STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1839

) UNICARE HEALTH FACILITIES, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on September 14, 1983, in Lakeland, Florida. The issue for determination at the hearing was whether respondent is subject to an administrative fine in the amount of $250.00 for violations of Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code.

APPEARANCES

For Petitioner: Anthony N. DeLuccia, Jr., Esquire

Department of HRS, District VIII Post Office Box 06085

Fort Myers, Florida 33906

For Respondent: Roch Carter, Esquire

105 W. Michigan Street Milwaukee, Wisconsin 53202

INTRODUCTION

By an Administrative Complaint dated May 6, 1983, petitioner charges that the respondent, as operator of the Grovemont Nursing and Rehabilitation Center, failed to follow physician's orders or to record the reason for failure to follow the orders on the patient's medical charts. It is further charged that respondent failed to notify the patient's physician. It is alleged that this constitutes a violation of Sections 400.022(1)(g) and 400.141, Florida Statutes, and Rule 10D-29.107(11), Florida Administrative Code, for which petitioner seeks to impose an administrative fine in the amount of $150.00.

It is further charged that respondent failed to maintain a written report or record of an incident whereby a patient's watch was destroyed in either respondent's washer or dryer, in violation of Section 400.141, Florida Statutes, and Rules 10D-29. 104(1)(e) and (5)(d)1,d, Florida Administrative Code. For this offense, petitioner seeks to impose an administrative fine in the amount of

$100.00.

In support of the Administrative Complaint, petitioner presented two witnesses from its Office of Licensure and Certification in Winter Park -- Dorothy M. Gardner, a Public Health Nurse Consultant, and Stanley Peake, an Administrative Surveyor. Respondent presented no witnesses or documentary evidence. The parties waived the opportunity to submit written proposed findings of fact or proposed conclusions of law.

FINDINGS OF FACT

Based upon the testimony adduced at the hearing, the following relevant facts are found:

1. On March 11, 1983, Mrs. Gardner, a nurse consultant from the petitioner's Office of Licensure and Certification, went to the respondent's Grovemont Nursing and Rehabilitation Center in Winter Haven for the purpose of investigating a complaint. She conducted an interview with the respondent's Director of Nurses and examined a patient's medical chart. The patient's chart contained a physician's order dated November 10, 1982, to ambulate the patient three times per day. The patient's medical chart indicated that between the dates of November 10 through 17, 1982, the patient had been ambulated seven (7) times. There was nothing in the patient's records to document the reasons for any omissions in ambulation or to illustrate that the physician had been informed that the patient was not being ambulated three times a day. Mrs. Gardner did not speak with any of the nurses in charge of this particular patient between November 10 and 17, 1983. She did notice that the patient's medical chart indicated that the patient was weak, was running a temperature and had a pressure sore on his right heel. Any failure to ambulate this patient on thirteen (13) occasions during a week's period did not constitute a "life- threatening" situation.

   
   

2. Stanley Peake, an Administrative Surveyor, went to the respondent's Grovemont facility on March 11, 1983, to investigate an allegation concerning the damaging by the respondent of a patient's watch. A laundry employee informed him that watch parts had been removed from a dryer in respondent's laundry room. Neither the date of this incident, the person who removed the watch from the dryer, nor the person to whom the watch belonged was established. At the time of Mr. Peake's investigation, an incident report concerning the watch had not been prepared by the respondent.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Administrative Complaint in this cause charges the respondent with violations of Sections 400.022(1)(g) and 400.141, Florida Statutes, and Rules 10D-29.107(11), 10D-29.104(1)(e) and (5)(d)1,d, Florida Administrative Code. In a disciplinary proceeding against a licensee, the burden lies with the licensing authority to establish by clear and convincing, competent evidence the administrative charges against the licensee. Petitioner has totally failed in its burden of proof in this proceeding.

   
   

4. Section 400.022(1), Florida Statutes, requires nursing home facilities to adopt and make public a statement of the rights and responsibilities of its patients and to treat its patients in accordance with that statement. Among the assurances to be made in the statement is the right of the patient to receive adequate and appropriate health care and protective and support services consistent with the patient care plan, established and recognized practice standards within the community and the rules of the Department of Health and Rehabilitative Services (HRS). Section 400.022(1)(g) Florida Statutes.

5. The portions of Section 400.141, Florida Statutes, pertinent to this proceeding require nursing home facilities to comply with all applicable rules of the HRS. Rule 10D-29.107(11) Florida Administrative Code (1982 Supp.), provides as follows:

   
   

   "(11)All physician's orders shall be followed as prescribed, and if not followed, the reason shall be recorded on the patient's medical record during that shift. The physician shall be promptly notified, and his instructions

   shall be recorded, unless in the judgment of the charge nurse, the situation is not life threatening."

   
   

6. With regard to the patient whose charts indicated he was only ambulated seven times in one week as opposed to three times per day as required in the physician's orders, petitioner has failed to prove a violation of the above statutory or regulatory requirements. First, it was not proven by competent substantial evidence that the patient was not ambulated three times per day as ordered by the physician. At best, the evidence merely demonstrates that the patient's medical charts did not indicate that the ambulation occurred. The testimony from the petitioner's own witness was that failure to ambulate a patient would not be a life threatening situation. Thus, even if ambulation did not occur as ordered, Rule 10D-29.107(11) did not require that patient's physician to be promptly notified and his instructions recorded. Finally, there did appear on this patient's medical record notations that the patient was weak, was running a temperature and had a pressure sore on his heel. This would appear to constitute the recording of reasons for not following a physician's order to ambulate the patient three times a day, if, indeed, such ambulation did not occur. In summary, petitioner simply did not produce sufficient evidence that respondent violated Rule 10D-29.107(11) Florida Administrative Code, or Sections 400.022(1)(g) or 400.141, Florida Statutes.

   
   

7. The same conclusion must be made with regard to the incident involving a patient's watch. Rule 10D-29.104(5)(d)1, d, Florida Administrative Code, requires a nursing home administrator to maintain a written record of all accidents or unusual incidents involving any patient that caused, or had the potential to cause, injury or harm to any person or property within the facility. The only evidence in support of this charge was that a laundry room employee told an investigator from HRS that parts of a watch were removed from a laundry room dryer. There was no evidence that this employee removed the watch or that she even observed the watch being removed. There was no evidence that the watch belonged to a patient residing in petitioner's facility. There was no evidence as to the date that such an incident occurred. There was simply insufficient evidence to establish that an accident or unusual incident occurred within the respondent's facility for which a written report was required pursuant to Rule 10D-29.104(5)(d)1,d, Florida Administrative Code.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on May 6, 1983 be DISMISSED.

Respectfully submitted and entered this 21st day of October, 1983 in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(504) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1983.

COPIES FURNISHED:

Anthony N. DeLuccia, Jr., Esquire Department of HRS, District VIII Post Office Box 06085

Fort Myers, Florida 33906

David Pingree, Secretary

Department of Health & Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32301

Roch Carter, Esquire

105 W. Michigan Street Milwaukee, Wisconsin 53202

Jay Kassack, Director

HRS Office of Licensure and Certification

Post Office Box 210 Jacksonville, Florida 32231

Docket for Case No: 83-001839

Orders for Case No: 83-001839