STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3338

) AMERICANA HEALTHCARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause was heard pursuant to notice on October 9, 1986, in Jacksonville, Florida by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case is unusual because it arose upon notice of Americana Healthcare Center that the Department of Health and Rehabilitative Services had discovered a Class II deficiency at its facility during a routine inspection. Before administrative action could be initiated, Americana Healthcare Center requested a formal hearing. This was granted because assessment of a Class II deficiency prevents a facility from attaining the highest rating and has a direct economic impact. However, the facts in this case are adjudicated herewith for any other administrative purposes arising from said facts.

APPEARANCES

For Petitioner: Frederick Simpson, Esquire

District IV Legal Counsel Department of Health and

Rehabilitative Services 5920 Arlington Expressway

Jacksonville, Florida 32231

For Respondent: John Lee and Mary E. Hoffhaus, Administrators

Americana Healthcare Center 3648 University Boulevard

Jacksonville, Florida 32216 ISSUES

There are two issues:

Did the temperatures of the water in the facility fail to comply with the required range (105-150)?

Does exceeding the maximum range constitute a Class II deficiency under the facts presented?

FINDINGS OF FACT

1. Americana Healthcare Center is a licensed nursing facility and subject to inspection, licensure and discipline by the Department of Health and Rehabilitative Services.

   
   

2. On March 18-21, 1986, the Department of Health and Rehabilitative Services staff conducted a routine re-licensure examination. This examination report reflects several Class III deficiencies and one deficiency deemed by the inspectors to be a Class II deficiency. A Class II deficiency is one which has "a direct or immediate relationship to the health, safety, or security of nursing home residents." See HRS Exhibit 6.

   
   

3. The Class III deficiencies were subsequently remedied and are not at issue in this case.

   
   

4. The inspection revealed that hot water temperatures in the patients bath rooms exceeded 115, the maximum temperature permitted by rule. See HRS Exhibit 2. These temperatures were measured as follows:

   
   

   ROOM	March 18-21, 1986	TEMPERATURE
   East	Shower Room	138
   West	Shower Room	135
   Room	163	135
   Room	166	138
   Room	167	138
   Room	170	135
   Room	180	125
   Room	148	124
   Room	145	132
   Room	135	134

   AVERAGE 133

   
   

5. This was deemed a Class II deficiency and the Respondent was advised to correct the problem immediately.

   
   

6. The staff was aware of the problem and had been directed by management to use exceptional care in bathing patients and attending patients when around hot water. Respondent had been in the process of fixing the mechanical problem since April 1985. Testimony of Hoffhaus and Respondent Exhibit 4.

   
   

7. In May 1985 the Respondent received a proposal to install a mixing valve to correct the problem. The Respondent purchased the valve and paid for its installation. The invoice for the installation and purchase of the valve reflects that the work was performed between May 19, 1985 and May 21, 1985. See Respondent Exhibit 4.

   
   

8. The installation of the new mixing valve did not correct the problem because the water temperature would rise overnight to exceed the permitted maximum temperature. The Respondent continued to have the plumbers work to correct the problem. On March 19, 1986, the system was reconstructed at a cost of $1,989.75 which resulted in a significant reduction in water temperature. See Respondent Exhibit 4 and testimony of Hoffhaus.

9. On May 29, 1986 the Petitioner's employees conducted a re-inspection, and recorded the following water temperatures in patient bathing facilities at Respondent's facility (See testimony of John Cannizaro):

   
   

   110

   122

   114

   122

   122

   114

   114

   110

   114

   110

   114

   113

   114

   112.7 Average Temperature

   
   

10. Although the average temperature for all of the rooms was within the limits set by the rule, 105-115F, the maximum temperature discovered was 122 degrees which was found in three rooms. On the basis of these findings, the inspectors made a recommendation to take administrative action; however, at the time of hearing no such action had been initiated.

    
    

11. After the inspection in May, the Respondent continued its efforts to correct the problem. After continued unsuccessful efforts to correct the problem, a plumber employed by the Respondent determined that the hot water supply of several of the three patient's bathrooms was connected with 122F water to the kitchen hot water supply. This corrected the problem.

    
    

12. During the existence of this problem, none of the patients or staff suffered any injury as a result of the existing problem with hot water.

