12-002188 Water&Apos;S Edge Extended Care vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, June 24, 2013.

Summary: Agency improperly issued a Statement of Deficiencies, as Petitioner had not violated Section 400.0255, Florida Statutes (2012).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WATER ' S EDGE EXTENDED CARE ,

Petitioner ,

vs. Case No. 12 - 2188

AGENCY FOR HEALTH CARE

ADMINISTRATION ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to no tice, a hearing was conducted in this case

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

(2012), 1/ before Jessica E. Varn, an Administrative Law Judge of

the Division of Administrative Hearings ( " DOAH " ), on February 7,

2013, by video telecon ference at sites in Port St. Lucie and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Thomas W. Caufman, Esquire

Sheila K. Nicholson, Esquire

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

490 5 West Laurel Street, Suite 200

Tampa, Florida 33607

For Respondent: Nelson E. Rodney, Esquire

Agency for Health Care Administration

8333 Northwest 53rd Street, Suite 300

Miami, Florida 33166

STATEMENT OF THE ISSUE

Whether Petitioner violated section 400.0255, Florida

Statutes, by improperly discharging or transferring a resident

such that Respondent correctly issued a Statement of Deficiencies

against Petitioner.

PRELIMINARY STATEMENT

On May 14, 2012, the Agency for Health Care Administration

(Agency) conducted a Complaint Survey (Survey) at Water ' s Edge

Extended Care (Water ' s Edge) skilled nursing facility. As a

result of the Survey, the Agency issued a Statement of

Deficiencies, which was received by Petitioner on or about

May 23, 2012. Water ' s Edge timely filed a Petition for Formal

Administrative Hearing on or about June 1, 2012, and the matter

was referred to the Division of Administrative Hearings for

assign ment of an Administrative Law Judge to conduct a hearing

pursuant to sections 120.569 and 120.57(1).

The final hearing initially was set for August 27, 2012, but

pursuant to the Agency ' s requests, was rescheduled for

September 26, 2012, and then for Decemb er 6, 2012. Pursuant to

Petitioner ' s request, the hearing again was rescheduled for

February 7, 2013.

The final hearing was held on February 7, 2013. Water ' s Edge

presented the testimony of Dr. Marie Cambronne, Dr. Michael

Sherman, Martha Legere, and Chr istine Cerny and offered

Petitioner ' s Exhibits 1 through 4, which were admitted into

evidence without objection. The Agency presented the testimony of

Alexandra Pellan, Martha Lederman, Susan Grofic, and David Grofic

and offered Respondent ' s Exhibits 1, 3 , 4, 7, 8, 11, 20 - 32, 34, 35,

37 - 47, 49, 97, 99, 103, and A into evidence. Respondent ' s Exhibits

50, 51, 52, and 53 were admitted into evidence over objection.

The two - volume Transcript was filed on March 8, 2013, and the

parties were given until April 8, 2013, to file their p roposed

r ecommended o rders. On May 23, 2013, the undersigned issued an

Order notifying the parties that Respondent ' s Exhibit 29 was

missing from Respondent ' s Evidence Notebook and allowing Respondent

to indicate whether this was do ne in error, or if Exhibit 29 was

intended to be omitted. Respondent promptly filed Exhibit 29.

Petitioner was given until June 10, 2013, to object to the

admission of Exhibit 29 if necessary. No objection was made by

Petitioner to Exhibit 29, and it wa s therefore admitted into

evidence. Each party timely filed its Proposed Recommended Order,

and both were duly considered in preparing this Recommended Order.

FINDING S OF FACT

1. Petitioner is a 36 - bed skilled nursing facility located

on the campus of Sa nd Cove Hills, a retirement community in Palm

City, Florida. Sand Cove Hills is a continuing care retirement

community containing 255 independent living units, 36 skilled

nursing units, and 20 assisted living beds. The assisted living

beds and skilled nu rsing units are separately licensed by the

Agency.

2. M.M. became a resident of Water ' s Edge on February 25,

2012, after being referred to the facility from Martin Memorial

Hospital for rehabilitation. She was 90 years old.

