STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 88-2326
)
FANNIE E. TAYLOR FOR THE )
AGED CARE CENTER, INC., )
d/b/a TAYLOR CARE CENTER, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Jacksonville, Florida, before Robert T. Benton II, Hearing Officer of the Division of Administrative Hearings, on August 3, 1988, and finished in Tallahassee on August 15, 1988. The Division of Administrative Hearings received the last hearing transcript on September 6, 1988. On October 17, 1988, the parties filed proposed recommended orders, petitioner filing corrections on October 24, 1988. The attached appendix addresses proposed findings of fact by number.
The parties are represented by counsel:
For Petitioner: Frederick J. Simpson, Esquire
Post Office Box 2417 Jacksonville, Florida 32230-0083
For Respondent: R. Bruce McKibben, Jr., Esquire
Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32303
By letter dated March 31, 1988, Connie E. Cheren, director of petitioner's office of licensure and certification, gave respondent written confirmation "that a moratorium on admis- sions to your facility was Imposed effective [earlier on] March 31, 1988 . . . . [when t]he patient census was 118." The letter cited Section 400.121(4), Florida Statutes (1987), and attributed the moratorium to "serious deficiencies . . . . [which] include, but are not limited to the following:
Infection Control.
Laundry and Linen.
Whirlpool Tub."
The statement of deficiencies mailed to respondent's Mr. Batzka on April 5, 1988, HRS' Exhibit No. 1, alleged, in addition, that respondent violated nursing
home standards Nos. 136 and 138, on account of inadequacies in care plans and "interventions"; that infection control deficiencies violated nursing home standards Nos. 99, 116, 445, 452, 453, 454, 458, 490 and 493; and that respondent violated nursing home standard 324 because HRS surveyors "could not ascertain that the residents were receiving benefits from the[ir activity] programs or that these programs were meeting their identified needs." HRS' Exhibit No. 1.
ISSUE
Whether petitioner has good cause, within the meaning of Rule 10D- 29.128(6), Florida Administrative Code, to revoke respondent's superior rating, for the reasons alleged either in Ms. Cheren's letter or in the statement of deficiencies?
FINDINGS OF FACT
Respondent holds a license to operate a 120-bed (T. 186) nursing home at 6535 Chester Avenue in Jacksonville, and does so under the name of Taylor Care Center (TCC). Petitioner Department of Health and Rehabilitative Services (HRS), which issued the license, later gave TCC a superior rating, the rating it had in March of 1988.
On March 28, 1988, a Monday, Joanna T. Warfel, R.N., Edward Melvin and Richard Gerard undertook an annual "combined Medicare/Medicaid licensure survey" (T. 39) at TCC on behalf of HRS' Office of Licensure and Certification. The surveyors produced a statement of deficiencies on Form HCFA-2567 (10-84), the same form on which TCC responded with its plan of correction. HRS' Exhibit No. 1.
If TCC, "a community-based nursing facility . . . [with] probably . . .
80 percent or more . . . Medicaid residents," (T. 186) loses the superior rating and receives instead only a standard rating for the period July 1, 1988 to June 30, 1989, TCC "is projected . . . [to sustain] a loss of at least $50,000 in revenue." Pre-hearing Stipulation.
Infection Control
TCC "had a policy and procedure manual for infection control," (Dep.
20) with which HRS does not find fault. In practice, if a floor nurse suspects an infection, she tells the charge nurse, who asks a doctor to order laboratory analysis of a culture. (T. II. 38) The laboratory furnishes the physician, the floor and TCC's infection control nurse copies of its reports, which form the basis for a log the Infection control nurse keeps. In addition, TCC's Ms. Jarrett took "environmental" samples and sent them for cultures sporadically, although no law or rule requires this, in terms.
In part, the HRS team's statement of deficiencies alleged the following:
INFECTION CONTROL
NH-445: The condition is out of compliance because there was no system in operation to prevent the spread of infections.
