Pursuant to notice, R. L. Caleen, Jr., hearing officer with the Division of Administrative Hearings, conducted a formal hearing in these cases on April 14, 1983, in Tampa, Florida.
For Respondent: Edward M. Chew, Esquire
de la Parte & Gilbert, P.A. 705 East Kennedy Boulevard Tampa, Florida 33602
Whether Respondent should be administratively fined a total of $3,350.00 for alleged violations of Chapter 400, Florida Statutes and Department of Health and Rehabilitative Services rules regulating the operation of nursing homes.
By separate administrative complaints dated August 13, 1982, (Case No. 82-2629) and August 31, 1982. (Case No. 82-2660), Petitioner Department of Health and Rehabilitative Services
("DHRS") charged Respondent Y & S Partnership, d/b/a Manhattan Convalescent Center ("Respondent" or "Nursing Home") with multiple violations of Chapter 400, Part 1, Florida Statutes, and Chapter 10D-29, Florida Administrative Code, the state statute and rule regulating the operation of nursing homes. Respondent requested a formal hearing on the charges and DHRS forwarded these two cases to the Division of Administrative Hearings for assignment of a hearing officer.
The two cases were subsequently consolidated. Hearing was initially set for February 18, 1983, then--on DHRS' unopposed motion--continued and reset for April 14, 1983.
At hearing, DHRS Exhibit Nos. 1-21 1/ and respondent's Exhibits Nos. 1-6 1/ were received into evidence. DHRS presented the testimony of Frank Reynolds, Emily Echols, Barbara Finger, and Jack Fullerton; Respondent presented the testimony of Willard Roth, Robert Rainey, Rosemary Carrol, Marlen La Paz, and Margo Havilland. By agreement, the parties also filed stipulated testimony of Marcia Winne, Willard Roth, and Marjorie Haffner.
DHRS withdrew the charges in paragraphs 4(e) and (f) of the complaint filed in Case No. 82-2629.
Both parties filed proposed findings of fact and conclusions of law by May 23, 1983.
At all times pertinent to the charges, Respondent Y & S Partnership was licensed to operate Manhattan Convalescent Center, a nursing home located at 4610 South Manhattan Avenue, Tampa, Florida.
I.
Fiscal Discrepancies
DHRS alleges that on March 29, 1982, an inspection of the nursing home revealed: (1) unexplained large debit and credit balances in the patient trust funds: (2) accounts receivable credit balances were not being set aside in interest bearing accounts for future disbursements; and (3) patient trust funds did not reconcile.
The parties stipulate that applicable DHRS rules require nursing homes to use a recognized accounting system which accurately reflects details of the business, including patient
trust funds. Nursing homes must also be administered on a sound financial basis consistent with good business practices, and the administrator must be responsible for compliance with Chapter 400, Florida Statutes, and DHRS rules. Sections 10D-29.33(4), 10D-29.48(1), Fla. Admin. Code. Section 400.162(4), Florida Statutes, requires nursing homes to keep complete and accurate records of all funds and property of its patients received for safekeeping and, in the event of a patient's death, all trust funds of the patient must be placed in an interest bearing account until disbursed. Section 400.141(7), requires fiscal records to be kept which are sufficient to provide information required by the statute.
