11-002770 Agency For Health Care Administration vs. Eastwinds Of Florida, Inc., D/B/A Azalea Manor Of St. Petersburg Status: Closed Recommended Order on Thursday, January 19, 2012.

Summary: The Agency did not prove by clear and convincing evidence that Respondent failed to provide appropriate care to its residents; however, the Agency did prove that Respondent failed to file the 15-day report and to timely file the Day-1 report.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 2770

)

EASTWINDS OF FLORIDA, INC., )

d/b/a AZALEA MANOR OF )

ST. PETERSBURG , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, on November 10, 2011, a formal hearing

in this cause was held by video tele conference in St. Petersburg

and Tallahassee, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge Linzie F.

Bogan.

APPEARANCES

For Petitioner: Suzanne Suarez Hurley, Esquire

Agency for Health Care Administration

The Sebring Building

525 Mirror Lake Drive , North, Suite 330 K

St. Petersburg, F lorida 33701

For Respondent: Thomas W. Caufman, Esquire

Tammy Stanton, Esquire

Quintairos, Prieto, Wood & Boyer, P.A.

4905 West Laurel Street

Tampa, Florida 33607

STATEMENT OF THE ISSUE S

Whether Respondent committed t he violations alleged in the

Administrative Complaint , and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

Respondent , Eastwinds of Florida, Inc., d/b/a Azalea Manor

of St. Petersburg (Azalea Manor), operates a licensed assisted

living facil ity located at 112 12th Avenue North,

St. Petersburg, Florida. On January 20, 2011, an incident

occurred between an employee of Azalea Manor and one of the

facility ' s residents that resulted in the resident being

intentionally struck by the employee on th e forehead with the

sole of a sneaker (the incident). Employees of the facility

reported the incident to law enforcement officials, the Florida

Department of Children and Families (DCF), and Petitioner,

Agency for Health Care Administration (AHCA/Departme nt). There

were no criminal charges filed against the employee involved in

the incident. Pursuant to its investigation of the incident,

AHCA charged Azalea Manor with two Class II violations. AHCA

seeks $5,000.00 per violation and is requesting that a s urvey

fee of $500.00 be imposed against Respondent.

On April 15, 2011, Azalea Manor filed with the Department a

Petition for Formal Administrative Hearing (Petition). On

May 31, 2011, the Petition was referred by the Department to the

Division of Admin istrative Hearings for a disputed fact hearing

and the issuance of a recommended order.

A Notice of Hearing by Video Teleconference was issued

setting the case for formal hearing on August 16, 2011. On

June 24, 2011, an Order was entered granting a Motio n to

Withdraw filed by Respondent ' s previous counsel. On July 15,

2011, Respondent ' s current counsel entered an appearance in this

matter and filed a m otion for c ontinuance. On July 19, 2011, an

Order was entered granting the continuance request and by O rder

entered on August 12, 2011, the instant matter was scheduled for

video teleconference on November 10, 2011.

Petitioner presented the testimony of Katherine Benjamin,

Rasheena Wade, Nicole Wiggins, and Jean W. Rice. Petitioner ' s

Exhibit 1 was admit ted into evidence. Respondent presented the

testimony of Floyd M. McKenzie, Sr. (Mr. McKenzie) , who is the

owner and administrator for Azalea Manor, and Floyd M.

McKenzie, Jr. (Mike). Respondent ' s Exhibits A, C, E, F, H, I,

K, and L were admitted into ev idence. There was also a joint

exhibit entered into evidence which was identified by the

parties as Joint Exhibit 2.

A two - volume Transcript of the proceeding was filed with

the Division of Administrative Hearings on November 29, 2011.

The parties tim ely filed Proposed Recommended Orders, which have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Azalea Manor operated a

licensed 20 - bed assisting living facility in St. Petersburg,

Florid a. Azalea Manor houses its residents primarily in two

buildings. The buildings will be referred to herein as the Big

House and the Small House.

2. On January 20, 2011, S.M. was a resident of Azalea

Manor and resided in the Small House. In addition to certain

physical ailments, S.M. suffered from dementia. S.M. is

approximately six feet tall , and on the date in question ,

weighed about 150 pounds. For at least several months leading

up to, and including January 20, 2011, S.M. was prescribed

medication for psychosis, depression, confusion, and memory

loss. On January 20, 2011, S.M. was 65 years of age.

