15-004812
Agency For Health Care Administration vs.
Residential Plaza At Blue Lagoon, Inc.
Status: Closed
Recommended Order on Monday, February 1, 2016.
Recommended Order on Monday, February 1, 2016.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8AGENCY FOR HEALTH CARE
12ADMINISTRATION,
13Petitioner,
14Case No. 15 - 4812
19vs.
20RESIDENTIAL PLAZA AT BLUE
24LAGOON, INC. ,
26Respondent .
28_______________________________/
29RECOMMENDED ORDER
31On October 27, 2015 , Robert E. Meale, Administrative Law
40Judge of the Division of Administrative Hearings (DOAH), conducted
49the final hearing by videoconference in Miami and Tallahassee,
58Florida.
59APPEARANCES
60For Petitioner: Nelson E. Rodney , Esquire
66Agency for Health Care Administration
718333 Northwest 53rd Street, Suite 300
77Miami , Florida 3 3166
81For Respondent : Barbara Galindo , Qualified Representative
88Residential Plaza at Blue Lagoon, Inc.
945617 Northwest 7th Street
98Miami, Florida 33126
101STATEMENT OF THE ISSUE S
106The issues are whether Respondent , an assisted living
114facility (ALF) , failed to provide adequate supervision of the
123residents and failed to perform a duty to cont act a health care
136provider after one resident was struck and injured by another
146resident. If so, an additional issue is the penalty that should
157be imposed.
159PRELIMINARY STATEMENT
161By Administrative Complaint dated April 24, 2015 , Petitioner
169alleged that R espondent operates a 350 - bed ALF located in Miami
182that is licensed as an ALF with license number ALF7551.
192The one - count Administrative Complaint alleges a "class II
202violation" of section 429.26(7), Florida Statutes, and Florida
210Administrative Code R ule 58A - 5.0182(1). The Administrative
219Complaint mentions a failure to complete a health assessment for
229two residents, but the operative claims of the Administrative
238Complaint, as well as the Joint Pretrial Stipulation filed on
248October 19, 2015, and Respon dent's P roposed R ecommended O rder, are
261that Respondent allegedly failed to provide adequate supervision
269for resident activities at the time of the physical confrontation
279described below and Respondent allegedly failed to perform a duty
289to contact the physi cian of the resident who was injured in the
302physical confrontation. The Administrative Complaint alleges that
309these failures constitute a Class II violation and seeks a f ine of
322$2500 for this violation .
327Respondent timely requested a formal hearing.
333At t he hearing, each party called two witnesses. Petitioner
343offered into evidence all or part of five exhibits : Petitioner
354Exhibit 1 (checked paragraphs on pages 2, 3, and 6), Exhibit 2
366(page 16), Petitioner Exhibit 3 (pages 26 through 30, 35, and 38 ) ,
379Petitioner Exhibit 4 (pages 39 through 42 (not for truth) and 43),
391and Petitioner Exhibits 6 and 7. Respondent offered into evidence
401eight exhibits : Respondent Exhibit s 4, 6 through 8, 10 through
41312, and 14, which is pages 24 and 25 of Petitioner Exhibit 3. All
427exhibits were admitted.
430The court reporter fi led the transcript on November 12 , 2015 .
442The parties filed proposed recommended orders on December 2 , 2015 .
453FINDING S OF FACT
4571. Respondent operates a ALF in Miami that is licensed for
468350 beds. The ALF occupies a 14 - story tower . The fr ont desk is
484on the first floor. T he second floor contains common area,
495including an activities area, a beauty salon, a cafeteria, a
505physical therapy room, offices for human resources, accounting and
514administration , a behavioral analyst's office, and offices for
522health care staff and visiting physicians.
5282. Team leaders of the health care staff perform rounds on
539the second floor. Seven days per week, one team leader is on duty
552from 5:30 a.m. to 4:00 p.m., one te am leader is on duty from
5661:00 p.m. to 11:30 p.m., and one team leader is on duty from
57911:30 p.m. to 5:30 a.m. At the time of the subject incident,
591rounds were performed every two hours, 24 hours per day.
6013 . Resident #1 and Resident #2 were admitted to Respondent's
612ALF in the summer of 2014 . At the time of the subject incident,
626Resident #1 was 64 years old, and Resident #2 was 88 years old.
6394 . The health assessment prepared at the time of the
650admission of Resident #2 states that Resident #2 suffered from
660moderate progressive dementia and poor cognitive or behavioral
668status, and he required 24 - hour supervision of his a ctivities of
681daily living . The assessment states that Resident #1 needed
691assistance eating and needed supervision ambulating, bathing,
698grooming, toileting, and transferring. The assessment a dds that
707Resident #1 was not a danger to self or others, but needed 24 - hour
"722nursing or psychiatric care." However, the assessment concludes
730that his needs could be met in an ALF that was not a medi cal,
745nursing, or psychiatric facility.
