11-002734 Agency For Health Care Administration vs. Beth Shalom Corp., D/B/A Beth Shalom Home Care Status: Closed Recommended Order on Thursday, January 19, 2012.

Summary: Non-nurse G-tube feeding of ALF patient violated ?429.26(1) & 58A-5.0181(4)(d). Class III violation corrected so no sanction. No proof of Class I or II violation. Requirement to employ or contract with nurse doesn't require nurse provide services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 2734

)

BETH SHALOM CORP., d/b/a BETH )

SHALOM HOME CARE , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judge, John D. C. Newton, II, of the

Division of Administrative Hearings, heard this case, as

noticed, on October 2 7, 2011, in Miami , Florida.

APPEARANCES

For Petitioner: Nelson E. Rodney, Esquire

Agency for Health Care Administration

8333 Northwest 53rd Street, Suite 300

Miami, Florida 33166

For Respondent: Brian J. Perrault, Jr., Esquire

Jason Bauth, Esquire

Lydecker Diaz

1221 Brickell Avenue, 19th Floor

Miami , Florida 331 31

STATEMENT OF THE ISSUES

1. Did Respondent, Beth Shalom Corp., d/b/a Beth Shalom

Home Care (Beth Shalom), violate the staffing standards of

Florida Adm inistrative Code Rule 58 - 5.031(2)(d) , by failing to

contract with a registered nurse to provide limited nursing

services to administer medication and feedings by a percutaneous

endoscopic gastronomy tube for residents?

2. Did B eth Shalom violate the admis sion criteria

requirements of section 429.26(1), Florida Statutes (2011) 1 / and

Florida Administrative Code Rule 58A - 5.0181(4)( d )?

3. If Beth Shalom violated the staffing standards or

admission criteria requirements, what penalty should be imposed?

PRELIM INARY STATEMENT

By a three - count Administrative Complaint dated April 25,

2011, Petitioner, Agency for Health Care Administration (A HCA ),

began proceedings to revoke the assisted living facility license

of Beth Shalom and impose a fine of $22,500.00. Beth Shalom

requested a formal hearing. On May 26, 2011, AHCA referred the

matter to the Division of Administrative Hearings (Division) for

conduct of the requested hearing. On June 2, 2011, the Division

set the case for hearing to be held August 11, 2011. In July ,

AHCA moved to amend the administrative complaint. The motion

was granted.

The hearing was continued twice, once upon the agreed

motion of the parties and once for the parties' failure to

comply with the Order of Prehearing Instructions. In an Amended

Prehearing Stipulation, the Agency withdrew Count III of the

Amended Administrative Complaint.

The hearing was held October 27, 2011. AHCA presented

testimony from Jonny Alter and Scott Tenney. AHCAÓs E xhibits 1,

2, and 3 , were admitted into evid ence. Beth Shalom presented

testimony from Odalis Guaico, Victor Padilla, M.D., and Evely n

Olacregui, R.N. Beth Shalom E xhibits 88, 186, 657, 679, 720,

727, 767, 813, 835, 844, 944, 1082, 1211, 1296, 1298, 1299,

1300, 1301, 1302, 1304, 1305, 1306, 1307, 1308, 1311, 1312,

1313, 1314, 1315, 1316, 1318, 1321, and 1324 , were admitted into

evidence.

The proceedings were recorded and transcribed. The parties

timely filed proposed recommended orders, which have been

considered in the preparation of this R ecomme nded O rder.

FINDINGS OF FACT

Beth Shalom and AHCA

1. Beth Shalom is a licensed six - bed Assisted Living

Facility (ALF) with a Limited Nursing Services (LNS) license.

It has been in operation for approximately 15 years and is

located in Hialeah, Florida.

2. Since September 2010, Beth Shalom has had a contract

with an R.N. to be available to serve residents as necessary.

The contract was in effect for all of M.M.'s stay at Beth

Shalom. The agreement with the R.N. provided, among other

things, that the nurse was responsible for general supervision

of nursing services for Beth Shalom residents and following

doctor's orders. It also provided that "[t]he LNS nurse will be

available to [sic] any needs that the residents may have 24

hours a day as soon as th e service starts [sic] order by MD."

Beth Shalom's LNS Nurse Job Description include s the same

requirements.

