12-002306 Agency For Health Care Administration vs. Dos Of Crystal River Alf, Llc, D/B/A Crystal Gem Alf
 Status: Closed
Recommended Order on Friday, December 28, 2012.


View Dockets  
Summary: Respondent subject to $100 administrative fine for deficient health assessment form, but Agency failed to prove that Respondent was neglectful or provided inadequate supervision to prevent a resident's elopement.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8AGENCY FOR HEALTH CARE )

13ADMINISTRATION , )

15)

16Petitioner , )

18)

19vs. )

21) Case No. 12 - 2306

27DOS OF CRYSTAL RIVER ALF, LLC )

34d/b/a CRYSTAL GEM ALF , )

39)

40Respondent . )

43)

44RECOMMENDED ORDER

46A n administrative hearing was conducted in this case on

56September 13, 201 2 , in Inverness , Florida, before

64James H. Peterson, III, Administrative Law Judge with the

73Division of Administrative Hearings.

77APPEARANCES

78For Petitioner: James H. Harris , Esquire

84Agency for Health Care Administration

89The Sebring Building, Suite 330D

94525 Mirror Lake Drive, North

99St. Petersburg, Florida 33701

103For Respondent: Theodore E. Mack , Esquire

109Powell & Mack

1123700 Bellwood Drive

115Tallahassee , Florida 32303

118STATEMENT OF THE ISSUE S

123W hether Respondent , DOS of Crystal River ALF, LLC , d/b/a

133Crystal Gem ALF (Crystal Gem or Respondent) , should be subjected

143to the imposition of administrative fines pursuant to sections

152408.813 and 429.19, Florida Statutes, 1 / for (1) failing to have a

165completed a Resident Health Assessment form for each resident as

175required by Florida Administrative Code R ule 58A - 5.0181,

185(2) failing to provide app ropriate supervision to prevent

194elopement and failing to properly notify a residentÓs health

203care provider and others of a significant change in a resident

214as required by Florida Administrative Code R ule 58A - 5.0182, and

226(3) neglecting a resident by failing to take adequate measures

236to protect the resident from eloping as required by section

246429.28, Florida Statutes.

249PRELIMINARY STATEMENT

251On May 29, 2012 , the Agency for Health Care Administration

261(Agency) issued an A dministrative C omplaint (Complaint) seekin g

271administrative fines totaling $10,500 for Respondent's alleged

279violat ions of Florida Administrative R ules 58A - 5.0181 and 58A -

2925.0182, and section 429.28, Florida Statutes. Respondent timely

300requested an administrative hearing under c hapter 120, Florida

309S tatutes . O n July 5, 2012 , the Agency referred the case to the

324Division of Administrative Hearings (DOAH).

329At the administrative hearing held on September 13, 2012 ,

338the Agency presented the testimony of Jeff Clay , a former Agency

349surveyor ; Teresa Cavallaro , a Registered Nurse who is an Agency

359surveyor; David Knazur, a Protective Investigator with the

367Florida Department of Children and Families; and the wife of the

378resident identified as Resident #1 in the Agency's August 31,

3882011 , survey of Respond ent. Resident #1 shall be identified

398herein as "J.B." and his wife as "Mrs. B." The Agency offered

41014 exhibits received into evidence as Exhibits P - 1 through P - 14 ,

424without objection .

427The proceedings were recorded and a transcript was ordered.

436T he partie s were given 30 days from the filing of the Transcript

450within which to submit their p ropose d recommended o rders. The

462Transcript, consisting of two volumes, was filed on October 10,

4722012, and the parties timely filed their respective Proposed

481Recommended O rders, which have been considered in the

490preparation of this Recommended Order.

495FINDINGS OF FACT

4981. The Agency is the licensing and enforcing authority for

508assisted living facilities pursuant to chapters 429, Part I, and

518408, Part II, Florida Statutes, a nd Florida Administrative Code

528Chapter 58A - 5 .

5332. Respondent operates a 70 - bed assis ted living facility

544located at 10845 West Gem Street, Crystal River, Florida, and is

555licensed as an assisted - living facility, license number 10687.

5653. Assisted - living facilities are required to have a

575completed health assessment on Agency F or m 1823 for each

586resident . Agency Form 1823 has three sections. The first two

597sections are to be completed by a health care provider, and the

609third section is to be completed by th e facility's

619administration.

620COUNT I: Resident Health Assessments

6254. On July 12 and 13, 2011, the Agency conducted a survey

637of Respondent during which the Agency reviewed Form 1823s on

647Respondent's residents. During the survey, the Agency

654identified inc omplete Form 1823s on two of Respondent's

663residents. The first Form 1823 identified by the Agency as

673incomplete lacked a date on which the assessment was completed.

683The second Form 1823 lacked a medical history and diagnosis, and

694had inconsistent stateme nts regarding whether the resident

702need ed assistance with medication .

7085. During a follow - up survey of Respondent on August 23,

7202011, the Agency found one more Agency Form 1823 that the Agency

732considered deficient . The form did not indicate the resident's

742cognitive or behavioral status, or whether the resident need ed

75224 - hour or psychiatric care . 2 / In addition, the form stated that

767the resident needed assistance taking medication but was not

776specific regarding the type of help need ed.

7846. A ll of the deficiencies cited by the Agency were in the

797first two sections of the form. According to the Agency, all

808three Agency Form 1823s that it found to be deficient

818constituted " Class III " deficiencies , which are conditions or

826occurrences that "indir ectly or potentially threaten the

834p hysical or emotional health, safety, or security of facility

844residents . . . ." See § 408.813(2)(c) , Fla. Stat.

