13-002011 Agency For Health Care Administration vs. Pine Tree Manor, Inc., D/B/A Pine Tree Manor Status: Closed Recommended Order on Thursday, December 5, 2013.

Summary: Agency proved one Class I and one Class II violation resulting from improper training of staff and failure to generally maintain awareness of resident's whereabouts. Recommend $13,000 fine; $500 survey fee & 60-day suspension of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION ,

Petitioner ,

vs. Case Nos. 13 - 2011

13 - 239 7

PINE TREE MANOR, INC.,

d/b/a PINE TREE MANOR ,

Respondent .

/

RECOMMENDED ORDER

A final hearing in this cause was held on August 20 and 21,

2013, by video teleconference before the Division of

Administrative Hearings by its designated Administrative Law

Judge, Linzie F. Bogan, at sites in St. Petersburg and

Ta llahassee, Florida.

APPEARANCES

For Petitioner: Suzanne Suarez Hurley, Esquire

Agency for Health Care Administration

Suite 330K

525 Mirror Lake Drive , North

St. Petersburg, Florida 33701

For Respondent: Theodore E. Mack, Esquire

Powell and Mack

3700 Bellwood Drive

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

respective Administrative Complaints, and, if so, whether

Petitioner should impose against Respondent an administrative

fine, penalty, and survey fee.

PRELIMINARY STATEMENT

Respondent, Pine Tree Manor, Inc. , d/b/a Pine Tree Manor

(Respondent or Pine Tree Manor), operates a 24 - bed assisted living

facility located at 10476 131st Street, Largo, Fl orida. R.D. was

a resident of the facility. There were no restrictions on R.D. ' s

ability to come and go from the facility. The only requirement

placed on R.D. by Pine Tree Manor was that he record his absence

on the sign - out log or verbally inform staff that he was leaving

the facility.

On December 4, 2012, R.D. failed to return to Pine Tree

Manor. On December 5, 2012, the sheriff ' s office was notified

that R.D. was missing. Searches for R.D. were unsuccessful, and

on December 12, 2012, he was foun d, deceased, in a wooded area.

Pursuant to its investigation of the incident, the Agency for

Health Care Administration (Petitioner or Agency), in Division of

Administrative Hearings (DOAH) Case No. 13 - 2397, charged Pine Tree

Manor with one Class I violat ion and s ought to impose against

Respondent a $6,000.00 administrative fine and a $500.00 survey

fee.

On February 12, 2013, B.Y. was a resident of Pine Tree Manor.

On this date, B.Y., was in a common area of the facility when she

was found to be unrespons ive and not breathing. The employee on

duty when B.Y. was discovered did not call 911, but, instead,

called the facility ' s administrator who, in turn, contacted

emergency personnel. Emergency services arrived , but they were

unsuccessful in the ir efforts to revive B.Y. Petitioner, in DOAH

Case No. 13 - 2011, charged Pine Tree Manor with one Class I

violation and s ought an $8,000.00 administrative fine and

revocation of Respondent ' s license to operate as an assisted living

facility.

Pine Tree Manor filed pet itions for formal administrative

hearing in the respective cases, and the matters were referred to

DOAH where they were consolidated for a disputed fact hearing.

At the final hearing, Petitioner presented the testimony of :

Billy L. Snyder, Petitioner ' s operations management consultant

manager; Richard Sherman, firefighter/paramedic; Catherine Anne

Avery, who also works for Petitioner as an operations and

management consultant manager; Laura Manville, a

surveyor/investigator for Petitioner; Ygnacia Rosari o, Jennifer

Gomez, Laura Munoz and Rosalinda Martinez, Pine Tree Manor

employees; and J.M., a resident of Pine Tree Manor. Both

Petitioner and Respondent presented testimony from Brent Sparks,

owner and administrator of Pine Tree Manor; and Hugh D. Thomas III,

brother and power - of - attorney for resident R.D. Respondent also,

through deposition, presented the testimony of James Flatley, who

works with the Department of Children and Family Services, Adult

Protective Services.

In DOAH Case No. 13 - 2011, Petiti oner ' s Exhibits A, B, and D

through J, Respondent ' s Exhibits 1, 7, and the deposition of

James Flatley were admitted into evidence. In DOAH Case

No. 13 - 2397, Petitioner ' s Exhibits A through I, and K through M

were admitted into evidence. No exhibits were admitted into

evidence on behalf of Respondent in DOAH Case No. 13 - 2397.

A three - volume T ranscript of the proceeding was filed with

DOAH on September 10, 2013. The parties were granted an extension

of time to each file a proposed recommended order. Each party

timely filed a Proposed Recommended Order , and the same were

considered in the preparation of this Recommended Order.

FINDING S OF FACT

A. DOAH Case No. 13 - 2011:

Failure to Properly Train, Supervise, and Perform CPR

1. Pine Tree Manor is licensed by the Agency for Health

Care Administration to operate a 24 - bed assisted living facility.

The facility ' s license number is 8317, and it expires on

November 13, 2014.

