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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. )

) Case No. 12 - 2306

DOS OF CRYSTAL RIVER ALF, LLC )

d/b/a CRYSTAL GEM ALF , )

)

Respondent . )

)

RECOMMENDED ORDER

A n administrative hearing was conducted in this case on

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

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

Division of Administrative Hearings.

APPEARANCES

For Petitioner: James H. Harris , Esquire

Agency for Health Care Administration

The Sebring Building, Suite 330D

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

For Respondent: Theodore E. Mack , Esquire

Powell & Mack

3700 Bellwood Drive

Tallahassee , Florida 32303

STATEMENT OF THE ISSUE S

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

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

to the imposition of administrative fines pursuant to sections

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

completed a Resident Health Assessment form for each resident as

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

(2) failing to provide app ropriate supervision to prevent

elopement and failing to properly notify a residentÓs health

care provider and others of a significant change in a resident

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

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

to protect the resident from eloping as required by section

429.28, Florida Statutes.

PRELIMINARY STATEMENT

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

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

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

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

5.0182, and section 429.28, Florida Statutes. Respondent timely

requested an administrative hearing under c hapter 120, Florida

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

Division of Administrative Hearings (DOAH).

At the administrative hearing held on September 13, 2012 ,

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

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

surveyor; David Knazur, a Protective Investigator with the

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

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

2011 , survey of Respond ent. Resident #1 shall be identified

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

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

without objection .

The proceedings were recorded and a transcript was ordered.

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

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

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

2012, and the parties timely filed their respective Proposed

Recommended O rders, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Agency is the licensing and enforcing authority for

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

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

Chapter 58A - 5 .

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

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

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

3. Assisted - living facilities are required to have a

completed health assessment on Agency F or m 1823 for each

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

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

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

administration.

COUNT I: Resident Health Assessments

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

of Respondent during which the Agency reviewed Form 1823s on

Respondent's residents. During the survey, the Agency

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

residents. The first Form 1823 identified by the Agency as

incomplete lacked a date on which the assessment was completed.

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

had inconsistent stateme nts regarding whether the resident

need ed assistance with medication .

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

2011, the Agency found one more Agency Form 1823 that the Agency

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

cognitive or behavioral status, or whether the resident need ed

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

the resident needed assistance taking medication but was not

specific regarding the type of help need ed.

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

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

three Agency Form 1823s that it found to be deficient

constituted " Class III " deficiencies , which are conditions or

occurrences that "indir ectly or potentially threaten the

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

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

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

incomplete Form 1823 as a "Class III" deficiency.

8. According to the Agency, errors identified in the

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

Class III violations because complete information is required

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

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

however, offered no evidence indicating that the third portions

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

deficiencies in the forms identified by the Agency harmed any

resident .

9. While the Agency argued that missing information in the

health assessments could cause potential problems for the

subject residents , those arguments were merely speculative,

considering the fact that the Agency did not find deficiencies

in those portions of the forms filled out by Respondent relating

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

Agency did not show that any of the subject residents were

receiving improper care.

10. Although the clear and convincing evidence

demonstrated that there were d eficiencies in the three Agency

Form 1823s identified by the Agency , the evidence was

insufficient to show that the deficiencies " indirectly or

potentially threaten [ed] the physical or emotional health,

safety, or security of facility residents . "

COUNTS II & III : THE WANDERING RESIDENT

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

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

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

suffering from a rare brain disorder known as Creu tzfeldt -

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

suffering from cerebral vascular accident, dementia, depression

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

assisted living facility.

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

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

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

unit, which has keypad locks accessible by certain residents and

family .

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

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

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

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

because they knew that people with d ementia often wander.

14. According to opinions offered by witnesses for both

Respondent and Petitioner who are familiar with the habits of

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

patients with dementia tend to wander.

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

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

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

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

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

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

Respondent's facility. Tiffany Stanley was the resident care

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

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

11:00 p.m., Saturday and Sunday.

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

wandered and that dementia patients tend to wander.

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

8:30 p.m. and 9:00 p.m., Ms. Kissel could not locate J.B. She

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

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

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

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

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

injuries.