7495 . Between 2:00 p.m. and 3:00 p.m. on Sunday, November 30,
7612014, Resident #1 and Resident #2 were playing dominoes in the
772activities area on the second floor. Respondent's posted
780activities list dominoes at this loc ation daily from 9:00 a.m. to
7928:00 p.m . The activities area is an ope n area that does not have
807doors, so it cannot be locked, but, a t 8:00 p.m. daily, staff turn
821off the lights . The dominoes games in the activities area are
833initiated by the residents and unsupervised by Respondent's staff,
842except as the games are observed during routine rounds.
8516 . A disagreement between Resident #1 and #2 emerged during
862the game, and the disagreement quickly escalated to a brief
872physic al confrontation between the two men. Resident #1 struck
882Resi dent #2 who fell to the ground where he remained for about 30
896seconds, but did not lose consciousness. Other residents
904separated Resident # 1 and Resident # 2 after Resident # 2 stood back
918up .
9207 . None of the residents reported this physical
929confrontation to Respondent's staff , none of whom witnessed the
938incident . On Sundays, health care staff total 25 persons working
949various shift s throughout the 24 - hour day. Other staff are
961present onsite, incl uding 20 or 21 persons in housekeeping, memory
972care staff, maintenance staff, and a manager.
9798 . On Monday, December 1 , a staff person noticed blood on
991the floor where Resident #2 had fallen . Respondent's staff
1001initiated an investigation, and, by the end of the day, staff
1012learned of Resident #1's participation in the confrontation .
1021Later in the day on Monday or possibly early on the following day,
1034Respondent's staff learned that the other resident in the
1043confrontation was Resident #2. Independently, on December 2 , the
1052director of health care, who is a registered nurse, ran into
1063Resident #2 and noticed that he had a bruise on his right ear.
1076She had Resident #2 accompany her to her office where she asked
1088him what happened. Resident #2 said that he cou ld not recall. He
1101had no other visible wounds , and he seemed fine .
11119 . Later on the same day, a fter the director of health
1124care learned from other staff what had happened, she went to
1135Resident #2's room and conducted a general assessment of the
1145reside nt. She discovered some small bruises on his chest. At
1156this point, the director of health care did not know that
1167Resident #2 had fallen to the floor during the incident.
1177Resident #2 said that he was fine. Due to the s ize of the bruises
1192on the chest a nd having seen no other sign of injury besides the
1206bruise on the ear, the director of health care did not document
1218anything except the bruise on the ear and did not contact
1229Resident #2's health care provider .
123510 . On Wednesday, December 3, a family member visited
1245Resident #2 and, seeing his injured ear, called the police to
1256investigate. A law enforcement officer visited the ALF that day
1266and conducted some interviews. Later that eveni ng, staff took
1276Resident #2 to Baptist H ospital for an evaluation.
128511 . Resident #2 presented at the hospital with bruising of
1296the right ear and "small skin abrasion[s]" on both elbows. During
1307the three hours that Re sident #2 remained at the hospital, he
1319underwent a CT scan of the head due to the fall and a claim of
1334loss o f consciousness. After discharge, Resident # 2 went to a
1346family member's home and never returned to the ALF.
135512. Petitioner failed to prove any act or omission that
1365constitutes an intentional or negligent act seriously affecting
1373the health, safety, or w elfare of Resident #2.
1382CONCLUSIONS OF LAW
138513 . DOAH has jurisdiction over the subject matter .
1395§§ 120.569 and 120.57(1), Fla. Stat.
140114. Section 429.29(1) directs Petitioner to impose an
1409administrative fine for " an intentional or negligent act seriously
1418affecting the health, safety, or welfare of a resident of the
1429facility. " Section 408.813(2)(b) , Florida Statutes, defines
1435class II violations as " those conditions or occurrences related
1444to the operation and maintenance of a provider or to the care of
1457cl ients which the agency determines directly threaten the physical
1467or emotional health, safety, or security of the clients " that are
1478not class I violations, which pose an imminent danger or
1488substantial probability of death or serious physical or emotional
1497ha rm. Section 429.29(2)(b) authorizes an administrative fine of
1506between $1000 and $5000 for each class II violation.
151515. Section 429.26(7) states in relevant part: " The
1523facility must notify a licensed physician when a resident exhibits
1533signs of dementia o r cognitive impairment or has a change of
1545condition in order to rule out the presence of an underlying
1556physiological condition that may be contributing to such dementia
1565or impairment."
156716. Florida Administrative Code R ule 58A - 5.0182(1) provides:
1577An assist ed living facility must provide
1584care and services appropriate to the needs
1591of residents accepted for admission to the
1598facility.
1599(1) SUPERVISION. Facilities must offer
1604personal supervision as appropriate for each
1610resident, including the following:
1614(a) Monitoring of the quantity and quality
1621of res ident diets in accordance with r ule
163058A - 5.020, F.A.C.
1634(b) Daily observation by designated staff
1640of the activities of the resident while on
1648the premises, and awareness of the general
1655health, safety, and physica l and emotional
1662well - being of the resident.
1668(c) Maintaining a general awareness of the
1675residentÓs whereabouts. The resident may
1680travel independently in the community.
