99-002982 Agency For Health Care Administration vs. Baytree Lakeside Assisted Living Facility Status: Closed Recommended Order on Tuesday, December 21, 1999.

Summary: Petitioner did not prove that assisted living facility was inadequately staffed. Resident who had not wandered in three years left facility one night and drowned in nearby canal; facility had met resident`s needs as far as could be reasonably anticipated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 99-2982

)

BAYTREE LAKESIDE ASSISTED )

LIVING FACILITY, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in Largo,

Florida, on October 13, 1999.

APPEARANCES

For Petitioner: Karel L. Baarslag, Senior Attorney

Agency for Health Care Administration

State Regional Service Center

2295 Victoria Avenue, Room 309

Fort Myers, Florida 33901

For Respondent: Alan S. Zimmet

Joseph A. Corsmeier

Tew, Zinober, Barnes, Zimmet & Unice

2655 McCormick Drive

P restige Professional Park

Clearwater, Florida 33759

STATEMENT OF THE ISSUE

The issue is whether Respondent's assisted living facility

is guilty of various Class I and II deficiencies.

PRELIMINARY STATEMENT

By Petition for Formal Administrative Hearing dated June 30,

1999, Respondent requested a formal hearing on whether it was

guilty of various Class I and II deficiencies in the operation of

its assisted living facility.

As confirmed at the start of the hearing, Respondent did not

raise the affirmative defense of standing. (Transcript, p. 13.)

The parties stipulated that Tags A 206 and A 401 are not at issue

in this case. The relevant tags are Tags A 503, A 504, A 511,

and A 512. All are alleged to be Class II deficiencies, except

for Tag A 512, which Petitioner alleges is a Class I deficiency.

At the hearing, Petitioner called one witness and offered

into evidence Petitioner Exhibits 1-3. Respondent called six

witnesses and offered into evidence Respondent Exhibits 1-15.

All exhibits were admitted.

The court reporter filed the Transcript on October 27, 1999.

FINDINGS OF FACT

1. Respondent owns and operates an assisted living facility

in Saint Petersburg. The facility is located on 46th Avenue

North, just east of its intersection with 66th Street.

2. The facility is located on a parcel with 160 feet of

frontage on 46th Avenue North, which is a major arterial. The

parcel runs 636 feet deep.

3. The facility comprises three residential buildings

containing 47 residential rooms. The front building contains 31

residential rooms, a kitchen, a dining room, a great room, a

lounge, an activity room, and a lobby. The middle building

contains 14 residential rooms and two lounges. The rear building

contains only two residential rooms.

4. The buildings are located on the front two-thirds of the

parcel. The rear third of the parcel is dedicated to a concrete

nature walk. A lake adjoins one rear corner of the parcel.

5. The parcel is enclosed on three sides by a four-foot

wood fence, which, among other things, separates the nature walk

from the lake. However, the front of the parcel is neither

fenced nor gated. A circular driveway separates the front of the

front building from 46th Avenue North.

6. A small fence on the front of the parcel connects the

building to the east fence. However, persons could leave or

enter the facility through the lobby or on the west side of the

front building.

7. On May 30, 1999, between 3:30 a.m. and 6:00 a.m.,

Resident 1 left the facility unobserved by staff. She drowned in

a canal known as Joe's Creek, which is about .3 miles southwest

of one of the front corners of the parcel.

8. Resident 1 had lived at the facility for three years.

For most of this time, she had lived in one of the two rooms in

the rear building. She had free access in and out of her room

and onto the nature path at the rear of the parcel.

9. On May 1, 1999, staff determined that the roommate of

Resident 1 needed more care than she could receive in this remote

room. The only available room was at the rear of the front

building. Not wanting to separate the two roommates, staff

decided to relocate Resident 1 and her roommate to the new room

and did so sometime during the first week of May.

10. The new room had two doors: one to the interior

hallway within the front building and one directly outside.

However, Resident 1 had previously had unimpeded access to the

outdoors and had never wandered or tried to leave the facility.

In fact, Resident 1 never left the facility even on a sign-out

basis, such as during one of the many visits she had from her

daughter. Staff properly determined that Resident 1 presented an

insubstantial risk of wandering.

11. Resident 1, who was 84 years old and weighed 130

pounds, was a high-functioning resident. She suffered from

occasional stiffness of the joints, but was fully ambulatory.

She required no supervision with her activities of daily living,

although she required supervision with her medications.

12. Resident 1 was diagnosed with psychotic dementia. She

was oriented as to person, but not as to time and place.

However, Resident 1 knew where her room was and that she lived at

the facility. Resident 1 lacked insight into her illness, but

was compliant with medications.

13. Resident 1's condition had been stable for a

considerable period of time. She was attached to staff and

engaged in conversations with other residents, although she was

sometimes delusional and sometimes hostile. Her delusions, which

were never paranoidal, were harmless, such as her claim that she

and the physician's assistant had been childhood friends in

another state. She never suffered any hallucinations. She never

expressed a desire to leave the facility; to the contrary, she

enjoyed living there.

14. Based on their monthly examinations of Resident 1 and

the administration of psychotropic medications, the physician's

assistant and physician reasonably concluded that there was no

need to recommend that Resident 1 be placed in a locked room.

15. During the pre-dawn hours in question, a staffperson

performed a bedcheck at about 3:30 a.m. and found Resident 1

sleeping in her bed. At about 6:00 a.m., a staffperson

discovered Resident 1 was not in her bed and was not in the

building.

16. Without delay, staff conducted an extensive search of

the buildings and grounds. After they had confirmed that

Resident 1 was not on the property, they contacted law

enforcement and Resident 1's daughter. Shortly after contacting

law enforcement, Resident 1's body was found in the canal.