Ref: 405.1135, 10D-29.123 Class III 4/23/88
NH-452: Infection Control Standards not met. Ref: 405.1135(b) Class III 5/31/88
F-339/122 NH-454, 458, 116, 99:
Observation revealed the following:
Five residents with draining wounds not on any type of Isolation precautions.
Drainage from a supra pubic catheter insertion site without a dressing.
5-7 residents with Staph Aureus eye Infections not on any type of isolation precautions.
Dressings from at least 3 draining wounds were removed without gloves by the facility's nurse.
One dressing to a draining wound was applied without gloves.
Nurse placing gloved hand into medication jar after being in contact with infected wound.
Whirlpool cleaned only with Betadine between residents.
Resident with stage 2 decubiti on both feet, one of which was draining purulent material, placing both feet in the whirlpool at the same time.
Pictures of a stasis ulcer healing well in August 1987, currently infected with a heavy growth of pseudomonas and much larger in size.
When isolation precautions
were posted, there were no isolation bags for linen and trash and no gloves left available in the room.
Review of documentation revealed:
Residents with positive cultures for known pathogans such as staph aureus and pseudomonas were not on isolation precautions.
All draining wounds had not been cultured.
All positive cultures and wounds with purulent drainage were not included in the infection log.
The written infection report by
nursing was prepared quarterly rather than monthly as required by state regulations.
Environmental cultures collected 11/24/87 revealed "unsatisfactory" results on 5 of 5 sources cultured i.e., Pseudomonas from the whirlpool tub and water fountain.
The quarterly infection control meeting minutes did not contain any plan of correction or any mention of the environmental culture results.
There were no environmental culture reports since 11/24/87.
Of the 39 infections recorded in the last 3 months 100% were nosocomial.
There was no documented evidence of isolation being instituted for the last
12 months.
Ref: 10D-29.123(3)(b), 10D-29.123(3)(f)
10D-29.108(5)(b), 10D-29.108(3)(e)
405.1135(b) Class III 5/31/88
* * *
INFECTION CONTROL/DISASTER PREPAREDNESS
F-342/343 NH-490: Infection Control/Disaster Preparedness Standards not met. Ref: 405.1135(d), 442.327 Class III
F-345 NH 493: Observation revealed that linen, contaminated with known pathogens, specifically, Pseudomonas was removed from the resident's roe without gloves and deposited with the regular laundry. Observation further revealed that laundry personnel were handling soiled linen without gloves on the first day of the survey. Ref:
405.1135, 442.327, 10D-29.124(2)(b)1
Class III 5/31/88
* * *
INFECTION CONTROL/DISASTER PREPAREDNESS
F-345 NH-453: Infection control committee has not approved policies and procedures for the laundry operation.
Ref: 405.1135(d), 10D-29.124(2)(b)
Class III 5/31/88
The "NH" references in the statement of deficiencies are set out in Part B of the nursing home licensure survey report received as HRS' Exhibit 2, and include the following:
XIII. INFECTION CONTROL. 10D-29.123. The nursing facility establishes an infection control committee, appointed by the Administrator, of representative professional staff with responsibility for overall infection control in the
facility. Necessary staff are provided to maintain a sanitary and comfortable environment and to help prevent the development and transmission of infection.
(b) STANDARD: Infection control committee policies and procedures. The policies and procedures developed by the committee include, at a minimum, policies and procedures governing the following:
NH454 Monitoring of the methods of maintaining sanitary conditions no less often than quarterly. 10D-29.123(3)(b)
* * *
NH458 Infection control measures, which include, at a minimum, the following:
Isolation procedures for residents in communicable stage of disease.
Specifics of nursing care for residents with infection.
NH116 Nursing care includes control of occurrence of infection through the use of aseptic techniques, surveillance of personnel and environmental conditions, identification of high-risk, infection prone residents, health education, counseling, and practicing health promoting habits. 10D-29.108(5)(b)
* * * NH99 The DON ensures that the
facility's resident care policies and procedures and the policies and procedures developed by the pharmaceutical services committee and the infection control committee, which relate to nursing services are implemented.