Patient trust funds are personal funds belonging to the patient, often consisting of the patient's social security allowance which the nursing home holds in trust for the patient. The nursing home maintained these funds in a local bank checking account and maintained separate accounting records for each patient. (Testimony of La Paz)
Credit balances in patient trust fund accounts are, in effect, overdrafts by the patients on their accounts. This can occur when services are rendered to a patient without first determining that there are sufficient funds in the account to cover the charge. (Testimony of La Paz)
On March 29, 1983, the nursing home had six patients with debit or credit balances in the patient trust fund account:
(1) female patient A.B., received a permanent on June 6, 1980, and on November 26, 1980, later died or was discharged before the nursing home could collect this overdraft; (2) female patient E.H., received a haircut on October 21, 1980, but was discharged on January 5, 1981, before the nursing home could collect the overdraft; (3) female patient B.M., resided at the nursing home as patient No. 1552. Some deposits on her behalf were posted on the aged trial balance ledger, but not on the patient trust fund ledger. The aged trial balance, at all times, correctly reflected the status of this patient's funds held by the nursing home, and there was no overdraft after the patient died; (4) female patient P.T. died on April 21, 1982. But the federal government insisted that she died, instead, on March 26, 1982 and deducted from the nursing home's payment the difference in health care payments for the time in dispute. After failing to resolve the problem, the nursing home accepted this deduction as a business loss rather than carry on an extended dispute with the federal government; (5) no records could be found for patient W., but, apparently a small service was rendered and the patient was discharged before the $5.00 payment could be recovered. (Testimony of La Paz, Reynolds; R-2, R-3, R-5, R-6)
The DHRS consultant who conducted the March 29, 1982 survey of the nursing home did not determine, and DHRS has not shown, whether, and to what extent, there were patient trust fund credit balances or account receivable credit balances which should have been, and were not, kept in interest bearing accounts.
A comparison of the nursing home's patient trust fund ledgers with trust account records indicate that the trust funds ledger did not reconcile the bank account balance on November 30, 1981. There is, however, no evidence that this account did not reconcile on March 29, 1982, when the DHRS survey was conducted, and the violation is alleged to have occurred. (P-4) On or about April 12, 1982, the DHRS consultant met with various bookkeeping personnel of the nursing home and gave them until May 31, 1982, to update and correct the fiscal records.
The evidence is insufficient to establish that the nursing home did not maintain reasonably accurate fiscal records in a recognized system of accounting, that it was not administered on a sound financial basis consisting with good business practices or that the trust account records were incomplete and inaccurate on March 29, 1982. The charge having not been sustained, no fine is warranted.
II.
Diet and Food Services
DHRS alleges that on or about May 4, 1982, the nursing home failed to follow its own policies and procedures for serving diabetic diets because: (1) small servings listed on the diet tray cards received a regular serving of potato and bread; (2) large servings listed on a diet tray cards did not receive double portions; and (3) therapeutic or modified diets were not served as ordered in that ham was incorrectly served on low fat and no salt diets and a pureed large-serving diet received only one dessert. DHRS asserts that these are violations of DHRS rules describing the responsibilities of a dietary services supervisor and requiring that all diets shall be prescribed by the physician in the patient's medical record and shall be served as ordered. Sections 10D-29.110(3)(b)(4), and (e)(1), Fla. Admin. Code.
Also, DHRS asserts a violation of Section 400.141(5), Florida
Statutes, which requires nursing homes providing food service to furnish therapeutic diets as prescribed by attending physicians.
On or about May 4, 1982, Emily Echols, a DHRS dietician, inspected the nursing home. She visited the kitchen and dining room, and observed meals being served. In accordance with the nursing home's policy and procedures, each patient has
a diet card which accompanies the food service trays and specifies the type and amount of food to be served. The information on the tray card originates with the patient's attending physician.
Miss Echols noted several discrepancies between the diet instructions on the food tray cards and the food actually served. Tray cards, based on doctors' orders, require that at least four patients--E.B., N.C., V.C., and M.M. (P-8, 9, 10, 11) receive large or double portions of food. These patients received, instead, no more food than the patients on regular diets. At least one patient, G.S. (P-7) was required to receive a small, low calorie diet but was served, instead, a regular size meal. (Testimony of Echols)
Two patients, O.W. and L.R., were required to be served special or modified diets. One was to receive a low salt, pureed diet, the other, low fat. Instead, both patients received sliced ham as a main course, a food which complies with neither requirement. (Testimony or Echols, P-5, P-6)
The evidence does not establish that any of the patients who received meals at variance with their food tray cards were diabetic and subject to the portion of the nursing home's policy and procedure manual relating to diabetic diets.