20. Neither Respondent's facility administrator nor its

resident care coordinator was on site at the time of the

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

Ms. Stanley contacted the facility administrator and the

resident care coordinator by telephone and advised them that

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

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

"lock - down" portion of the facility.

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

room in Level 2.

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

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

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

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

that staff checked on him every 30 minutes. 4 /

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

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

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

20 minutes. She immediately began searching the entire facility

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

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

the entire building while also keeping an eye on other

residents.

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

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

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

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

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

outside to J.B.'s location.

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

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

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

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

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

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

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

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

Ms. Stanley explained:

Well the bruises aren't going to show up

instantly, but there were no cuts, no

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

complaining of any pai n. You know, he just

wanted to be outside.

28. According to observation notes in a log that

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

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

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

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

30. The observation notes also document that on Tuesday,

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

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

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

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

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

high fence and is accessible to Level 2 residents.

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

and there was no report of bruising.

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

escape after August 9, 2011.

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

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

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

facility, the evidence was inconclusive as to exactly how he

incurred the bruises. That same day, an adult protective

services investigator with the Florid a Department of Children

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

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

thigh.

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

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

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

catheter because he had been retaining fluid in his bladder.

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

for any bumps or bruises.

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

procedures in place regarding elopement as required by Florida

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

the RespondentÓs policies do not meet rule requirements.

36. According to RespondentÓs p olicy and procedure s in

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

occurs when a resident leaves the facility property beyond the

perimeter of the parking lot.

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

the perimeter of RespondentÓs parking lot.

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

escaped from RespondentÓs facility.

39. While the Agency submitted additional evidence in the

form of statements taken from an administrator of RespondentÓs

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

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

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

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

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

escape attempts were more persuasive than statements obtained

from Ms. Bilby .

40. The evidence was insufficient to demonstrate that

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

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

adduced at the final hearing indicated that although

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

actual escape s were not reasonably foreseeable under the

circumstances. There was no evidence that anyone had previously

escaped from Respondent's facility.

41. Rather than showing that staff did not provide

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

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

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

wandered beyond the immediate exterior wall area of the

building.

42. Moreover, c onsidering RespondentÓs definition of

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

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

parking lot of Respondent's facility.

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

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

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

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

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

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

health - care pr ovider was notified on Monday.

44. Finally, the evidence was insufficient to show that

Respondent was careless or neglected 7 / to take adequate measures

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

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

had an opportunity to go beyond the immediate edge of

Respondent's facility and the supervision provided by

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

CONCLUSIONS O F LAW

45. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

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

46. The Agency is the state agency responsible for

licensure of ALFs and enforcement of all applicable F ederal

regulations, state statutes, and rule s governing ALFs pursuant

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

Administrative Code Rule 58A - 5 .

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

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

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

1st DCA 1977). Because the Petitioner is seeking to prove

violations of a statute and impose administrative fines or other

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

complaint by clear and convincing evidence. Ferris v.

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

48. Clear and convincing evidence:

requires that evidence must be found to be

credible; the facts to which t he witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking confusion as

to the facts in issue. The evidence must be

of such weight that it produces in the mind

of the trier of fact, a f irm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

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

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

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

against assisted living facilities for violations of applicable

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

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

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

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

For purposes of this section, in determining

if a penalty is to be imposed and in fixing

the amount of the fine, the agency shall

consider the following factors:

(a) The gravity of the violation, including

the probability that death or serious

physical or emotional harm to a resident

will result or has resulted, the severity of

the action or potential harm, and the extent

to which the provisions of the applicable

laws or rules were v iolated.

(b) Actions taken by the owner or

administrator to correct violations.

(c) Any previous violations.

(d) The financial benefit to the facility

of committing or continuing the violation.

(e) The licensed capacity of the facility.

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

violations used in section 429.19, as follows:

(a) Class ÐIÑ violations are those

conditions or occurrences related to the

operation and maintenance of a provider or

to the care of clients which the agency

determine s present an imminent danger to the

clients of the provider or a substantial

probability that death or serious physical

or emotional harm would result therefrom.

The condition or practice constituting a

class I violation shall be abated or

eliminated with in 24 hours, unless a fixed

period, as determined by the agency, is

required for correction. The agency shall

impose an administrative fine as provided by

law for a cited class I violation. A fine

shall be levied notwithstanding the

correction of the vio lation.