    
    

13. Water temperature exceeding 115 degrees Fahrenheit has the potential to harm patients. The degree of potential harm is directly proportional to the excessive temperature and time of exposure. Close observation and care exercised by staff can alleviate or negate the danger even when water accessible to patients exceeds maximum temperature.

    
    

14. The Petitioner published a Guidelines for Exceeding Minimum Standards which was distributed to Respondent at a seminar sponsored by Petitioner and which states as follows:

    
    

    if the available evidence indicates that the act or condition was an isolated

    incident, the deficiency should be considered as a Class III (deficiency), unless there is concrete evidence that the act or condition did result in some harm to a patient.

    
    

15. In situations involving Class II fire safety code violations which cannot be corrected within the required time limits, special instructions and actions by staff members are recognized by the Petitioner as reducing the hazard to a lower level of risk.

    CONCLUSIONS OF LAW

    
    

16. The Petitioner has authority to regulate nursing homes pursuant to Chapter 400, Florida Statutes. This order is entered pursuant to Section 120.57, Florida Statutes.

    
    

17. The Petitioner charges the Respondent with violation of Rule 1OD- 29.121(10)(d), Florida Administrative Code which provides that the temperature of hot water for patient use shall be in the range of 105 to 115 degrees Fahrenheit, and failure to timely correct this deficiency.

    
    

18. Clearly, the hot water temperature exceeded the maximum temperature range permitted by the rule; however, legitimate issues exist concerning whether, under the circumstances, it constituted a life threatening situation, whether the deficiency was corrected "immediately;" and whether this was an "isolated incident."

    
    

19. "immediately" is strictly speaking "without the passage of time;" however, any correction requires time. Therefore, "Immediately" is a relative term as opposed to an absolute term. The question becomes what time frame is mandated by using the adverb "immediately." As soon as possible using all deliberate speed is the definition which seems appropriate to potential safety and health problems. This looks at the nature of the problem, and compares the time and effort required to correct the problem with the efforts and time taken by the Respondent.

    
    

20. The evidence reflects the staff was directed to take special precautions to insure that patients were not exposed to hot water. The evidence reflects that actions were taken promptly to correct the excessively hot water which were successful in reducing the temperature to an average which was within the required range, although the maximum exceeded limits by six degrees Fahrenheit. The Respondent's efforts to correct the problem did not stop until the condition was corrected, although the cause of the problem was difficult to isolate and expensive to repair. The evidence reflects there were no injuries due to hot water.

    
    

21. Whether the situation amounted to a Class II deficiency is dependent upon whether it had a direct or immediate effect on the patient's safety or health. The danger to patients is proportionate to water temperature and duration of exposure. The evidence reflects that the special actions taken by the Respondent reduced the potential exposure of patients. Therefore, it was not an immediate or direct danger.

It is concluded that:

1. The correction by the Respondent was as soon as possible using all deliberate speed given the nature and extent of the problem.

   
   

2. This was an isolated incident in the sense that the condition only occurred once and the Respondent made real, continuing and effective efforts to correct the condition.

   
   

3. Because of the special care given patients at the direction of the Respondent by its staff, the potential exposure to the danger to patients were eliminated as reflected in the fact that no patients were injured during this period.

4. Both the aforementioned circumstances would reduce a Class II deficiency to a Class III deficiency under the Petitioner's stated policies.

Based upon these circumstances, the conditions necessary to substantiate a Class II deficiency were not demonstrated.

RECOMMENDATION

Based upon the foregoing findings of fact, it is recommended that no administrative action be taken against the Respondent and that the records of the Petitioner reflect that the condition relating to the water temperature was a Class III deficiency.

DONE and ORDERED this 15th day of January 1987, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1987.

COPIES FURNISHED:

Frederick Simpson, Esquire District IV Legal Counsel Department of Health and Rehabilitative Services 5920 Arlington Expressway

Jacksonville, Florida 32231

John Lee and Mary E. Hoffhaus, Administrators

Americana Healthcare Center 3648 University Boulevard

Jacksonville, Florida 32216

William Page, Jr., Secretary Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399

Steven W. Huss, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399

Docket for Case No: 86-003338

Orders for Case No: 86-003338