8547. In fact, the Agency testified that it considers any

864incomplete Form 1823 as a "Class III" deficiency.

8728. According to the Agency, errors identified in the

881health care provider's portion of the Agency Form 1823s are

891Class III violations because complete information is required

899for the facility to develop the third portion of the form in

911order to provide pr oper care to the resident. The Agency,

922however, offered no evidence indicating that the third portions

931of the subject forms were not correct , or that any of the

943deficiencies in the forms identified by the Agency harmed any

953resident .

9559. While the Agency argued that missing information in the

965health assessments could cause potential problems for the

973subject residents , those arguments were merely speculative,

980considering the fact that the Agency did not find deficiencies

990in those portions of the forms filled out by Respondent relating

1001to the actual care received by the residents. Further, the

1011Agency did not show that any of the subject residents were

1022receiving improper care.

102510. Although the clear and convincing evidence

1032demonstrated that there were d eficiencies in the three Agency

1042Form 1823s identified by the Agency , the evidence was

1051insufficient to show that the deficiencies " indirectly or

1059potentially threaten [ed] the physical or emotional health,

1067safety, or security of facility residents . "

1074COUNTS II & III : THE WANDERING RESIDENT

108211. On August 3, 2011, Mrs. B. first brought her husband,

1093J.B., to Respondent's facility for an initial evaluation.

1101Although unknown at the time he first arrived, J.B. was

1111suffering from a rare brain disorder known as Creu tzfeldt -

1122Jakob disease . The initial valuation diagnosed J.B. as

1131suffering from cerebral vascular accident, dementia, depression

1138and anxiety and found that J.B.'s needs could be met in an

1150assisted living facility.

115312. On Friday, August 5, 2011, Mrs. B . b rought J.B. back

1166to the Respondent's facility to stay. At the request of the

1177family, J.B. was placed in Respondent's Level 1, non - secure

1188unit, which has keypad locks accessible by certain residents and

1198family .

120013. From the time J.B. arrived, Respondent's staff noticed

1209that J.B. liked to wander. Although wandering or danger of

1219elopement was not mentioned in J.B.'s initial evaluation, the

1228fact that J.B. tended to wander was no surprise to the staff

1240because they knew that people with d ementia often wander.

125014. According to opinions offered by witnesses for both

1259Respondent and Petitioner who are familiar with the habits of

1269patients with d ementia, anywhere from 75 to 90 percent of

1280patients with dementia tend to wander.

128615. That first day, J.B. wandered throughout the Level - 1

1297unit of Respondent's facility, and may have wandered into a

1307Level - 1 accessible courtyard that very first day. 3 /

131816. The next day, Saturday, August 6, 2011, J.B. continued

1328to wander within the facility. Shannon K issel was the resident

1339care aide assigned to L evel - 1 on the weekends that J.B. was at

1354Respondent's facility. Tiffany Stanley was the resident care

1362aide assigned to Level - 2 on those weekends. Both Ms. Kissel and

1375Ms. Stanley worked 16 - hour shifts on the we ekends, 7:00 a.m. to

138911:00 p.m., Saturday and Sunday.

139417. Both Ms. Kissel and Ms. Stanle y were aware that J.B.

1406wandered and that dementia patients tend to wander.

141418. After dinner on the evening of August 6, 2011, between

14258:30 p.m. and 9:00 p.m., Ms. Kissel could not locate J.B. She

1437notified Ms. Stanley and the two of them looked all through the

1449facility, both Levels 1 and 2. They eventually found him just

1460outside the front door, standing on the side of the building.

147119. They took him back inside, g ot him cleaned up , and put

1484on his pajamas. He had no bruises, scratches, or apparent

1494injuries.

149520. Neither Respondent's facility administrator nor its

1502resident care coordinator was on site at the time of the

1513incident because they do not wor k weekends. Ms. Kissel and

1524Ms. Stanley contacted the facility administrator and the

1532resident care coordinator by telephone and advised them that

1541J.B. had "eloped" from the facility. They all agreed that,

1551under the circumstances, it was best to move J.B. to the Level - 2

"1565lock - down" portion of the facility.

157221. By 10: 00 p.m. that same evening , J.B. was moved to a

1585room in Level 2.

158922. On Sunday, August 7, 2011, J.B.'s wife and son came to

1601Respondent's facility and helped move the rest of J.B.'s

1610personal belo ngings to h is new room in Level 2.

162123. Thirty - minute checks were instituted for J.B., so that

1632that staff checked on him every 30 minutes. 4 /

164224. That afternoon, after his family had left, J.B. once

1652again got out of the facility. This time, Ms. Stanley

1662discovered th at J.B. was absen t, after not seeing him for about

167520 minutes. She immediately began searching the entire facility

1684for J.B. , following protocol that called for opening the doors

1694betwe en Level 1 and Level 2, so that staff members could check

1707the entire building while also keeping an eye on other

1717residents.

171825. Eventually, Ms. Stanley checked room 22 in Level 2 and

1729noticed a window open. She looked out of the window and

1740discovered J.B. standing just outside, right next to the window.

1750She called another employee named Amy, who came and kept an eye

1762on J.B. while Ms. Stanley went around to an exit door and

1774outside to J.B.'s location.

177826. J.B. was standing right next to the building in a

1789grassy area. Ms. Stanley was able to coax him back into the

1801buildi ng with promises of an "Orange Crush" soft drink.