(b) Class ÐIIÑ violations are those

conditions or occurrences related to the

operation and maintenance of a provider or

to the care of clients which the agency

determines directly threaten the physical or

emotional health, safety, or security of th e

clients, other than class I violations. The

agency shall impose an administrative fine

as provided by law for a cited class II

violation. A fine shall be levied

notwithstanding the correction of the

violation.

(c) Class ÐIIIÑ violations are those

condi tions or occurrences related to the

operation and maintenance of a provider or

to the care of clients which the agency

determines indirectly or potentially

threaten the physical or emotional health,

safety, or security of clients, other than

class I or cla ss II violations. The agency

shall impose an administrative fine as

provided in this section for a cited class

III violation. A citation for a class III

violation must specify the time within which

the violation is required to be corrected.

If a class III violation is corrected within

the time specified, a fine may not be

imposed.

(d) Class ÐIVÑ violations are those

conditions or occurrences related to the

operation and maintenance of a provider or

to required reports, forms, or documents

that do not ha ve the potential of negatively

affecting clients. These violations are of

a type that the agency determines do not

threaten the health, safety, or security of

clients. The agency shall impose an

administrative fine as provided in this

section for a cited class IV violation. A

citation for a class IV violation must

specify the time within which the violation

is required to be corrected. If a class IV

violation is corrected within the time

specified, a fine may not be imposed .

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

pertinent part, requires the completion of a health assessment

for admission into an assisted living facility, as follows:

(2) HEALTH ASSESSMENT. As part of the

admission criteria, an individual must

undergo a face - to - face med ical examination

completed by a licensed health care

provider, as specified in either paragraph

(a) or (b) of this subsection.

(a) A medical examination completed within

60 calendar days prior to the individualÓs

admission to a facility pursuant to Section

429.26(4), F.S. The examination must address

the following:

1. The physical and mental status of the

resident, including the identification of

any health - related problems and functional

limitations;

2. An evaluation of whether the individual

will require supervision or assistance with

the activities of daily living;

3. Any nursing or therapy services required

by the individual;

4. Any special diet required by the

individual;

5. A list of current medi cations

prescribed, and whether the individual will

require any assistance with the

administration of medication;

6. Whether the individual has signs or

symptoms of a communicable disease which is

likely to be transmitted to other residents

or staff;

7. A statement on the day of the

examination that, in the opinion of the

examining licensed health care provider, the

individualÓs needs can be met in an assisted

living facility; and

8. The date of the examination, and the

name, signature, address, phone nu mber, and

license number of the examining licensed

health care provider. The medical

examination may be conducted by a currently

licensed health care provider from another

state.

(b) A medical examination completed after

the residentÓs admission to the f acility

within 30 calendar days of the admission

date. The examination must be recorded on

AHCA Form 1823, Resident Health Assessment

for Assisted Living Facilities, October

2010. The form is hereby incorporated by

reference. A faxed copy of the complet ed

form is acceptable. A copy of AHCA Form

1823 may be obtained from the Agency Central

Office or its website at

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

Assisted_living/pdf/AHCA_Form_1823%.p df.

The form must be completed as follows:

1. The residentÓs licensed health care

provider must complete all of the required

information in Sections 1, Health

Assessment, and 2, Self - Care and General

Oversight Assessment.

a. Items on the form that ma y have been

omitted by the licensed health care provider

during the examination do not necessarily

require an additional face - to - face

examination for completion.

b. The facility may obtain the omitted

information either verbally or in writing

from the lic ensed health care provider.

c. Omitted information received verbally

must be documented in the residentÓs record,

including the name of the licensed health

care provider, the name of the facility

staff recording the information and the date

the informatio n was provided.

2. The facility administrator, or designee,

must complete Section 3 of the form,

Services Offered or Arranged by the

Facility, or may use electronic

documentation, which at a minimum includes

the elements in Section 3. This requirement

does not apply for residents receiving:

a. Extended congregate care (ECC) services

in facilities holding an ECC license;

b. Services under community living support

plans in facilities holding limited mental

health licenses;

c. Medicaid assistive care s ervices; and

d. Medicaid waiver services.