3 . AHCA licenses and regulates ALFs. An ALF is a

residential facility that provides housing, meals, and one or

more personal services for more than 24 hours to one or more

adults who are not related to the owner or administrator.

4 . "Limited nursing services" are acts performed by people

licensed under Florida's Nurse Practice Act in the course of

their professional duties. But they are limi ted to acts that

AHCA specifies by rule as allowed in ALFs. The limited acts

cannot be complex enough to require 24 - hour nursing supervision.

They may include services such as care of routine dressings,

care of casts, braces, and splints.

5 . Periodic fa cility surveys are part of AHCA's oversight

of ALFs. The surveyors who conduct the reviews are checking to

determine compliance with statutes and rules governing ALFs.

Surveyors may determine that an ALF has a Class I, Class II,

Class III, or Class IV vi olation . Class I violation s are the

most severe. Class IV violation s are the least severe.

6 . AHCA may impose fines or other sanctions for any

violation . Class I violations must be corrected within 24 hours

or a period that AHCA specifies . AHCA must impose a fine for

Class I and Class II violations , even if the violation is

corrected. Class III and Class IV violation s must be corrected

within a time specified by AHCA. If the facility timely

corrects the violation , AHCA may not impose a fine.

7 . In 2007 , AHCA found that Beth Shalom had eight Class

III violation s. In 2008 , AHCA determined that Beth Shalom had

five Class III violations . In June of 2011 , AHCA found that

Beth Shalom had three Class III violation s. In each instance ,

Beth Shalom timely corrected the violation s. During Beth

Shalom's 15 years of operation, AHCA has never imposed a fine,

moratorium, suspension, or revocation on Beth Shalom.

8 . Class III violations are conditions or occurrences

related to the operation and maintenance o f an ALF or to the

care of clients which the agency determines indirectly or

potentially threaten the physical or emotional health, safety,

or security of clients, other than Class I or C lass II

violations. Class I and Class II deficiencies involve direct

threats to the physical or emotional health, safety or security

of ALF residents.

Patient M.M. and the AHCA Survey of April 6, 2011

9 . M.M. resided at Beth Shalom at two different times.

She was first admitted to Beth Shalom on August 1, 2006. Later

sh e left. On October 19, 2009 , M.M. was again admitted to Beth

Shalom after being discharged from a hospital . At that time ,

M.M. was terminally ill, in advanced - stage Parkinson's disease,

had dementia, and was under the care of the Odyssey Hospice

(Odyssey ) . But s he did not require 24 - hour nursing care.

10 . When Beth Shalom admitted M.M. in 2009, a Percutaneous

Endoscopic Gastronomy tube ( PEG - tube ) was in place. A PEG - tube

runs through a patient's abdomen to the stomach. It is used to

feed a patient a nd provide fluids and medicine.

1 1 . Odyssey's Interdisciplinary Plan of Care for M.M.

provided that she was to continue feeding and medication by way

of the PEG - tube and provided for continuing education of the

Beth Shalom staff about use of and care fo r the PEG - tube .

M.M.'s physician's orders provided for medication to be

administered by ALF staff through the PEG - tube . The orders do

not state if the staff must be nurses.

1 2 . At the time of admission and throughout her residence

at Beth Shalom, M.M. r equired administration of medication by a

third party. She was unable to administer medication herself ,

even with assistance.

1 3 . Beth Shalom staff who were not licensed nurses

provided M.M. food, fluids, and medication through her PEG - tube .

They also c ared for and cleaned the tube. This included

providing M.M. cinnamon tea through the tube. There is no

persuasive evidence that providing cinnamon tea through a PEG -

tube is any different than providing other fluids or presents

any risk of harm to a patie nt .

1 4 . E velyn Olaciregui, R.N., t he Odyssey case manager and

nurse for M.M. , was experienced in the care and use of PEG -

tubes. She thoroughly instr uc ted Beth Shalom's staff about use

of and care for the PEG - tube. Ms. Olaciregui spent time to make

sure the staff knew how to administer food, fluids, and

medicines through the PEG - tube ; how to care for the PEG - tube ;

and the signs of trouble that they should watch for.

