STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PLANTATION NURSING HOME, )

)

Petitioner, )

)

vs. ) Case No. 85-1286

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause on August 19, 1985, in Ft. Lauderdale, Florida, before Diane A. Grubbs, a hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jonathan S. Grout, Esquire

Post Office Box 1980 Orlando, Florida 32802

For Respondent: Harold Braynon, Esquire

District X Legal Counsel

201 West Broward Boulevard

Ft. Lauderdale, Florida 33301

Whether the Petitioner is entitled to a superior rating for its facility under the criteria set forth in section 400.23, Florida Statutes, and Rule 10D-29.128 Florida Administrative Code.

BACKGROUND

By letter dated March 15, 1985, Plantation Nursing Home (Plantation) was notified by the Department of Health and Rehabilitative Services (HRS or Department) that Plantation had earned a standard rating, rather than a superior rating, due to deficiencies found by the Inspection of Care Team. Plantation filed a Petition for Formal Administrative Hearing contending that it was entitled to a superior rating based on the applicable sections of Chapter 400, Part I, Florida Statutes, and Chapter

lOD-29 Florida Administrative Code. The matter was referred to the Division of Administrative Hearings for further proceedings.

Prior to the hearing the parties filed a prehearing stipulation. The parties stipulated that Plantation met all the requirements for a superior rating set forth in Rule lOD-29.128, Florida Administrative Code, and that the only reason Plantation was not granted a superior rating was based on the Medicaid Inspection of Care Team report.

At the hearing the Department presented the testimony of two witnesses and Plantation presented the testimony of five witnesses. Three joint exhibits were admitted in evidence.

After the transcript of the hearing was filed; the parties filed a stipulation agreeing that there were enumerable errors in the transcript and agreeing on certain corrections that should be made. Both parties timely filed proposed findings of fact and conclusions of law, and a ruling on each proposed finding of fact has been made in the appendix to this order.

FINDINGS OF FACT

1. At all times material hereto, Plantation was a licensed nursing home facility and participated in the Medicaid program. A nursing home that receives a superior rating is entitled to incentives based on the Florida Medicaid Reimbursement Plan. Plantation has met all the requirements for a superior rating that are enumerated in Rule lOD-29.128, Florida _Administrative Code. The only reason Plantation was not granted a superior

   rating was based on the Medicaid Inspection of Care, Team report. (stipulated facts)

   
   

2. From August 21 through August 31, 1984, Plantation underwent a routine inspection by the HRS Medicaid Inspection of Care (IOC) Team. The purpose of the inspection was to review the care and treatment of Medicaid recipient patients in accordance with state and federal standards in order for the facility to receive Medicaid payment for those individuals. During the course of the inspection, several deficiencies were found by IOC Team.

   
   

3. The deficiencies were summarized in the Medicaid Inspection of Care Team report, entitled Facility Evaluation Summary, prepared by Ms. Tranger. The report listed the deficiencies as follows:

   
   

   1. Fifteen skilled and two intermediate out of 46 medical records reviewed failed to have medication revalidated by the attending physician within the proper time frame

   2. Four of forty-six records reviewed failed to have available documentation that laboratory tests were completed in accordance with doctors' orders and medication regimen,

      
      

   3. Fourteen skilled and thirteen intermediate out of 46 medical records reviewed failed to have the Plan of Care reviewed within the proper time frame:

      
      

   4. Ten medical records were not certified within the proper time frames and fifteen medical records were not current for recertification.

      
      

4. As to the first deficiency noted, the problem was not that the physician failed to revalidate medication, but that Ms. Tranger did not think that the physician appropriately dated the revalidation. In almost all of the cases, the problem was that Ms. Tranger did not think that the physician had personally entered the date because the date was written with a different color of ink than the doctor's signature or the handwriting appeared to be different. Ms. Tranger did not know whether the dates were written by someone in the physician's office or someone at the nursing home.