(c) Any information required by paragraph

(a) that is not contained in the medical

examination report conducted prior to the

individualÓs admission to the facility must

be obtained by the administrator within 30

days after admission using AHCA Form 1823.

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

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

demonstrate that the deficiencies in the three Agency Form 1823s

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

the physical or emotional health, safety, or security of

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

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

against Respondent that the deficiencies in Respondent's Agency

Form 1823's were Class III violations . Id.

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

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

Respondent argues that the charges in the Complaint should be

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

Complaint shows that Count I of the Complaint was broad enough

to encompass lesser classes of violations.

54. Under the circumstances, it is concluded that the

uncorrected deficiency in the Agenc y Form 1823 found during the

revisit constituted a Class IV deficiency as defined in section

408.813(2)(d), and that an administrative fine in the amount of

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

Florida Statutes, is appropriate.

55. Count II of the Complaint alleges that Respondent

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

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

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

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

provides:

An assisted living facility shall provide

care and services appropriate to the needs

of residents accepted for admission to the

facility.

(1) SUPERVISION. Facilities shall offer

personal supervision, as approp riate for

each resident, including the following:

(a) Monitor the quantity and quality of

resident diets in accordance with Rule 58A -

5.020, F.A.C.

(b) Daily observation by designated staff

of the activities of the resident while on

the premises, and awar eness of the general

health, safety, and physical and emotional

well - being of the individual.

(c) General awareness of the residentÓs

whereabouts. The resident may travel

independently in the community.

(d) Contacting the residentÓs health care

provider and other appropriate party such as

the residentÓs family, guardian, health care

surrogate, or case manager if the resident

exhibits a significant change; contacting

the residentÓs family, guardian, health care

surrogate, or case manager if the resident

is discharged or moves out.

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

any significant changes as defined in

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

illnesses which resulted in medical

attention, major incidents, changes in the

method of medication administ ration, or

other changes which resulted in the

provision of additional services.

(2) SOCIAL AND LEISURE ACTIVITIES.

Residents shall be encouraged to participate

in social, recreational, educational and

other activities within the facility and the

community.

(a) The facility shall provide an ongoing

activities program. The program shall

provide diversified individual and group

activities in keeping with each residentÓs

needs, abilities, and interests.

(b) The facility shall consult with the

resid ents in selecting, planning, and

scheduling activities. The facility shall

demonstrate residentsÓ participation through

one or more of the following methods:

resident meetings, committees, a resident

council, suggestion box, group discussions,

questionnai res, or any other form of

communication appropriate to the size of the

facility.

(c) Scheduled activities shall be available

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

not less than twelve (12) hours per week.

Watching television shall not be consider ed

an activity for the purpose of meeting the

twelve (12) hours per week of scheduled

activities unless the television program is

a special one - time event of special interest

to residents of the facility. A facility

whose residents choose to attend day

pr ograms conducted at adult day care

centers, senior centers, mental health

centers, or other day programs may count

those attendance hours towards the required

twelve (12) hours per week of scheduled

activities. An activities calendar shall be

posted in co mmon areas where residents

normally congregate.

(d) If residents assist in planning a

special activity such as an outing, seasonal

festivity, or an excursion, up to t hree

(3) hours may be counted toward the required

activity time.

(3) ARRANGEMENT FOR HEA LTH CARE. In order

to facilitate resident access to needed

health care, the facility shall, as needed

by each resident:

(a) Assist residents in making appointments

and remind residents about scheduled

appointments for medical, dental, nursing,

or mental h ealth services.

(b) Provide transportation to needed

medical, dental, nursing or mental health

services, or arrange for transportation

through family and friends, volunteers,

taxicabs , public buses, and agencies

providing transportation for persons with

d isabilities.

(c) The facility may not require residents

to see a particular health care provider.

(4) ACTIVITIES OF DAILY LIVING. Facilities

shall offer supervision of or assistance

with activities of daily living as needed by

each resident. Residents s hall be encouraged

to be as independent as possible in

performing ADLs.

(5) NURSING SERVICES.

