15-000619 Bayou Shores Snf, Llc, D/B/A Rehabilitation Center Of St. Pete vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, July 21, 2016.

Summary: AHCA proved the allegations in the Administrative Complaint; conditional licensure status followed by revocation or denial of renewal license appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAYOU SHORES SNF, LLC, d/b/a

REHABILITATION CENTER OF

ST. PETE,

Petitioner,

vs. Case No. 15 - 0619

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

AGENCY FOR HEALTH CAR E

ADMINISTRATION,

Petitioner,

vs. Case No. 15 - 5469

BAYOU SHORES SNF, LLC, d/b/a

REHABILITATION CENTER OF

ST. PETE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this

matter before Lynne A. Quimby - Pennock, Administrative Law Judge

with the Division of Administrative Hearings (DOAH), on January 5

through 8, and February 22 and 23, 2016, in Saint Petersburg,

Florida.

APPEARANCES

For Petiti oner: Thomas J. Walsh, II, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive North , Suite 330

St. Petersburg, Florida 33701

John E. Bradley, Esquire

A gency for Health Care Administration

The Sebring Building, Suite 330

525 Mirror Lake Drive North

St. Petersburg, Florida 33701

For Respondent: Julie Gallagher, Esquire

Grossman Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

Peter A. Lewis, Esquire

Law Offices of Peter A. Lewis, P.L.

3023 North Shannon Lakes Drive , Suite 101

Tallahassee, Florida 32309

STATEMENT OF THE ISSUE S

The issues in these cases are whether the Agency for Health

Care Administration (AHCA or Agency) should discipline (including

license revocation) Bayou Shores SNF , LLC , d/b/a Rehabilitation

Center of St. Pete (Bayou Shores) for the statutory and rule

v iolations alleged in the June 10 , 2014 , Administrative

Complaint, and whether AHCA should renew the nursing home license

held by Bayou Shores.

PRELIMINARY STATEMENT

On June 10, 2014, AHCA issue d an Administrative Complaint

(AC) to Bayou Shores seeking to change Bayou ShoresÓ licensure

status from stan dard to conditional for a three - month period ;

imposing an administrative fine of $26,000.00 ; imposing survey

fees of $12,000.00 ; and revoking Bayou ShoresÓ license to

operate. Bayou Shores timely executed an Election of Rights

form contesting the factual basis for AHCAÓs allegations and

filed a r equest for f ormal h earing (Petition) with AHCA. On

September 29, 2015, AHCA referred the matter to DOAH , where it

was designated DOAH Case No. 15 - 5469. 1/

In January 2015, AHCA issued a notic e of intent to deny

(Notice) renewal of licensure to Bayou Shores. Bayou Shores

timely requested a hearing, and on February 5, 2015, the matter

was referred to DOAH, wh ere it was designated DOAH Case No. 15 -

0 619.

AHCA's Notice included alleged violations of section s

400.121(1) (a), (b), (c), and (d), and (3) , Florida Statutes .

During the hearing, AHCAÓs reference to section s 400.121(1), (b),

(c), and (d), was corrected t o section s 408.81 5(1)(b), (c), and

(d), Florida Statutes . Section 400.121(1)(a) provides that the

Agency may revoke, suspend or discipline an applicant or licensee

for violating any Ðprovision of this part, part II of chapter 408

or applicable rules. Ñ Se ction 408.815( 1) provides in pertinent

part:

(b) An intentional or negligent act

materially affecting the health or safe ty of

a client of the provider;

(c) A violation of this part, authorizing

statutes, or applicable rules ;

(d) A demonstrated pat tern of deficient

performance.

S ection 400.121(3)(d) provides that AHCA Ðshall revoke or

deny a nursing home license for two class I deficiencies arising

from separate surveys within a 30 - month period.Ñ

On October 7, 2015, Bayou Shores moved to consolidate DO AH

Case No. 15 - 5469 with DOAH Case No. 15 - 0 619. AHCA did not object

to the consolidation, and the two cases were con solidated on

October 13, 2015.

At the final hearing, AHCA presented the testimony of Fadi

Saba, M.D., medical director for Bayou Shores; Ma tthew Thompson,

former Bayou Shores a dministrator; Carey Daniels, Jr., a

certified nursing assistant (CNA) from Bayou Shores; Frances

Thomason, former rehabilitation director for Bayou Shores; Janice

Kicklighter, former social service director and risk man ager for

Bayou Shores; Bernard Hudson, a long - term care unit manager for

AHCA; Deidre Wells, a registered nurse (RN), licensed health care

risk manager and surveyor for AHCA; Susan Morton, a health

facility evaluator II for AHCA; Kimber ly Smoak, the bureau c hief

of Field Operations 2/ for AHCA; Timothy Selleck, a dministrator at

Advanced Nursing and Rehabilitation Center (A dvanced Center)

(A sister facility to Bayou Shores) , Clearwater, Florida ;

Katherine Benjamin, a health facility evaluator for AHCA;

Prisc illa Bush, a licensed practical nurse (LPN) employed by

Bayou Shores; and Charlene Cannedy, an LPN and unit manager of

the second floor employed by Bayou Shores. AH CAÓs Exhibits I

through III, VI through VIII 3/ were received in evidence. Over an

objectio n registered during the hearing, AHCAÓs Exhibit III was

taken under adv isement and it is now admitted. Bayou Shores

called Todd Martin, a licensed nursing home administrator at Gulf

Shore Rehab and Nursing Center; A nn Essig, a n RN and the current

d irector of n ursing (DON) at Bayou Shores; and Barbara Gamble, an

LPN employed by Bayou Shores. Bayou Shores was allowed to cross -

examine AHCAÓs witnesses beyond the scope of direct - examination

as part of Bayou ShoresÓ case - in - chief. Bayou Shores Exhibits 1

thro ugh 3 were received in evidence.

The first four volumes of the Transcript were filed on

March 31, 2016, and the final two volumes were filed on April 1,

2016. 4/ On April 4, the parties were advised, via a Notice of

Filing Transcript , that the proposed or ders were to be filed on

or before the close of business on May 16, 2016. On May 9, 2016,

Bayou Shores filed a Motion for Extension of Time in which to

file the proposed orders. The motion was granted, and the

partiesÓ proposed orders were to be filed by the close of

business on May 20, 2016. The parties timely filed their

P roposed R ecommended O rders, which have been duly considered in

the preparation of this Recommended Order.

