15-004812 Agency For Health Care Administration vs. Residential Plaza At Blue Lagoon, Inc. Status: Closed Recommended Order on Monday, February 1, 2016.

Summary: Petitioner failed to prove by clear and convincing evidence any neglect by Respondent of ALF residents.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

Case No. 15 - 4812

vs.

RESIDENTIAL PLAZA AT BLUE

LAGOON, INC. ,

Respondent .

_______________________________/

RECOMMENDED ORDER

On October 27, 2015 , Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH), conducted

the final hearing by videoconference in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Nelson E. Rodney , Esquire

Agency for Health Care Administration

8333 Northwest 53rd Street, Suite 300

Miami , Florida 3 3166

For Respondent : Barbara Galindo , Qualified Representative

Residential Plaza at Blue Lagoon, Inc.

5617 Northwest 7th Street

Miami, Florida 33126

STATEMENT OF THE ISSUE S

The issues are whether Respondent , an assisted living

facility (ALF) , failed to provide adequate supervision of the

residents and failed to perform a duty to cont act a health care

provider after one resident was struck and injured by another

resident. If so, an additional issue is the penalty that should

be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 24, 2015 , Petitioner

alleged that R espondent operates a 350 - bed ALF located in Miami

that is licensed as an ALF with license number ALF7551.

The one - count Administrative Complaint alleges a "class II

violation" of section 429.26(7), Florida Statutes, and Florida

Administrative Code R ule 58A - 5.0182(1). The Administrative

Complaint mentions a failure to complete a health assessment for

two residents, but the operative claims of the Administrative

Complaint, as well as the Joint Pretrial Stipulation filed on

October 19, 2015, and Respon dent's P roposed R ecommended O rder, are

that Respondent allegedly failed to provide adequate supervision

for resident activities at the time of the physical confrontation

described below and Respondent allegedly failed to perform a duty

to contact the physi cian of the resident who was injured in the

physical confrontation. The Administrative Complaint alleges that

these failures constitute a Class II violation and seeks a f ine of

$2500 for this violation .

Respondent timely requested a formal hearing.

At t he hearing, each party called two witnesses. Petitioner

offered into evidence all or part of five exhibits : Petitioner

Exhibit 1 (checked paragraphs on pages 2, 3, and 6), Exhibit 2

(page 16), Petitioner Exhibit 3 (pages 26 through 30, 35, and 38 ) ,

Petitioner Exhibit 4 (pages 39 through 42 (not for truth) and 43),

and Petitioner Exhibits 6 and 7. Respondent offered into evidence

eight exhibits : Respondent Exhibit s 4, 6 through 8, 10 through

12, and 14, which is pages 24 and 25 of Petitioner Exhibit 3. All

exhibits were admitted.

The court reporter fi led the transcript on November 12 , 2015 .

The parties filed proposed recommended orders on December 2 , 2015 .

FINDING S OF FACT

1. Respondent operates a ALF in Miami that is licensed for

350 beds. The ALF occupies a 14 - story tower . The fr ont desk is

on the first floor. T he second floor contains common area,

including an activities area, a beauty salon, a cafeteria, a

physical therapy room, offices for human resources, accounting and

administration , a behavioral analyst's office, and offices for

health care staff and visiting physicians.

2. Team leaders of the health care staff perform rounds on

the second floor. Seven days per week, one team leader is on duty

from 5:30 a.m. to 4:00 p.m., one te am leader is on duty from

1:00 p.m. to 11:30 p.m., and one team leader is on duty from

11:30 p.m. to 5:30 a.m. At the time of the subject incident,

rounds were performed every two hours, 24 hours per day.

3 . Resident #1 and Resident #2 were admitted to Respondent's

ALF in the summer of 2014 . At the time of the subject incident,

Resident #1 was 64 years old, and Resident #2 was 88 years old.