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

facility may employ or contract with a nurse

to:

1. Take or supervise the taking of vital

signs;

2. Manage pill - or ganizers and administer

medications as described under Rule 58A -

5.0185, F.A.C.;

3. Give prepackaged enemas pursuant to a

physicianÓs order; and

4. Maintain nursing progress notes.

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

nursing services listed in paragraph (a) may

also be delivered in the facility by family

members or friends of the resident provided

the family member or friend does not receive

compensation for such services.

(6) R ESIDENT RIGHTS AND FACILITY

PROCEDURES.

(a) A copy of the Resident Bill of Rights

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

summary provided by the Long - Term Care

Ombudsman Council shall be posted in full

view in a freely accessible resident area,

and in cluded in the admission package

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

(b) In accordance with Section 429.28,

F.S., the facility shall have a written

grievance procedure for receiving and

responding to resident complaints, and for

residents to recom mend changes to facility

policies and procedures. The facility must

be able to demonstrate that such procedure

is implemented upon receipt of a complaint.

(c) The address and telephone number for

lodging complaints against a facility or

facility staff sh all be posted in full view

in a common area accessible to all

residents. The addresses and telephone

numbers are: the District Long - Term Care

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

Advocacy Center for Persons with

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

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

the Agency Consumer Hotline [phone] - 3456.

(d) The statewide toll - free telephone

number of the Florida Abuse Hotline

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

posted in full view in a common area

accessible to all residents.

(e) The facility shall have a written

statement of its house rules and procedures

which shall be included in the admission

package provided pursuant to Rule 58A -

5.0181, F.A.C. The rules and procedures

shall address the facilityÓs polici es with

respect to such issues, for example, as

resident responsibilities, the facilityÓs

alcohol and tobacco policy, medication

storage, the delivery of services to

residents by third party providers, resident

elopement, and other administrative and

house keeping practices, schedules, and

requirements.

(f) Residents may not be required to

perform any work in the facility without

compensation, except that facility rules or

the facility contract may include a

requirement that residents be responsible

for cle aning their own sleeping areas or

apartments. If a resident is employed by

the facility, the resident shall be

compensated, at a minimum, at an hourly wage

consistent with the federal minimum wage

law.

(g) The facility shall provide residents

with convenient access to a telephone to

facilitate the residentÓs right to

unrestricted and private communication,

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

facility shall not prohibit unidentified

telephone calls to residents. For

facilities with a license d capacity of 17 or

more residents in which residents do not

have private telephones, there shall be, at

a minimum, an accessible telephone on each

floor of each building where residents

reside.

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

use of physical re straints shall be limited

to half - bed rails, and only upon the written

order of the residentÓs physician, who shall

review the order biannually, and the consent

of the resident or the residentÓs

representative. Any device, including half -

bed rails, which the resident chooses to use

and can remove or avoid without assistance

shall not be considered a physical

restraint.

(7) THIRD PARTY SERVICES. Nothing in this

rule chapter is intended to prohibit a

resident or the residentÓs representative

from independen tly arranging, contracting,

and paying for services provided by a third

party of the residentÓs choice, including a

licensed home health agency or private

nurse, or receiving services through an out -

patient clinic, provided the resident meets

the criteria for continued residency and the

resident complies with the facilityÓs policy

relating to the delivery of services in the

facility by third parties. The facilityÓs

policies may require the third party to

coordinate with the facility regarding the

residentÓ s condition and the services being

provided pursuant to subsection 58A -

5.016(8), F.A.C. Pursuant to subsection (6)

of this rule, the facility shall provide the

resident with the facilityÓs policy

regarding the provision of services to

residents by non - faci lity staff.

(8) ELOPEMENT STANDARDS.

(a) Residents Assessed at Risk for

Elopement. All residents assessed at risk

for elopement or with any history of

elopement shall be identified so staff can

be alerted to their needs for support and

supervision.

1. As part of its resident elopement

response policies and procedures, the

facility shall make, at a minimum, a daily

effort to determine that at risk residents

have identification on their persons that

includes their name and the facilityÓs name,

address, an d telephone number. Staff

attention shall be directed towards

residents assessed at high risk for

elopement, with special attention given to

those with AlzheimerÓs disease and related

disorders assessed at high risk.