Thus, DHRS has not proven that these food servings violated the nursing home's policy and procedure for serving diabetic diets. Violations of Section 400.141(5), Florida Statutes, and Rule 10D-29.110(3)(e)1, have, however, been established. DHRS' request that a $500.00 fine be imposed is reasonable and appropriate.
III.
Recording of Food and Fluid Intake
DHRS alleges that on or about May 4, 1982, the food and fluid intake of patients in need of monitoring was sporadically recorded in that intake and output had been documented on only five shifts in February, 1982; and that on May 4, 1982, patients were observed with concentrated urine in catheter bags. DHRS asserts that this violates rules requiring nursing homes to provide nursing care which includes maintenance of adequate hydration and documentation of medications, treatments, and services rendered patients, Sections 10D-29.108(5)(b)3, 10D- 29.118(6)(b), Florida Administrative Code, and Sections 400.022(1)(q) and 400.141, Florida Statutes requiring that adequate and appropriate health care be provided and complete medical records maintained.
Marcia Winne, a registered nurse employed by DHRS, surveyed the nursing home in February, March, and May, 1982. During the February and March surveys, she concluded that the intake and output of fluids of some patients were not properly recorded.
With respect to the recording deficiencies noted in the February and March, 1982, surveys, Miss Winne testified about in- patient--C.K. She did not know whether daily worksheets had been kept on C.K. and could not say whether C.K. received adequate hydration during those two months. (Winne stip.)
Patient C.K. was a renal (kidney) failure patient. Doctors' orders required the nursing staff to force her to drink 2,000 cc of liquid daily. But her medication administration file indicated that her fluid intake and output had been recorded on only five shifts in February. There were no 24-hour totals. Inaccurate recording of intake and output with a renal failure victim is a serious nursing omission. On March 29, 1982, Miss Winne again inspected patient C.K.'s medical file. Her intake and output was still not being documented consistently. (Winne stip.)
There is no evidence that Miss Winne found that medical services were not being documented during her May 4, 1982, survey. She testified that, in her opinion, that the nursing home had corrected its problems in recording intake and output of fluids and now has a good working system for recording medical services rendered to patients. (Winne stip.)
No evidence was presented concerning concentrated urine in catheter bags alledegly observed during the March 9, 1982 survey.
Since the March, 1982, survey, there is no evidence that the nursing home failed to maintain adequate hydration for its patients. The medication record for C.K. documents all medications, treatments, and services rendered to her in April, 1982. (Haffner stip.; R-9)
DHRS has convincingly established that in February and March, 1982, the nursing home violated Rule 10-D29.118(6)(b), Florida Administrative Code and Section 400.141(6), Florida Statutes by failing to fully document medical services rendered to patients. Such a deficiency may adversely affect the health and welfare of nursing home patients. DHRS' request that a
$500.00 fine be levied is reasonable.
IV.
Asepetic Techiniques With Treatment Cart
DHRS alleges that on May 4, 1982, aseptic techniques were not followed in that the treatment cart taken from room to room contained both clean and soiled items. This allegedly violates DHRS rules requiring that policies and procedures developed by nursing homes' infection and control committees include, at a minimum, methods for maintaining sanitary conditions with respect to patient care. Section 10D- 29.123(3)(a)8, Fla. Admin. Code. DHRS also asserts a violation of Section 400.141(4), Florida Statutes, requiring nursing homes to conduct their operations in a safe and sanitary manner.
During her May 4, 1982, survey of the nursing home, nurse Winne observed a nurse change dressings on the wounds of two patients. She was critical of the manner in which the dressings were changed and believed that other patients were unnecessarily exposed to bacterial infection. Her testimony, however, does not establish that the nurse erred by using a treatment art which contained both clean and soiled items. (Winnie stip.)
Prior to May, 1982, the nursing home's infection control committee had adopted policies and procedures governing methods for maintaining sanitary conditions in patient care practices. These policies covered the use of aseptic techniques in connection with utilization of treatment carts. (Haffner stip,; Roth stip.)