3. On January 20, 2011, Joyce Spiker ( Ms. Spiker) was

employed by Azalea Manor as a caregiver. On January 20, 2011,

the date upon which the instant ac tion is based, Ms. Spiker was

66 years old, five feet , five inches tall , and weighed

300 pounds.

4. Rasheena Nicole Wade ( Ms. Wade), an Azalea Manor

employee, started working for Azalea Manor on January 13, 2011.

Ms. Wade ' s job duties included waking re sidents in the mornings

and assisting them with getting dressed. Prior to January 20,

2011, Ms. Wade had worked with S.M. on one prior occasion and

was generally unfamiliar with S.M. and her morning preferences

and tendencies.

5. On the morning of January 20, 2011, Ms. Wade was tasked

with helping S.M. get dressed. Ms. Wade asked S.M. to get

dressed several times , but for whatever reason , S.M. refused to

do so. S.M. told Ms. Wade multiple times that she was not going

to get dressed , and in further ance of her general disposition of

defiance, S.M. repeatedly slammed doors throughout her immediate

living area. S.M. was obviously in an agitated state and

Ms. Wade, being generally unfamiliar with S.M., called to the

Big House for assistance. Ms. Spike r fielded Ms. Wade ' s phone

call.

6. In response to Ms. Wade ' s call for help, Mike, the son

of the owner of Azalea Manor, went to the building where S.M.

was located. Upon entering the building, Mike noticed that S.M.

was not dressed. Mike encouraged S. M. to get dressed , but she

refused. S.M. continued slamming doors and otherwise stating

that she was not going to get dressed. Mike then advised S.M.

that he was going to call Ms. Spiker and have her to come to the

Small House to aid her in getting dress ed. Mike then left the

area where S.M. was located and phoned Ms. Spiker and asked for

her assistance. Ms. Spiker, at the time of Mike ' s call, was

still located in the Big House. Mike explained to Ms. Spiker

the difficulty that he was having with S.M. a nd requested that

she take over the situation with S.M.

7. Before Ms. Spiker arrived at the Small House, Mike left

the Small House and headed back towards the Big House. En route

to the Big House, Mike encountered Ms. Spiker who was on her way

to see S. M. During his encounter with Ms. Spiker, Mike again

explained to her the difficulty that he was having with S.M.

Following his discussion with Ms. Spiker, Mike returned to the

Big House and Ms. Spiker went to the Small House and met

with S.M.

8. When M s. Spiker arrived at the Small House, Ms. Wade

was still present and witnessed the interaction between

Ms. Spiker and S.M. that provides the basis for the instant

action. When S.M. saw that Ms. Spiker had arrived at the Small

House, she calmed down, went into her room, and started getting

dressed. However, after making some progress towards getting

dressed, S.M. again started to verbalize that she did not want

to get dressed. Ms. Spiker told S.M. to finish getting dressed.

Per Ms. Spiker ' s directive, S. M. finished putting on her

clothing items , but refused to put on her sneakers. At this

point, S.M. placed one of the sneakers on her bed and announced

that she was not going to put the shoe on her foot. In response

to S.M. ' s pronouncement, Ms. Spiker gra bbed the shoe, hit S.M.

in the middle of the forehead with the sole of the shoe, then

threw the shoe in S.M. ' s lap and told her to put the shoe on her

foot. S.M. then grabbed the shoe and threw it at Ms. Spiker.

S.M. and Ms. Spiker then launched into a s hort volley of angry

expletives. Soon thereafter, S.M. capitulated and placed the

shoe on her foot. Ms. Wade was approximately four feet from

Ms. Spiker and S.M. when the exchange occurred. S.M. did not

sustain any injuries resulting from being hit on t he forehead

with the shoe.

9. Within seconds of S.M. 's placing the shoe on her foot,

one of the other residents in the Small House informed Ms. Wade

that another resident had become very upset after overhearing

the fracas between S.M. and Ms. Spiker. Ms. Wade immediately

left the area where S.M. and Ms. Spiker were located so that she

could tend to the needs of the resident that had become upset.

At this point in time, Ms. Spiker was alone with S.M.

10. The evidence is inconclusive regarding the a mount of

time that Ms. Spiker and S.M. were alone in S.M. ' s room.

However, what is clear is that Ms. Wade, after having calmed the

resident that had become upset, noticed when she saw S.M. about

15 minutes after having left S.M. alone with Ms. Spiker, tha t

S.M. " had red on her lip. " Ms. Wade believed that the " red " on

S.M. ' s lip was lipstick. It was eventually determined that the

" red " was not lipstick , but instead was blood. On the day in

question, S.M. had extremely dry and cracked lips.