15. When M.M. was admitted to Beth Shalom in October 20 09 ,

Ms. Olaciregui trained the s taff in use of the PEG - tube for

three days and then evaluated their abilities. She trained the

staff to raise the patient 's head and to flush the tube with

water before and after feeding or medication. The staff

performed the procedure s properly. She al so trained Beth Shalom

staff about when to seek assistance from her or another licensed

medical provider.

16 . Ms. Olaciregui visited M.M. daily at the beginning of

her stay at Beth Shalom and at the end. In between she visited

M.M. two or three times a week.

1 7 . Ms. Olaciregui checked the PEG - tube for cleanliness

and function on each visit. Often during her visits, she

observed the staff feeding M.M. or giving her medication. The

staff performed the procedures properly. During M.M.'s stay at

Beth Shalom, the hospice nurse retrained the care givers every

two weeks.

18. For example the hospice nurse's notes from her

September 28, 2010 visit report:

Pt. has a PEG tube that is in place free of

infections and functional. I stayed time

enough in the AL F to re instructed [sic] the

new employees and the owners about use of

the PEG tube, feedings with the HOB

elevated, flushing with water and I made a

daily schedule of all feeding that has to

receive [sic] the Pt. to place in a safe

place and guide the emp loyees and personnel.

I re instruct [sic] about medications, and

aspiration. I demonstrate how to feed Pt.

and how reposition Pt. for feedings and

sleep. ALF's employees also re instructed

[sic] to report any new findings, 911 calls,

disease process, ag gressive treatment,

hospice care, palliative treatments, PEG

tube teaching, and on call services.

1 9 . During M.M.'s 17 - month stay at Beth Shalom, M.M. never

had any problems due to her PEG - tube . Beth Shalom staff cared

for and used the PEG - tube correctl y. They provided M.M. good

care. M.M. did not experience complications, such as

gastrointestinal distress or infection, due to the PEG - tube ,

with one exception. A minor infection developed at the tube

site. After Ms. Olaciregui consulted with a doctor, she

successfully treated the infection with an antibiotic ointment.

20 . On April 6, 2011, M.M. vomited. This was the onset of

a period of intractable vomiting. Her caregiver at Beth Shalom

promptly contacted Ms. Olaciregui who came to visit the patient .

Ms. Olaciregui conducted a thorough assessment of M.M. There

were no signs of problems due to the PEG - tube or its use.

21 . Also, on April 6, 2011, AHCA conducted a survey of

Beth Shalom. The facts and charges at issue in this proceeding

arise from that survey.

22 . The AHCA survey determined that M.M.' s residence at

Beth Shalom was a Class I violation and required that Beth

Shalom correct the violation immediately . Beth Shalom did ; it

discharged M.M. to a hospital . M.M. died on April 7, 2011. He r

death was not related in any way to the PEG - tube or the care she

received at Beth Shalom.

PEG - tube s

23 . Physicians install PEG - tube s for patients who suffer

from an inability to swallow. The causes for the inability may

include neuromuscular problems , dementia, or bl ockage of the

esophageal tube.

2 4 . The first three days after installation of a PEG - tube ,

the tube and the surrounding tissue should be cleaned

intensively with hydrogen peroxide. Antibiotic ointment should

be applied, and the gauze sho uld be changed regularly. After

the insertion area heals, PEG - tube s usually require only general

but regular daily cleaning with soap and water.

2 5 . Once the PEG - tube is successfully and safely

installed, feedings and cleanings for most patients may sa fely

be performed by unlicensed caregivers who have been properly

trained and have quick access to a nurse or other medical

provider if a problem arises.

2 6 . The caregiver must position a patient correctly,

elevating the patient's head. The caregive r m ust be careful to

ensure that the stomach is not over - filled. The patient must

also be carefully observed. At any sign of difficulty, the

caregiver should contact a medical provider such as a nurse.

2 7 . PEG - tube s present the potential for complication s

including aspiration of vomit, infection, and bleeding. For

most patients, t he risk of these complications, however, is no

greater than for other patients in similar situations or with

similar complications . For instance, all bed - bound patients are

at risk for aspiration, not just patients with PEG - tube s.

2 8 . Administration of food, fluids, and medication by a

properly trained layperson does not necessarily create an

imminent danger or substantial probability of harm to the

physical or emotional heal th, safety or security of ALF

residents . It also does not necessarily present a direct threat

to the physical or emotional health, safety or security of ALF

residents . The risk depends upon the patient's conditions, the

layperson, the layperson's trainin g and actions, and

accessibility to prompt medical assistance.