3. During M.M. ' s residency at Water ' s Edge, Heather Furlong

served as the administrator, Martha Legere served as the director

of nursing, Dr. Michael Sherman served as the medical director,

Althea Armstrong served as a charge nurse, Christine Cerny served

as a licensed practical nur se (LPN) who provided direct care to

M.M., and Deneas Morris served as a certified nursing assistant

(CNA) who also provided direct care to M.M.

4. From March 3, 2012, until March 11, 2012, M.M. was

hospitalized and diagnosed with right lower lobe pneumon ia. When

she arrived at Water ' s Edge, she was admitted by Dr. Sherman, an

internist.

5. Dr. Marie Cambronne was M.M. ' s psychiatrist and first

saw M.M. on April 10, 2012. She found M.M. to be very agitated

and paranoid. Dr. Cambronne diagnosed her as su ffering from

dementia and psychosis and prescribed Risperdal for paranoia,

delusion, and psychosis. Dr. Cambronne believed that an

involuntary examination under the Baker Act might be appropriate

because M.M. was very territorial, but opted to wait and se e if

medicine would alleviate the symptoms.

6. On or about April 14, 2012, Nurse Cerny noticed that

M.M. was exhibiting troubling behavior. She had periods of

paranoia, believing that Water ' s Edge staff and other residents

were trying to hurt her.

7. CN A Morris recalled M.M. being difficult; M.M. hit

Ms. Morris on more than one occasion, ate other residents ' meals,

took other resident s ' possessions, and argued with other

residents. Ms. Morris believed that other residents were afraid

of M.M.

8. Nurse C erny recalled that M.M. was confused, agitated,

went into other resident s ' rooms, changed her clothes often, and

would go through her roommate ' s belongings. M.M. was calmer when

her daughter was present, but when alone, would sometimes pack

and unpack her own belongings. She had periods of forgetfulness

and hallucinations.

9. Water ' s Edge is not a locked - down unit; therefore, some

residents, like M.M., were fitted with a " WanderGuard " to keep

them from wandering out of the facility. The WanderGuard is a

bracelet which activates an alarm if a resident wearing it

attempts to open an exterior door. The door becomes locked for

15 seconds, to allow time for the staff to redirect the resident.

10. M.M. cut off her WanderGuard twice while she resided at

Water ' s Edge.

11. On or about April 30, 2012, M.M. pushed a roommate ' s

wheelchair (while the roommate was seated in the wheelchair) out

of their room and into the hallway, and then slammed the door

shut.

12. Dr. Sherman ran tests to rule out an organic cause for

M.M. ' s spiraling psychiatric issues; he found none.

13. On May 1, 2012, Dr. Cambronne once again saw M.M. M.M.

explained to Dr. Cambronne that she believed her roommate had

fooled around with her husband, which is why she had kicked her

roommate out of the room. Dr. Cambronne noted that M.M . was

angry, obsessed with her roommate, confused, and paranoid. She

prescribed Ativan to calm M.M. down. While she considered

initiating a Baker Act transfer, she was informed by the staff

that Dr. Sherman was running tests to rule out an organic cause

for M.M. ' s psychiatric symptoms.

14. On May 2, 2012, Nurse Cerny noted that M.M. was getting

more aggravated at night and was wandering into other resident ' s

rooms. The staff began conducting 15 - minute safety ch ecks on

M.M. On the morning of May 3, 2012, Nurse Cerny noted that M.M.

had continued to enter other resident s ' rooms through the night

and had been found wearing her undergarments over her clothes.

15. On May 3, 2012, M.M. left with her daughter to ha ve

some lab work done. When M.M. returned to Water ' s Edge, and her

daughter left, M.M. required one - on - one care due to her high

level of agitation. Nurse Cerny provided that care.