2. On February 12, 2013, the date of the incident that

provides the basis for the inst ant action, Aurelia Cristobal was

employed as a staff member at the facility operated by Pine Tree

Manor. Spanish is Ms. Cristobal ' s native language, and her

ability to speak English is very limited. Brent Sparks, the

owner and administrator at Pine Tree Manor, acknowledged, when

interviewed as part of the post - incident investigation, that

Ms. Cristobal struggles at times with English, especially when

under stress. Mr. Sparks was aware of Ms. Cristobal ' s

limitations with English prior to February 12, 201 3. Within a

few days of B.Y. ' s death, Ms. Cristobal left the United States

and is believed to be currently living in Mexico. Ms. Cristobal

did not testify during the final hearing.

3. For the period June 15, 2011, through June 15, 2013,

Ms. Cristobal w as certified by the American Safety & Health

Institute in the areas of automated external defibrillation

( AED ) , cardiopulmonary resuscitation (CPR), and basic first aid.

In the spring of 2011, Ms. Cristobal received training from Pine

Tree Manor in the ar eas of facility emergency procedures and do

not resuscitate (DNR) orders.

4. Pine Tree Manor ' s written emergency procedures provide,

in part, as follows:

In all emergencies, it is important to remain

calm and display a sense of control.

Upsetting our re sidents will only induce

undue stress.

DIAL " 911 " EMERGENCY in the following cases:

Ʊ A medical emergency such as serious

injuries or life threatening incidences.

Ʊ Fires

Ʊ Bodily harm to staff or residents such as

terrorism, robbery, inclement weather .

Call the administrator if there is any

question concerning injury or illness, a

resident is missing, security of facility is

in doubt, or inspectors enter the facility.

In the case of any significant changes or

emergency, call the family, guardian and a

health care provider. Also, contact the

administrator. In cases of non - emergency

need for transportation to the hospital or

emergency room, call SUNSTAR AMBULANCE

SERVICE @ 530 - 1234. In all cases, use common

sense and remain calm, and remember to

cont act the administrator if in doubt.

5. Pine Tree Manor ' s policy regarding DNR orders provides

that:

In the event a resident with a signed DNR

experiences cardiopulmonary arrest, our

policy is for staff trained in CPR/AED to

withhold resuscitative treatme nt. Staff will

report to the administrator immediately and

in turn notify [the] resident ' s medical

providers and resident representative. For

example, staff on duty shall call 911 to

report the condition, or if on Hospice

[place] a call to (727) 586 - 4432 , the

Lavender Team Patient Leader.

6. B.Y. became a resident of Pine Tree Manor on or about

December 23, 2010. B.Y. did not execute a DNR directive.

7. On February 12, 2013, between the hours of approximately

5:00 p.m. and 7:00 p.m., Ms. Cristobal wa s the only employee on

site at Pine Tree Manor. According to J.M. , who on February 12,

2013, was a resident at Pine Tree Manor, B.Y. entered a common

area of the facility where J.M. and other residents were located.

J.M. advised that B.Y. sat on the sofa , and started watching

television. While on the sofa , B.Y. stopped breathing. The

evidence is inconclusive as to how long B.Y. was incapacitated

before others learned of her condition.

8. Although it is not clear from the testimony how

Ms. Cristobal wa s informed of B.Y. ' s peril, she did, at some

point, learn that B.Y. was incapacitated and was experiencing a

medical emergency. After learning of B.Y. ' s situation,

Ms. Cristobal, according to J.M. , became nervous and " didn ' t know

what to do. " In fact, Ms . Cristobal was so nervous that she did

not call 911, she did not check B.Y. for a pulse, and she did not

perform CPR on B.Y. Ms. Cristobal did, however, make several

attempts to contact Mr. Sparks. Ms. Cristobal eventually reached

Mr. Sparks and advised him of the situation with B.Y. The

evidence does not reveal how long B.Y. remained incapacitated

before Ms. Cristobal was able to speak with Mr. Sparks.

9. When Mr. Sparks received the call from Ms. Cristobal, he

was at his residence in Hillsborough Co unty. Pine Tree Manor is

located in Pinellas County. Because Mr. Sparks was in

Hillsborough County when he received the call from Ms. Cristobal,

he was not able to call 911 and be immediately connected to an

emergency operator in Pinellas County. Unders tanding this

limitation, Mr. Sparks called the non - emergency number for the

Pinellas County Sheriff ' s office, who , in turn, contacted the 911

operator and informed them of the emergency.

10. In the course of discussing the emergency situation

with Ms. C ristobal, Mr. Sparks learned that she had not

called 911. Knowing the emergency nature of the situation and

the fact that he could not call Pinellas County 911 directly,

Mr. Sparks should have directed Ms. Cristobal to call 911 , since

she was located in P inellas County , but he did not. Mr. Sparks

should have also instructed Ms. Cristobal to start CPR on B.Y. ,

but he did not.