(e) STANDARD: Linen and laundry
* * *
NH493 The responsible person ensures that written policies and procedures for linen and laundry services, including methods of collection, storage, transportation are developed, implemented and maintained in conjunction with the policies and procedures developed by the infection control committee. 10D-29.124(2)(b)1
The rule provisions on which HRS relies are set out in the conclusions of law.
Decubiti, called pressure sores or bed sores after their wonted etiology, advance through four stages, if not checked. In stage one, the skin is intact, but "remains red after approximately 30 minutes of pressure relief." (T. II. 117-8) In stage two, the skin is "open," and the sore moist, but
superficial and devoid of infection. Muscle and necrotic tissue may be seen in stage three, when open lesions are deeper. Stage four lesions go to the bone.
Clear serous drainage from a stage two decubitus facilitates healing. While purulent drainage from more advanced lesions may also be of some benefit, this yellowish or greenish fluid contains pathogenic organisms which pose the danger that infection will spread. (T. I. 69-70) Stasis ulcers, attributable to poor venous circulation, and eyes in which antibiotic resistant staphylococci aurei have established themselves are other sources of infection in nursing homes.
In the course of the survey, Ms. Warfel observed three decubiti on the feet of the resident who slept in bed 101-A at TCC, including a stage two decubitus, TCC's Exhibit No. 2, "with small amount of drainage, half-inch in diameter on the left inner ankle." (Dep. 22) Any discoloration of the drainage (Dep. 25, 31) was apparently due to medication. (T. 11, 33)
She saw a sore of similar size "with a slight amount of drainage," (Dep. 23) on the outside of the left foot of the man who slept In bed 210-B, who also had an undressed suprapubic catheter with a "strand of mucous . . . between the catheter tubing and the skin." (Dep. 25)
The resident who slept in bed 301-B "had a stage two on the left hip, one inch in diameter, and had a positive culture for staph in March of '88." (Dep. 23) The woman who slept in bed 316-B had both "a draining area on her left thigh . . .from a previous hip pin" (Dep. 23) and a "small stage two decubitus on the coccyx." Id. The drainage from the surgical incision was clear, and, when analyzed after the survey (in response to Ms. Warfel's characterization) proved noninfectious, just as the resident's physician had earlier advised TCC. (T. I. 44-45)
One nurse placed a gloved hand into a medication jar after contact with a stasis ulcer the woman in Room 115 had. (Dep. 29) Room 115 is private. What became of the medication thereafter the record does not reveal. The woman's ulcer was heavily infected with pseudomonas, although it had been reported to be healing well in August of 1987. She told Ms. Warfel it had gotten [re]infected from the whirlpool." (Dep. 31)
Ms. Warfel saw the resident who slept in bed 101-A with both feet in the whirlpool, then saw a staff person dry both feet with the same towel. (Dep.
31) On March 24, 1988, her physician had ordered "sterile WP to [both] feet." TCC's Exhibit No. 2. The physical therapist regularly disinfected the whirlpool with Wescodyne. (T. II. 34) As far as the evidence revealed, she did so after each use.
On her initial visit, Ms. Warfel did not see precautions posted for Room 210 "but on the fourth day . . . went back and checked, and that was on the door then." (Dep. 22) The man who slept in bed 210-B had been placed on secretion precautions the week before the survey, when a culture revealed that he suffered from an infection of methicillin-resistant staphylococcus aureus. Perhaps because the sign posted on his door was not the customary green, Ms. Warfel overlooked it originally.
In rooms in which isolation procedures are in effect, soiled linen is placed in "a double red bag or a water soluble bag." (T. II. 30) Water soluble bags go "directly into the hamper . . . [while the contents of each] double red bag . . . [go] into a separate laundry from the regular linen." (T. II. 30)
Gloves at the nurse's desk were available to the nursing staff. (Dep.