Unless otherwise stated, all statutory references are to the

2014 codificatio n of the Florida Statutes, which reflects the

statutes in effect at the time of the alleged violations.

All rule references are to t he Florida Administrative Code

R ules in effect at the t ime of the alleged violations.

Prior to the hearing, each party submi tted a unilateral

statement containing facts that they believed were not in dispute

in this case. To the extent that any fact statements were in

agreement and relevant, those facts may be found below.

FINDING S OF FACT

1. Bayou Shores is a 159 - bed license d nursing facility

under the licensing authority of AHCA, located in Saint

Petersburg, Florida. Bayou Shores was at all times material

hereto required to comply with all applicable rules and statutes.

2. Bayou Shores was built in the 1960s as a psychiatr ic

hospital. In addition to long - term and short - term rehabilitation

residents, Bayou Shores continues to treat psychiatric residents

and other mental health residents.

3. AHCA is the state regulatory authority responsible for

licensure of nursing homes a nd enforcement of applicable federal

regulations, state statutes, and rule s governing skilled nursing

facilities, pursuant to the Omnibus Reconciliation Act of 1987,

Title IV, Subtitle C (as amended) chapters 400, Part II, and 408,

Part II, Florida Statute s, and Florida Admi nistrative Code

C hapter 59A - 4.

4. AHCA is responsible for conducting nursing homes surveys

to determine compliance wit h Florida statutes and rules. AHCA

completed surveys of Bayou ShoresÓ nursing home facility on or

about February 10, 2014 ; 5/ March 20, 2014 ; and July 11, 2014.

Surveys may be classified as annual inspections or complaint

investigations.

5. Pursuant to section 400.23(8) , Florida Statutes, AHCA

must classify deficiencies according to their nature and scope

when the crite ria established under section 400.23(2) are not

met. The classification of the deficiencies determines whether

the licensure status of a nursing home is "standard" or

"conditional" and the amount of the administrative fine that may

be imposed, if any. AH CA surveyors cited deficiencies during the

three surveys listed above (paragraph 4).

6. Prior to the alleged events that prompted AHCAÓs

actions, Bayou Shores had prom ulgated policies or procedures for

its operation. Specifically, Bayou Shores had polici es or

procedure s in place governing:

A) (Resident) code status, involving

specific life - saving responses (regarding

what services would be provided when or if an

untoward event occurred, including a

re sidentÓs end of life decision);

B) Abuse, neglect, e xploitation,

mi sappropriation of property; and

C) Elopements.

A . CODE STATUS

7. Bayou ShoresÓ policy on code status orders and the

response provided , in pertinent part , the following:

Each resident will have the elected code

status documented in their medical record

within the PhysicianÓs orders & on the state

specific Advanced Directives form kept in the

Advanced Directives section of the medical

record.

8. Bayou ShoresÓ procedure on code status orders and the

response also provided that the ÐPhysic ian & or Social

Services/Clinical TeamÑ would discuss with a Ðresident/patient or

authorized responsible partyÑ their wishes regarding a code

status as it related to their current clinical condition. This

discussion was to include an explanation of the te rm Ð'Do Not

ResuscitateÓ (DNR) and/or ÒFull Code . ÓÑ Bayou Shores personnel

were to obtain a written order signed by the physician indicating

which response the resident (or their legal representative)

selected. In the event a resident was found unrespons ive, the

procedure provided for the following staff response:

3 Response:

a. Upon finding a resident/patient

unresponsive, call for help.

b. Evaluate for heartbeat, respirations, &

pulse.

c. The respondent to the call for help will

immediately overhea d page a ÐCODE BLUEÑ &

indicate the room number, or the location of

the resident/patient & deliver the Medical

Record & Emergency Cart to the location of

the CODE BLUE.

d. If heartbeat, respirations, & pulse

cannot be identified, promptly verify Code

Sta tus - Respondent verifies Code Status by

review of the residentÓs/patientÓs Medical

Record.

e. If Code Status is ÐDNRÑ Î DO NOT initiate

CPR (Notify Physician, Supervisor & Family) .

f. If Code Status includes CPR & respondent

is CPR certified, BEGIN Ca rdio Pulmonary

Resuscitation.

i. If respondent is not CPR certified, STAY

with the RESIDENT/PATIENT Î Continue to

summon assistance.

ii. The first CPR certifi ed responder will

initiate CPR.

g. If code status is not designated, the

resident is a FULL CODE & CPR will be

initiated.

h. A scribe will be designated to record

activity related to the Code Blue using the

ÐCode Blue Worksheet . Ñ

i. The certified respondent will continue

CPR until : Relieved by EMS, relieved by

another CPR certified responden t, &/or

Physician orders to discontinue CPR.

j. A staff member will be designated to

notify the following person(s) upon

initiation of CPR.

i. EMS (911)

ii. Physician

iii. Family/Legal Representative

* * *

5) Review DNR orders monthly & w ith change

in condition and renew by PhysicianÓs

signature on monthly orders.

(Emphasis supplied) .

9. Bayou ShoresÓ ÐDo Not Resuscitate OrderÑ policy

statement provides:

Our facility will not use cardiopulmonary

resuscitation and related emergency measur es

to maintain life functions on a resident when

there is a Do Not Resuscitate Order in

effect.

Further, the DNR policy interpretation provides:

1. Do not resuscitate order must be signed

by the residentÓs Attending Physician on the

physicianÓs order sh eet maintained in the

residentÓs medical record.

2. A Do Not Resuscitate Order (DNRO) form

must be completed and signed by the Attending

Physician and resident (or residentÓs legal

surrogate, as permitted by State law) and

placed in the front of the resi dentÓs medical

record. (Note: Use only State approved DNRO

forms. If no State form is requir ed use

facility approved form.)

3. Should the resident be transferred to the

hospital, a photocopy of the DNRO form must

be provided to the EMT personnel trans porting

the resident to the hospital.

4. Do not resuscitate orders (DNRO) will

remain in effect until the resident (or legal

surrogate) provides the facility with a

signed and dated request to end the DNR

order. (Note: Verbal orders to cease the

DNRO w ill be permitted when two (2) staff

members witness such request. Both witnesses

must have heard and both individuals must

document such information on the physicianÓs

order sheet. The Attending Physician must be

informed of the residentÓs request to cea se

the DNR order.)

5. The Interdisciplinary Care Planning Team

will review advance directives with the

resident during quarterly care planning

sessions to determine if the resident wishes

to make changes in such directives.