11. According to the Pinellas County Emergency Medical

Services (EMS) Patient Care Report for B.Y., the 911 call was

received by the 911 dispatcher at 6:11 p.m. and an EMS unit was

dispatched to Pine Tree Manor at 6:12 p.m. The EMS unit arrived

at the facility at 6:15 p.m. and commenced treating B.Y. at

6:16 p.m. EMS personnel worked for nearly 30 minutes to revive

B.Y. , but their efforts were unsuccessful.

12. Richard Sherman (EMT Sherman) is a firefighter and

paramedic for the Pinellas Suncoast Fire District. EMT Sherman

was the first paramedic to arrive at Pine Tree Manor on the day

in question. Upon arrival at the facility , EMT Sherman attempted

to enter through the facility ' s main door, but could not gain

immediate entry because the door was locked. EMT Sherman rang

the doorbell and knocked on the door in an attempt to gain entry

into the facility. Resident J.M. opened t he door , and EMT

Sherman entered the facility.

13. Upon entry, EMT Sherman noticed that B.Y. was

unresponsive on the sofa. He also observed at the same time that

there were several residents in B.Y. ' s immediate area and that

there was no staff present. When EMT Sherman arrived,

Ms. Cristobal was in another part of the facility assisting a

resident who had become upset because the resident was having

difficulty satisfying her toileting needs. Approximately a

minute after EMT Sherman started resuscitation efforts on B.Y. ,

Ms. Cristobal appeared in the area where B.Y. was located.

14. Because Ms. Cristobal was wearing scrubs, EMT Sherman

correctly identified her as a facility employee. EMT Sherman

asked Ms. Cristobal if she knew anything about B.Y. and the

circumstances surrounding her collapse. Ms. Cristobal did not

respond to EMT Sherman ' s questions. EMT Sherman testified that

Ms. Cristobal, after not responding to his questions, simply

" looked at [him] and then turned and walked away " towards the

ma in doors of the facility.

15. While continuing to attempt to resuscitate B.Y., EMT

Sherman noticed that Ms. Cristobal appeared to be locking the

doors that he had just entered. EMT Sherman instructed

Ms. Cristobal several times to not lock the doors be cause more

emergency personnel would soon be arriving. Apparently not

understanding EMT Sherman ' s directives, Mr. Cristobal locked the

doors. A few minutes later, district fire chief John Mortellite

arrived at the facility. EMT Sherman, while continuing to work

on B.Y., heard District Chief Mortellite banging on the locked

main doors in an effort to gain entry to the facility. A

resident eventually unlocked the doors , and District C hief

Mortellite entered the building.

16. When asked why Ms. Cristobal would call him in an

emergency situation and not 911, Mr. Sparks explained that it was

Ms. Cristobal ' s practice to always call him in an emergency and

that he would, in turn, manage the situation. Mr. Sparks, by

allowing Ms. Cristobal " to always call him " in emergency

situations instead of 911, created an alternative practice that

was directly contrary to the facility ' s written policy which

clearly directs employees to " DIAL ' 911 '" when confronted with a

medical emergency. Ms. Cristobal was, therefore, n ot properly

trained.

17. Mr. Sparks, by establishing and , indeed , encouraging a

practice that shielded Ms. Cristobal from directly communicating

with 911, placed B.Y. in a position where there was an

unacceptable delay, though not precisely quantifiabl e, in

contacting emergency personnel on her behalf. In a life or death

situation such as that experienced by B.Y., every second matters

because, as noted by EMT Sherman, " the longer the delay [in

receiving medical treatment] the less probability of a posi tive

outcome. "

18. When EMT Sherman arrived at Pine Tree Manor, he was

completely unaware of the fact that the only employee on site

spoke little, if any English. It is, therefore, reasonable to

infer that Mr. Sparks failed to inform either the Pinella s County

Sheriff ' s Office or the 911 operator of Ms. Cristobal ' s

limitations with the English language.

19. By Ms. Cristobal ' s not calling 911, and Mr. Sparks ' not

disclosing to the 911 operator that the only employee on site had

limited English language skills, decedent B.Y. was placed in the

unenviable position of having EMT Sherman ' s attention divided

between resuscitation efforts and worrying about whether

Ms. Cristobal was able to comply with his instructions .

EMT Sherman testified that Pinellas Coun ty EMS, including

911 operators, has protocols in place for dealing with

individuals that may not speak English. Had either Mr. Sparks

disclosed to the 911 operator Ms. Cristobal ' s language

limitations or had Ms. Cristobal herself called 911, protocols

co uld have been implemented by emergency personnel that would

have triggered certain safeguards designed to ensur e that

Ms. Cristobal ' s language limitations did not interfere with the

delivery of emergency services to B.Y.

B. DOAH Case No. 13 - 2397:

Failure t o Remain Generally Aware of the Whereabouts of Resident

20. Most recently, R.D., on September 27, 2010, became a

resident of Pine Tree Manor. A demographic data information

survey was prepared as part of R.D. ' s new resident intake

process. R.D. ' s intak e data showed that he was independent in

the areas of ambulation, bathing, dressing, toileting, eating,

and transferring. R.D. was identified as needing supervision

when performing tasks related to personal grooming. It was also

noted that R.D. suffered from anxiety and panic attacks.