There is no evidence that the nursing home staff failed to follow the policies and procedures governing the use of treatment carts. Neither has it been established that the policies developed by the infection control committee were deficient or failed to include, at a minimum, methods for maintaining sanitary conditions in patient care practices. The charges having not been proved, no fine is warranted.
V.
Forced Fresh Air Ventilation
DHRS alleges that on May 4, 1982, ventilation--through individual units-- was not provided to all rooms and spaces in that five air conditioning units were inoperative. This allegedly violates Rule 10D-29.121(5)(e), requiring that forced fresh air ventilation be provided to all rooms and spaces, and Section 400.141(4), Florida Statutes, requiring nursing homes to maintain their equipment and conduct their operations in a safe and sanitary manner.
On May 4, 1982, the nursing home had 92 window room air conditioning/heating units and individual units for each bathroom. There were two 7 central air conditioning units for the corridors, dining room, and T.V. room. Station One had a 4- ton unit, Station Two had a 3-ton unit, Station Three had a 4-ton unit, and Station Four had a 3-ton and a 4-ton unit. In addition, there were 12 roof ventilators. (Testimony of Rainey)
Because of the open area in the nursing home, air flows freely between rooms and hallways and from one hallway to another. Because of this free air movement, fresh forced air is provided to all rooms and spaces in the nursing home. Even if an individual room air conditioning unit is inoperative or removed for repairs, the room received fresh forced air from the corridor and, ordinarily, remains comfortable. (Testimony of Rainey)
The nursing home operates a regular maintenance program for its air conditioning units which includes a weekly check of every unit, and replacement of any unit which is inoperative. Repairs are made as quickly as possible and frequently used replacement parts are kept in stock. With this many individual air conditioning units, it is reasonable to expect a five percent failure rate. (Testimony of Rainey)
On May 4, 1982, the nursing home either had no air conditioners or had inoperative air conditioners in the women's shower area, Wing One; the craft room; room 199, the isolation room; room 321, Wing Three; the shower room, Wing Four; room 426; and room 414. There is no evidence, however, that the temperature in these rooms was uncomfortable or that the temperature in these rooms was uncomfortable or that they did not receive forced fresh air ventilation.
The evidence, therefore, does not substitute the charges and no fine is warranted.
VI.
Documentation of Intake and Output
DHRS alleges that on May 7 and 9, 1982, eight of eleven medical records lacked documentation of intake and output during the 3:00 P.M. to 11:00 P.M. shift. This, DHRS contends, violates rules requiring that nursing care include maintenance of adequate hydration and documentation of all medications, treatment, and services rendered; and Sections 400.022(1)(g) and 400.141, Florida Statutes, which grant patients the right to receive adequate health care and support services and require the keeping of complete medical records. See, Sections 10D-29.108(5)(b)3; 10D-29.118(6)(b), Fla. Admin. Code.
No evidence was presented establishing inadequate documentation of patient fluid intake and output on May 7, 1982. Patient records were reviewed only for May 8 and 9, 1982. While DHRS nurse Finger found approximately eight patient files which did not contain documentation of fluid intake and output, she did not review the physicians' orders in those cases and did not know whether documentation of these patients fluid intake and output was required. (Testimony of Finger, P-21) There is no evidence that any of these patients lacked adequate hydration.
The charges having not been proven, no fine is warranted.
VII.
Aseptic Techniques Relating to Wound Dressings
DHRS alleges that on May 10, 1982, effective aseptic techniques were not followed in that four patients were left with wet wound dressings from early morning baths or excessive draining--one until 11:00 A.M. and three until 12:30 P.M. It is also alleged that during one dressing change, a housekeeper entered the room mopping the floor. This DHRS contends, violates Rule 10D-29.108(5)(b)1, requiring that nursing care include personal hygiene to maintain healthy skin, promote patient comfort, and prevent infection; and violates Rule 10D- 29.123(3)(a)8, requiring that policies and procedures of an infection control committee include methods for maintaining sanitary conditions in patient care; and violates Section 400.022(1)(g) and 400.141, Florida Statutes, requiring that patients receive adequate health care, and that operations be conducted in a safe and sanitary manner.