11. Soon aft er Ms. Wade saw S.M. ' s red lips , S.M. left the

Small House and went to the Big House where she found Nicole

Wiggins ( Ms. Wiggins). Upon seeing Ms. Wiggins, S.M.

immediately ran to Ms. Wiggins and embraced her around the neck.

Ms. Wiggins had worked with S.M. for several months prior to the

incident and was someone with whom S.M. would converse with on

occasion. S.M. was extremely upset and was literally shaking

with fear when she embraced Ms. Wiggins. When Ms. Wiggins freed

herself from S.M. ' s embrace, she noticed that there was blood on

S.M. ' s lips. Ms. Wiggins asked S.M. about her bloody lips and

S.M. explained that her lips were bloody because Ms. Spiker had

pushed and kicked her in the face. Ms. Wiggins took S.M. to the

bathroom in order to clean t he blood from S.M. ' s lips. During

the process of trying to remove the blood from S.M. ' s mouth,

Ms. Wiggins noticed a small puncture wound on the inside of

S.M ' s upper lip that was actively bleeding. Ms. Wiggins applied

pressure to the wound and eventuall y the bleeding stopped. As a

consequence of the incident, S.M. was allowed to stay home from

work on January 20, 2011.

12. Based on the current record and given Ms. Spiker ' s

physical characteristics , the undersigned is unable to find as a

matter of fact that Ms. Spiker kicked S.M. in the face , thereby

causing blood to appear on S.M. ' s lip .

13. Ms. Wiggins reported the incident to her immediate

supervisor and then reported the same to the DCF abuse hot - line

(abuse hot - line) and the St. Petersburg Police D epartment.

Additionally, Ms. Wade also reported the incident to the abuse

hot - line.

14. On January 20, 2011, an officer from the

St. Petersburg Police Department was dispatched at approximately

10:15 a.m. , to Azalea Manor to investigate the incident

inv olving S.M. Upon arriving at Azalea Manor, the investigating

officer spoke with S.M. and Ms. Wiggins regarding the incident.

Ms. Spiker was not present during the officer ' s initial visit ,

but she subsequently met with the officer during the afternoon

of January 20, 2011. As a part of the investigation, the

officer asked Ms. Spiker if she knew Rasheena ' s ( Ms. Wade)

surname. Because Ms. Wade was a new employee, Ms. Spiker

advised the officer that she did not know Rasheena ' s surname.

In order to assist th e officer, Ms. Spiker called Mr. McKenzie,

explained to him why she was calling, and handed the phone to

the police officer so that he could speak with Mr. McKenzie.

The police officer spoke to Mr. McKenzie while in the immediate

presence of Ms. Spiker. Although the investigating officer was

able to secure Ms. Wade ' s surname, the officer never interviewed

Ms. Wade as part of the investigation. The investigating

officer determined that the allegations were criminally

unfounded and the investigation was cl osed.

15. In response to the abuse hot - line report , DCF, on

January 20, 2011, also dispatched an investigator to Azalea

Manor. When the DCF investigator arrived at Azalea Manor on the

afternoon of January 20, 2011, the officer from the

St. Petersburg Pol ice Department was present . The DCF

investigator met with Mr. McKenzie and informed him of the

reason for her visit. During the meeting with the DCF

investigator, Mr. McKenzie advised that he had already spoken

with the officer from the St. Petersburg Po lice Department about

the incident involving S.M.

16. On January 21, 2011, the Department was contacted

regarding the incident between Ms. Spiker and S.M. In response

to notification of the incident, the Department, on January 24,

2011, visited Azalea Manor. While visiting Azalea Manor, the

Department interviewed Mr. McKenzie and several employees. The

Department ' s interview with Mr. McKenzie commenced at

approximately 11:20 a.m. As a part of the Department ' s

questioning of Mr. McKenzie, inquiry was made as to why he had

not filed the initial adverse incident report. In response to

this inquiry, Mr. McKenzie advised that he was unaware of the

requirement for doing so. Within a few hours of completing his

meeting with the Department, Mr. McKenzie fil ed the initial

adverse incident report , which is officially entitled , " Assisted

Living Facility Initial Adverse Incident Report Î 1 Day (Day 1

Form). " Mr. McKenzie did not file a 15 - day full report.