6. Inquiries concerning do n ot resuscitate

orders/requests should be referred to the

Administrator, Director of Nursing Services,

or to the Social Services Director.

10. Bayou ShoresÓ advance directives policy statement

provides: ÐAdvance Directives will be respected in accordance

with state law and facility policy.Ñ In pertinent part, the

Advance Directives policy interpretation and implementation

provides:

* * *

4. Information about whether or not the

resident has executed an advance directive

shall be displayed promin ently in the medical

record.

5. In accordance with current OBRA

definitions and guidelines governing advance

directives, our facility has defined advanced

directives as preferences regarding treatment

options and include, but are not limited to:

* * *

b. Do Not Resuscitate Î Indicates that , in

case of respiratory or cardia failure, the

resident, legal guardian, health care proxy,

or representative (sponsor) has directed that

no cardiopulmonary resuscitation (CPR) or

other life - saving methods ar e to be used.

* * *

8. Changes or revocations of a directive

must be submitted in writing to the

Administrator. The Administrator may require

new documents if changes are extensive. The

Care Plan Team will be informed of such

changes and/or re vocations so that

appropriate changes can be made in the

resident assessment (MDS) and care plan.

9. The Director of Nursing Services or

designee will notify the Attending Physician

of advance directives so that appropriate

orders can be documented in th e residentÓs

medical record and plan of care.

(Emphasis supplied) .

11. A DNR order is an advance directive signed by a

physician that nursing homes are required to honor. The DNR

order is on a state - mandated form that is yellow/gold

(ÐgoldenrodÑ) in col or. The DNR order is the only goldenrod form

in a residentÓs medical record/ chart. 6/ The medical record itself

is kept at the nursing station.

12. DNR Orders should be prominently placed in a residentÓs

medical record for easy access. When a resident i s experiencing

a life - threatening event, care - givers do not have the luxury of

time to search a medical record or chart to determine whether the

resident has a DNR order or not. Cardiopulmonary resuscitation

should be started as soon as possible, provided the resident did

not have a DNR order.

13. Bayou Shores had a policy and procedure regarding DNR

orders and the implementation of CPR in place prior to the

February 2014 survey. The policy and procedure required that DNR

orders be honored, and that each resident with a DNR order have

the DNR order on the state - mandated goldenrod form in the

"Advanced Directives" section of the residentÓs medical record.

B. ABUSE, NEGLECT, EXPLOTATION, AND MISAPPROPRIATION OF

PROPERTY PREVENTION, PROTECTION AND RESPONSE POLICY AND

PROCEDURES

14. Bayou ShoresÓ ÐAbuse, Neglect, Exploitation, and

Misappropriation of Property Prevention, Protection and ResponseÑ

policy provided in pertinent part:

Abuse, Neglect, Exploitation, and

Misappropriation of Property, collectively

kn own and referred to as ANE and as hereafter

defined, will not be tolerated by anyone,

including staff, patients, volunteers, family

members or legal guardians, fri ends or any

other individuals.

The health center Administrator is

responsible for assuring t hat patient safety,

including freedom from risk of ANE, hold the

highest priority. (Emphasis supplied ) .

15. Bayou ShoresÓ definition of sexual abuse included the

following:

Sexual Abuse : includes but is not limited

to, sexual harassment, sexual coercio n, or

sexual assault. (Emphasis supplied ) .

16. Bayou ShoresÓ ANE prevention issues policies included

in pertinent part:

The center will provide supervision and

support services designed to reduce the

likelihood of abusive behaviors. Patients

with needs and behaviors that might lead to

conflict with staff or other patients will be

identified by the Care Planning team, with

interventions and follow through designed to

minimize the risk of conflict.

17. Bayou ShoresÓ procedure for prevention issues invol ving

residents identified as having behaviors that might lead to

conflict included, in part, the following:

a. patients with a history of aggressive

behaviors,

b. patients who enter other residents rooms

while wandering .

* * *

e. patients who require heavy nursing care

or are totally dependent on nursing care will

be considered as potential victims of abuse.

18. Bayou ShoresÓ interventions designed to meet the needs

of those residents identified as having behaviors that might lead

to conflic t included, in part:

a. Identification of patients whose personal

histories render them at risk for abusing

other patients or staff,

b. assessment of appropriate intervention

strategies to prevent occurrences,

19. Bayou ShoresÓ policy regarding ANE id entification

issues included the following:

Any patient event that is reported to any

staff by patient, family, other staff or any

other person will be considered as possible

ANE if it meets any of the following

criteria:

* * *

f. Any complaint of sexual harassment,

sexual coercion, or sexual assault.

(Emphasis supplied ) .

20. Bayou ShoresÓ ANE procedure included the following:

Any and all staff observing or hearing about

such events will report the event immediately

to the ABUSE HOTLINE AT 1 - 80 0 - 962 - 2873. The

event will also be reported immediately to

the immediate supervisor, AND AT LEAST ONE OF

THE FOLLOWING INDIDUALS, Social Worker (ANE

Prevention Coordinator), Director of Nursing,

or Administrator.

Any and all employees are empowered to

in itiate immediate action as appropriate.

(Emphasis supplied ) .

21. Bayou ShoresÓ policies regarding ANE investigative

issues provided the following:

Any employee having either direct or indirect

knowledge of any event that might constitute

abuse must repo rt the event promptly.

* * *

All events reported as possible ANE will be

investigated to determine whether ANE did or

did not take Place [sic] .

22. Bayou ShoresÓ procedures regarding ANE investigative

issues included the following:

Any and all staff observing or hearing about

such events must report the event immediately

to the ANE Prevention Coordinator or

Administrator. The event should also be

reported immediately to the employeeÓs

supervisor.

All employees are encouraged and empowered to

c ontact the ABUSE HOTLINE AT 1 - 800 - 962 - 2873 .

[ sic ] if they witness such event or have

reasonable cause to suspect such an event has

indeed occurred.

THE ANE PREVENTION COORDINATOR will initiate

investigative action.

The Administrator of the center, the Di rector

of Nurses and/or the Social Worker (ANE

PREVENTION COORDINATOR) will be notified of

the complaint and action being taken as soon

as practicable. (Emphasis supplied ) .

23. Bayou ShoresÓ policy regarding ANE reporting and

response issues included th e following:

All allegations of possible ANE will be

immediately reported to the Abuse Hotline and

will be assessed to determine the direction

of the investigation.