4 . The health assessment prepared at the time of the

admission of Resident #2 states that Resident #2 suffered from

moderate progressive dementia and poor cognitive or behavioral

status, and he required 24 - hour supervision of his a ctivities of

daily living . The assessment states that Resident #1 needed

assistance eating and needed supervision ambulating, bathing,

grooming, toileting, and transferring. The assessment a dds that

Resident #1 was not a danger to self or others, but needed 24 - hour

"nursing or psychiatric care." However, the assessment concludes

that his needs could be met in an ALF that was not a medi cal,

nursing, or psychiatric facility.

5 . Between 2:00 p.m. and 3:00 p.m. on Sunday, November 30,

2014, Resident #1 and Resident #2 were playing dominoes in the

activities area on the second floor. Respondent's posted

activities list dominoes at this loc ation daily from 9:00 a.m. to

8:00 p.m . The activities area is an ope n area that does not have

doors, so it cannot be locked, but, a t 8:00 p.m. daily, staff turn

off the lights . The dominoes games in the activities area are

initiated by the residents and unsupervised by Respondent's staff,

except as the games are observed during routine rounds.

6 . A disagreement between Resident #1 and #2 emerged during

the game, and the disagreement quickly escalated to a brief

physic al confrontation between the two men. Resident #1 struck

Resi dent #2 who fell to the ground where he remained for about 30

seconds, but did not lose consciousness. Other residents

separated Resident # 1 and Resident # 2 after Resident # 2 stood back

up .

7 . None of the residents reported this physical

confrontation to Respondent's staff , none of whom witnessed the

incident . On Sundays, health care staff total 25 persons working

various shift s throughout the 24 - hour day. Other staff are

present onsite, incl uding 20 or 21 persons in housekeeping, memory

care staff, maintenance staff, and a manager.

8 . On Monday, December 1 , a staff person noticed blood on

the floor where Resident #2 had fallen . Respondent's staff

initiated an investigation, and, by the end of the day, staff

learned of Resident #1's participation in the confrontation .

Later in the day on Monday or possibly early on the following day,

Respondent's staff learned that the other resident in the

confrontation was Resident #2. Independently, on December 2 , the

director of health care, who is a registered nurse, ran into

Resident #2 and noticed that he had a bruise on his right ear.

She had Resident #2 accompany her to her office where she asked

him what happened. Resident #2 said that he cou ld not recall. He

had no other visible wounds , and he seemed fine .

9 . Later on the same day, a fter the director of health

care learned from other staff what had happened, she went to

Resident #2's room and conducted a general assessment of the

reside nt. She discovered some small bruises on his chest. At

this point, the director of health care did not know that

Resident #2 had fallen to the floor during the incident.

Resident #2 said that he was fine. Due to the s ize of the bruises

on the chest a nd having seen no other sign of injury besides the

bruise on the ear, the director of health care did not document

anything except the bruise on the ear and did not contact

Resident #2's health care provider .

10 . On Wednesday, December 3, a family member visited

Resident #2 and, seeing his injured ear, called the police to

investigate. A law enforcement officer visited the ALF that day

and conducted some interviews. Later that eveni ng, staff took

Resident #2 to Baptist H ospital for an evaluation.

11 . Resident #2 presented at the hospital with bruising of

the right ear and "small skin abrasion[s]" on both elbows. During

the three hours that Re sident #2 remained at the hospital, he

underwent a CT scan of the head due to the fall and a claim of

loss o f consciousness. After discharge, Resident # 2 went to a

family member's home and never returned to the ALF.

12. Petitioner failed to prove any act or omission that

constitutes an intentional or negligent act seriously affecting

the health, safety, or w elfare of Resident #2.

CONCLUSIONS OF LAW

13 . DOAH has jurisdiction over the subject matter .

§§ 120.569 and 120.57(1), Fla. Stat.