   
   

5. It is very difficult for a nursing home to get a physician to sign and date orders properly. Plantation had a procedure for securing the doctor's signature and having records dated. When a record was received that was not properly signed and dated, Plantation returned the record to the doctor with a letter or note telling the doctor what needed to be done. When returned by the doctor to Plantation, the record would bear the later date, which caused some records to be out of' compliance with the required time frames. The return to the doctor of records that were not properly dated may also explain why some of he dates were written in a different color ink than the doctor's signature.

   
   

6. In those few cases where the dates on the report were not within the proper time frame, the dates were only a few days off. In one case a 34 day period, from July 7, 1984 to August 10, 1984, elapsed before the medication was revalidated. In another case, there were 33 days between the dates. In both cases the medication should have been revalidated every 30 days.

   
   

7. The problem with the revalidation dates was strictly a paperwork problem and not one that affected the care of the patients. As stated before, in the majority of the cases the

   medication was revalidated within the proper time frame. The problem was simply that it appeared that someone other than the doctor had written down the date.

   
   

8. The second deficiency was a finding by the surveyors that 4 of the 46 medical records reviewed failed to have available documentation regarding laboratory tests being completed in accordance with doctors' orders. However, Jean Bosang, Administrator of Plantation, reviewed all of the records cited by the IOC Team as the basis for these deficiencies and could only find two instances in which laboratory tests were not performed. HRS did not present any evidence to establish the two other alleged instances.

   
   

9. Dr. Lopez reviewed the medical records of the two residents in question and determined that there was no possibility of harm to the patient as a result of failure to perform these tests. One of the two residents is Dr. Lopez' patient, and he normally sees her every day. He stated that the test, an electrolyte examination, was a routine test, that the patient had had no previous problems, and if any problem had developed, she would have had symptoms which would have been observable to the nurses. The tests performed before and after the test that was missed were normal, and the failure to perform the one test had absolutely no effect on the patient.

   
   

10. Dr. Lopez was familiar with the other resident upon whom a test was not performed and had reviewed her records. This resident was to have a fasting blood sugar test performed every third month. Although this test was not performed in April of 1984, it was performed timely in every other instance. All tests were normal, and the failure to perform this test did not have any effect on the resident. Had she been suffering from blood sugar problems, there would have been physical signs observable to the nurses.

    
    

11. The fourth deficiency listed in the report was a paperwork problem similar to the first deficiency. Patients in a nursing home are classified by level of care and must be recertified from time to time. Certification does not affect the care of the resident. The recertification must be signed and dated by the physician. Again, there was a problem on the recertification because some of the dates were in a different color ink than the physician's signature. Again, the problem was primarily caused by difficulty in getting proper physician documentation. The deficiency did not affect the care of the residents.

    
    

12. Mr. Maryanski, who made the decision not to give Plantation a superior rating, testified that of the four

    deficiencies cited in the IOC report, he believed that only the third deficiency listed, in and of itself, would have precluded a superior rating. An analysis of that deficiency, however, shows that it also was mainly a paperwork deficiency and had no impact on patient care.

    
    

13. The third deficiency listed involved a purported failure to have the plans of care reviewed within the proper time frames. Patient care plans are to be reviewed every 60 days for "skilled" patients, those that need the most supervision, and every 90 days for "intermediate" patients, those that need less supervision. A patient's plan of care is a written plan establishing the manner in which each patient will be treated and setting forth certain goals to be reached. A discharge plan is also established, which is basically what the nursing home personnel believe will be the best outcome for the patient if and when he or she leaves the hospital.

    
    

14. The patient plan of care is established at a patient care plan meeting. Patient care plan meetings are held by the various disciplines in the nursing home, such as nursing, dietary, social work and activities, to review resident records and discuss any problems with specific residents. The manner in which the problem is to be corrected is determined and then written down on the patient's plan of care record.

