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.
Recommended Order on Friday, December 28, 2012.
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.
- Date
- Proceedings
- 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.
- 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: 08/29/2012
- 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.
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
-
James H. Harris, Esquire
Address of Record -
Theodore E. Mack, Esquire
Address of Record