1685(d) Contacting the residentÓs health care
1691provider and other appropriate party such as
1698the residentÓs family, guardian, health care
1704surrogate, or case manager if the resident
1711exhibits a significant change; contacting
1716the residentÓs family, guardian, health care
1722surrogate, or case manager if the resident
1729is discharged or moves out.
1734(e) M aintaining a written record, updated
1741as needed, of any significant changes, any
1748illnesses that resulted in medical
1753attention, changes in the method of
1759medication administration, or other changes
1764that resulted in the provision of additional
1771services.
177217 . Petitioner bears the burden of proving the material
1782allegations by clear and convincing evidence. Dep't of Banking &
1792Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).
180418. As noted above, Petitioner failed to prove any act or
1815omission seriousl y affecting the health, safety, or welfare of
1825Resident #2, even given his vulnerability. In particular,
1833Petitioner failed to prove that Respondent's staff was not
1842conducting rounds every two hours; that rounds at such a frequency
1853were inadequate; that Res pondent was on notice that Resident #1 or
1865Resident #2 had tendencies to engage in or provoke confrontations;
1875or any other facts establishing a lack of adequate supervision.
1885The physical confrontation could not reasonably have been
1893anticipated, arose sudde nly, and ended quickly. Even if staff
1903were conducting rounds every 15 minutes, they probably would not
1913have witnessed the confrontation.
191719. Petitioner failed to prove a failure to perform a duty
1928to inform Resident #2's health care provider of his injuri es. The
1940existence of such a duty does not arise from the cited authority,
1952but, for the sake of discussion, may be inferred from the general
1964duty not to commit " an intentional or negligent act seriously
1974affecting the health, safety, or welfare of a residen t of the
1986facility." The injuries at issue were scratches and bruises of no
1997consequence. Petitioner faults Respondent for failing to rule out
2006a closed head injury, but the director detected no signs of such
2018an injury during two assessments of Resident #2 , and it is
2029unlikely that the hospital would have discharged Resident #2 in
2039three hours if the CT scan that it conduct ed had revealed such an
2053injury.
2054RECOMMENDATION
2055It is
2057RECOMMENDED that the Agency for Health Care Administration
2065enter a final order dismis sing the Administrative Complaint.
2074DONE AND ENTERED this 1st day of February , 2016 , in
2084Tallahassee, Leon County, Florida.
2088S
2089ROBERT E. MEALE
2092Administrative Law Judge
2095Division of Administrative Hearings
2099The DeSoto Building
21021230 Apalachee Parkway
2105Tallahassee, Florida 32399 - 3060
2110(850) 488 - 9675
2114Fax Filing (850) 921 - 6847
2120www.doah.state.fl.us
2121Filed with the Clerk of the
2127Division of Administrative Hearings
2131this 1st day of February , 2016 .
2138COPIES FURNISHED:
2140Nelson E. Rodney, Esquire
2144Agency for Health Care Administration
21498333 Northwest 53rd Street , Suite 300
2155Miami, Florida 33166
2158(eServed)
2159Barbara Galindo , Qualified Representative
2163Residential Plaza at Blue Lagoon, Inc.
21695617 Northwest 7th Street
2173Miami, Florida 33126
2176Richard J . Shoop, Agency Clerk
2182Agency for Health Care Administration
21872727 Mahan Drive, Mail Stop 3
2193Tallahassee, Florida 32308
2196(eServed)
2197Elizabeth Dudek, Secretary
2200Agency for Health Care Administration
22052727 Mahan Drive, Mail Stop 1
2211Tallahassee, Florida 32308
2214(eServed)
2215Stuart Williams, General Co unsel
2220Agency for Health Care Administration
22252727 Mahan Drive, Mail Stop 3
2231Tallahassee, Florida 32308
2234(eServed)
2235NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2241All parties have the right to submit written exceptions within
225115 days from the date of this Recommended Order. Any exceptions
2262to this Recommended Order should be filed with the agency that
2273will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 02/01/2016
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 11/12/2015
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 10/27/2015
- Proceedings: CASE STATUS: Hearing Held.
- Date: 10/23/2015
- Proceedings: Respondent's (Proposed) Exhibit Index filed (exhibits not available for viewing).
- Date: 10/22/2015
- Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 09/10/2015
- Proceedings: Notice of Filing Petitioner's Request for Admissions, Interrogatories, and Request for Production filed.
- PDF:
- Date: 09/08/2015
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for October 27, 2015; 9:00 a.m.; Miami and Tallahassee, FL).
Case Information
- Judge:
- ROBERT E. MEALE
- Date Filed:
- 08/28/2015
- Date Assignment:
- 08/28/2015
- Last Docket Entry:
- 03/30/2016
- Location:
- Middleburg, Florida
- District:
- Northern
- Agency:
- Other
Counsels
-
Barbara Galindo
Address of Record -
Nelson E Rodney, Esquire
Address of Record -
Nelson E. Rodney, Esquire
Address of Record