24. Bayou ShoresÓ procedures regarding ANE reporting and

response issues included the fol lowing:

Any investigation of alleged abuse, neglect,

or exploitation will be reported immediately

to the Administrator and/or the ANE

coordinator. It will also be reported to

other officials, in accordance with State and

Federal Law.

A. THE IMMEDIATE RE PORT

All allegations of abuse, neglect, . . . must

be reported immediately. This allegation

must be reported to the Abuse Hotline (Adult

Protective Services) within twenty - four hours

whenever an allegation is made.

The ANE Prevention Coordinator will als o

submit The Agency for Health Care

Administration AHCA Federal Immediate/5 - Day

Report and send it to:

Complaint Administration Unit

Phone: 850 - 488 - 5514

Fax: 850 - 488 - 6094

E - Mail: [e-mail]

B. THE REPORT OF INVESTIGATION (Five Day

Repo rt):

The facility ANE Prevention Coordinator will

send the result of facility investigations to

the State Survey Agency within five working

days of the incident. This will be completed

using the same AHCA Federal/Five Day Report,

and sending it to the Co mplaint investigation

Unit as noted above.

C. DESIGNATED REPORTERS:

Shall immediately make a report to the State

Survey Agency, by fax, e - mail, or telephone.

All necessary corrective actions depending on

the result of the investigation will be

taken.

Report any knowledge of actions by a court of

law against any employee, which would

indicate an employee is unfit for service as

a nurse aide or other facility staff to the

State nurse aide registry or other

appropriat ed [ sic ] licensing authorities.

Any r eport to Adult Protective Services will

trigger an internal investigation following

the protocol of the Untoward Events Policy

and Procedure. (Emphasis supplied ) .

25. Bayou ShoresÓ abuse investigations policy statement

provides the following:

All report s of resident abuse, . . . shall be

promptly and thoroughly investigated by

facility management.

26. Bayou ShoresÓ abuse investigations interpretation and

implementation provides, in pertinent part, the following:

1. Should an incident or suspected inci dent

of resident abuse, . . . be reported, the

Administrator, or his/her designee, will

appoint a member of management to investigate

the alleged incident.

2. The Administrator will provide any

supporting documents relative to the alleged

incident to the person in charge of the

investigation.

3. The individual conducting the

investigation will, as a minimum:

a. Review the completed documentation forms;

b. Review the residentÓs medical record to

determine events leading up to the incident;

c. Inter view the person(s) reporting the

incident;

d. Interview any witnesses to the incident;

e. Interview the resident (as medically

appropriate);

f. Interview the residentÓs Attending

Physician as needed to determine the

residentÓs current level of cognit ive

function and medical condition;

g. Interview staff members (on all shifts)

who have had contact with the resident during

the period of the allege incident;

h. Interview the residentÓs roommate, family

members, and visitors;

i. Interview other res idents to whom the

accused employee provides care or services;

and

j. Review all events leading up to the

alleged incident.

4. The following guidelines will be used

when conducting interviews;

a. Each interview will be conducted

separately and in a p rivate location;

b. The purpose and confidentiality of the

interview will be explained thoroughly to

each person involved in the interview

process; and

c. Should a person disclose information that

may be self - incriminating, that individual

will be info rmed of his/her rights to

terminate the interview until such time as

his/her rights are protected (e.g.,

representation by legal counsel).

5. Witness reports will be obtained in

writing. Witnesses will be required to sign

and date such reports.

6. The individual in charge of the abuse

investigation will notify the ombudsman that

an abuse investigation is being conducted.

The ombudsman will be invited to participate

in the review process.

7. Should the ombudsman decline the

invitation to participate in t h e

investigation, that information will be noted

in the investigation record. The ombudsman

will be notified of the results of the

investigation as well as any corrective

measures taken.

* * *

10. The individual in charge of the

investigati on will consult daily with the

Administrator concerning the

progress/findings of the investigation.

11. The Administrator will keep the resident

and his/her representative (sponsor) informed

of the progress of the investigation.

12. The results of the investigation will be

recorded on approved documentation forms.

13. The investigator will give a copy of the

completed documentation to the Administrator

within ___ working days of the reported

incident.

14. The Administrator will inform the

resident a nd his/her representative (sponsor)

of the results of the investigation and

corrective action taken within ___ days of

the completion of the investigation.

15. The Administrator will provide a written

report of the results of all abuse

investigations and appropriate action taken

to the state survey and certification agency,

the local police department, the ombudsman,

and others as may be required by state or

local laws, within five (5) working days of

the reported incident.

16. Should the investigation reveal that a

false report was made/filed, the

investigation will cease. Residents, family

members, ombudsmen, state agencies, etc.,

will be notified of the findings. (Note:

Disciplinary actions concerning the filing of

false reports by employees are ou tlined in

our facilityÓs personnel policy manual.)

17. Inquiries concerning abuse reporting and

investigation should be referred to the

Administrator or to the Director of Nursing

Services.

27. Bayou ShoresÓ reporting abuse to facility management

polic y statement provides the following:

It is the responsibility of our employees,

facility consultants, Attending Physicians,

family members visitors etc., to promptly

report any incident or suspected incident of

. . . resident abuse . . . to facility

managem ent.

28. Bayou ShoresÓ reporting abuse to facility management

policy interpretation and implementation provides the following:

1. Our facility does not condone resident

abuse by anyone, including staff members,

. . . other residents, friends, or other

individuals.

2. To help with recognition of incidents of

abuse, the following definitions of abuse are

provided:

* * *

c. Sexual abuse is defined as, but not

limited to, sexual harassment, sexual

coercion, or sexual assault.

3. All personnel , residents, family members,

visitors, etc., are encouraged to report

incidents of resident abuse or suspected

incidents of abuse. Such reports may be made

without fear of retaliation from the facility

or its staff.

4. Employees, facility consultants an d /or

Attending Physicians must immediately report

any suspected abuse or incidents of abuse to

the Director of Nursing Services. In the

absence of the Director of Nursing Services

such reports may be made to the Nurse

Supervisor on duty.

5. Any individ ual observing an incident of

resident abuse or suspecting resident abuse

must immediately report such incident to the

Administrator or Director of Nursing

Services. The following information should

be reported:

a. The name(s) of the resident(s) to which

the abuse or suspected abuse occurred;

b. The date and time that the incident

occurred;

c. Where the incident took place;

d. The name(s) of the person(s) allegedly

committing the incident, if known;

e. The name(s) of any witnesses to the

incident;

f. The type of abuse that was committed

(i.e., verbal, physical, . . . sexual,

. . .); and

g. Any other information that may be

requested by management.