    
    

15. The evidence revealed that the basis of the deficiency was not a failure to timely establish or review a plan of care, but a failure to timely write down and properly date the plan of care. During the time in question, care plan meetings were held every Wednesday, and all of the disciplines attended the meetings. However, all disciplines did not write their comments on the patients' records at the meeting; some wrote them later. Usually, when they were added later, the comments were dated on the day they were written, rather than on the day the meetings were held.

    
    

16. The evidence presented did not show any case in which all disciplines were late in making notes, but revealed only that specific disciplines were tardy. Since all the disciplines attended one meeting, it is apparent that when the date for any discipline was timely, the later dates of other disciplines merely reflected a documentation or paperwork problem. In late 1984 or early 1985, Plantation changed its system to avoid the problem in the future.

    
    

17. There appeared to be problems with some of the discharge plans being untimely. The discharge plan is not utilized in the day-to-day care of the resident. Discharge plans at Plantation were kept in two places, and Ms. Tranger recognized

    that she may have overlooked some plans if they had been written only on the separate discharge sheet.

    
    

18. The four deficiencies cited all involved time frames. There are innumerable time frames that must be met by a nursing home. The great majority of the deficiencies involved a failure to properly document. None of the deficiencies affected the care of the patients. Indeed, Ms. Tranger indicated that the patients were all receiving proper nursing care.

    
    

19. The decision to give Plantation a standard rating was made by Mr. Maryanski based solely on the IOC report. He relied upon section 400.23,(3) Florida Statutes, which states: "The department shall base its evaluation on the most recent annual inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations and inspections." There are no regulations or written or oral policies implementing this provision.

    
    

20. Mr. Maryanski looked solely at the face of the IOC report and did not do any independent investigation. He never visited the nursing home, and he never talked to the on-site surveyors to determine whether the deficiencies cited by the IOC Team were significant. He never saw the underlying documentation which formed the basis of the report. Mr. Maryanski has no background either in nursing or medicine and had no knowledge of purpose the tests that were allegedly not performed.

    
    

21. On October 4, 1984, the HRS Office of Licensure and Certification (OLC) conducted the annual survey of the facility. Mr. Maryanski did not determine whether the deficiencies found by the IOC Team had been corrected at the time of the annual survey.

    
    

22. An IOC Team surveyor returned on November 21, 1984, and found that all of the deficiencies cited during the IOC inspection had been corrected.

    
    

23. A resurvey of the facility was conducted on December 27, 1984, by OLC. All deficiencies noted in OLC's original inspection had been corrected.

    
    

24. All nursing home facilities in Florida are rated by HRS as conditional, standard, or superior. In addition to its financial significance, the rating of a facility is important because it affects the facility's reputation in the community and in the industry. The rating for a facility goes into effect on· the day of the follow-up visit of OLC if all deficiencies have been corrected. Therefore, Plantation would have received a superior rating, effective December 27, 1984, had it not been for the IOC report Mr. Maryanski never tried to determine whether the

    deficiencies in the IOC report had been corrected subsequent to the report being issued.

    
    

25. Under rule lOD-29.128, Florida Administrative Code, there are extensive regulatory and statutory requirements which must be met for a facility to be granted a superior rating. Plantation met all of the enumerated requirements, yet it received only a standard rating.

    
    

26. Mr. Maryanski based his determination on the IOC report despite the fact that it was outdated and the deficiencies in that report were corrected by November, 1984, prior to the December, 1984, resurvey by the OLC. There was nothing in the annual survey report of the OLC to preclude a superior rating. This is the first time a facility has been denied a superior rating based upon a report other than the annual report.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

28. The Department of Health and Rehabilitative Services is authorized by Section 400.062, Florida Statutes, to license nursing homes in the State of Florida. The Department of Health and Rehabilitative Services is authorized by Section 400.23(3), Florida Statutes, to evaluate nursing home facilities and assign ratings.