17. Noted on the Day 1 Form was a check mark signifyi ng

that the incident had been reported to law enforcement

officials. The Day 1 Form was signed by Mr. McKenzie. On

January 24, 2011, Mr. McKenzie also fax filed an incident report

with the Agency for Persons with Disabilities. On January 25,

2011, Mr. M cKenzie issued a verbal warning to Ms. Spiker and

provided her with refresher training on appropriate strategies

for dealing with challenging situations. Mr. McKenzie also

discussed the incident with S.M.

CONCLUSIONS OF LAW

18. The Division of Administra tive Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla . Stat . (201 1 ).

19. The general rule is that " the burden of proof, apart

from statute, is on the party asserting the affirmative of an

iss ue before an administrative tribunal. " Balino v. Dep ' t of

HRS , 348 So. 2d 349, 350 (Fla. 1st DCA 1977). In the instant

case, the Department has the burden of proving by clear and

convincing evidence that Respondent committed the violations as

alleged and the appropriateness of any fine resulting from the

alleged violations. Dept. of Banking & Fin . , Div . of Sec . &

Investor Prot . v. Osborne, Stern & Co. , 670 So. 2d 932 (Fla.

1996).

20. In Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983), the c ourt held that:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evide nce must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

A. Count I: Failure to P roperly S upervise and

P rovide a S afe E nviro nment

21. In Count I of the Administrative Complaint (Complaint)

the Department alleges, in part, the following:

The Administrator in an assisted living

facility is responsible to supervise and

manage the staff and to provide proper and

adequate care t o the residents.

Specifically:

(1) ADMINISTRATORS. Every facility shall

be under the supervision of an administrator

who is responsible for the operation and

maintenance of the facility including the

management of all staff and the provision of

adequ ate care to all residents as required

by Part I of Chapter 429, Florida Statutes.

Florida Administrative Code Rule 58A - 5.019.

Furthermore, residents in an ALF are

entitled to a safe environment:

RESIDENT BILL OF RIGHTS. No resident of a

facility sh all be deprived of any civil or

legal rights, benefits, or privileges

guaranteed by law, the Constitution of the

State of Florida, or the Constitution of the

United States as a resident of a facility.

Every resident of a facility shall have the

right to l ive in a safe and decent living

environment, free from abuse and neglect

[and to] be treated with consideration and

respect and with due recognition of personal

dignity. . . .

§ 429.28(1)(a - b), Fla. Stat. (2010) . 1/

22. Count I of the Complaint alleges further that " [o]n

January 24, 2011, the Agency conducted a complaint inspection,

CCR#2011000683, of Respondent ' s facility, an assisted living

facility, and found the facility out of compliance with the

above Rule [and that] this deficient practice was re lated . . .

to the personal care of Facility residents, and directly

threatened the physical or emotional health, safety, or security

of the Facility residents. "

23. In Count I of the Complaint, the Department implicitly

suggests that Azalea Manor is vica riously liable for the

intentional conduct of its employee , Ms. Spiker. T he

Department ' s assertion notwithstanding , it is well established

that " the principles of respondeat superior . . . have no

application in determining whether [a] license should be r evoked

or suspended. " Pic N ' Save, Inc. v. Dep ' t of Bus. Reg., Div. of

Alcoholic Beverages & Tobacco , 601 So. 2d 245, 256 (Fla. 1st DCA

1992). What the law requires is " [p]roof by clear and

convincing evidence of a licensee ' s negligent training or lack

o f diligence in supervising its employees , " and this standard

cannot be met by simply demonstrating that an employee of the

licensee committed some objectionable act. Id. While it is

true that the instant case does not involve an attempt by the

Department to revoke or suspend Respondent ' s license, the

principles espoused by the court in Pic N ' Save are ,

nevertheless , controlling because of the penal nature of the

instant action.

24. In the context of the instant proceeding, " [t]he

imposition of personal r esponsibility on the licensee for

[misconduct] by its employees requires proof of minimum

standards of conduct, either by adopted rules, communicated

agency policy, or expert testimony, against which the licensee ' s

alleged misconduct can be judged. " Pic N ' Save at 256. The

Department did not offer any evidence of " communicated agency

policy, or expert testimony , " which establishes the minimum

standards of conduct applicable to Respondent in the instant

case. The Department did , however , cite Respondent f or

violating rule 58A - 5.019(1). Therefore, consideration of that

portion of rule 58A - 5.019(1) , upon which the Department relies ,

must be considered when attempting to determine the minimum

standard by which Respondent ' s conduct is to be judged.