6. Any staff member or person affiliated

with this facility who . . . believes that a

resident h as been a victim of . . . abuse,

. . . shall immediately report, or cause a

report to be made of, the . . . offense.

Failure to report such an incident may result

in legal/criminal action being filed against

the individual(s) withholding such

information .

* * *

8. The Administrator or Director of Nursing

Services must be immediately notified of

suspected abuse or incidents of abuse. If

such incidents occur or are discovered after

hours, the Administrator and Director of

Nursing Services must b e called at home or

must be paged and informed of such incident.

9. When an incident of resident abuse is

suspected or confirmed, the incident must be

immediately reported to facility management

regardless of the time lapse since the

incident occurred. Reporting procedures

should be followed as outlined in this

policy.

10. Upon receiving reports of . . . sexual

abuse, a licensed nurse or physician shall

immediately examine the resident. Findings

of the examination must be recorded in the

residentÓs me dical record. (Note: If sexual

abuse is suspected, DO NOT bathe the resident

or wash the residentÓs clothing or linen. Do

not take items from the area in which the

incident occurred. Call the police

immediately.) (Emphasis supplied ) .

C. ELOPEMENT A/ K/A EXIT SEEKING

29. Bayou ShoresÓ elopement policy statement provides the

following:

Staff shall investigate and report all cases

of missing residents.

30. Bayou ShoresÓ elopement policy interpretation and

implementation provides the following:

1. Sta ff shall promptly report any resident

who tries to leave the premises or is

suspected of being missing to the Charge

Nurse or Director of Nursing.

* * *

4. If an employee discovers that a resident

is missing from the facility, he/she shall:

a. Determine if the resident is out on an

authorized leave or pass;

b. If the resident was not authorized to

leave, initiate a search of the building(s)

and premises;

c. If the resident is not located, notify

the Administrator and the Director of Nursing

Services, the residentÓs legal representative

(sponsor), the Attending Physician, law

enforcement officials, and (as necessary)

volunteer agencies (i.e., Emergency

Management, Rescue Squads, etc.);

d. Provide search teams with resident

identification in formation; and

e. Initiate an extensive search of the

surrounding area.

5. When the resident returns to the

facility, the Director of Nursing Services or

Charge Nurse shall:

a. Examine the resident for injuries;

b. Contact the Attending Physician a nd

report findings and conditions of the

resident;

c. Notify the residentÓs legal

representative (sponsor);

d. Notify search teams that the resident has

been located;

e. Complete a nd file an incident report; and

f . Document relevant information in the

residentÓs medical record.

FEBRUARY 2014 SURVEY

31. A patient has the right to choose what kind of medical

treatment he or she receives, including whether or not to be

resuscitated.

32. At Bayou Shores t here may be multiple locations in a

residentÓ s medical record for physician orders regarding a

residentÓs DNR status. A physicianÓs DNR order should be in the

residentÓs medical record. W hen a resident is transported from a

facility to another health care facility , the goldenrod form is

included wi th the transferring documentation . If there is not a

DNR, a full resuscitation effort would be undertaken.

33 . In late January, early February 2014, AHCA conducted

Bayou ShoresÓ annual re - licensure survey. During the survey,

Bayou Shores identified 24 r esidents who selec ted the DNR status

as their end - of - life choice. Of those 24 residents, residents

numbered 35, 7/ 54 and 109, did not have a completed or current

ÐDo Not Resuscitate OrderÑ in their medical records maintained by

Bayou Shores. 8/

34. As th e medical director for Bayou Shores, Dr. Saba

completed new DNR orders for patients during or following the

February survey. In one instance, a particular DNR order did not

have a signature of the resident or the representative of the

resident, confirming the DNR status. Without that signature, the

DNR order was invalid. In another instance, a verbal

authorization was noted on the DNR forms , which such is not

suffic ient to control a DNR status.

35. A medication administration record (MAR) is not an

orde r; however , it should reflect orders. In one instance, a

residentÓs MAR reflected a full code status, when the resident

had a DNR order in place.

36. During the survey, Bayou Shores was in the midst of

changing its computer systems and pharmacies. At th e end of each

month, orders for the upcoming month were produced by the

pharmacy, and inserted into each residentÓs medical record.

Bayou ShoresÓ staff routinely reviewed each chart to ensure the

accuracy of the information contained therein. Additionall y ,

each nurseÓs station was given a list of those residents who

elected a DNR s tatus over a full - code status.

37. Conflicting critical information could have significant

life or death consequences. The administration of cardio -

pulmonary resuscitation (CP R) to a resident who has decided to

forgo medical care could cause serious phys ical or psychological

injuries.

38. As the February survey progressed, and Bayou Shores was

made aware of the DNR order discrepancies, staff contacted

residents or residentsÓ l egal guardians to secure signatures on

DNR orders so that residentÓs last wishes would be current and

correct. Bayou Shores had a redundant system in place in an

effort to ensure that a residentÓs last wishes were honored ;

however , the systems failed .

MAR CH 2014 SURVEY

39. On March 2 0 , 2014, AHCA conducted a complaint survey

and a follow - up survey to the February 2014 survey. During the

March 2014 s urvey, Janice Kicklighter served as the ANE

prevention c oordinator for Bayou Shores.

40. On February 13, 2 014, 9/ Resident BJ was admitted to

Bayou Shores from another health care facility. Sometime after

BJ was admitted, paperwork indicating BJÓs history as a sex

offender was provided to Bayou Shores. Exactly when this

information was provided and to whom is unclear.

41. Once BJ was assigned to a floor, CNA Daniels was

assigned to assist BJ, and tasked to give BJ a shower. CNA

Daniels observed that BJ was unable to transfer from his bed to

the wheelchair without assistance; however , CNA Daniels , with

assist ance, was able to transfer him, and took him to the shower

via a wheelchair. It is unclear if C N A Daniels shared his

observation with any other Bayou Shores staff.

42. Several hours after BJÓs admission, Mr. Thompson, Bayou

ShoresÓ then administrator, wa s informed that BJ had been

admitted. Mr. Thompson conferred with the director of nursing

(DON) and the director of therapy (director). The director

immediately assessed BJ that evening . The director then advised

Mr. Thompson and the DON that her initia l contact with BJ was

less than satisfactory. BJ declined to cooperate in the

assessment, and the director advised Mr. Thompson and the DON

that BJ could not get out of bed without assistance.