    
    

29. A decision as to what rating a facility should receive is governed by 400.23, Florida Statutes, and 101-29.128, Florida Administrative Code. There are very specific requirements in lOD-29.128. All of the requirements set out in that rule were met by Plantation Nursing Home. The only reason the Department of Licensure and Certification refused a superior rating to Plantation was based upon section 400.23(3), which states in part:

    
    

    . . . The department shall base its evaluation on the most recent annual inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations and inspections.

    
    

    There are no rules, regulations, or policies which set forth any criteria for determining the manner in which other reports should be used.

30. The provisions of section 400.23 require that the department establish guidelines, through rulemaking, giving notice to providers as to how the requirements of section 400.23 must be met by the nursing home. Section 400.23(1), states:

    
    

    (1) It is the intent of the Legislature that rules published and enforced pursuant to this part shall include standards by which a reasonable and consistent quality of resident care may be ensured and the results of such resident care can be measured and by which safe and sanitary nursing homes can be provided. . . .

    
    

    As a result of that mandate, HRS promulgated Rule lOD-29.128. This rule notifies all nursing home providers how the provisions of section 400.23 will be applied to them.

    
    

31. OLC issued a standard rating to Plantation, despite the fact that Plantation met all of the statutory and regulatory requirements for a superior facility. Section 400.23(3)(a), Florida Statutes, provides:

    
    

    1. A facility shall be assigned a superior rating if the department determines that the licensee is in compliance with the minimum standards under this part and the rules promulgated thereunder.

       
       

       Section 400.23(3)(f), Florida Statutes provides that the department "shall" adopt rules which "[e]stablish uniform procedures for the evaluation of facilities." Section 400.23(2) provides that the department "shall publish and enforce rules to implement the provisions of this part, which shall include reasonable and fair minimum standards" in a variety of areas including "[t]he care, treatment and maintenance of residents and measurement of the quality and adequacy thereof."

       
       

32. From the statutory provisions it is clear that the Legislature intended that the department promulgate rules which would establish the criteria by which a nursing home would be rated. In accordance with section 400.23, the department promulgated an extremely thorough rule by which nursing homes would be evaluated. Rule lOD-29.128 provides very detailed standards which clearly set forth what a nursing home must do to achieve a superior rating. In order to receive a superior rating, a facility must meet very rigid requirements under this rule.

33. Under the rule, deficiencies are classed according to severity, with a Class III deficiency being the least severe. Class I deficiencies are those that "present an imminent danger to the patients or guests of the nursing home facility or a substantial probability that death or serious physical harm would result therefrom." Class II deficiencies are those "which the Department determines have a direct or immediate relationship to the health, safety or security of the nursing home facility patients, other than [Class I deficiencies]." Class III deficiencies are those which have an indirect or potential relationship to the health, safety, or security of the nursing home facility patients. The requirements for "meeting minimum standards" or "exceeding minimum standards" are set forth and determined in part on the number, class and areas of deficiencies found. A facility "exceeding minimum standards" can have no more than four Class III deficiencies in each referenced area and must correct all such deficiencies by a given time. A facility cannot meet or exceed minimum standards if it has any Class I or Class II deficiencies. Finally, Rule lOD-29.128(3)(b) sets forth the criteria for determining how the nursing home will be rated, as follows:

    
    

    (b) Except as provided in paragraph (3)(c), nursing home facilities shall be assigned one of three ratings, either "superior," "conditional," or "standard."

    
    

    1. Superior rating. A nursing home facility shall be eligible to be assigned a "superior" rating if it:

       
       

       1. Meets minimum standards as defined in paragraph (2)(a).

          
          

       2. Exceeds minimum standards in all of the following areas as defined in subparagraph (2)(a)3., here categorized as Level I areas which the Department deems as being essential to maintaining the health, safety or security of residents:

          . . .