28) Although the "director of nurses wore gloves part of the time when she was handling dressings . . . [t]he nurse who did the treatment on the pseudomonas infection wore gloves while she was doing the dressing only." (Dep. 27) TCC terminated that nurse's employment. (T. II. 32)
Because Jackie Williams, TCC's infection control nurse who began at TCC not long before the survey, listed all urinary tract infections as nosocomial, the infection control log grossly overstated the number of nosocomial infections occurring at TCC during the three months before the survey took place. HRS' Exhibit No. 4. If evaluated against accepted criteria, Hearing Officer's Exhibit No. 1, the actual number was on the order of six. Of these, four were urinary tract infections in which only pathogens present at admission were implicated. The infection control log was updated continuously, as information was received, but monthly reports as such were not prepared.
Dr. Tremble, who attends the woman who sleeps in Room 115, "does his very own cultures himself." (T. II. 38) No laboratory or other report of the results of cultures done for this resident reached TCC's infection control nurse nor were any deflected in the infection control log.
As far as the record reveals, environmental cultures were denominated "unsatisfactory if there was any bacteria count," (Dep. 39) however small. The evidence did not establish that the environmental culture results reflected conditions about which TCC should have done anything it failed to do.
Guidelines
The CDC Guideline for Isolation Precautions in Hospitals published in 1983, excerpts from which were received as HRS' Exhibit No. 6, say the following about gowns, gloves, bagging of articles, linen and dressings:
Gowns
In general, gowns are recommended to prevent soiling of clothing when taking care of patients. Gowns are not necessary for most patient care because such soiling is not likely. However, gowns are indicated when taking care of patients on isolation precautions if clothes are likely to be soiled with infective secretions or excretions, for example, when changing the bed of an incontinent patient who has infectious diarrhea or when holding an infant who has a respiratory infection.
Furthermore, gowns are indicated, even when gross soiling is not anticipated, for all persons entering the room of patients who have infections that if transmitted in hospitals frequently cause serious illness, for example, varicella (chickenpox) or disseminated zoster. When gowns are indicated, they should be worn only once and then discarded in an appropriate receptacle.
Clean, freshly laundered or disposable gowns may be worn in most circumstances. In some instances, as with extensive burns or extensive wounds, sterile gowns may be worn when changing dressings.
Gloves
In general, there are 3 distinct reasons for wearing gloves. First, gloves reduce the possibility that personnel will become infected with microorganisms that are infecting patients; for example, gloves should prevent personnel from developing herpetic whitlow after giving oral care or suctioning a patient with oral herpes simplex infections. Second, gloves reduce the likelihood that personnel will transmit their own endogenous microbial flora to patients; for example, sterile gloves are used for this reason when personnel perform operations or touch open surgical wounds. Third, gloves reduce the possibility that personnel will become transiently colonized with microorganisms that can be transmitted to other patients. Under most conditions, such transient colonization can be eliminated by handwashing. Thus, in hospitals where handwashing is performed carefully and appropriately by all personnel, gloves are theoretically not necessary to prevent transient colonization of personnel and subsequent transmission by them to others.
However, since handwashing practices are thought to be inadequate in most hospitals, gloves appear to be a practical means of preventing transient hand colonization and spread of some infections. Therefore, for many diseases or conditions listed in this guideline, wearing gloves is indicated for touching the excretions, secretions, blood, or body fluids that are listed as infective material. Gloves may not be needed if "no touch" technique (not touching infective materials with hands) can be used.
When gloves are indicated, disposable single-use gloves (sterile or nonsterile, depending on the purpose for use) should be worn. Used gloves should be discarded into an appropriate receptacle. After direct contact with a patient's excretions or secretions, when
taking care of that patient, gloves should be changed if care of hat patient has not been completed.
Bagging of Articles
Used articles may need to be enclosed in an impervious bag before they are removed from the room or cubicle of a patient on isolation precautions. Such bagging is intended to prevent inadvertent exposures of personnel to articles contaminated with infective material and prevent contamination of the environment. Most articles do not need to be bagged unless they are contaminated (or likely to be contaminated) with infective material. (See the Tables, which contain an alphabetical listing of diseases for identification of the infective material for each disease.) A single bag is probably adequate if the bag is impervious and sturdy (not easily penetrated) and if the article can be placed in the bag without contaminating the outside of the bag; otherwise, double bagging should be used. Bags should be labeled or be a particular color designated solely for contaminated articles or infectious wastes.