43. Mr. Thompson, the DON and the director did not provide

an y further care instructions or directions to Bayou Shores staff

regarding BJÓs care or stay at that time. A failure to cooperate

does not ensure safety for either BJ or other residents.

44. The day after his admission, BJ was assessed by a

psychiatrist. Thereafter , Mr. Thompson notified nearby schools

and BJÓs roommate (roommate) that BJ was a sexual offender.

45. Shortly after his conversation with the roommate,

Mr. Thompson directed that a Ðone - on - oneÑ be established with BJ ,

which means a staff memb er was to be with BJ at all times. BJ

was evaluated again and removed from the facility.

46. Bayou Shores did not immediately implement its policy

and procedures to ensure its residents were free from the risk of

ANE .

47. Hearsay testim ony was rampant i n this case.

Mr. Thompson testified that he spoke with BJÓs roommate about an

alleged sexual advance. However, the lack of direct testimony

from the alleged victim (or other direct witness) fails to

support the hearsay testimony and thus there is no cre dible

evidence needed to support a direct sexually aggressive act.

Rather, the fact that Mr. Thompson claims that he was made aware

of the alleged sexual attempt, yet failed to institute any of

Bayou Shores policies to investigate or assure resident safet y is

the violation.

JULY 2014 COMPLAINT SURVEY

48. In June 2015 , Resident JN left the second floor at

Bayou Shores without any staff noticing. A complaint was filed.

49 . At the time of the June 2014 incident (the basis for

the July Survey) , Bayou Shore sÓ second floor was a limited access

floor secured through a key system. Some r esidents on the second

floor had medical, psychiatric, cognitive or dementia (Alzheimer)

issues, while other residents choose to live there.

50 . There are two elevators that s ervice the second floor;

one, close to the nursesÓ station, and the second, towards the

back of the floor . T here was no direct line of sight to the

nursesÓ station from either elevator. To gain access to the

second floor , a visitor obtained a n elevator k ey from the lobby

receptionist, inserted the key into the elevator portal which

brought the elevator to the lobby , the elevator doors opened, the

visitor entered the elevator, traveled to the second floor,

exited the elevator, and the elevator doors closed . To leave the

floor, the visitor would u se the same system in reverse.

51 . At the time of the June incident, visitors could come

and go to the second floor unescorted. Additionally, Bayou

Shores had video surveillance capabilities in the elevator area,

but no staff member was assign ed to monitor either elevator.

52 . Mr. Selleck, Advanced CenterÓs administrator, sought

JNÓs placement at Bayou Shores because he though t Bayou Shores

offered a more secure environment than Advanced Center. Advanced

Center was an unlocked facility and the only precaution it had to

thwart exit - seeking behavior was by using a Wander Guard. 1 0 /

53 . JN was admitted to Bayou Shores on Friday evening,

June 20, 2014 , from Advanced Center. Based upon JNÓs admitting

documentation, Bayou Shores knew or should have known o f JNÓs

exit - seeking behavior.

5 4 . JN slept through his first night at Bayou Shores

without incident. On June 21, his first full day at Bayou

Shores, JN had breakfast, walked around the second floor, spoke

with staf f on the second floor and had lunch.

5 5 . At a time unknown, on June 21, JN left the second floor

and exited the Bayou Shores facility. JN did not tell staff that

he was leaving or where he was going. Upon discovering that JN

was missing, Bayou ShoresÓ s taff thoroughly searched the second

floor. When JN was not found there, the other floors were also

searched along with the smoking patio. JN was not found on Bayou

ShoresÓ property. Thereafter, Bayou ShoresÓ staff went outside

the facility and located J N at a nearby bus stop.

5 6 . The exact length of time that JN was outside Bayou

ShoresÓ property remains unknown. Staff routinely checks on

residents . H owever , there was no direct testimony as to when JN

left the second floor; just that he went missing. Staff

instituted the policy and procedure to locate JN, and did so, but

failed to undertake any investigation to determine how JN left

Bayou Sho res without any staff noticing.

NOTICE OF INTENT TO DENY

57 . AHCAÓs Notice was issued on January 15, 2015. Ba you

Shores was cited for alleged Class I deficient practices in each

of the three conducted surveys: failure to have end - of - life

decisions as reflected in a signed DNR order; failure to safe -

guard residents from a sexual offender; and failure to prevent a

resident from leaving undetected and wandering outside the

facility.

CONCLUSIONS OF LAW

5 8 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

Statutes.

59 . This case combines the denial of an application to

renew a nursing home license on various grounds (DOAH Case

No. 15 - 0619) and an AC to discipline the facility on some of the

same grounds (DOAH Case No. 15 - 5469).

BURDEN OF PROOF

60 . The burden in DOAH Case No. 15 - 5469 is on AHCA to prove

the allegations in its AC by clear and convincing evidence.

Dep't of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996) ; Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

61 . The S upreme Court has stated:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and 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.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quo ting

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

62 . AHCAÓs action in stating its intention to deny the

renewal of Bayou ShoresÓ license is tantamount to revoking the

license. See Wilson v. Pest Control Comm'n , 199 So. 2d 777, 781

(Fl a. 4th 1967). Accordingly, AHCA bears the ultimate burden of

persuasion on this issue by clear and convincing evidence. See

also Coke v. Dep't of Child. & Fam. Servs. , 704 So. 2d 726

(Fla. 5th DCA 1998); Dubin v. Dep't of Bus. Reg. , 262 So. 2d 273,

274 (Fla. 1st DCA 1972); Dep't of Banking & Fin., Div. of Sec. &

Investor Prot. v. Osborne Stern & Co. , supra , at 933 - 34 (Fla.

1996).

LICENSE RENEWAL

63 . An applicant for renewal of a nursing home license must

demonstrate compliance with the authorizing statu tes and

applicable rules during an inspection pursuant to section

408.811, Florida Statutes, as required by authorizing statutes.

§ 408.806(7)(a), Fla. Stat.

64 . The February 2 014 survey was in conjunction with Bayou

Shores' renewal application. The def iciencies noted in the

February 2014 survey were corrected or being corrected as the

survey was completed. Less than a month later , AHCA was called

to Bayou Shores on a complaint and an investigation was opened

regarding the sex offender issue. Three mon ths later , another

complaint investigation was opened regarding the elopement issue.

It could not be concluded that Bayou Shores was in compliance

with part II, authorizing statutes, and applicable rules until

those investigations were completed.