14. Section 429.29(1) directs Petitioner to impose an

administrative fine for " an intentional or negligent act seriously

affecting the health, safety, or welfare of a resident of the

facility. " Section 408.813(2)(b) , Florida Statutes, defines

class II violations as " those conditions or occurrences related

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

cl ients which the agency determines directly threaten the physical

or emotional health, safety, or security of the clients " that are

not class I violations, which pose an imminent danger or

substantial probability of death or serious physical or emotional

ha rm. Section 429.29(2)(b) authorizes an administrative fine of

between $1000 and $5000 for each class II violation.

15. Section 429.26(7) states in relevant part: " The

facility must notify a licensed physician when a resident exhibits

signs of dementia o r cognitive impairment or has a change of

condition in order to rule out the presence of an underlying

physiological condition that may be contributing to such dementia

or impairment."

16. Florida Administrative Code R ule 58A - 5.0182(1) provides:

An assist ed living facility must provide

care and services appropriate to the needs

of residents accepted for admission to the

facility.

(1) SUPERVISION. Facilities must offer

personal supervision as appropriate for each

resident, including the following:

(a) Monitoring of the quantity and quality

of res ident diets in accordance with r ule

58A - 5.020, F.A.C.

(b) Daily observation by designated staff

of the activities of the resident while on

the premises, and awareness of the general

health, safety, and physica l and emotional

well - being of the resident.

(c) Maintaining a general awareness of the

residentÓs whereabouts. The resident may

travel independently in the community.

(d) Contacting the residentÓs health care

provider and other appropriate party such as

the residentÓs family, guardian, health care

surrogate, or case manager if the resident

exhibits a significant change; contacting

the residentÓs family, guardian, health care

surrogate, or case manager if the resident

is discharged or moves out.

(e) M aintaining a written record, updated

as needed, of any significant changes, any

illnesses that resulted in medical

attention, changes in the method of

medication administration, or other changes

that resulted in the provision of additional

services.

17 . Petitioner bears the burden of proving the material

allegations by clear and convincing evidence. Dep't of Banking &

Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

18. As noted above, Petitioner failed to prove any act or

omission seriousl y affecting the health, safety, or welfare of

Resident #2, even given his vulnerability. In particular,

Petitioner failed to prove that Respondent's staff was not

conducting rounds every two hours; that rounds at such a frequency

were inadequate; that Res pondent was on notice that Resident #1 or

Resident #2 had tendencies to engage in or provoke confrontations;

or any other facts establishing a lack of adequate supervision.

The physical confrontation could not reasonably have been

anticipated, arose sudde nly, and ended quickly. Even if staff

were conducting rounds every 15 minutes, they probably would not

have witnessed the confrontation.

19. Petitioner failed to prove a failure to perform a duty

to inform Resident #2's health care provider of his injuri es. The

existence of such a duty does not arise from the cited authority,

but, for the sake of discussion, may be inferred from the general

duty not to commit " an intentional or negligent act seriously

affecting the health, safety, or welfare of a residen t of the

facility." The injuries at issue were scratches and bruises of no

consequence. Petitioner faults Respondent for failing to rule out

a closed head injury, but the director detected no signs of such

an injury during two assessments of Resident #2 , and it is

unlikely that the hospital would have discharged Resident #2 in

three hours if the CT scan that it conduct ed had revealed such an

injury.

RECOMMENDATION

It is

RECOMMENDED that the Agency for Health Care Administration

enter a final order dismis sing the Administrative Complaint.

DONE AND ENTERED this 1st day of February , 2016 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February , 2016 .

COPIES FURNISHED:

Nelson E. Rodney, Esquire

Agency for Health Care Administration

8333 Northwest 53rd Street , Suite 300

Miami, Florida 33166

(eServed)

Barbara Galindo , Qualified Representative

Residential Plaza at Blue Lagoon, Inc.

5617 Northwest 7th Street

Miami, Florida 33126

Richard J . Shoop, Agency Clerk

Agency for Health Care Administration

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 Co unsel

Agency for Health 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 exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.