According to R.D. ' s brother Tom, R.D. was under the care of a

psychiatrist for many years and " suffered from debilitating panic

attacks. " When suffering a panic attack, R.D. would often lay on

the ground or floor, most oft en in a fetal position , and remain

in this position until help arrived.

21. As a part of the new resident intake process, R.D. was

assessed for his risk of elopement. The assessment revealed that

R.D. was not at risk for elopement and that he was free to " come

and go [from the facility] as he pleases " and that he needed to

" sign out " whenever leaving the facility.

22. By correspondence dated March 14, 2011, the

administration of Pine Tree Manor reminded R.D. that he needed to

adhere to the facility ' s r esident sign - out procedure whenever

leaving from and returning to the facility. Approximately ten

months after reminding R.D. of the facility ' s sign - out procedure,

Mr. Sparks, on January 2, 2012, updated R.D. ' s risk assessment

form and again noted thereon that R.D. " may come and go as he

pleases " and he " [n]eeds to remember to sign out " when leaving

the facility.

23. On May 23, 2012, R.D. was evaluated by a physician and

it was noted, in part, that R.D. could function independently in

the areas of ambulat ion, bathing, dressing, eating, grooming,

toileting, and transferring. As for certain self - care tasks, the

evaluating physician noted that R.D. needed assistance with

preparing his meals, shopping, and handling his personal and

financial affairs. It was also noted that R.D. needed daily

oversight with respect to observing his well - being and

whereabouts and reminding him about important tasks. The

evaluating physician also noted that R.D. needed help with taking

his medication. 1/ The evaluation was ackno wledged by Mr. Sparks

as having been received on May 25, 2012.

24. R.D. ' s most recent itemization of his medications shows

that on October 10, 2012, he was prescribed Clonazepam and

Buspirone. The Clonazepam was administered three times a day at

8:00 a.m ., noon, and 8:00 p.m. The Buspirone was administered

four times a day at 8:00 a.m., noon, 5:00 p.m., and 8:00 p.m.

These medications are often prescribed for anxiety, however,

R.D. ' s medications listing form does not expressly denote why the

drugs were prescribed.

25. At 7:58 a.m. , on November 10, 2012, an ambulance from

the Pinellas County EMS was dispatched to Pine Tree Manor. When

the EMS unit arrived at 8:00 a.m., R.D. was found " on the ground

or floor " and was complaining of feeling anxious. Whi le being

treated by EMS, R.D. took his 8:00 a.m. dose of Clonazepam and

was transported to " Largo Med. " Less than 24 hours later, EMS,

at 4:29 a.m. , on November 11, 2012, was dispatched to

13098 Walsingham Road, because R.D. was again complaining of

feeli ng anxious. This location is apparently near Pine Tree

Manor , as the EMS Patient Care Report for this service call notes

that R.D. " walked to [the] store. " Following the evaluation by

EMS, R.D. was again transported to " Largo Med. "

26. At 12:24 p.m. , on November 18, 2012, EMS was dispatched

to a location near Pine Tree Manor where R.D. was found " lying

supine on [the] sidewalk. " According to the EMS report,

R.D. advised that he became lightheaded and fell to the ground.

R.D. did not complain of any othe r symptoms and was transported

to a medical facility in Largo for further evaluation.

27. At 1:27 p.m. , on November 25, 2012, EMS was dispatched

to a 7 - 11 store near Pine Tree Manor. Upon arrival at the store,

EMS personnel found R.D. and , when questione d, he advised that he

was again feeling anxious. Per R.D. ' s specific request, as noted

on the EMS report, he was transferred to St. Anthony ' s Hospital

in St. Petersburg.

28. On November 28, 2012, Mr. Sparks made an entry into

R.D. ' s file and noted that a neurosurgeon evaluated R.D. ' s shunt

on that date in an attempt to determine if a malfunction was the

cause of R.D. ' s panic attacks. Mr. Sparks noted in the record

that the doctor advised that the shunt was working properly and

that the shunt was ruled out as the " cause of [R.D. ' s] panic

attacks. " As of November 28, 2012, Mr. Sparks was aware that

R.D. had recently complained of experiencing panic attacks and

that the cause of the same had not yet been determined.

29. It was not confirmed, although it was certainly

believed by Mr. Sparks, that R.D. was manipulating medical

personnel at local treatment facilities for the purpose of

securing medication beyond that prescribed by his regular

treating physicians. This belief by Mr. Sparks is reasonable

espe cially in light of R.D. ' s request to EMS personnel on

November 25, 2012, that he was to be transported to a medical

facility other than " Largo Med " for treatment related to his

feelings of anxiety. 2/

30. R.D. ' s medication record for December 4, 2012, sho ws

that he was given his prescribed medication for the 8:00 a.m.

dispensing time. Soon after receiving his medication, R.D. left

Pine Tree Manor for the purpose of visiting his local

congressman ' s office. According to the survey notes from the

investigat ion related hereto, the congressman ' s office is located

approximately two miles from Pine Tree Manor. Although it cannot

be confirmed, it reasonably appears that R.D. walked to the

congressman ' s office.