25. Rule 58A - 5.019(1), as relied upon by the Department in

the instant matter, provides , in part , that " [e]very facility

shall be under the supervision of an administrator who is

responsible for the operation and maintenance of the facility

including the management of all staff and the provision of

adequate care to all residents as required by Part I of

Chapter 429, F.S., and this rule chapter. "

26. Section 429.02(2) defines an administrator as " an

individual at least 21 years of age who is responsible for the

op eration and maintenance of an assisted living facility. "

Through rule 58A - 5.019(1), the Department has interpreted the

definition of " Administrator " to expressly include

responsibility for the " management of all staff and the

provision of adequate care to all residents. "

27. According to the testimony of Ms. Katherine Benjamin,

who works as a facility evaluator for the Department, Respondent

failed in its duty to manage its staff and provide adequate care

to S.M. Arguably, the duty to manage one ' s staf f and provide

adequate care to residents includes training employees, pursuant

to established standards, on how to deal with individuals like

S.M. who may be non - compliant. Though Ms. Benjamin concluded

that Azalea Manor was " deficient . . . on the superv ision for

this resident [ S.M ] , " neither she, nor any other witness that

testified on behalf of the Department, identified any

established standard by which to judge the alleged deficiency.

Purvis v. D ept. of Prof'l Reg. , 46 1 So. 2d 134 (Fla. 1st DCA

1984) . The Department did not offer any evidence of applicable

standards governing interactions between a caregiver and an

agitated resident and the role and responsibilities of

management as it relates to the said standards. As instructed

by the court in Pic N ' Save , the Department, in order to impose

personal responsibility on Respondent, must do more than simply

show that the incident between Ms. Spiker and S.M. actually

occurred.

28. Though awkwardly pled, it can reasonably be suggested

that the Complaint , by charging Respondent with a violation of

the Resident bill of rights, is relying upon the Resident bill

of rights as establishing the standards by which Respondent ' s

conduct is to be judged. As previously noted, the Resident bill

of rights provides, i n part, that " [n]o resident of a facility

shall be deprived of any civil or legal rights, benefits, or

privileges guaranteed by law, the Constitution of the State of

Florida, or the Constitution of the United States as a resident

of a facility. " As noted in section 429.29(2), the Resident

bill of rights does not impose strict liability on a licensee

for the violation of any of its provisions. Therefore, the

Resident bill of rights, as charged in the instant matter, must

be evaluated within the framework s et forth in Pic N ' Save . As

to that portion of the Resident bill of rights cited in this

paragraph, the Department did not present any evidence

establishing that S.M. ' s legal or constitutional rights were

violated by Azalea Manor.

2 9 . The Department also charged Respondent with violating

that portion of the Resident bill of rights which provides that

" [e]very resident of a facility shall have the right to live in

a safe and decent living environment, free from abuse and

neglect. " § 429.28(1)(a). The wor ds " abuse " and " neglect " are

not defined in chapter 429 , but these words are defined in

chapter 415 , Florida Statutes . Chapter 415 is specifically

referenced in section 429.23(6), which like the Resident bill of

rights, is included in Part I of chapter 42 9. Accordingly, it

is permissible to look to chapter 415, which was enacted to

promote the " care and protection of vulnerable adults, " for

definitional guidance. See State v. Hagan , 387 So. 2d 943, 945

(Fla. 1980) ( " [ i ] n the absence of a statutory defini tion, resort

may be had to case law or related statutory provisions which

define the term . . . . " )

30 . Section 415.102(1) and (16) provide as follows:

(1) " Abuse " means any willful act or

threatened act by a relative, caregiver, or

household member wh ich causes or is likely

to cause significant impairment to a

vulnerable adult ' s physical, mental, or

emotional health. Abuse includes acts and

omissions.

* * *

(16) " Neglect " means the failure or

omission on the part of the caregiver or

vulnerabl e adult to provide the care,

supervision, and services necessary to

maintain the physical and mental health of

the vulnerable adult, including, but not

limited to, food, clothing, medicine,

shelter, supervision, and medical services,

which a prudent person would consider

essential for the well - being of a vulnerable

adult. The term " neglect " also means the

failure of a caregiver or vulnerable adult

to make a reasonable effort to protect a

vulnerable adult from abuse, neglect, or

exploitation by others. " Ne glect " is

repeated conduct or a single incident of

carelessness which produces or could

reasonably be expected to result in serious

physical or psychological injury or a

substantial risk of death. (emphasis

added ).