16. On that same day, Dr. Cambronne received a call from

Water ' s Edge, le tting her know that the Ativan was not working,

that Dr. Sherman had ruled out any organic cause for the

psychiatric symptoms, and that M.M. was becoming increasingly

agitated. She was informed that M.M. was continuing to bother

the other residents, and , in particular, M.M. was bothering the

resident who m she had delusions about.

17. Dr. Cambronne decided to involuntarily commit M.M. to a

facility that received Baker Act patients, because the Ativan was

not working, and M.M. was terrorizing another reside nt.

Dr. Cambronne was concerned that M.M. was a threat to the other

residents.

18. Because Dr. Cambronne was busy at a hospital, she asked

Water ' s Edge staff to bring the Baker Act form to her at the

hospital so that she could fill it out. Director of Nu rsing

Legere brought the form to Dr. Cambronne and waited until

Dr. Cambronne was able to see her. The Baker Act form was

completely filled out by Dr. Cambronne.

19. On the Baker Act form, Dr. Cambronne checked the boxes

that indicated the patient was li kely to suffer from neglect or

would pose a threat to herself by refusing to take care of

herself and that there was a substantial likelihood that she

would pose a threat. Dr. Cambronne failed to check the next box,

which indicated whether that threat was to M.M. or others, but

she credibly testified that the threat was to both.

Dr. Cambronne wrote the following as her observations:

Pt. [ sic ] is combative with staff [ sic ] push

[ sic ] other resident on her wheelchair and

closed door, entering into other resi dents

room [ sic ] , confused, disorganized, psychotic

[ sic ] not following redirection, exit

seeking [.]

20. Martha Lenderman, an expert in the Baker Act, reviewed

the Baker Act form and found it deficient because Dr. Cambronne

had not personally observed M. M. on the date the form was filled

out, the form was not filled out based solely on Dr. Cambronne ' s

observations, and Dr. Cambronne had left a box empty which asked

for " other information. "

21. Dr. Cambronne explained that she had personally

observed M.M. ' s obsession with her roommate, her confusion, and

her psychosis. Dr. Cambronne had been informed of M.M. ' s

combativeness with staff and her exit seeking behavior. Since

Dr. Cambronne was not providing one - on - one care to M.M., she had

to rely on the repo rts from the staff, coupled with her own

observations and diagnosis.

22. The undersigned finds Dr. Cambronne ' s testimony

credible and reasonable; any omissions on the form were harmless.

23. Water ' s Edge held a bed open for M.M., paid for by

M.M. ' s famil y, should she return to the facility that same night,

or at any later date. Dr. Sherman was in complete agreement with

M.M. ' s involuntary commitment, finding it an appropriate course

of action.

24. Dr. Cambronne was fairly certain that M.M. would be

brou ght by law enforcement to the St. Lucie Medical Center, which

is the hospital where she was working that day, because it is the

closest Baker Act facility to Water ' s Edge.

25. M s. Lenderman testified that once a Baker Act

involuntary examination is init iated, the patient must be taken

to a receiving facility or hospital. Law enforcement is the

designated authority to transport a patient, and law enforcement

has no discretion to ignore the Baker Act order. Ms. Lenderman

also testified that , if a Baker A ct order is improperly issued,

an affected person can file a Petition for Writ of Habeas Corpus

to have the individual released from the receiving facility.

26. No evidence was presented indicating that a Petition

for a Writ of Habeas Corpus was ever file d in the instant case,

or that any disciplinary action was initiated as to

Dr. Cambronne ' s medical license.

27. Water ' s Edge, having received a Baker Act initiation

form from M.M. ' s treating psychiatrist, contacted law enforcement

for a proper transfer. M.M. was brought by law enforcement to

the St. Lucie Medical Center, and Dr. Cambronne treated her

there.

28. M.M. ' s transfer from Water ' s Edge to St. Lucie Medical

Center was initiated by Dr. Cambronne, and not by Water ' s Edge.

Water ' s Edge only compli ed with M.M. ' s treating psychiatrist ' s

Baker Act order, arranging transportation without delay.