31. R.D. did not sign out of the facility when he l eft Pine

Tree Manor on the morning of December 4, 2012. R.D. did,

however , inform facility staff that he was going to the

congressman ' s office to discuss an issue. 3/

32. Security video from the building where the

congressman ' s office is located establish ed that R.D. arrived at

the congressman ' s office at 9:50 a.m. At approximately

10:45 a.m. , a representative from the congressman ' s office called

Pine Tree Manor and informed them that R.D. was ready to return

to the facility.

33. The person receiving t he message from the congressman ' s

office contacted Mr. Sparks and informed him that R.D. was

requesting a ride back to Pine Tree Manor from the congressman ' s

office. Mr. Sparks was assisting another resident at a local

hospital when he received the reques t to transport R.D. and was,

therefore, unable to transport R.D. from the congressman ' s

office. Pine Tree Manor had no obligation to provide

transportation services to R.D.

34. Surveillance video from the building where the

congressman ' s office is locate d confirmed that R.D. exited the

building on December 4, 2012, at approximately 10:50 a.m. R.D. ' s

body was found on December 12, 2012. It is not known what

happened to R.D. between the time he left the congressman ' s

office and when his body was eventuall y discovered. 4/

35. When Mr. Sparks returned to Pine Tree Manor on

December 4, 2012, he was advised by staff that R.D. had not

returned from the congressman ' s office. According to the posted

work schedule for December 4, 2012, Mr. Sparks worked from

7:0 0 a.m. to 5:00 p.m. When Mr. Sparks left Pine Tree Manor on

December 4, 2012, R.D. had not returned. Mr. Sparks, upon

leaving the facility for the day, instructed staff (Aurelia

Cristobal) to call him when R.D. returned. M s . Cristobal ' s shift

ended at 8 :00 p.m.

36. Pine Tree Manor employee Laura Munoz worked from

7:00 p.m. on December 4, 2012, to 7:00 a.m. on December 5, 2012.

Ms. Munoz was not responsible for assisting R.D. with his

medication, so it is unlikely that she would have known that R.D.

mis sed receiving his medication prior to her arrival at work.

Because Mr. Sparks left Pine Tree Manor on December 4 , 2012,

before Ms. Munoz arrived for work, he called Ms. Munoz after her

shift started (precise time unknown) and requested that she call

him u pon R.D. ' s return. There were no instructions given to

Ms. Munoz by Mr. Sparks as to what she should do if R.D. did not

return by some time certain. On December 4, 2012, Mr. Sparks

knew that R.D. had never spent the night away from Pine Tree

Manor withou t someone at the facility knowing R.D. ' s whereabouts

and that R.D. had never gone unaccounted for a period greater

than 12 hours.

37. On December 5, 2012, Mr. Sparks ' scheduled work time

was from 7:00 a.m. to 5:00 p.m. Prior to reporting to the

facility on the morning of December 5 , 2012 , Mr. Sparks learned

that R.D. had not returned to his room during the night shift.

The exact time is not known when Mr. Sparks acquired this

information, but it was likely sometime around 6:30 a.m.

38. After learning that R.D. was still unaccounted for,

Mr. Sparks immediately began canvassing the area near Pine Tree

Manor. Around this same time, Mr. Sparks contacted R.D. ' s

brother and apprised him of the situation. At approximately noon

on December 5, 2012, Mr. Spar ks contacted the Pinellas County

Sheriff ' s Office and reported R.D. missing.

39. Pine Tree Manor has an elopement and missing residents

policy that provides, in part, as follows:

Residents may come and go as they please and

shall not be detained unless fam ily/resident

representative and administrator agree

supervision is required.

A resident leaving the facility should

either sign out by the front door or inform

a staff member of their departure and

provide an estimated time of return. The

staff person sh ould sign the resident out

and notify other staff on duty. . . .

If a resident . . . is deemed missing,

staff shall immediately search the entire

facility inside and around the facility

grounds. . . . Whenever a resident is no t

found within the facility or its premises,

the Administrator will:

Ʊ Notify the resident ' s representative.

Ʊ Notify the County Sheriff ' s Department by

calling 911.

Ʊ Provide staff and searching parties with

information and photo I. D.

Ʊ Instruct the staff to search inside the

facility and the premises, the adjacent

re sidential properties to the facility,

up and down 131st Street, 102nd Avenue

and the cross streets.

CONCLUSIONS OF LAW

40. D OAH has jurisdiction over the parties and subject

matter of this proceeding. §§ 120.569 & 120.57(1), Fla. Stat.

(2012). 5/

41. T he general rule is that " the burden of proof, apart

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

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

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

case, Petitioner h as the burden of proving by clear and

convincing evidence that Respondent committed the violations as

alleged and the appropriateness of any fine and penalty resulting

from the alleged violations. Dep ' t of Banking & Fin., Div. of

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

(Fla. 1996).