3 1 . Ms. Spiker ' s act of striking S.M. in the forehead with

the sole of a sneaker and exchanging expletives with S.M. is

reprehensible and should not be tolerated. However, the record

evidence establishes that this was an isolated incident that did

not result in any physical injury to S.M. Wh ile it is true that

S.M. was understandably emotionally upset for a short period of

time following the incident, the Department did not offer any

evidence demonstrating that S.M. ' s psychological health was

seriously or significantly affected as a result of being hit on

the forehead with the shoe. On this record, the incident in

question did not result in S.M. being abused or neglected by

Respondent.

3 2 . Count I also charges that Respondent, in violation of

section 429.28(1)(a), violated S.M. ' s right to " [ b]e treated

with consideration and respect and with due recognition of

personal dignity . . . . " T he law requires in a penal

enforcement proceeding , such as the instant case , that the

alleged offending conduct be evaluated through the lens of a

" firm stan dard for uniformity in application or enforcement. "

Id. The Department offered no evidence of any governing

standard by which the undersigned can evaluate Respondent ' s

conduct to determine if the conduct resulted in S.M. not being

treated " with consider ation and respect and with due recognition

of [S.M. ' s] personal dignity. "

3 3 . Finally, as to Count I of the Complaint, the

Department cited Respondent for a Class II violation in

accordance with section 429.19(2)(b). Section 408.813, Florida

Statutes, wh ich is incorporated by reference into section

429.19, defines Class II violations as " those conditions or

occurrences related to the operation and maintenance of a

provider or to the care of clients which the agency determines

directly threaten the physica l or emotional health, safety, or

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

upon the analysis set forth above, the Department has failed to

meet its burden of establishing by clear and convincing evidence

that Respondent committed a C lass II violation.

B. Count II: Failure to I nvestigate and

R eport A n A dverse I ncident

3 4 . Paragraph 19 of the Complaint provides that " [t]he

failure of the Respondent to prepare and file a preliminary

incident report with the Agency and the failure to investigate

and document the incident is a violation of the law. "

3 5 . Section 429.23 provides in part as follows:

(2) Every facility licensed under this

part is required to maintain adverse

incident reports. For purposes of this

section, the term, " adverse incident " means:

(a) An event over which facility

personnel could exercise control rather than

as a result of the resident ' s condition and

results in:

1. Death;

2. Brain or spinal damage;

3. Permanent disfigurement;

4. Fracture or dislocation of bones or

joints;

5. Any condition that required medical

attention to which the resident has not

given his or her consent, including failure

to honor advanced directives;

6. Any condition that requires the

transfer of the resident from the facility

to a unit providing more acute care due to

the incident rather than the resident ' s

condition before the incident; or

7. An event that is reported to law

enforcement or its personnel for

investigation ; or

* * *

(3) Licensed fa cilities shall provide

within 1 business day after the occurrence

of an adverse incident, by electronic mail,

facsimile, or United States mail, a

preliminary report to the agency on all

adverse incidents specified under this

section. The report must includ e information

regarding the identity of the affected

resident, the type of adverse incident, and

the status of the facility ' s investigation

of the incident.

(4) Licensed facilities shall provide

within 15 days, by electronic mail,

facsimile, or Unite d States mail, a full

report to the agency on all adverse

incidents specified in this section. The

report must include the results of the

facility ' s investigation into the adverse

incident. (emphasis added ).

3 6 . It is undisputed that the incident betwe en Ms. Spiker

and S.M. occurred on January 20, 2011, and that Respondent did

not file the Day 1 Form with the Department until January 24,

2011. Mr. McKenzie testified during the final hearing that he

filed the required report late because he did not lear n of the

involvement of law enforcement in investigating the incident

between S.M. and Ms. Spiker until days after its occurrence.

The undersigned is not persuaded by this testimony and finds it

to be in direct contradiction to Mr. McKenzie ' s admission to the

Department investigator that he failed to timely file the Day 1

Form because he was unaware of the requirement for doing so.

On January 20, 2011, Mr. McKenzie was aware of the fact that the

incident involving S.M. and Ms. Spiker was reported to law

enforcement officials , and he failed to notify the Department

within one day of its occurrence as required by section 429.23.