17. In the discussion of Tag A 503 in its proposed

recommended order, Petitioner argues that staff could not

immediately reach the acting administrator.

18. Petitioner has not proved that staff could not

immediately contact the acting administrator or that, if there

was any delay in contacting him, the delay was material. Staff

on duty at the time of the discovery that Resident 1 was missing

complied without delay with the facility's policy for missing

residents.

19. In the discussion of Tag A 504 in its proposed

recommended order, Petitioner argues that staff was not trained

in emergency-reporting policies, except that they were shown a

policy and that the policy required them to notify a "charge

nurse," even though the facility lacked such a position.

20. Petitioner has not proved that staff were untrained in

emergency-reporting policies. They complied with the facility's

policy and did everything that they could have done, in a timely

fashion, following the discovery that Resident 1 was missing.

21. In the discussion of Tag A 511 in its proposed

recommended order, Petitioner argues that its surveyor relied on

the records and calculations performed by one of Respondent's

staffpersons.

22. Petitioner has not proved that Respondent violated

applicable staffing ratios. To the contrary, Respondent complied

with applicable staffing ratios.

23. In the discussion of Tag A 512 in its proposed

recommended order, Petitioner argues that Respondent failed to

provide sufficient staff to meet the needs of the residents,

given their condition and mental status.

24. Petitioner has not proved that Respondent failed to

provide sufficient staff to meet the needs of its residents.

Except for one incident of wandering involving a different

resident, the evidence addresses only Resident 1. The evidence

supports the determination of Respondent's staff to provide

Resident 1 only with the supervision that they did provide on the

morning in question. In particular, the record does not support

the inference that Respondent unreasonably failed to place

Resident 1 in a locked room or monitor her more closely.

25. Shortly after the death of Resident 1, Petitioner

conducted a survey and cited, among other deficiencies, the

deficiencies discussed in this recommended order. Petitioner

imposed a moratorium upon new admissions to the facility, but

lifted the moratorium shortly after imposing it.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction

over the subject matter. Section 120.57(1), Florida Statutes.

(All references to Sections are to Florida Statutes. All

references to Rules are to the Florida Administrative Code.)

2. Petitioner argues that this case is moot, essentially

because Respondent has suffered no injury. Although this may be

true, this argument actually presents the affirmative defense of

standing. The Administrative Law Judge raised this issue at the

start of the hearing, and counsel for Petitioner disclaimed any

reliance on this defense. As an affirmative defense, standing,

if not timely asserted, is waived. Petitioner has waived

standing in this case.

3. Section 400.402 provides in part:

(2) The purpose of this act is to promote

the availability of appropriate services for

elderly persons and adults with disabilities

in the least restrictive and most homelike

environment, to encourage the development of

facilities that promote the dignity,

individuality, privacy, and decisionmaking

ability of such persons, to provide for the

health, safety, and welfare of residents of

assisted living facilities in the state, to

promote continued improvement of such

facilities, to encourage the development of

innovative and affordable facilities

particularly for persons with low to moderate

incomes, to ensure that all agencies of the

state cooperate in the protection of such

residents, and to ensure that needed

economic, social, mental health, health, and

leisure services are made available to

residents of such facilities through the

efforts of the Agency for Health Care

Administration, the Department of Elderly

Affairs, the Department of Children and

Family Services, the Department of Health,

assisted living facilities, and other

community agencies. To the maximum extent

possible, appropriate community-based

programs must be available to state-supported

residents to augment the services provided in

assisted living facilities. The Legislature

recognizes that assisted living facilities

are an important part of the continuum of

long-term care in the state. In support of

the goal of aging in place, the Legislature

further recognizes that assisted living

facilities should be operated and regulated

as residential environments with supportive

services and not as medical or nursing

facilities. The services available in these

facilities, either directly or through

contract or agreement, are intended to help

residents remain as independent as possible.

Regulations governing these facilities must

be sufficiently flexible to allow facilities

to adopt policies that enable residents to

age in place when resources are available to

meet their needs and accommodate their

preferences.

(3) The principle that a license issued

under this part is a public trust and a

privilege and is not an entitlement should

guide the finder of fact or trier of law at

any administrative proceeding or in a court

action initiated by the Agency for Health

Care Administration to enforce this part.

1. The burden of proof is on Petitioner, which is

attempting to demonstrate the existence of several deficiencies

in connection with Respondent's operation of the facility and the

death of Resident 1. It is unnecessary to address the standard

of proof applicable in this case. In an abundance of caution,

the Administrative Law Judge has used the preponderance standard.

2. Rule 58A-5.019(4) sets staffing standards. Petitioner

has failed to prove a violation of any of these standards.

3. Rule 58A-5.0191 sets staff-training requirements.

Petitioner has failed to prove a violation of any of these

requirements.

4. The most substantive charge concerns Tag A 512, which

requires, in addition to minimum staffing levels to satisfy

applicable staffing ratios, sufficient staff to meet the needs of

the residents. Petitioner has failed to prove a violation of

this standard.

RECOMMENDATION

It is

RECOMMENDED that the Agency for Health Care Administration

enter a final order striking the deficiencies listed in Tags

A 503, A 504, A 511, and A 512 and retroactively canceling the

moratorium imposed against the facility.

DONE AND ENTERED this 21st day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of December, 1999.

COPIES FURNISHED:

Karel L. Baarslag, Senior Attorney

Agency for Health Care Administration

State Regional Service Center

2295 Victoria Avenue, Room 309

Fort Myers, Florida 33901

Alan S. Zimmet

Joseph A. Corsmeier

Tew, Zinober, Barnes, Zimmet & Unice

2655 McCormick Drive

Prestige Professional Park

Clearwater, Florida 33759

Julie Gallagher, General Counsel

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order must be filed with the agency that will

issue the final order in this case.