181127. Once inside, Ms. Stanley gave J.B. an Orange Crush and

1822then he was showered and cleaned up. Even though the window

1833that J.B. had apparently crawled through to get outside was

1843quite small when compared to his large size , Ms. Stanley did not

1855notice any bruises or scrapes on J.B. In her testimony,

1865Ms. Stanley explained:

1868Well the bruises aren't going to show up

1876instantly, but there were no cuts, no

1883scrapes, no - - you know, he wasn't

1891complaining of any pai n. You know, he just

1900wanted to be outside.

190428. According to observation notes in a log that

1913Respondent kept on J.B. , on Monday, August 8, 2011, staff caught

1924J.B. halfway out of a window in another attempt to escape.

193529. Staff contacted J.B.Ós health ca re provider on

1944August 8, 2011, and advised of J.B.Ós escaping behavior.

195330. The observation notes also document that on Tuesday,

1962August 9, J.B. escaped from the Level - 2 lockdown and had to be

1976r edirected back into Level 2. The note does not indicate

1987wh ether J.B. escaped by walking through the door into Level 1,

1999or into the patio area at the back of Level 2. The patio area

2013at the back of Level 2 is surrounded by a secure, seven - foot

2027high fence and is accessible to Level 2 residents.

203631. J.B. was showered by staff on Tuesday, August 9, 2011,

2047and there was no report of bruising.

205432. There is no evidence that J.B. escaped or attempted to

2065escape after August 9, 2011.

207033. On August 13, 2011, while bathing J.B., Respo ndent's

2080staff noticed bruises. Wh ile J.B. may have incurred the bruises

2091while attempting to crawl out of a window or escape from the

2103facility, the evidence was inconclusive as to exactly how he

2113incurred the bruises. That same day, an adult protective

2122services investigator with the Florid a Department of Children

2131and Families observed J.B. and noticed bruising on his abdomen,

2141as well as a small bruise on his head and rash on his inner

2155thigh.

215634. The next day, Sunday, August 14, 2011, J.B. was sent

2167to the hospital complaining of abdominal p ain. He was treated

2178and releas ed back to Respondent's care that same day with a

2190catheter because he had been retaining fluid in his bladder.

2200There is no evidence that he was treated, or needed treatment,

2211for any bumps or bruises.

221635. At all pertinent ti mes, Respondent had policies and

2226procedures in place regarding elopement as required by Florida

2235Administrative Rule 58A - 5.0182. The Agency has not alleged that

2246the RespondentÓs policies do not meet rule requirements.

225436. According to RespondentÓs p olicy and procedure s in

2264effect at the time of the incidents involving J.B., elopement

2274occurs when a resident leaves the facility property beyond the

2284perimeter of the parking lot.

228937. The evidence does not show that J.B. ever went beyond

2300the perimeter of RespondentÓs parking lot.

230638. There was no evidence that any other resident had ever

2317escaped from RespondentÓs facility.

232139. While the Agency submitted additional evidence in the

2330form of statements taken from an administrator of RespondentÓs

2339facility, Rebecca Bilby, Ms. Bilby was not called as a witness.

2350While Ms. BilbyÓs statements may be admissible as an admission 5 /

2362or on other grounds, Ms. Bilby was not present at RespondentÓs

2373facility when the incidents regarding J.B. occurred. T he

2382testimonies of staff actually present during J.B.Ós escapes and

2391escape attempts were more persuasive than statements obtained

2399from Ms. Bilby .

240340. The evidence was insufficient to demonstrate that

2411Respondent 's lack of supervision was the cause of J.B.Ós

2421escapes, attempt ed escapes, or injuries. Rather, t he evidence

2431adduced at the final hearing indicated that although

2439Respondent's staff knew that J.B. had wandering behavior, his

2448actual escape s were not reasonably foreseeable under the

2457circumstances. There was no evidence that anyone had previously

2466escaped from Respondent's facility.

247041. Rather than showing that staff did not provide

2479appropriate supervision of J.B. , the evidence showed that on

2488those occasions that J.B. escaped, Respondent's staff reacted

2496quickly and appropriately to bring J.B. back inside before he

2506wandered beyond the immediate exterior wall area of the

2515building.

251642. Moreover, c onsidering RespondentÓs definition of

2523Ðelopement,Ñ there was no actual elopement by J.B. There is no

2535indication that J.B. ever went into, much less farther, than the

2546parking lot of Respondent's facility.

255143. Further, given J.B.Ós proclivity to wander prior to

2560his escapes, J.B.Ós actual escapes and attempted escapes did n ot

2571constitute Ðsignificant change s Ñ 6 / in J.B.Ós behavior.

2581Nevertheless, the family was notified either the night of, or

2591the next morning, after J.B. escaped and was moved to the

2602secure, Level 2, portion of the facility. In addition , J.B.Ós

2612health - care pr ovider was notified on Monday.

262144. Finally, the evidence was insufficient to show that

2630Respondent was careless or neglected 7 / to take adequate measures

2641to protect J.B. from eloping or danger . The 30 - minute checks

2654instituted by Respondent resulted in quick responses before J.B.

2663had an opportunity to go beyond the immediate edge of

2673Respondent's facility and the supervision provided by

2680Respondent's staff prevented his exposure to any real danger.

2689CONCLUSIONS O F LAW

269345. The Division of Administrative Hearings has

2700jurisdiction over the parties and subject matter of this

2709proceeding. See §§ 120.569, 120.57(1 ), Florida Statutes (20 12 ) .

272146. The Agency is the state agency responsible for

2730licensure of ALFs and enforcement of all applicable F ederal

2740regulations, state statutes, and rule s governing ALFs pursuant

2749to the c hapter 429, p art I, Florida Statutes , and Florida

2761Administrative Code Rule 58A - 5 .

276847. The Agency , as t he party asserting the affirmative in

2779this proceeding, has the burden of proof. See , e.g. , Balino v.