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

DCA 1983), the court held that:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witne sses testify must

be precise and explicit and the witnesses

must be lacking in 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 firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

C. DOAH Case No. 13 - 2397:

Failure to Maintain General Awareness of

Resident R.D. ' s Whereabouts

43. Florida Administrative Code Rule 58A - 5.0182(1)(c)

provides , in part , that an assisted living facil ity shall

maintain " [g]eneral awareness of the resident ' s whereabouts. " At

what point is it reasonable to conclude that Pine Tree Manor

ceased being generally aware of R.D. ' s whereabouts?

44. The undisputed evidence establishes that the last

contact that Pine Tree Manor had with R.D. occurred at

approximately 10:45 a.m. , on December 4, 2012, when staff from

the congressman ' s office called and advised that R.D. was

requesting transportation back to Pine Tree Manor. While it is

true that on December 4, 201 2, R.D. missed his noon, 5:00 p.m. ,

and 8:00 p.m. medication intervals at Pine Tree Manor, this was

insufficient in and of itself to alert Pine Tree Manor that R.D.

was missing , given that R.D. was known to routinely seek

medication from health facilities in the community.

45. Given that Mr. Sparks knew that R.D. had never gone

unaccounted for more than 12 consecutive hours and that R.D. had

never stayed away from the facility overnight without his

whereabouts being known, Mr. Sparks, when he spoke with Ms. Munoz

during the evening hours of December 4 , 2012 , should have

instructed Ms. Munoz to call him if R.D. had not returned by

11:00 p.m. Consequently, it was at 11:00 p.m. , on December 4,

2012, when Pine Tree Manor reasonably lost general awareness of

R.D. ' s whereabouts.

46. As noted in the Findings of Fact, Mr. Sparks started

searching for R.D. at approximately 6:30 a.m. , on December 5,

2012. R.D. was missing for nearly eight hours before anyone from

Pine Tree Manor started trying to determine his wh ereabouts.

47. There is evidence that R.D. ' s pacemaker showed an

accelerated heart rate twice during the morning hours of

December 5, 2012. However, there is no competent evidence as to

the significance of R.D. ' s elevated heart rate in terms of

establi shing an approximate time of death, and the autopsy report

does not otherwise set forth when R.D. likely died.

48. Section 408.813(2)(a), Florida Statutes, which is

incorporated by reference into section 429.19, Florida Statutes,

defines Class I violation s as " those conditions or occurrences

related to the operation and maintenance of a provider or to the

care of clients which the agency determines 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. "

49. While it is certainly the case that a situation

involving a missing resident constitutes a " major incident, " as

defined by rule 58A - 5.0131, it cannot be said on the record in

the instant case that Pine Tree Manor was confronted with

circumstances between 11:00 p.m. on December 4, 2012, and

6:30 a.m. on December 5, 2012, that clearly and convincingly put

the facility on notice that R.D. was in " imminent danger of death

or serious physical harm. " The evidence does, however, establish

a Class II violation because a near ly eight - hour delay in

commencing the search for R.D. was clearly a direct threat to his

physical or emotional health, safety, or security within the

meaning of section 408.813(2)(b).

D . DOAH Case No. 13 - 2011:

Failure to Properly Respond in Emergency Situation

50. Paragraph 9 of the Complaint alleges that " [t]he

facility failed to provide appropriate care and supervision in an

emergency situation where time was of the essence. CPR nee ded to

be, but was not, immediately started and 911 needed to be, but

was not, immediately called. The resident died. "

51. Section 429.02(10) defines an " emergency " to mean " a

situation, physical condition, or method of operation which

presents imminent danger of death or serious physical or mental

harm to facility residents. " B.Y. at all times relevant hereto

was in an emergency situation.

52. Rule 58A - 5.0182(1)(b) provides that assisted living

facilities shall offer personal supervision, as appropria te, for

each resident, which shall include " [d]aily observation by

designated staff of the activities of the resident while on the

premises, and awareness of the general health, safety, and

physical and emotional well - being of the individual. "

53. Secti on 429.28(1)(j) provides that every resident of a

facility shall have the right of " [a]ccess to adequate and

appropriate health care consistent with established and

recognized standards within the community. "

54. Section 429.255(4) provides, in part, as f ollows :

Facility staff may withhold or withdraw

cardiopulmonary resuscitation or the use of

an automated external defibrillator if

presented with an order not to resuscitate

executed pursuant to s. 401.45 . . . . The

absence of an order to resuscitate exe cuted

pursuant to s. 401.45 does not preclude a

physician from withholding or withdrawing

cardiopulmonary resuscitation or use of an

automated external defibrillator as otherwise

permitted by law.

This section establishes the standard for assisted living

facilities with respect to the delivery and non - delivery of CPR.