During her May 10, 1982, inspection of the nursing home, DHRS nurse Finger observed four patients receiving or about to receive decubitus care; their dressings appeared to be wet from early morning baths or excessive drainage. She was unaware, however, how long the dressings had been in that condition, but, she was told that patients would receive showers, then--later-- when time was available, dressings would be changed.
During this inspection, nurse Finger also observed a housekeeper enter a room mopping the floor while a nearby patient's wound dressing was being changed. If dirty mop water was accidentally splashed on the wound, the risk of infection would be increased. (Testimony of Finger)
Similarly, the failure to remove dressings prior to or immediately after the morning baths risked the spread of infection and contamination of the wounds. The infection control committee's policy and procedures required dressings to be changed immediately after morning showers. (Haffner stip, Testimony of Winne)
On May 10, 1982, the nursing home experienced a staff shortage which may have contributed to the delay in changing the dressings. One nurse and four nurses aides did not report for work that morning. (Haffner stip)
Although DHRS failed to prove that the infection control procedures did not include methods for maintaining sanitary conditions in patient care, it did prove that, at least in four instances on May 10, 1982, the nursing home violated Rule 10D-29.108(5)(b)1, and Sections 400.022(1)(g) and 400.141, Florida Statutes, by failing to provide nursing care which prevents and controls the spread of infection. This deficiency has a direct relationship to the health and welfare of nursing home patients. DHRS' assertion that a $500.00 fine should be imposed is both reasonable and appropriate.
VIII.
Patient Trust Funds
DHRS alleges that the nursing home's patient trust funds were not reconcilable on June 7 and 8, 1982, and that they remained unreconcilable during a follow-up visit on July 9, 1982. This, it contends, violates rules requiring that fiscal records be maintained in accordance with the requirements of Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code; and requiring that the nursing home administrator be responsible for maintaining written records in a place, form, and system ordinarily employed in acceptable medical and business
practices. These records must be available in the nursing home for inspection. Sections 10D-29.104(1)(e); 10D-29.105(5)(d), (h); 10D-29.104(6)(a), Fla. Admin. Code. DHRS also alleges a violation of Section 400.162(4), Florida Statutes, which required that nursing homes keep complete and adequate records of all funds and property of its residents received by it for safekeeping.
On June 7 and 8, 1982, Jack Fullerton, a DHRS hospital consultant, reviewed the nursing home's patient trust fund accounts and found a cash overage: the bank trust account records did not reconcile with the fiscal records kept by the nursing home. He gave the nursing home until July 8, 1982, to correct this discrepancy in its records. (Testimony of Fullerton, P-15)
When he returned on July 9, 1982, the deficiency was still not corrected.
Although some alleged violations were not proven, DHRS did establish that Rule 10D-29.104(1)(e) and Section 400.162(4), Florida Statutes, were violated in that the nursing home did not keep complete and accurate records of all funds of its residents held by it for safekeeping. This deficiency continued beyond the time allowed for its correction. A fine of $150.00 is appropriate.
IX.
Patients' Right to Privacy
DHRS alleges that on June 7 and 8, 1982, the patients' right to privacy was jeopardized by lack of adequate curtains in the shower rooms and lack of proper clothing for patients who periodically exposed themselves and that this deficiency was not corrected by the July 9, 1982, follow-up visit. This, allegedly, constitutes a violation of rules requiring nursing homes to operate in compliance with Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code, and requiring ceiling mounted tracks and cubicle curtains for privacy at each bed in multiple occupancy patient bedrooms. DHRS also alleges a violation of Section 400.022(1)(h), Florida Statutes, guaranteeing patients the right to privacy in treatment and care.