3 7 . In Count II, the Department also alleges that

Respondent violated section 429.23 when it " failed to

investigate and remove a direct care staff member from providing

care and services during the investigation of an adverse

incident. " Contrary to the Department ' s assertion, section

429.23 does not impose upon an assisted living facility a

requirement that a direct care staff memb er be removed from

providing care and services to residents during the

investigation of an adverse incident. 2/

3 8. In Count II of the Complaint, the Department also

alleges that Respondent ' s late filing of the Day 1 Form

constitutes a Class II violation . 3/ The Department did not offer

any evidence showing that Respondent ' s late - filed Day 1 Form

" directly threaten[ed] the physical or emotional health, safety,

or security " of S.M. as contemplated by section 419.19(2)(b) ,

Florida Statutes . Although the De partment failed to establish

the existence of a Class II violation resulting from the failure

to timely file the Day 1 Form, the clear and convincing evidence

nevertheless establishes the existence of a Class III violation

resulting from Respondent ' s omiss ion. 4/ The failure to timely

file the preliminary incident report " indirectly or potentially

threatened the physical or emotional health, safety, or

security " of S.M. , because it deprived the Department of its

opportunity t o evaluate S.M. and the overall situation at Azalea

Manor within the quick response timeframe contemplated by

section 429.23(3).

3 9. In addition to the above, Count II of the Complaint

also alleges that Respondent failed to file a full report within

15 days of the adverse incident. Aza lea Manor does not dispute

that it failed to file the required 15 - day report. The

Department did not offer any evidence showing that Respondent ' s

failure to file the 15 - day full report either directly,

indirectly, or potentially " threaten[ed] the physical or

emotional health, safety, or security " of S.M. , as required by

section 419.19(2)(b) and (c). Accordingly, the evidence does

not establish the existence of a Class II violation as to this

issue.

40. Respondent ' s failure to file the 15 - day full repor t

does , however , establish the existence of a Class IV violation.

" Class ' IV ' violations are those conditions or occurrences

related to the operation and maintenance of a provider or to

required reports, forms, or documents that do not have the

potential of negatively affecting clients. " § 408.813(2)(d),

Fla. Stat. In the present case, by the time the 15 - day full

report was due to be filed by Respondent, the Department was

well aware of the circumstances at the facility and could have

at any time conduct ed an unannounced visit to check on S.M. or

any of the other resident as authorized by section 429.34 .

Respondent ' s failure to file the 15 - day full report, under the

circumstances present in the instant case, did not have the

potential of negatively affec ting clients and , therefore ,

Respondent ' s omission constitutes a Class IV violation.

C. Penalties and Survey Fee

41. Respondent has committed one Class III violation and

one Class IV violation. Section 429.19 (2) (c) provides that for

Class III violations " [t]he agency shall impose an

administrative fine . . . in an amount of not less than $500 and

not exceeding $1,000 for each violation. " As for Class IV

violations, section 429.19 (2) (d) provides that " [t]he agency

shall impose an administrative fine . . . in an amount not less

than $100 and not exceeding $200 for each violation. "

4 2. Section 429.19(3) provides as follows:

For purposes of this section, in

determining if a penalty is to be imposed

and in fixing the amount of the fine, the

agency shall co nsider the following factors:

(a) The gravity of the violation,

including the probability that death or

serious physical or emotional harm to a

resident will result or has resulted, the

severity of the action or potential harm,

and the extent to which the provisions of

the applicable laws or rules were violated.

(b) Actions taken by the owner or

administrator to correct violations.

(c) Any previous violations.

(d) The financial benefit to the facility

of committing or continuing the violatio n.

(e) The licensed capacity of the

facility.

4 3. As for the Class III violation, the evidence shows

that the preliminary adverse incident report was faxed to the

Department four days after it was due. By requiring that the

preliminary incident rep ort be filed with the Department within

24 hours of the occurrence of a reportable incident, the

Legislature, in keeping with its commitment to protect

vulnerable adults, has made it clear that the filing of the

report is of critical importance. Responden t ' s failure to

timely file the preliminary adverse report and its failure to

even know of the requirement for filing the same constitute a

serious violation which warrants imposition of the maximum fine

allowed for a Class III violation. Having considered all of the

factors set forth in section 429.19(3), the undersigned

concludes that there are no mitigating factors that weigh in

favor of a lesser fine.