55. B.Y. did not execute a DNR order and Ms. Cristobal was

not a physician. Ms. Cristobal, as the CPR trained staff member

on duty at the time of B.Y ' s emergency, was required to perform

CP R on B.Y., as directed by section 429.255(4), and she failed to

do so.

56. As dictated by the statutorily - imposed duty to ensure

that B.Y. had access to adequate and appropriate health care,

Ms. Cristobal was required to immediately call 911 upon

discover ing that B.Y. was in peril, and her failure to do so was

a breach of the legal duty owed to B.Y.

57. As required by the legal duty to ensure that B.Y. had

access to adequate and appropriate health care, Pine Tree Manor,

acting through Mr. Sparks, was requ ired to properly train

Ms. Cristobal as to appropriate ways to respond in an emergency

situation. Mr. Sparks failed to properly train Ms. Cristobal as

to how to respond in an emergency situation, and this failure

resulted in a breach of the duty owed to B .Y. to ensure that she

had access to adequate and appropriate health care.

58. The failure of Mr. Sparks to instruct Ms. Cristobal to

call 911 breached Pine Tree Manor ' s duty to B.Y. to ensure that

she had access to adequate and appropriate health care.

59. The failure of Mr. Sparks to instruct Ms. Cristobal to

start CPR on B.Y. breached Pine Tree Manor ' s duty to B.Y. to

ensure that she had access to adequate and appropriate health

care.

60. Mr. Spark ' s failure to inform emergency personnel that

the sole staff person at Pine Tree Manor had limited English

language skills breached Pine Tree Manor ' s duty to B.Y. to ensure

that she had access to adequate and appropriate health care.

61. Respondent ' s conduct constitutes a Class I violation

within the meaning of section 429.19(2)(a). 6/

E. Administrative Fines and Survey Fees

62. Respondent committed one Class I violation and one

Class II violation. Section 429.19(2)(a) provides that for

Class I violations , the agency shall impose an administrative

fine " in a n amount of not less than $5,000 and not exceeding

$10,000 for each violation. " As for Class II violations, section

429.19(2)(b) provides that " [t]he agency shall impose an

administrative fine . . . in an amount not less than $1,000 and

not exceeding $5,0 00 for each violation. "

63. S ection 429.19(3) provides as follows:

For purposes of this section, in determining

if a penalty is to be imposed and in fixing

the amount of the fine, the agency shall

consider the following factors:

(a) The gravity of the v iolation, 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 violat ed.

(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.

64. As for th e Class II violation involving R.D., the near

eight - hour delay in recognizing that R.D. was missing constitutes

a serious violation of the applicable laws and rules governing

assisted living facilities. This factor weighs in favor of

imposing the maximum fine allowed.

65. Respondent was previously cited for a Class III

violation for the failure to maintain a general awareness of

R.D. ' s whereabouts. On March 13, 2011, R.D. was being seen at a

local hospital for an apparent anxiety attack. When personnel

from the hospital called Pine Tree Manor to confirm that R.D. was

a resident at the facility, the employee fielding the call

advised the hospital that R.D. was in his room when it was clear

that he was not. The March 13, 2011, and December 4, 2012,

incide nts collectively establish that Pine Tree Manor lacks

institutional control and weigh in favor of imposing the maximum

fine allowed for the instant Class II violation.

66. In the case involving R.D., the facility maintains that

it did nothing wrong. The evidence shows otherwise. There has

been no showing that Respondent has taken steps to ensure that

appropriate safeguards have been implemented that will allow the

facility to generally keep track of the whereabouts of its

residents. This factor weighs i n favor of imposing the maximum

fine allowed. The other factors have been considered and do not

weigh in favor of a lesser fine.

67. As for the Class I violation stemming from the

complaint involving B.Y., the undersigned considered all of the

factors se t forth in section 429.19(3) and concludes that there

are no mitigating factors that weigh in favor of a fine less than

that recommended by Petitioner.

68. Petitioner seeks to impose against Respondent in DOAH

Case No. 13 - 2397 a $500 survey fee pursuant to section 429.19(7).

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

administrative fines imposed, the agency may assess a survey fee,

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

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

initial complaint investigations that result in the finding of a

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

above, the $500 survey, which Petitioner seeks to impose against

Respondent, is appropriate.

F. Administrat ive Penalty

69. Petitioner, pursuant to section 429.14, seeks to revoke

Respondent ' s license to operate as an assisted living facility.

As grounds for revocation, Petitioner contends in its

Administrative Complaint in DOAH Case No. 13 - 2011, that

revocati on is appropriate because the " facility has been charged

with two Class I deficiencies within a two month time span,

giving the Agency more than sufficient grounds for license

revocation under section 429.14(1)(e)1. " Section 429.14(1)(e)1.

allows for lice nse revocation where a licensee commits one or

more Class I deficiencies.

70. Petitioner ' s belief that Respondent ' s license should be

revoked seems to be motivated primarily by its belief that

Respondent committed two Class I violations " within a two mo nth

time frame. " While Petitioner charged Respondent with committing

two Class I deficiencies, the evidence only establishes the

existence of one Class I and one Class II deficiency.