2790Dep Ó t of Health & Rehabilitative S er v s . , 348 So. 2d 349 (Fla.

28071st DCA 1977). Because the Petitioner is seeking to prove

2817violations of a statute and impose administrative fines or other

2827penalties , it has the burden to prove the allegations in the

2838complaint by clear and convincing evidence. Ferris v.

2846Turlington , 510 So. 2d 292 (Fla. 1987).

285348. Clear and convincing evidence:

2858requires that evidence must be found to be

2866credible; the facts to which t he witnesses

2874testify must be distinctly remembered; the

2880testimony must be precise and explicit and

2887the witnesses must be lacking confusion as

2894to the facts in issue. The evidence must be

2903of such weight that it produces in the mind

2912of the trier of fact, a f irm belief or

2922conviction, without hesitancy, as to the

2928truth of the allegations sought to be

2935established.

2936In re Henson , 913 So. 2d 579, 590 (Fla. 2005)( quoting Slomowitz

2948v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983) ) .

296049. S ection 429.19 (2) which govern s administrative fines

2970against assisted living facilities for violations of applicable

2978rules and laws, provides for fines of $5,000 to $10,000 for

2991Class I violations; $1,000 to $5,000 for Class II violations;

3003$500 to $1,000 for Class III violations; and $1 00 to $200 for

3017Class IV violations. Section 429.19 (3) further provides:

3025For purposes of this section, in determining

3032if a penalty is to be imposed and in fixing

3042the amount of the fine, the agency shall

3050consider the following factors:

3054(a) The gravity of the violation, including

3061the probability that death or serious

3067physical or emotional harm to a resident

3074will result or has resulted, the severity of

3082the action or potential harm, and the extent

3090to which the provisions of the applicable

3097laws or rules were v iolated.

3103(b) Actions taken by the owner or

3110administrator to correct violations.

3114(c) Any previous violations.

3118(d) The financial benefit to the facility

3125of committing or continuing the violation.

3131(e) The licensed capacity of the facility.

313850. S ection 4 08.813(2)(a) - (d) defines the classes of

3149violations used in section 429.19, as follows:

3156(a) Class ÐIÑ violations are those

3162conditions or occurrences related to the

3168operation and maintenance of a provider or

3175to the care of clients which the agency

3183determine s present an imminent danger to the

3191clients of the provider or a substantial

3198probability that death or serious physical

3204or emotional harm would result therefrom.

3210The condition or practice constituting a

3216class I violation shall be abated or

3223eliminated with in 24 hours, unless a fixed

3231period, as determined by the agency, is

3238required for correction. The agency shall

3244impose an administrative fine as provided by

3251law for a cited class I violation. A fine

3260shall be levied notwithstanding the

3265correction of the vio lation.

3270(b) Class ÐIIÑ violations are those

3276conditions or occurrences related to the

3282operation and maintenance of a provider or

3289to the care of clients which the agency

3297determines directly threaten the physical or

3303emotional health, safety, or security of th e

3311clients, other than class I violations. The

3318agency shall impose an administrative fine

3324as provided by law for a cited class II

3333violation. A fine shall be levied

3339notwithstanding the correction of the

3344violation.

3345(c) Class ÐIIIÑ violations are those

3351condi tions or occurrences related to the

3358operation and maintenance of a provider or

3365to the care of clients which the agency

3373determines indirectly or potentially

3377threaten the physical or emotional health,

3383safety, or security of clients, other than

3390class I or cla ss II violations. The agency

3399shall impose an administrative fine as

3405provided in this section for a cited class

3413III violation. A citation for a class III

3421violation must specify the time within which

3428the violation is required to be corrected.

3435If a class III violation is corrected within

3443the time specified, a fine may not be

3451imposed.

3452(d) Class ÐIVÑ violations are those

3458conditions or occurrences related to the

3464operation and maintenance of a provider or

3471to required reports, forms, or documents

3477that do not ha ve the potential of negatively

3486affecting clients. These violations are of

3492a type that the agency determines do not

3500threaten the health, safety, or security of

3507clients. The agency shall impose an

3513administrative fine as provided in this

3519section for a cited class IV violation. A

3527citation for a class IV violation must

3534specify the time within which the violation

3541is required to be corrected. If a class IV

3550violation is corrected within the time

3556specified, a fine may not be imposed .

356451. Florida Administrative Code Rule 58A - 5.0181(2) , in

3573pertinent part, requires the completion of a health assessment

3582for admission into an assisted living facility, as follows:

3591(2) HEALTH ASSESSMENT. As part of the

3598admission criteria, an individual must

3603undergo a face - to - face med ical examination

3613completed by a licensed health care

3619provider, as specified in either paragraph

3625(a) or (b) of this subsection.

3631(a) A medical examination completed within

363760 calendar days prior to the individualÓs

3644admission to a facility pursuant to Section

3651429.26(4), F.S. The examination must address

3657the following:

36591. The physical and mental status of the

3667resident, including the identification of

3672any health - related problems and functional

3679limitations;

36802. An evaluation of whether the individual

3687will require supervision or assistance with

3693the activities of daily living;

36983. Any nursing or therapy services required

3705by the individual;

37084. Any special diet required by the

3715individual;

37165. A list of current medi cations

3723prescribed, and whether the individual will

3729require any assistance with the

3734administration of medication;

37376. Whether the individual has signs or

3744symptoms of a communicable disease which is

3751likely to be transmitted to other residents

3758or staff;

37607. A statement on the day of the

3768examination that, in the opinion of the

3775examining licensed health care provider, the

3781individualÓs needs can be met in an assisted

3789living facility; and

37928. The date of the examination, and the

3800name, signature, address, phone nu mber, and

3807license number of the examining licensed

3813health care provider. The medical

3818examination may be conducted by a currently

3825licensed health care provider from another

3831state.