2 9 . The persuasive evidence in this case establishes that

p atient health and safety do not require that only nurses or

other licensed medical personnel administer feedings, liquids,

or medicat ions by PEG - tube . The evidence in this case did not

prove that a nursing or other medical license is always

medically necessary to safely feed ALF resident s through PEG -

tube s, clean PEG - tube s and the surrounding tissue, and

administer medication through P EG - tube s.

30 . The findings about the care, use, and risks of PEG -

tube s are unique to the facts of this case. They are based on

the evidence presented at the hearing. They necessarily

required determinations of credibility and evaluations of

persuasivene ss. To the extent that the findings conflict with

AHCA 's evidence , it is because the evidence was not clear and

convincing or as persuasive as other evidence. In particular,

the AHCA evidence was not consistent with the weight of the

undisputed evidence establishing that unlicensed friends and

family caregivers often routinely and safely provide food,

flui ds, and medication by PEG - tube .

The Charges Against Beth Shalom

31 . By the time of the hearing, AHCA was proceeding only

on Counts I and II of the Ame nded Administrative Complaint

(Complaint) .

32 . Count I alleges that administering food and medication

through a PEG - tube i s a nursing skill and that unlicensed Beth

Shalom staff were administering food and medication through

M.M.'s PEG - tube . It also alle ges that this amount s to a

violation of r ule 58A - 5.031(2)(d) , requiring employment of or a

contract with a licensed nurse who is available to serve

residents when needed . Count I alleges that the violation is a

Class I violation. It seeks revocation of B eth Shalom's license

and a $7,500.00 , fine.

33 . Count II alleges that because M.M. required use of the

PEG - tube she should not have been admitted to Beth Shalom or

retained there. This, Count II alleges, was a violation of

section 429.26(1), Florida Stat utes, and r ule 58A - 5.0181(4)(d).

Count II alleges that th is violation is also a Class I

violation. It seeks revocation of Beth Shalom's license and a

$7,500.00 fine.

AHCA's Prior Practice

3 4 . Before April 6, 2011, AHCA had never categorized

serving an ALF resident with a PEG - tube as a Class I violation ,

although it was aware of PEG - tube residents in ALFs. Before

April 2011, AHCA treated PEG - tube violations as Class II

violation s.

3 5 . Treating the violation as a Class I violation was a

change from AH CA's prior agency practice.

3 6 . The only evidence AHCA presented to explain the change

was testimony that the Class II practice was due to "lack of

leadership" by a previous field office manager who was replaced

in January or February of 2011. There we re no changes in

governing statutes, changes in rules, changes in PEG - tube

technology, new medical studies , or new information about PEG -

tube s, their use or their risks. AHCA also offered no evidence

of varying treatment of PEG - tube violations in differen t

geographic areas by different field office managers.

3 7 . On April 28, 2011 , AHCA sent a letter to each ALF in

Florida advising the facilities of AHCA's position that a person

with a PEG - tube may not be admitted to an assisted living

facility with a sta ndard, a limited mental health, or a limited

nursing service license. The letter stated:

A t no time may unlicensed staff, friends,

family members or volunteers provide

services or care that would involve the

administration of medication, assistance

with s elf - administration of medication via a

peg - tube or assistance with feedings via a

peg - tube. Unlicensed facility staff,

friends, family members and volunteers are

also precluded from removing, cleaning and

adjusting a resident's peg - tube.

3 8 . AHCA sent t he letter because it learned from a meeting

of providers in April and communications from ALF providers that

many providers believed that they could admit residents with

PEG - tubes and permit feeding and medication by unlicensed

individuals .

CONCLUSIONS OF LAW

3 9 . The Division has jurisdiction over the subject matter

and of the parties to this action in accordance with s ections

120.569 and 120.57(1), Florida Statutes.

40 . AHCA must prove the material allegations of the

Complaint by clear and convincing evi dence. Dep Ó t of Banking &

Fin . v. Osborne Stern & Co . , Inc., 670 So. 2d 932 (Fla. 1996),

and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). Clear and

convincing evidence must be credible. The memories of witnesses

must be clear and not confused. The evidence must produce a

firm belief that the truth of allegations has been established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

Evidence that conflicts with other evidence may be clear and

convincing. The trier of fact must resolv e conflicts in the

evidence. G.W.B. v. J.S.W. (in Re Baby E.A.W.) , 658 So. 2d 961,

967 (Fla. 1995).