65 . Hol ding a standard license in Florida requires that the

facility has no Class I or Class II deficiencies and has

corrected all Class III deficiencies within the time established

by the agency. § 400.23(7)(a), Fla. Stat. A license will

convert to conditional status due to the presence of one or more

Class I or II deficiencies, or any Class III deficiencies not

corrected within the time established by the agency.

66 . Section 400.102 , Florida Statutes, provides:

Action by agency against licensee; grounds.

Ï I n addition to the grounds listed in part

II of chapter 408, any of the following

conditions shall be grounds for action by the

agency against a licensee:

(1) An intentional or negligent act

materially affecting the health or safety of

residents of the fa cility;

(2) Misappropriation or conversion of the

property of a resident of the facility;

(3) Failure to follow the criteria and

procedures provided under part I of

chapter 394 relating to the transportation,

voluntary admission, and involuntary

exami nation of a nursing home resident; or

(4) Fraudulent altering, defacing, or

falsifying any medical or nursing home

records, or causing or procuring any of these

offenses to be committed.

67 . Section 400.121(3) provides in pertinent part:

(3) The agenc y shall revoke or deny a

nursing home license if the licensee or

controlling interest operates a facility in

this state that:

* * *

(d) Is cited for two class I deficiencies

arising from separate surveys or

investigations within a 30 - month perio d.

The licensee may present factors in

mitigation of revocation, and the agency may

make a determination not to revoke a license

based upon a showing that revocation is

inappropriate under the circumstances.

68 . Section 400.23(7)(a) provides:

(7) The a gency shall, at least every 15

months, evaluate all nursing home facilities

and make a determination as to the degree of

compliance by each licensee with the

established rules adopted under this part as

a basis for assigning a licensure status to

that faci lity. The agency shall base its

evaluation on the most recent inspection

report, taking into consideration findings

from other official reports, surveys,

interviews, investigations, and inspections.

In addition to license categories authorized

under part II of chapter 408, the agency

shall assign a licensure status of standard

or conditional to each nursing home.

(a) A standard licensure status means that a

facility has no class I or class II

deficiencies and has corrected all class III

deficiencies with in the time established by

the agency.

69 . Florida Administrative Code R ule 59A - 4.107(5) provides:

All physician orders must be followed as

prescribed, and if not followed, the reason

must be recorded on the residentÓs medical

record during that shift.

JUNE 2014 ADMINISTRATIVE COMPLAINT

The June 2014 AC consists of eight counts:

70 . Count I alleges that Bayou Shores failed to follow its

own policy and procedures regarding the use of DNR orders, in

violation of section 400.022(1)(l) , Florida Statutes. S ection

400.022 provides in pertinent part as follows:

(1) All licensees of nursing home facilities

shall adopt and make public a statement of

the rights and responsibilities of the

residents of such facilities and shall treat

such residents in accordance with the

provisions of that statement. The statement

shall assure each resident the following:

* * *

(l) The right to receive adequate and

appropriate health care and protective and

support services, including social services;

mental health ser vices, if available; planned

recreational activities; and therapeutic and

rehabilitative services consistent with the

resident care plan, with established and

recognized practice standards within the

community, and with rules as adopted by the

agency.

71 . Count I involved an alleged failure to maintain

Ðcurrent, accurate, and accessible information regarding end of

life choices placing the residents at risk for failure to honor

their advance directives.Ñ It was also alleged that Bayou

ShoresÓ Ðdeficient practice presents a situation in which

immediate corrective action is necessary because the facilityÓs

noncompliance has caused, or is likely to cause, serious injury,

harm, impairment, or death to a resident receiving care in a

facility.Ñ

72 . AHCA cite d this alleged deficiency as a C lass I

deficiency, which is defined in section 400.23(8)(a) as follows:

A class I deficiency is a deficiency that the

agency determines presents a situation in

which immediate corrective action is

necessary because the facilit yÓs

noncompliance has caused, or is likely to

cause, serious injury, harm, impairment, or

death to a resident receiving care in a

facility. The condition or practice

constituting a class I violation shall be

abated or eliminated immediately, unless a

fixe d period of time, as determined by the

agency, is required for correction. A

class I deficiency is subject to a civil

penalty of $10,000 for an isolated

deficiency, $12,500 for a patterned

deficiency, and $15,000 for a widespread

deficiency. The fine am ount shall be doubled

for each deficiency if the facility was

previously cited for one or more class I or

class II deficiencies during the last

licensure inspection or any inspection or

complaint investigation since the last

licensure inspection. A fine m ust be levied

notwithstanding the correction of the

deficiency.

The failure to have the medical records current and correct is a

Class I deficiency.

73 . Count II alleges that the cited Class I deficiency

su bject ed Bayou Shores to the Ðassignment of a con ditional

licensure status under £ 400.23(7)(a).Ñ Section 400.23(7)(a)

provides:

The agency shall, at least every 15 months,

evaluate all nursing home facilities and make

a determination as to the degree of

compliance by each licensee with the

established rules adopted under this part as

a basis for assigning a licensure status to

that facility. The agency shall base its

evaluation on the most recent inspection

report, taking into consideration findings

from other official reports, surveys,

interviews, inv estigations, and inspections.

In addition to license categories authorized

under part II of chapter 408, the agency

shall assign a licensure status of standard

or conditional to each nursing home.

(a) A standard licensure status means that a

facility has no class I or class II

deficiencies and has corrected all class III

deficiencies within the time established by

the agency.

74 . Count III alleges that Bayou Shores has been cited for

two state Class I deficiencies and is subject to a six - month

survey cy cle for a two - year period and a fee, pursuant to section

400.19(3) , Florida Statutes . Section 400.19(3) provides:

The agency shall every 15 months conduct at

least one unannounced inspection to determine

compliance by the licensee with statutes, and

with rules promulgated under the provisions

of those statutes, governing minimum

standards of construction, quality and

adequacy of care, and rights of residents.

The survey shall be conducted every 6 months

for the next 2 - year period if the facility

has been cited for a class I deficiency, has

been cited for two or more class II

deficiencies arising from separate surveys or

investigations within a 60 - day period, or has

had three or more substantiated complaints

within a 6 - month period, each resulting in at

lea st one class I or class II deficiency. In

addition to any other fees or fines in this

part, the agency shall assess a fine for each

facility that is subject to the 6 - month

survey cycle. The fine for the 2 - year period

shall be $6,000, one - half to be paid at the

completion of each survey. The agency may

adjust this fine by the change in the

Consumer Price Index, based on the 12 months

immediately preceding the increase, to cover

the cost of the additional surveys. The

agency shall verify through subsequen t

inspection that any deficiency identified

during inspection is corrected. However, the

agency may verify the correction of a class

III or class IV deficiency unrelated to

resident rights or resident care without

reinspecting the facility if adequate wri tten

documentation has been received from the

facility, which provides assurance that the

deficiency has been corrected. The giving or

causing to be given of advance notice of such

unannounced inspections by an employee of the

agency to any unauthorized p erson shall

constitute cause for suspension of not fewer

than 5 working days according to the

provisions of chapter 110.