During her June 7 and 8, 1992, survey, nurse Winne noted that there were no shower curtains on any of the shower stalls in the nursing home. These shower rooms were multi- purpose rooms, containing three or four showers, tubs, sinks, and toilets. Shower stalls were at the far end of the room; toilets and sinks were adjacent to the opposite wall. Without shower
curtains, patients using toilets could observe exposed patients taking showers. (Winne stip.) Nurse Winne gave the nursing home until July 8, 1982, to install shower curtains. On her July 9, 1982, return visit, the shower curtains were not yet installed.
Subsequently, on August 4, 1982, the nursing home received and installed the shower curtains. (Winne stip., Roth stip.)
Of the various charges, DHRS proved only that the nursing home violated Rule 10D-29.104(1)(e) and Section 400.022(1)(h) which guarantees patients the right to privacy in treatment and care. A fine of $150.00 is appropriate.
X.
DHRS alleges that on June 7 and 8, 1982, the "aged" trial balance of accounts receivable as of May 31, 1982, indicated that refunds due patients were not made in a timely manner, and that by July 9, 1982, this deficiency had not been corrected. This allegedly constitutes a violation of rules requiring nursing homes to be responsible for operating in compliance with and maintaining fiscal records in accordance with Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code, and requiring nursing home administrators to be to be responsible for maintaining written records in a place, form, and system ordinarily employed in acceptable medical and business practices. Sections 10D-29.104(1)(e), 10D- 29.104(5)(d)(h), 10D-29-104(6)(a), Fla. Admin. Code. DHRS also contends that this violates Section 400.162(4), Florida Statutes, which requires nursing homes to keep complete and accurate records of its patient funds received for safekeeping.
The nursing home's "aged" trial balance, as of May 31, 1982, indicated that approximately 44 discharged patients had not received refunds to which they were entitled; credit balances dated back to February 12, 1979. (Testimony of Fullerton, P-18, P-19, P-20)
The nursing home's policy and admission contracts provided that refunds on unearned rental would be made only on request. The nursing home's records indicate that on each occasion a refund was requested, a refund was made. (Testimony of La Paz)
In response to DHRS criticism, the nursing home prepared a letter dated July 29, 1982, which explained all refunds as of May 31, 1982. The nursing home subsequently made refunds to 25 patients, although these patients did not request them. As of July 29, 1982, DHRS was satisfied with the nursing home's correction of this perceived deficiency. (Testimony of La Paz, Fullerton, P-20)
The alleged violations have not been substantiated by the evidence. No fine is therefore warranted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat.
DHRS is authorized to impose an administrative fine, not to exceed $500.00 per violation per day, for each violation of Chapter 400, Florida Statutes and rules promulgated thereunder regulating the operation of nursing homes. See, Sections 400.102, 400.121, and 400.23, Florida Statutes. The burden is upon DHRS to prove its charges by a preponderance of the evidence.
DHRS has proved the nursing home violated Chapter 400, Florida Statutes, and Chapter 10D-29 in the manner described in the foregoing Findings of Fact. For these violations, an administrative fine of $1,800.00 should be levied against the nursing home.
The parties' proposed recommended orders, containing findings of fact, have been considered in preparing this recommended order. To the extent the parties' proposed findings of fact were consistent with the weight of the credible evidence adduced at hearing, they have been adopted and are reflected in this recommended order. To the extent the findings were not consistent with the weight of credible evidence, they have been either rejected or, when possible, modified to conform to the evidence. Additionally, proposed findings which are subordinate, cumulative, immaterial, or unnecessary, have not been adopted.
$1,800.00 for multiple violations of Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code.
DONE AND ENTERED this 19th day of August, 1983, in Tallahassee, Florida.
R. L. CALEEN, JR., Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1983.
Janice Sortor, Esq. Department of Health and
Rehabilitative Services 4000 W. Buffalo Ave.
Edward M. Chew, Esq.
de la Parte & Gilbert, P.A. 705 E. Kennedy Blvd.
Rehabilitative Services 1323 Winewood Blvd.