3832(b) A medical examination completed after

3838the residentÓs admission to the f acility

3845within 30 calendar days of the admission

3852date. The examination must be recorded on

3859AHCA Form 1823, Resident Health Assessment

3865for Assisted Living Facilities, October

38702010. The form is hereby incorporated by

3877reference. A faxed copy of the complet ed

3885form is acceptable. A copy of AHCA Form

38931823 may be obtained from the Agency Central

3901Office or its website at

3906www.fdhc.state.fl.us/MCHQ/Long_Term_Care/

3907Assisted_living/pdf/AHCA_Form_1823%.p df.

3909The form must be completed as follows:

39161. The residentÓs licensed health care

3922provider must complete all of the required

3929information in Sections 1, Health

3934Assessment, and 2, Self - Care and General

3942Oversight Assessment.

3944a. Items on the form that ma y have been

3954omitted by the licensed health care provider

3961during the examination do not necessarily

3967require an additional face - to - face

3975examination for completion.

3978b. The facility may obtain the omitted

3985information either verbally or in writing

3991from the lic ensed health care provider.

3998c. Omitted information received verbally

4003must be documented in the residentÓs record,

4010including the name of the licensed health

4017care provider, the name of the facility

4024staff recording the information and the date

4031the informatio n was provided.

40362. The facility administrator, or designee,

4042must complete Section 3 of the form,

4049Services Offered or Arranged by the

4055Facility, or may use electronic

4060documentation, which at a minimum includes

4066the elements in Section 3. This requirement

4073does not apply for residents receiving:

4079a. Extended congregate care (ECC) services

4085in facilities holding an ECC license;

4091b. Services under community living support

4097plans in facilities holding limited mental

4103health licenses;

4105c. Medicaid assistive care s ervices; and

4112d. Medicaid waiver services.

4116(c) Any information required by paragraph

4122(a) that is not contained in the medical

4130examination report conducted prior to the

4136individualÓs admission to the facility must

4142be obtained by the administrator within 30

4149days after admission using AHCA Form 1823.

415652. Despite the requirements of rule 58A - 5.0181(2) , as

4166noted in the Findings of Fact, above, the evidence failed to

4177demonstrate that the deficiencies in the three Agency Form 1823s

4187identified by the Agency " indirectly or potentially threaten [ed]

4196the physical or emotional health, safety, or security of

4205facility residents ." See § 408.813(2)(c), Fla. Stat. (quoted

4214above). Therefore, the Agency failed to prove its charge

4223against Respondent that the deficiencies in Respondent's Agency

4231Form 1823's were Class III violations . Id.

423953. That is not to say, however, that the Agency did not

4251prove that Respondent violated rule 58A - 5.0181(2). Although

4260Respondent argues that the charges in the Complaint should be

4270limited to an alleged Class III violation, a fair reading of the

4282Complaint shows that Count I of the Complaint was broad enough

4293to encompass lesser classes of violations.

429954. Under the circumstances, it is concluded that the

4308uncorrected deficiency in the Agenc y Form 1823 found during the

4319revisit constituted a Class IV deficiency as defined in section

4329408.813(2)(d), and that an administrative fine in the amount of

4339$100 for that violation , pursuant to section 429.19(2)(d),

4347Florida Statutes, is appropriate.

435155. Count II of the Complaint alleges that Respondent

4360failed to provide appropriate supervision to prevent J.B.'s

4368elopement and did not properly notify J.B.'s health care

4377provider and others of a significant change in J.B. as required

4388by Florida Administrativ e Code R ule 58A - 5.0182. That rule

4400provides:

4401An assisted living facility shall provide

4407care and services appropriate to the needs

4414of residents accepted for admission to the

4421facility.

4422(1) SUPERVISION. Facilities shall offer

4427personal supervision, as approp riate for

4433each resident, including the following:

4438(a) Monitor the quantity and quality of

4445resident diets in accordance with Rule 58A -

44535.020, F.A.C.

4455(b) Daily observation by designated staff

4461of the activities of the resident while on

4469the premises, and awar eness of the general

4477health, safety, and physical and emotional

4483well - being of the individual.

4489(c) General awareness of the residentÓs

4495whereabouts. The resident may travel

4500independently in the community.

4504(d) Contacting the residentÓs health care

4510provider and other appropriate party such as

4517the residentÓs family, guardian, health care

4523surrogate, or case manager if the resident

4530exhibits a significant change; contacting

4535the residentÓs family, guardian, health care

4541surrogate, or case manager if the resident

4548is discharged or moves out.

4553(e) A written record, updated as needed, of

4561any significant changes as defined in

4567subsection 58A - 5.0131(33), F.A.C., any

4573illnesses which resulted in medical

4578attention, major incidents, changes in the

4584method of medication administ ration, or

4590other changes which resulted in the

4596provision of additional services.

4600(2) SOCIAL AND LEISURE ACTIVITIES.

4605Residents shall be encouraged to participate

4611in social, recreational, educational and

4616other activities within the facility and the

4623community.

4624(a) The facility shall provide an ongoing

4631activities program. The program shall

4636provide diversified individual and group

4641activities in keeping with each residentÓs

4647needs, abilities, and interests.

4651(b) The facility shall consult with the

4658resid ents in selecting, planning, and

4664scheduling activities. The facility shall

4669demonstrate residentsÓ participation through

4673one or more of the following methods:

4680resident meetings, committees, a resident

4685council, suggestion box, group discussions,

4690questionnai res, or any other form of

4697communication appropriate to the size of the

4704facility.