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

photo identification of at risk residents on

file that is accessible to all facility

staff and law enforcement as necessary. The

photo identification shall be made available

for the file within 10 calendar days of

admission. In the event a resident is

assessed at risk for elopement subsequent to

admission, photo identification shall be

made available for the file within 10

calendar days after a determination is made

that the resident is at risk for elopement.

The photo identification may be taken b y the

facility or provided by the resident or

residentÓs family/caregiver.

(b) Facility Resident Elopement Response

Policies and Procedures. The facility shall

develop detailed written policies and

procedures for responding to a resident

elopement. At a minimum, the policies and

procedures shall include:

1. An immediate staff search of the

facility and premises;

2. The identification of staff responsible

for implementing each part of the elopement

response policies and procedures, including

specific d uties and responsibilities;

3. The identification of staff responsible

for contacting law enforcement, the

residentÓs family, guardian, health care

surrogate, and case manager if the resident

is not located pursuant to subparagraph

(8)(b)1.; and

4. The c ontinued care of all residents

within the facility in the event of an

elopement.

(c) Facility Resident Elopement Drills.

The facility shall conduct resident

elopement drills pursuant to Sections

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

(9) OTHER STANDARDS . Additional care

standards for residents residing in a

facility holding a limited mental health,

extended congregate care or limited nursing

services license are provided in Rules 58A -

5.029, 58A - 5.030 and 58A - 5.031, F.A.C.,

respectively.

56. Count III of the Complaint alleges that Respondent

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

him from eloping as required by section 429.28, Florida

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

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

the Complaint provides:

(1) No resident of a facility shall be

deprived of any civil or legal rights,

benefits, or privileges guaranteed by law,

the Constitution of the State of Florida, or

the Constitution of the Unite d States as a

resident of a facility. Every resident of a

facility shall have the right to:

(a) Live in a safe and decent living

environment, free from abuse and neglect.

(b) Be treated with consideration and

respect and with due recognition of persona l

dignity, individuality, and the need for

privacy.

57. The Agency contends that the alleged violations in

Counts II and III of the Complaint constitute " Class I

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

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

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

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

that Respondent violated those standards .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Administration

issue a final order finding:

1. Respondent violated the standards set forth in Florida

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

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

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

Florida Statutes; and

2. Respondent did not violate Florida Administrative Code

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

d ismissing Counts II and III of the Complaint.

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

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative H earings

t his 28th day of December , 201 2 .

ENDNOTE S

1 / Unless otherwise indica ted, all references to Florida

s tatutes or rules are to current versions, the pertinent

portions of which have not changed since the dates of the

alleged violations.

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

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

health care provider did indicate that the resident's needs

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

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

¶ 12.

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

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

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

not part of the allegations in the Complaint.

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

7:00 a.m. to 11:00 p.m. There was no evidence submitted,

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

11:00 p.m. and 7:00 a.m.

5 / See § 90.803(18), Fla. Stat.

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

ÐS ignificant change Ñ means a sudden or major

shift in behavior or mood, or a

deterioration in health status such as

unplanned weight change, stroke, heart

condition, or stage 2, 3, or 4 pressure

sore. Ordinary day - to - day fluctuations in

functioning and behavior, a short - term

illness such as a cold, or the gradual

deterioration in the ability to carry out

the activities of daily living that

accompanies the aging process are not

considered significant changes.

7 / Section 415.102, Florida Statutes, provides:

ÐNeglectÑ means the failure or omission on

the part of the caregiver or vulnerable

adult to provide the care, supervision, and

services necessary to maintain the physical

and mental health of the vulnerable adult,

including, but not limited to, food,

clothing, medicine, s helter, supervision,

and medical services, which a prudent person

would consider essential for the well - being

of a vulnerable adult. The term ÐneglectÑ

also means the failure of a caregiver or

vulnerable adult to make a reasonable effort

to protect a vuln erable adult from abuse,

neglect, or exploitation by others.

ÐNeglectÑ is repeated conduct or a single

incident of carelessness which produces or

could reasonably be expected to result in

serious physical or psychological injury or

a substantial risk of d eath.

COPIES FURNISHED :

James H. Harris, Esquire

Agency for Health Care Administration

The Sebring Building, Suite 330D

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

Theodore E. Mack, Esquire

Powell and Mack

3700 Bellwood Drive

Tallahasse e, Florida 32303

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.