75 . Count IV was the result of a Ðre - visit to a re -

licensure survey and a compl aint surveyÑ of Bayou Shores.

This count alleges ano ther violation of section 400.022(1)(l)

involving failure to follow its own policy and procedures by

neglecting Ðto ensure the protection of a resident with a known

history of sexual offenses or predatory activity from himself or

others, failure to ensure that no residents were subjected to

inappropriate sexual behavior after the discovery of such

activity by the resident, and failure to assess and or provide

treatment to a resident known to have been the subject of

attempted inappropriate sexual behaviors. Ñ § 400.022(1)(l) ,

Fla. Stat. ( quot ed in paragraph 68 above). Bayou Shores failure

to follow its own policies and procedures regarding the safety of

its residents is a Class I deficiency.

76 . Count V detailed conditions found at Bayou Shores

regarding alleged failures Ðto maintain a complete,

comprehensive, and accurate care plan and or fail[ure] to review

a residentÓs care plan after a significant change of condition

and revised as appropriate to ensure the continued accuracy as

the same relates to th e use of restraints.Ñ

77 . Count VI allege d that the one cited state C lass I

deficiency in Count V , that Ðwas not in substantial compliance at

the time of the survey , Ñ subjects Bayou Shores to the Ðassignment

of a conditional licensure status under § 400.2 3(7)(a).Ñ

78 . AHCA failed to establish any facts to support Counts V

and VI. 11 /

79 . Count VII alleges that Bayou Shore s has been cited for

two state C lass I deficiencies and is subject to a six - month

survey cycle for a two - year period and a fee, pursuant to section

400.19(3) . (A s found in paragraph 72 above.)

8 0 . Count VIII alleges that Bayou Shores has bee n cited for

two isolated state C lass I deficiencie s . Based on these

allegations, AHCA seeks to revoke Bayou ShoresÓ nursing home

license.

81 . AHCA presented clear and convincing evidence that

despite Bayou ShoresÓ seemingly redundant system to ensure

residentsÓ DNR orders were well documented, the system was

inadequate to safeguard the residentsÓ health, safety and

welfare. AHCA also presented clear and convincing evidence that

Bayou Shores failed to safeguard its residents when it failed to

follow its own policies and procedures. AHCA presented clear and

convincing evidence that a resident left the Bayou Shores

facility without its staff knowing.

8 2 . AHCA presented clear and convincing evidence tha t Bayou

Shores committed three C lass I violations within six months.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Admini stration enter a final order revoking Bayou Shores license

to operate a nursing home ; and denying its application for

licensure renewal.

DONE AND ENTERED this 2 1st day of July , 2016 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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

Di vision of Administrative Hearings

this 2 1st day of July , 2016 .

ENDNOTE S

1/ On September 28, 2015, AHCAÓs Agency Clerk issued an o rder

referring the matter to DOAH and directing that AHCA Ðmay only

pursue the revocation of RespondentÓs license and the i mposition

of a conditional licensure for the time period of February 10,

2014 , through May 13, 2014.Ñ

2/ During the survey period, Ms. Smoak was the manager of the

survey and certification support branch for AHCA. This support

branch is responsible for training all the surveyors on quality

assurance activities in Florida.

3/ AHCAÓs Exhibit VIII was received into evidence ov er objections

based on relevance and authentication. Upon review of the

hearing T ranscript, the person who allegedly authored the

document testified and was excused from the hearing without

authenticating the document. Exhibit VIII was not properly

introduced or authenticated and no direct testimony was received

concerning it. Exh ibit VIII was not considered.

4/ Two different cou rt reporters were engaged to provide the

hearing T ranscripts. The final two volumes were provided via

volume 1A (consisting of pages 1 through 90), volume 1B

(consisting of pages 91 through 195), and volume 2A (consisting

of pages 196 through 241).

5/ T his survey started in late January 2014, and concluded in

February. It will be referred to simply as the February survey.

6/ Medical record and medical chart were used interchangeably

during the hearing. For ease of reference medical record will be

use d in this Order.

7/ The AC contains an error found on page 9, paragraph 18,

e. iv.; ÐMarch 3, 3018,Ñ a d ate that has not yet occurred.

8/ Bayou ShoresÓ ÐPetitionerÓs pre - h earing s tipulation,Ñ pa ge 9,

paragraph 5, and AHCAÓs ÐUnilateral Response to P re - hearing

I nstructions,Ñ page 8, paragraph 5.

9/ The AC contains an error fou nd on page 25, paragraph 43, ÐOn

February 13, 20 14, at approximately 10:00 a.m.;Ñ According to all

the testimony, BJ had not been admitted to Bayou Shores by that

time .

10 / A W ander Guard device is an electronic band worn by a

resident. If the Wander Guarded resident moves toward an exit

door sensor, the sensor will sound and the door will lock for a

few minutes.

11 / Count V allegations centered on an alleged failure to ensur e

specific care plans were created, maintained, revised as

necessary, and followed for individual residents identified by

numbers 113, 118, and 20.

Count VI allegations encompassed the allegations in Count V,

and were not proven.

COPIES FURNISHED:

Peter A. Lewis, Esquire

Law Offices of Peter A. Lewis, P.L.

3023 North Shannon Lakes Drive , Suite 101

Tallahassee, Florida 32309

(eServed)

Thomas J. Walsh, II, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive North , Suite 330

St. Peter sburg, Florida 33701

(eServed)

James Timothy Moore, Esquire

GrayRobinson, PA

Post Office Box 11189

301 South Bronough Street

Tallahassee, Florida 32301

(eServed)

Julie Gallagher, Esquire

Grossman Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee , Florida 32308

(eServed)

John E. Bradley, Esquire

Agency for Health Care Administration

The Sebring Building, Suite 330

525 Mirror Lake Drive North

St. Petersburg, Florida 33701

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administ ration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stuart Williams, General Counsel

Agency for H ealth Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

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 excep tions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.