4705(c) Scheduled activities shall be available

4711at least six (6) days a week for a total of

4722not less than twelve (12) hours per week.

4730Watching television shall not be consider ed

4737an activity for the purpose of meeting the

4745twelve (12) hours per week of scheduled

4752activities unless the television program is

4758a special one - time event of special interest

4767to residents of the facility. A facility

4774whose residents choose to attend day

4780pr ograms conducted at adult day care

4787centers, senior centers, mental health

4792centers, or other day programs may count

4799those attendance hours towards the required

4805twelve (12) hours per week of scheduled

4812activities. An activities calendar shall be

4818posted in co mmon areas where residents

4825normally congregate.

4827(d) If residents assist in planning a

4834special activity such as an outing, seasonal

4841festivity, or an excursion, up to t hree

4849(3) hours may be counted toward the required

4857activity time.

4859(3) ARRANGEMENT FOR HEA LTH CARE. In order

4867to facilitate resident access to needed

4873health care, the facility shall, as needed

4880by each resident:

4883(a) Assist residents in making appointments

4889and remind residents about scheduled

4894appointments for medical, dental, nursing,

4899or mental h ealth services.

4904(b) Provide transportation to needed

4909medical, dental, nursing or mental health

4915services, or arrange for transportation

4920through family and friends, volunteers,

4925taxicabs , public buses, and agencies

4930providing transportation for persons with

4935d isabilities.

4937(c) The facility may not require residents

4944to see a particular health care provider.

4951(4) ACTIVITIES OF DAILY LIVING. Facilities

4957shall offer supervision of or assistance

4963with activities of daily living as needed by

4971each resident. Residents s hall be encouraged

4978to be as independent as possible in

4985performing ADLs.

4987(5) NURSING SERVICES.

4990(a) Pursuant to Section 429.255, F.S., the

4997facility may employ or contract with a nurse

5005to:

50061. Take or supervise the taking of vital

5014signs;

50152. Manage pill - or ganizers and administer

5023medications as described under Rule 58A -

50305.0185, F.A.C.;

50323. Give prepackaged enemas pursuant to a

5039physicianÓs order; and

50424. Maintain nursing progress notes.

5047(b) Pursuant to Section 464.022, F.S., the

5054nursing services listed in paragraph (a) may

5061also be delivered in the facility by family

5069members or friends of the resident provided

5076the family member or friend does not receive

5084compensation for such services.

5088(6) R ESIDENT RIGHTS AND FACILITY

5094PROCEDURES.

5095(a) A copy of the Resident Bill of Rights

5104as described in Section 429.28, F.S., or a

5112summary provided by the Long - Term Care

5120Ombudsman Council shall be posted in full

5127view in a freely accessible resident area,

5134and in cluded in the admission package

5141provided pursuant to Rule 58A - 5.0181, F.A.C.

5149(b) In accordance with Section 429.28,

5155F.S., the facility shall have a written

5162grievance procedure for receiving and

5167responding to resident complaints, and for

5173residents to recom mend changes to facility

5180policies and procedures. The facility must

5186be able to demonstrate that such procedure

5193is implemented upon receipt of a complaint.

5200(c) The address and telephone number for

5207lodging complaints against a facility or

5213facility staff sh all be posted in full view

5222in a common area accessible to all

5229residents. The addresses and telephone

5234numbers are: the District Long - Term Care

5242Ombudsman Council, 1(888)831 - 0404; the

5248Advocacy Center for Persons with

5253Disabilities, 1(800)342 - 0823; the Florida

5259Local Advocacy Council, 1(800)342 - 0825; and

5266the Agency Consumer Hotline 1(888)419 - 3456.

5273(d) The statewide toll - free telephone

5280number of the Florida Abuse Hotline

5286Ð1(800)96 - ABUSE or 1(800)962 - 2873Ñ shall be

5295posted in full view in a common area

5303accessible to all residents.

5307(e) The facility shall have a written

5314statement of its house rules and procedures

5321which shall be included in the admission

5328package provided pursuant to Rule 58A -

53355.0181, F.A.C. The rules and procedures

5341shall address the facilityÓs polici es with

5348respect to such issues, for example, as

5355resident responsibilities, the facilityÓs

5359alcohol and tobacco policy, medication

5364storage, the delivery of services to

5370residents by third party providers, resident

5376elopement, and other administrative and

5381house keeping practices, schedules, and

5386requirements.

5387(f) Residents may not be required to

5394perform any work in the facility without

5401compensation, except that facility rules or

5407the facility contract may include a

5413requirement that residents be responsible

5418for cle aning their own sleeping areas or

5426apartments. If a resident is employed by

5433the facility, the resident shall be

5439compensated, at a minimum, at an hourly wage

5447consistent with the federal minimum wage

5453law.

5454(g) The facility shall provide residents

5460with convenient access to a telephone to

5467facilitate the residentÓs right to

5472unrestricted and private communication,

5476pursuant to Section 429.28(1)(d), F.S. The

5482facility shall not prohibit unidentified

5487telephone calls to residents. For

5492facilities with a license d capacity of 17 or

5501more residents in which residents do not

5508have private telephones, there shall be, at

5515a minimum, an accessible telephone on each

5522floor of each building where residents

5528reside.

5529(h) Pursuant to Section 429.41, F.S., the

5536use of physical re straints shall be limited

5544to half - bed rails, and only upon the written

5554order of the residentÓs physician, who shall

5561review the order biannually, and the consent

5568of the resident or the residentÓs

5574representative. Any device, including half -

5580bed rails, which the resident chooses to use

5588and can remove or avoid without assistance

5595shall not be considered a physical

5601restraint.