41 . AHCA is limited to the charges articulated in the

Complaint. Trevisani v. Dep't of Health , 908 So. 2d 1108 (Fla.

1st DCA 2005). Those charges make c lear that the facts AHCA

relies on are the admission and continued residence of M.M. , a

patient with a PEG - tube, at Beth Shalom . The charges also make

clear AHCA's position that only a licensed nurse or other

licensed medical provider may administer food and medicine

through a PEG - tube to an ALF resident. But the charges specify

violations of a statute and two rules that do not explicitly

require that only a nurse or other licensed medical professional

may administer food and medicine through a PEG - tube t o an ALF

resident.

Count I

42 . Count I alleges Beth Shalom violated r ule 58A -

5.031(2)(d). Rule 5.031 , governing LNS providers , establishes

resident care standards for LNS facilities in section 2.

Rule 58A - 5.031(2)(d) provides:

Facilities licensed to provide limited

nursing services must employ or contract

with a nurse(s) who shall be available to

provide such services as needed by

residents. The facility shall maintain

documentation of the qualifications of

nurses providing limited nursing services i n

the facility's personnel files.

43 . AHCA's attenuated theory in this case is that ,

although Beth Shalom contracted with a nurse to provide services

as needed by a resident, the fact that the nurse did not

actually administer food and medication to M.M. amounts to a

violation of the requirement to employ or contract with a nurse.

4 4 . AHCA cobbles a rule and a statute together to form its

theory. Rule 58A - 5.0181 establishes the patient admission

criteria for ALFs. Rule 58A - 5.0181(1)(k)(2) specifies t hat

patients requiring assistance with tube feeding may not be

admitted to an ALF. The rule categorizes tube feeding as a

nursing service. Section 429.256(4)(e) provides that assistance

with self administration of medication does not include

assistance w ith "[a]dministration of medications by way of a

tube inserted in a cavity of the body."

4 5 . From this statute and this rule , AHCA argues that Beth

Shalom did not satisf y the requirement to contract with or

employ a nurse available to provide residents se rvices as needed

because the nurse did not administer M.M.'s food and medication.

Even giving deference to AHCA 's interpretation, the theory

fails. See Mayo Clinic Jacksonville v. Dep Ó t of Prof Ó l Reg . ,

625 So. 2d 918 , 919 (Fla. 1st DCA 1993) (Clearly err oneous

agency interpretations that do not honor the plain and ordinary

meaning of words in a statute do not receive deference.) .

4 6 . AHCA's interpretation violates the prime principle of

statutory construction that words should be given their plain,

ordin ary meaning. Sc h. Bd. v. Survivors Charter Sch ., Inc. ,

3 So. 3d 1220, 1233 (Fla. 2009). "Contract" has an established,

ordinary meaning. It means to make a legally enforceable

agreement. Webster's New Riverside University Dictionary 306

(1984). In ad dition , AHCA's theory does not make common sense.

It relies on one hand , upon a rule that says a patient with a

PEG - tube should not be admitted to an ALF. On the other hand ,

AHCA maintains that it is permissible for a nurse to administer

food and medicat ion to the patient who should not be there.

Sch. Bd. v. Survivors Charter Sch . , Inc. , 3 So. 3d 1220, 1235

(Fla. 2009) (" We are not required to abandon either our common

sense or principles of logic in statutory interpretation.") .

4 7 . AHCA, in the words o f its ALF Supervisor , at page 64

of the hearing transcript, maintains that: "'Available' means

that the services must be provided." "Available" is not a term

of art or a medical term requiring special expertise to

interpret. It is a common word with a co mmonly accepted

meaning. "Available" means "accessible for use; at hand" or

"having the qualities and the willingness to take on a

responsibility." Webster's New Riverside University Dictionary

141 (1984). "Available" does not mean actually in use.

4 8 . Count I charges that Beth Shalom violated Rule 58A -

5.031(2)(d). The evidence in this case did not prove the

violation alleged. Beth Shalom contracted with a nurse who was

available to provide needed services. There is no evidence that

the nurse was no t available.