4 4. As for the Class IV violation, the evidence shows that

Respondent simply did not file the 15 - day f ull report required

by section 429.23(4). The complete failure to file the required

report warrants imposition of the maximum fine allowed for a

Class IV violation. Having considered all of the factors set

forth in section 429.19(3), the undersigned conc ludes that there

are no mitigating factors that weigh in favor of a lesser fine.

4 5. Count III of the Complaint seeks to impose against

Respondent a $500 survey fee pursuant to section 429.19(7).

Section 429.19(7) provides , in part , that " [i]n addition t o any

administrative fines imposed, the agency may assess a survey

fee, equal to the lesser of one half of the facility ' s biennial

license and bed fee or $500, to cover the cost of conducting

initial complaint investigations that result in the finding of a

violation . . . . " In light of the Conclusions of Law set forth

above, the $500 survey, which the Department seeks to impose

against Respondent, is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED t hat Petitioner, Agency for Health Care

Administration , enter a final order and , therein, dismiss

Count I of the Administrative Complaint and assess against

Respondent, Eastwinds of Florida, Inc., d/b/a Azalea Manor of

St. Peterburg, an admini strative fine of $1,200 and a survey fee

of $500.

DONE AND ENT ERED this 19th day of January , 2012 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The D eSoto 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 19th day of January , 2012 .

ENDNOTE S

1/ All future references to Florida Statutes will be to 2010,

unless otherwise indicated.

2/ Ms. Benjamin testified that it is " standard procedure, when

there is an allegation of . . . a staff member hitting a

resident, to remove th[e] staff member [during the

inves tigation] from the proximity of the resident in order to

protect th[e] resident. " However, the Department presented no

agency rule requiring that the alleged offending staff member be

removed from having contact with the resident during the

pendency of an y investigation into an alleged incident , and

there was no expert testimony that the so - called " standard

procedure " was a generally - accepted standard within the assisted

living industry. K.M.T. v. Dep ' t of HRS , 608 So. 2d 865, 873

(Fla. 1st DCA 1992)( " HRS presented no agency rule stating that

aged persons and disabled adults may not be left unattended for

a few minutes in a nursing home ' s restorative dining room, and

there was no expert testimony that [the facility ' s] ' tacitly

understood ' policy was a gene rally - accepted standard within the

nursing home industry. " ) .

3/ Ms. Benjamin testified that when she visited Azalea Manor on

January 24, 2011, Respondent was unable to provide her

" documentation of [the] event " and further that Respondent was

unable to demonstrate that an investigation of the incident had

occurred. Ms. Benjamin visited the facility well in advance of

the due date for the 15 - day full report required by section

429.23(4). Section 429.23(3), unlike section 429.23(4), does

not contain expr ess language requiring disclosure of the results

of the facility ' s investigation into the adverse incident. To

the extent that the Department is suggesting, through the

testimony of Ms. Benjamin, that section 429.23(3) imposes such a

requirement, the said suggestion is rejected as being

inconsistent with the express provisions of section 429.23.

While there is clearly a duty to investigate adverse incidents

which result in the filing of an incident report, the failure of

an assisted living facility to und ertake such duty becomes

actionable only within the context of the full report required

by section 429.23(4).

4/ Paragraph 16 of the Complaint provides , in part , that

" [l]icensed facilities shall provide within 1 business day after

the occurrence of an a dverse incident, by electronic mail,

facsimile, or United States mail, a preliminary report to the

agency on all adverse incidents specified under this section. "

The quoted language tracks that which is found in section

423.23. During the final hearing a nd in its post - hearing

submittal, the Department now argues that electronic filing is

the only way by which Respondent could have filed its Day 1

Form. It is well established that the Complaint governs the

scope of the proceeding, see Travisani v. Dep artm ent of Health ,

908 So. 2d 1108 (Fla. 1st DCA 2005), and any penalty assessed

herein will not be based upon the Department ' s new allegation

that Respondent failed to file the Day 1 Form by electronic

means.

COPIES FURNISHED :

Elizabeth Dudek, Secretary

A gency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

William H. Roberts, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard J. Shoop, A gency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Thomas W. Caufman, Esquire

Tammy Stanton, Esquire

Quintairos, Prieto, Wood and Boyer, P.A.

4905 West Laurel Street

Tampa, Florida 33607

Suzanne S uarez Hurley , Esquire

Agency for Health Care Administration

The Sebring Building

525 Mirror Lake Drive, North, Suite 330 K

St. Petersburg, Florida 33701

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.