5602(7) THIRD PARTY SERVICES. Nothing in this

5609rule chapter is intended to prohibit a

5616resident or the residentÓs representative

5621from independen tly arranging, contracting,

5626and paying for services provided by a third

5634party of the residentÓs choice, including a

5641licensed home health agency or private

5647nurse, or receiving services through an out -

5655patient clinic, provided the resident meets

5661the criteria for continued residency and the

5668resident complies with the facilityÓs policy

5674relating to the delivery of services in the

5682facility by third parties. The facilityÓs

5688policies may require the third party to

5695coordinate with the facility regarding the

5701residentÓ s condition and the services being

5708provided pursuant to subsection 58A -

57145.016(8), F.A.C. Pursuant to subsection (6)

5720of this rule, the facility shall provide the

5728resident with the facilityÓs policy

5733regarding the provision of services to

5739residents by non - faci lity staff.

5746(8) ELOPEMENT STANDARDS.

5749(a) Residents Assessed at Risk for

5755Elopement. All residents assessed at risk

5761for elopement or with any history of

5768elopement shall be identified so staff can

5775be alerted to their needs for support and

5783supervision.

57841. As part of its resident elopement

5791response policies and procedures, the

5796facility shall make, at a minimum, a daily

5804effort to determine that at risk residents

5811have identification on their persons that

5817includes their name and the facilityÓs name,

5824address, an d telephone number. Staff

5830attention shall be directed towards

5835residents assessed at high risk for

5841elopement, with special attention given to

5847those with AlzheimerÓs disease and related

5853disorders assessed at high risk.

58582. At a minimum, the facility shall h ave a

5868photo identification of at risk residents on

5875file that is accessible to all facility

5882staff and law enforcement as necessary. The

5889photo identification shall be made available

5895for the file within 10 calendar days of

5903admission. In the event a resident is

5910assessed at risk for elopement subsequent to

5917admission, photo identification shall be

5922made available for the file within 10

5929calendar days after a determination is made

5936that the resident is at risk for elopement.

5944The photo identification may be taken b y the

5953facility or provided by the resident or

5960residentÓs family/caregiver.

5962(b) Facility Resident Elopement Response

5967Policies and Procedures. The facility shall

5973develop detailed written policies and

5978procedures for responding to a resident

5984elopement. At a minimum, the policies and

5991procedures shall include:

59941. An immediate staff search of the

6001facility and premises;

60042. The identification of staff responsible

6010for implementing each part of the elopement

6017response policies and procedures, including

6022specific d uties and responsibilities;

60273. The identification of staff responsible

6033for contacting law enforcement, the

6038residentÓs family, guardian, health care

6043surrogate, and case manager if the resident

6050is not located pursuant to subparagraph

6056(8)(b)1.; and

60584. The c ontinued care of all residents

6066within the facility in the event of an

6074elopement.

6075(c) Facility Resident Elopement Drills.

6080The facility shall conduct resident

6085elopement drills pursuant to Sections

6090429.41(1)(a)3. and 429.41(1)(l), F.S.

6094(9) OTHER STANDARDS . Additional care

6100standards for residents residing in a

6106facility holding a limited mental health,

6112extended congregate care or limited nursing

6118services license are provided in Rules 58A -

61265.029, 58A - 5.030 and 58A - 5.031, F.A.C.,

6135respectively.

613656. Count III of the Complaint alleges that Respondent

6145neglected J.B. by failing to take adequate measures to protect

6155him from eloping as required by section 429.28, Florida

6164Statutes. Section 429.28 is entitled "Resident bill of rights,"

6173and the pertinent part of t hat section recited in Count III of

6186the Complaint provides:

6189(1) No resident of a facility shall be

6197deprived of any civil or legal rights,

6204benefits, or privileges guaranteed by law,

6210the Constitution of the State of Florida, or

6218the Constitution of the Unite d States as a

6227resident of a facility. Every resident of a

6235facility shall have the right to:

6241(a) Live in a safe and decent living

6249environment, free from abuse and neglect.

6255(b) Be treated with consideration and

6261respect and with due recognition of persona l

6269dignity, individuality, and the need for

6275privacy.

627657. The Agency contends that the alleged violations in

6285Counts II and III of the Complaint constitute " Class I

6295violations. " However, c onsidering the standards set forth in

6304rule 58A - 5.0182 and section 4 29.28 in light of the evidence as

6318outlined in the Findings of Fact, above, it is concluded that

6329the Agency failed to prove, by clear and convincing evidence ,

6339that Respondent violated those standards .

6345RECOMMENDATION

6346Based on the foregoing Findings of Fact and Conclusions of

6356Law, it is

6359RECOMMENDED that the Agency for Health Care Administration

6367issue a final order finding:

63721. Respondent violated the standards set forth in Florida

6381Administrative Code Rule 5 8A - 5.0181, by having an uncorrected

"6392Class IV" deficiency, and imposing a $100 administrative fine

6401for that violation in accordance with section 409.19(2)(d),

6409Florida Statutes; and

64122. Respondent did not violate Florida Administrative Code

6420Rule 58A - 5.0182 or section 429.28 , Florida Statutes, and

6430d ismissing Counts II and III of the Complaint.

6439DONE AND ENTERED this 28th day of December , 20 1 2 , in

6451Tallahassee, Leon County, Florida.