Count II

4 9 . Count II alleges that because M.M. required use of the

PEG - tube she should not have been admitted to Beth Shalom or

retained there. This, Count II alleges, was a violation of

section 429.26(1), Florida Statutes, and r ule 58A - 5.0 181(4)(d).

50 . Section 429.26(1) provides , in pertinent part:

The owner or administrator of a facility is

responsible for determining the

appropriateness of admission of an

individual to the facility and for

determining the continued appropriateness of

re sidence of an individual in the facility.

A determination shall be based upon an

assessment of the strengths, needs, and

preferences of the resident, the care and

services offered or arranged for by the

facility in accordance with facility policy,

and any limitations in law or rule related

to admission criteria or continued residency

for the type of license held by the facility

under this part.

51 . The minimum criteria for admission establish the

appropriateness of admission of an individual to an ALF. Fla.

Admin. Code R. 58A - 5.0181(1). Among other things they require

that the resident must "[b]e capable of taking his/her own

medication with assistance from staff , if necessary." Fla.

Admin. Code R. 58A - 5.0181(1)(e). But an ALF may admit a

resident who cannot administer her own medication if the ALF

"contracts with a licensed third party to provide the service."

Fla. Admin. Code R. 58A - 5.0181(1) (e)2. "Provide" is not the

same as " available. " "Provide" means to furnish or supply.

Webster's New Rivers ide University Dictionary 948 (1984) . The

plain meaning of the word permits concluding that provision

requires that the licensed person administer the medication.

52 . The criteria for continued residence in an ALF are the

same as for admission, with some exceptions. Rule 58A - 5.0181(4)

provides: "Except as follows in paragraphs (a) through (e) of

this section, criteria for continued residency in any licensed

facility shall be the same as the criteria for admission."

P aragraph (d) reiterates the ALF admin istrator's continuing

responsib i l ity to monitor residen ts for continued

appropriateness of placement.

53 . Since Beth Shalom did not provide for a licensed party

to administer M.M.'s medication, M.M. did not meet the criteria

for admission to an ALF or t he criteria for continued admission.

Her placement and continued residence were not appropriate.

5 4 . Beth Shalom relies upon r ule 5.0181(4)(c) , as

permitting M.M.'s continued residency. That section permits a

terminally ill resident who no longer meets the criteria for

continued residency to remain if fo u r requirements are

satisfied. They are: (1) if the resident is under the care of

a hospice that ensured provision of any additional care and

services needed; (2) continued residency is agreeable to the

resident and the facility; (3) the hospice develop and

implements an interdisciplinary care plan, which may permit

facility staff to provide nursing services; and (4) the facility

maintains documentation of satisfaction of the requirements for

the excepti on in the resident's file.

5 5 . Reliance upon this exception fails for two reasons.

First, M.M. was not appropri ate for admission during her entire

stay because Beth Shalom did not provide the legally required

nursing services, even though it had a nurse available to

provide them. Second, the evidence does not establish that Beth

Shalom maintained the required documentation in M.M.'s file.

Fla. Admin. Code R. 58A - 5.0181(4)(c)4.

5 6 . AHCA proved the violation alleged in Count II of the

Amended Complaint . Beth Shalom's administrator did not satisfy

the requirement s of section 429.26(1) and r ule 58A - 5.0181(4)(d)

to ensure the appropriateness of M.M.'s placement.

The Penalty

5 7 . AHCA maintains that Count II is a Class I violation

and seeks revocation of B eth Shalom's license , as well as

imposition of a $7,500.00 , fine. This is inconsistent with

AHCA's prior practice of classifying PEG - tube violations as

Class II violations. Section 120.68(7)(e) requires AHCA to

explain this inconsistency with its prior p ractice. See also

Exclusive Inv . Mgmt . & Consultants Inc. v Ag . for Health Care

Admin. ¸ 699 So. 2d 311 (Fla. 1st DCA 1997). AHCA did not

present a persuasive explanation. AHCA offer ed scant evidence

to explain its changed position that PEG - tube violatio ns were

Class I violations. This terse testimony of the ALF Supervisor

at page 80 , of the hearing transcript is representative.

Q. And why were they [ PEG - tube violations]

cited as Class II's?

A. Lack of Leadership.

5 8 . The following testimony at page 53 , of the hearing

transcript exemplifies AHCA's evidence of the process for and

the reasoning for the change.