* * *
Linen
In general, soiled linen should be handled as little as possible and with a minimum of agitation to prevent gross microbial contamination of the air and of persons handling the linen. Soiled linen from patients on Isolation precautions should be put in a laundry bag in the patient's room or cubicle.
The bag should be labeled or be a particular color (for example, red) specifically designated for such linen so that whoever receives the linen knows to take the necessary precautions.
Linens will require less handling if the bag is hot-water-soluble because such bags can be placed directly into the washing machine; however, a hot-water soluble bag may need to be double-bagged because they are generally easily punctured or torn or may dissolve when wet. Linen from patients on isolation precautions should not be sorted before being laundered. If mattresses and pillows are covered with impervious
plastic, they can be cleaned by wiping with a disinfectant-detergent. (See Guideline for Hospital Environmental Control: Laundry Services.)
* * *
Dressings and Tissues
All dressings, paper tissues, and other disposable items soiled with infective material (respiratory, oral, or wound secretions) should be bagged and labeled and disposed of in accordance with the hospital's policy for disposal of infectious wastes.
Local regulations may call for incineration or disposal in an authorized sanitary landfill without being opened. (See Guideline for Hospital Environmental Control:
Housekeeping Services and Waste Disposal.)
The same document also specifies "secretion precautions" and "bodily fluid precautions" for certain hospital patients:
Drainage/Secretion Precautions Drainage/Secretion Precautions are
designed to prevent infections that are transmitted by direct or indirect contact with purulent material or drainage from an infected body
site. . . . Infectious diseases included in this category are those that result in the production of infective purulent material, drainage, or secretions, unless the disease is included in another isolation category that requires more rigorous precautions. For example, minor or limited skin, wound, or burn infections are included in this category, but major skin, wound, or burn infections are included in Contact Isolation. . . .
Specifications for Drainage/Secretion Precautions
Private room is not indicated.
Masks are not indicated.
Gowns are indicated if soiling is likely.
Gloves are indicated for touching infective material.
Hands must be washed after touching the patient or potentially contaminated articles and before taking care of another patient.
Articles contaminated with
infective material should be discarded or bagged and labeled before being sent for decontamination and reprocessing.
* * *
Blood/Body Fluid Precautions Blood/Body Fluid Precautions are
designed to prevent infections that are transmitted by direct or indirect contact with infective blood or body fluids, unless the disease is included in another isolation category that requires more rigorous precautions, for example, Strict Isolation. For
some diseases included in this category, such as malaria, only blood is infective; for other diseases, such as hepatitis B (including antigen carriers), blood and body fluids (saliva, semen, etc.) are infective.
Specifications for Blood/Body Fluid Precautions
Private room is indicated if patient hygiene is poor. A patient with poor hygiene does not wash hands after touching infective material, contaminates the environment with infective material, or shares contaminated articles with other patients. In general, patients infected with the same organism may share a room.
Masks are not indicated.
Gowns are indicated if soiling of clothing with blood or body fluids is likely.
Gloves are indicated for touching blood or body fluids.
Hands must be washed immediately if they are potentially contaminated with blood or body fluids and before taking care of another patient.
Articles contaminated with blood or body fluids should be discarded or bagged and labeled before being sent for decontamination and reprocessing.
Care should be taken to avoid needle-stick injuries. Used needles should not be recapped or bent; they should be placed in a prominently labeled, puncture-resistant container designated specifically for such disposal.
Blood spills should be cleaned up promptly with a solution of 5.25% sodium hypochlorite diluted 1:10 with water.