6455S

6456JAMES H. PETERSON, III

6460Administrative Law Judge

6463Division of Administrative Hearings

6467The DeSoto Building

64701230 Apalachee Parkway

6473Tallahassee, Florida 32399 - 3060

6478(850) 488 - 9675

6482Fax Filing (850) 921 - 6847

6488www.doah.state.fl.us

6489Filed with the Clerk of the

6495Division of Administrative H earings

6500t his 28th day of December , 201 2 .

6509ENDNOTE S

65111 / Unless otherwise indica ted, all references to Florida

6521s tatutes or rules are to current versions, the pertinent

6531portions of which have not changed since the dates of the

6542alleged violations.

65442 / However, as pointed out in Respondent's Proposed Recommended

6554Order (PRO), "immediately below the unanswered question, the

6562health care provider did indicate that the resident's needs

6571could be met by an assisted living facility, which is not a

6583medical, nursing, or psychiatric facility ." Respondent's PRO,

6591¶ 12.

65933 / The fact t hat J.B. may have wandered into Respondent's Level

66061 courtyard may have been reported to J.B.'s wife and to one or

6619more of Respondent's employees . That wandering, however, was

6628not part of the allegations in the Complaint.

66364 / Apparently, the 30 - minute checks were only conducted from

66487:00 a.m. to 11:00 p.m. There was no evidence submitted,

6658however, indicating that J.B. tended to wander between

666611:00 p.m. and 7:00 a.m.

66715 / See § 90.803(18), Fla. Stat.

66786 / Florida Administrative Code Rule 58A - 5.0131(33) states :

6689ÐS ignificant change Ñ means a sudden or major

6698shift in behavior or mood, or a

6705deterioration in health status such as

6711unplanned weight change, stroke, heart

6716condition, or stage 2, 3, or 4 pressure

6724sore. Ordinary day - to - day fluctuations in

6733functioning and behavior, a short - term

6740illness such as a cold, or the gradual

6748deterioration in the ability to carry out

6755the activities of daily living that

6761accompanies the aging process are not

6767considered significant changes.

67707 / Section 415.102, Florida Statutes, provides:

6777ÐNeglectÑ means the failure or omission on

6784the part of the caregiver or vulnerable

6791adult to provide the care, supervision, and

6798services necessary to maintain the physical

6804and mental health of the vulnerable adult,

6811including, but not limited to, food,

6817clothing, medicine, s helter, supervision,

6822and medical services, which a prudent person

6829would consider essential for the well - being

6837of a vulnerable adult. The term ÐneglectÑ

6844also means the failure of a caregiver or

6852vulnerable adult to make a reasonable effort

6859to protect a vuln erable adult from abuse,

6867neglect, or exploitation by others.

6872ÐNeglectÑ is repeated conduct or a single

6879incident of carelessness which produces or

6885could reasonably be expected to result in

6892serious physical or psychological injury or

6898a substantial risk of d eath.

6904COPIES FURNISHED :

6907James H. Harris, Esquire

6911Agency for Health Care Administration

6916The Sebring Building, Suite 330D

6921525 Mirror Lake Drive, North

6926St. Petersburg, Florida 33701

6930Theodore E. Mack, Esquire

6934Powell and Mack

69373700 Bellwood Drive

6940Tallahasse e, Florida 32303

6944Richard J. Shoop, Agency Clerk

6949Agency for Health Care Administration

69542727 Mahan Drive, Mail Stop 3

6960Tallahassee, Florida 32308

6963Stuart Williams, General Counsel

6967Agency for Health Care Administration

69722727 Mahan Drive, Mail Stop 3

6978Tallahassee, Florida 32308

6981Elizabeth Dudek, Secretary

6984Agency for Health Care Administration

69892727 Mahan Drive, Mail Stop 1

6995Tallahassee, Florida 32308

6998NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

7004All parties have the right to submit written exceptions within

701415 days from the date of this Recommended Order. Any exceptions

7025to this Recommended Order should be filed with the agency that

7036will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/12/2013
Proceedings: Agency's Exceptions to Recommended Order filed.
PDF:
Date: 02/12/2013
Proceedings: Agency Final Order filed.
PDF:
Date: 02/08/2013
Proceedings: Agency Final Order
PDF:
Date: 12/28/2012
Proceedings: Recommended Order
PDF:
Date: 12/28/2012
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/28/2012
Proceedings: Recommended Order (hearing held September 13, 2012). CASE CLOSED.
PDF:
Date: 11/09/2012
Proceedings: Agency's Proposed Recommended Order filed.
PDF:
Date: 11/09/2012
Proceedings: Respondent's Proposed Recommended Order filed.
Date: 10/10/2012
Proceedings: Transcript Volume I-II (not available for viewing) filed.
Date: 09/13/2012
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 08/31/2012
Proceedings: Pre-hearing Stipulation filed.
PDF:
Date: 08/29/2012
Proceedings: Notice of Service of Agency's Responses to Respondent's First Request to Produce to AHCA and to Respondent 's First Interrogatories to AHCA filed.
PDF:
Date: 07/12/2012
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 07/12/2012
Proceedings: Notice of Hearing (hearing set for September 13, 2012; 9:30 a.m.; Inverness, FL).
PDF:
Date: 07/10/2012
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 07/05/2012
Proceedings: Initial Order.
PDF:
Date: 07/05/2012
Proceedings: Notice (of Agency referral] filed.
PDF:
Date: 07/05/2012
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 07/05/2012
Proceedings: Administrative Complaint filed.

Case Information

Judge:
JAMES H. PETERSON, III
Date Filed:
07/05/2012
Date Assignment:
07/05/2012
Last Docket Entry:
02/12/2013
Location:
Inverness, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (10):