Q. And how did you determine that [non -

licensed individuals administering food and

medication through a PEG - tube presented a

substantial probabi lity of death or serious

physical or emotional harm for a patient] ?

A. In consultation with the agency nurses

who are experienced in the matters of PEG -

tube feedings. We also had a conference

call with Tallahassee and in discussing it

with the people in Tallahassee, it was

determined that indeed this was a Class I

violation.

5 9 . In addition , the facts of this case do not support

finding a Class I violation . A Class I violation presents "an

imminent danger to the clients of the provider or a substantia l

probability that death or serious physical or emotional harm

would result" from the violation. § 408.813(2)(a), Fla. Stat.

The persuasive evidence did not prove that , in M.M.'s case ,

unlicensed individual s administering food and medication through

her PEG - tube presented a substantial probability of death or

physical or emotional harm. The persuasive evidence in this

case also did not prove that , as a general practice , ALF

residents always face a substantial probability of death or

physical or emotional harm when properly trained unlicensed

people administer food or medication through a PEG - tube . The

scant evidence of a probability of harm presented probability

ranges so broad as to be meaningless.

60 . A Class II violation is one in which "conditions o r

occurrences related to the operation and maintenance of a

provider or to the care of clients which the agency determines

directly threaten the physical or emotional health, safety, or

security of the clients, other than class I violations." The

persuasi ve evidence in this case did not establish that Beth

Shalom's care for M.M. directly threatened M.M.'s physical or

emotional health, safety , or security. The persuasive evidence

in this case also did not establish that, in general,

administration of food, fluids, and medication through a PEG -

tube to ALF residents by unlicensed caregivers directly

threaten s the residents' health, safety, or security.

61 . The facts of this case establish a Class III

violation. Section 408.813(2)(c) defines a Class III viol ation

as follows:

Class "III" violations are those conditions

or occurrences related to the operation and

maintenance of a provider or to the care of

clients which the agency determines

indirectly or potentially threaten the

physical or emotional health, safety, or

security of clients, other than class I or

class II violations. The agency shall

impose an administrative fine as provided in

this section for a cited class III

violation. A citation for a class III

violation must specify the time within whic h

the violation is required to be corrected.

If a class III violation is corrected within

the time specified, a fine may not be

imposed.

62 . Admitting and retaining a patient who does not meet

the criteria for admission presents indirect or potential

th reats to the patient. In this case , the nature of M.M.'s

medical needs, the staff training by the hospice nurse, and the

limited nature of PEG - tube feeding risks, based upon the

persuasive evidence presented, resulted in M.M. 's not being at

direct risk. But Beth Shalom's failure to abide by the

admission and continued admission criteria that it provide for

administration of M.M's medication by a licensed health care

provide r presented the indirect or potential threat of harm to

this patient who could not administer her own medications.

63 . The survey specified that the violation should be

corrected immediately. Beth Shalom immediately corrected the

violation. Consequently , as section 408.813(2)(c) provides ,

Beth Shalom may not be fined for this violat ion.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner , Agency for Health Care

Administration, (1) enter a final order dismissing Counts I and

III 2 / of the Amended Administrative Complaint and (2) enter a

final order finding that Respondent, Beth Shalom Corp., d / b / a

Beth Shalom Home Care, violated section 429.26(1), Florida

Statutes, and Florida Administrative Code Rule 58A - 5.0181(4)(d) ,

but imposing no penalty .

DONE AND ENTERED this 20 th day of November , 2011 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20 th day of December , 2011 .

ENDNOTE S

1/ All citations to the Florida Statutes are to the 2011 edition

unless otherwise noted.

2/ Dis m issing Count III formalizes the withdrawal of Count I I I

that occurred during the course of this proceeding.

COPIES FURNISHED :

Nelson E. Rodney, Esquire

Agency for Health Care Administration

8333 Northwest 53rd Street, Suite 300

Miami, Florida 33166

Br ian J. Perreault, Esquire

Lydecker Diaz

1221 Brickell Avenue, 19th Floor

Miami, Florida 33131

Richard Shoop, Agency Clerk

Agency for Health Car e Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

William Roberts, Acting General Coun sel

Agency for Health Car e Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Car e Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCE PTIONS

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.