P.A.

1695 Metropolitan Circle, Suite 2

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.