          
          

       3. Exceeds minimum standards in four of the following six areas as defined in subparagraph (2)(a)3., here categorized as Level II areas which the Department deems less directly related to the health, safety, or security of residents than those areas categorized in Level I, but important to the

    overall quality of care provided by nursing home facilities:

    
    

34. A review of Rule lOD-29.128, Florida Administrative Code, confirms that the annual survey conducted by OLC is extensive and all inclusive. The annual survey is conducted for the sole purpose of determining a rating for nursing homes. Rule lOD-128(3)(a) provides:

(3) Rating of nursing home facilities.

(a) The Department shall, at least annually, evaluate all nursing home facilities and make a determination as to the degree of compliance by each facility with minimum standards under Chapter 400, Part I, F.S., and the provisions of these rules as a basis for assigning a rating to that facility. The Department shall base its evaluation on the most recent annual inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. Scheduling of the annual inspection shall be at the discretion of the Department. (e.s.)

Due to the comprehensive nature of the rule, it is apparent that findings in other reports and investigations are meant only to be used as evidence when determining whether deficiencies exist under the rule. They are not meant to be used as an independent basis for denying a superior rating. Indeed, if the rule and statute, which contains the identical language, were interpreted to allow other reports and investigations to provide an independent basis for denying a superior rating, the entire rule, objectively determining the appropriate rating for a facility, would be rendered meaningless. Further, even if the statute and rule were construed to allow another report or investigation to serve as an independent basis for denying superior rating, the evidence does not support such an action in this case.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that Plantation Nursing Home be given a superior rating.

DONE AND ENTERED this 3rd day of March, 1986, in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1986.

COPIES FURNISHED:

Jonathan S. Grout, Esquire Post Office Box 1980 Orlando, Florida 32802

Harold Braynon; Esquire District X Legal Counsel,

201 West Broward Boulevard

Ft. Lauderdale, Florida 33301

William Page, Jr. Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings On Proposed Findings of Fact Submitted by the Petitioner

1. Accepted in Finding of Fact 1. 2-3. Accepted in Finding of Fact 2.

4. Accepted as set forth in Finding of Fact 21.

5-6. Accepted in Findings of Fact 22-23. 7-9. Accepted in Finding of Fact 24.

10. Rejected as immaterial.

11-12. Accepted in Findings of Fact 24-25.

1. Accepted in Finding of Fact 19.

   
   

2. Accepted in Finding of Fact 26.

15-16. Accepted generally in Findings of Fact 20 and 24. 17-19. Accepted generally as set forth in Finding of Fact

26.

1. In Background section.

   
   

2. Cumulative.

   
   

3. Accepted in Finding of Fact 18.

   
   

4. Accepted in Finding of Fact 12.

25-31. Accepted in substance in Findings of Fact 4-7. 32-43. Accepted in substance in Findings of Fact 8-10.

44. Rejected as not supported by the evidence. 45-46. Accepted in Finding of Fact 11.

47. Accepted in Finding of Fact 3. 48-49. Accepted in Finding of Fact 3.

50-57. Accepted in general in Findings of Fact 13-16.

58. Accepted in Finding of Fact 17.

Rulings On Proposed Findings of Fact Submitted by the Respondent

1. Accepted in Finding of Fact 1.

   
   

2. Accepted generally in Findings of Fact 1, 20, 24.

   
   

3. Accepted in Finding of Fact 1.

4. Accepted generally in Finding of Fact 19 and Background. 5-8. Accepted in Finding of Fact 3.

1. Accepted in substance in Finding of Fact 2.

   
   

2. Accepted in Finding of Fact 2.

   
   

3. Accepted in Finding of Fact 3.

   
   

4. Accepted in Finding of Fact 13 except as to time frame for intermediate patients which should be 90 days.

   
   

5. Accepted that the documentation showed a gap, but proposed finding rejected in that the evidence did not show that, in fact, the patient was not reviewed with the proper time frame.

   
   

6. Accepted, without naming the patients, and explained in Finding of Fact 6.

Docket for Case No: 85-001286

Orders for Case No: 85-001286