71. Petitioner , in its Administrative Complaint in DOAH

Case No. 13 - 2 011 , also alleges that the facts, " both individually

and collectively, provide sufficient grounds on which the Agency

may revoke Respondent ' s licensure to operate an assisted living

facility in the State of Florida. " This charge by Petitioner

recognizes, and certainly provides notice to Respondent that a

single C lass I violation may provide grounds for the revocation

of its license in the instant proceeding.

72. In the opinion of the undersigned, Respondent committed

two very serious violations , and the r ecommended total fine of

$13,000.00 supports this conclusion. While it is certainly

arguable that the nearly eight - hour delay in starting the search

for R.D. could have been a contributing factor in his demise, the

Department failed to establish by clear and convincing proof that

the delay was , in fact , a contributing legal cause in R.D. ' s

death. Similarly, in B.Y. ' s case it is clear that Pine Tree

Manor failed to properly train and supervise its staff and that

there was an unacceptable delay in contactin g 911. The

Department failed , however , to establish by clear and convincing

proof that these factors contributed to the unsuccessful efforts

of EMS personnel to revive B.Y. These factors militate against

license revocation. The other factors enumerated in section

429.13(3) have been considered , and they do not sway the

recommendation in favor of license revocation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Agency for Health Care

Ad ministration:

1) Enter in Agency Case No. 2013002572 (DOAH Case

No. 13 - 2397) a final order finding that Respondent, Pine Tree

Manor, Inc., d/b/a/ Pine Tree Manor, committed a Class II

violation and assessing an administrative fine of $5,000.00 and a

surv ey fee of $500.00.

2) Enter in Agency Case No. 2013004620 (DOAH Case

No. 13 - 2011) a final order finding that Respondent, Pine Tree

Manor, Inc., d/b/a/ Pine Tree Manor, committed a Class I

violation and assessing an administrative fine of $8,000.00.

It is also RECOMMENDED that the final order not revoke

Respondent ' s license to operate an assisted living facility in

the State of Florida , but , instead , suspend Respondent ' s license

for a period of 60 days. 7/

D ONE AND ENTERED this 5th day of December , 2013 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of December , 2013 .

ENDNOTE S

1/ On February 24, 2012, a resident health assessment was

completed , and it was noted therein that R.D. " [n]eeds assistance

with self - administration of medications. " The physician that

evaluated R.D. in May 2012 also noted that R.D. needed help with

taking his medication , but failed to check the box to indicate

whether R.D. needed help with self - administration or n eeded to

have his medication administered to him. Either way, Pine Tree

Manor was on notice that R.D. needed assistance when taking his

medication.

2/ Mr. Sparks ' belief as to R.D. ' s acts of manipulation are

further supported by an entry made by Mr. Spa rk in R.D. ' s file on

November 3, 2012, wherein it was noted that R.D. had made his

" weekly visit to the ER, " that there were " no issues, " and that

R.D. " just thinks he needs to go " to the emergency room.

3/ Admitted into evidence is a copy of a " resident sign out "

registry showing that R.D. signed out of the facility at " 9:00 "

on December 5, 2012, to go to his congressman ' s office and that

his estimated time of return was " 11:00. " Mr. Sparks admitted

that he, and not R.D., actually made the registry entr ies. The

facility ' s governing policy authorizes either the resident or

staff to make entries in the registry. Although the registry

reflects that R.D. was estimated to return at 11:00 (no a.m.

or p.m. designation noted), there was no evidence establishin g

that R.D. informed facility personnel of his expected return

time. The " 11:00 " entry was arbitrarily created by Mr. Sparks.

4/ R.D. wore a pacemaker. It is reported that an analysis of the

pacemaker showed that on the morning of December 5, 2012, R.D . ' s

heart rate was elevated to a high level on two occasions.

5/ All subsequent references to Florida Statutes will be to 2012,

unless otherwise indicated.

6/ Respondent ' s reliance on Pic N ' Save, Inc. v. Department of

Business Regulation, Division of Alcoholic Beverages & Tobacco ,

601 So. 2d 245, 256 (Fla. 1st DCA 1992) , is misplaced as the

instant case is not based on principles on respondeat superior,

but, instead, on Respondent ' s failure to properly train and

supervise its employees.

7/ In or der to allow for an orderly transition and to minimize

any resulting disruption to the residents of the facility and

their families or other responsible individuals, it is

recommended that the final order provide a 30 - day grace period

before the period of suspension commences.

COPIES FURNISHED:

Elizabeth Dudek, Secretary

Agency for Health Care Administration

Mail Stop 1

2727 Mahan Drive

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for Health Care Administration

Mail Stop 3

2727 Ma han Drive

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

Suzanne Suarez Hurley, Esquire

Agency for Health Care Administration

Suite 330K

525 Mirror Lake Drive , North

St. Petersburg, Florida 33701

Theodore E. Mack, Esquire

Powell and Mack

3700 Bellwood Drive

Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to sub mit 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.