29. M.M. received 24 - hour care at St. Lucie Medical Center

and , in Dr. Cambronne ' s opinion, received good care. During

M.M. ' s stay at St. Lucie Medical Center , M.M. ' s family did not

request that M.M. return to Water ' s Edge.

30. After eight to ten days had passed, M.M. ' s family asked

Water ' s Edge to release the bed hold for M.M. M.M. was later

moved to another facility and eventually passed away in

January of 2013.

CONCLUSIONS OF LAW

3 1 . DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to chapter 120.

32. As the party asserting the affirmative of an issue, the

Agency has the burden of proof and must prove the material

allegations by clear and convincing evidence. Dep ' t of Banking &

Fin. v. Osborne Stern & Co. , 679 So. 2d 932 (Fla. 1996).

33. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court held

that:

[C]lear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking confusion as to t he facts in

issue. The evidence 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.

Id. The Florida Supreme Court later ado pted the Slomowitz

court ' s description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District Court

of Appeal also has followed the Slomowitz test, adding that

"[a]lthough this standard of proof may be met where the evidence

is in conflict, . . . it seems to preclude evidence that is

ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc. , 590

So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied , 599 So. 2d 1279

(Fla. 1992)(citation omitted).

34. Section 40 0.0255, which is the statutory authority

cited by the Agency for the alleged deficiency, contains various

provisions that deal with nursing home resident transfers or

discharges that are initiated by the nursing home facility.

Specifically, section 400.02 55(17) states as follows:

The provisions of this section apply to

transfers or discharges that are initiated by

the nursing home facility and not by the

resident or by the resident ' s physician or

legal guardian or representative.

35. The statutory provis ion cited by the Agency in the

Statement of Deficiencies is wholly inapplicable in the instant

case. The Baker Act transfer was initiated by Dr. Cambronne, and

not by Water ' s Edge.

36. As to the involuntary examination of M.M.,

s ection 394.463(2)(a)3. , F lorida Statutes, states as follows:

A physician, clinical psychologist,

psychiatric nurse, mental health counselor,

marriage and family therapist, or clinical

social worker may execute a certificate

stating that he or she has examined a person

within the p receding 48 hours and finds that

the person appears to meet the criteria for

involuntary examination and stating the

observations upon which that conclusion is

based. If other less restrictive means are

not available, such as voluntary appearance

for outp atient evaluation, a law enforcement

officer shall take the person named in the

certificate into custody and deliver him or

her to the nearest receiving facility for

involuntary examination.

37. Here, Dr. Cambronne executed a certificate on May 3,

after having examined M.M. on May 1. The certificate indicated

that M.M. met the criteria for involuntary examination, and

Dr. Cambronne wrote her observations which were the basis for her

conclusion. The form meets all the statutory requirements. As

further required by the statute, law enforcement was notified by

Water ' s Edge, and M.M. was properly transferred to the nearest

receiving facility.

38. As Ms. Lenderman explained, the nursing home

administrator must follow a Baker Act order and must do so

without delay.

39. No statute, rule, or policy has been cited by the

Agency to support its argument that Water ' s Edge could exercise

discretion when a physician issues a Baker Act o rder.

40. The Agency failed to establish that Waters ' Edge

violated section 400. 0255 , by improperly discharging or

transferring M.M.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Administration dismiss the Statement of Deficiencies issued to

WaterÓs Edg e.

DONE AND ENTERED this 2 4 t h day of June , 2013 , in

Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

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 2 4 t h day of June , 2013 .

ENDNOTE

1/ Unless otherwise indicated, all statutory references are to

the 2012 codification of Florida Statutes, which was in effect at

the time of the alleged deficiency.

COPIES FURNISHED:

Nelson E. Rodney, Esquire

Agency for Health Care Administration

8333 Northwest 53rd Street , Suite 300

Miami, Florida 33166

Thomas W. C aufman, Esquire

Sheila K. Nicholson, Esquire

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

4905 West Laurel Street , Suite 200

Tampa, Florida 33607

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Flor ida 32308

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Fl orida 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 t he Final Order in this case.