TCC has incorporated these provisions in its infection control policy and procedure manual. Joint Exhibit No. 1. More recently, the Centers for Disease Control have prescribed "universal precautions," recommending that hospital personnel proceed as if every patient had acquired immune deficiency syndrome. (T. I. 75-6)
No Isolation
The TCC resident who slept in bed 306-A had an eye infection which TCC staff began treating with ophthalmic ointment (Gentamycin) on February 3, 1988. "Resolved" by the time of the survey, this infection was caused by staphylococcus aureus, which was methicillin resistant (T. II. 73, 111) and required isolation (secretion precaution) procedures (T. II. 46, 7) which were never instituted. (T. II. 42) "[T]hey should have been wearing gloves. And the linen that they were using should have been placed in isolation bags before washing, labeled and identified". (Dep. 26)(T. I. 70, 73-4) Except for the resident who slept in bed 210-B, TCC had placed nobody in isolation for the six months preceding the survey. (T. II. 42)
Other Red Eyes
The TCC resident who slept in bed 112A had redness of the eye, from which Ms. Warfel concluded "that it was conjunctivitis and the patient should have been isolated". The patient to whom bed 112A was assigned had no drainage.
At the time of the survey, the TCC resident who slept in bed 203B was already receiving medication for an eye infection. A laboratory report dated March 15, 1988, identified the organism as "staph epi," normal skin flora, to be distinguished from the malevolent staphylococcus aureus.
The woman who slept in bed 407B also "had light growth of staph epi .
. . was on an ointment for seven days and didn't require isolation". (T. II.
47) The women who slept in beds 305A and 316B had red eyes, as well, attributable, it turned out, to glaucoma, and not to staphylococcus aureus.
Resident Care Plans and Activities
With respect to patient care management and residents' activities, the HRS team alleged, in its statement of deficiencies:
F-237/238 NH-136: Patient Care Management Standards not met.
Ref: 405.1124(d), 442.341
Class III 5/31/88
F-239/240 NH-138: Observation of patient care and record review revealed that all resident's problems/needs, i.e., decubiti, infections, rehab, etc. were not being addressed in the written plan of care or delivery of services.
Goals were not measurable and interventions were limited and inadequate. The evaluations did not address the effectiveness of the interventions or institute appropriate changes in either the goals or approaches. Social Services and
Activities in the care plans, also did not have measurable goals and specific approaches to meet the residents identified needs. Also the disciplines did not evaluate the effectiveness of their approaches. Ref: 405.1124, 442.341, 10D-29.109(2)
Class III 5/31/88
* * *
F-234 NH-324: The facility has two programs implemented for its residents:
(1) stroke group, (2) Adventure Group for Alzheimers residents. Surveyor found that these groups had about 20 residents each in the groups. However, surveyor found from interview, observation, and documentation could not ascertain that the residents were receiving benefits from these programs or that these programs were meeting their identified needs. Ref: 442.345, 10D-22.116
Class III 5/31/88
The statement of deficiencies also sets out pertinent standards: STANDARD: Resident care plans
NH138 The DON serves as coordinator of an interdisciplinary team responsible for the development, implementation, maintenance and evaluation of each resident's plan of care. Each interdisciplinary team member involved in the resident's care provides input into the development, implementation, maintenance, and evaluation of the resident's plan of care. 10D-29.109(2) NH324 The activities program provides diversified independent and group activities for each resident, including those confined to bed, commensurate with each resident's needs, abilities and interests.
The rule provisions on which HRS relies are set out in the conclusions of law.
TCC provides two programs of group activities as part of the care it affords residents. In specifying which group activities are to be available to a particular resident, the resident's care plan typically listed either the "Stroke Club" or the "Alzheimers Adventure Group," without further elaboration. Only from other documents was HRS' Mr. Melvin able to discern the goals and objectives of the two programs. (T. 117, 119)
In reviewing six charts in particular, Mr. Melvin perceived flaws in residents' care plans, plans that may be summarized, as follows:
Patient | Diagnosis/Problems | Goals | Approaches |
No. 361 | Alzheimer's disease, | Safe and free | ADV. group |
unaware, disoriented unaware of needs and | from harm needs will be | 24 hour su- pervision of care | |
wants | met | learn her signals and needs | |
No. 348 | Alzheimer's disease, unaware, disoriented | will be kept aware of day, time, & place | ADV. program |
No. 368 | CVA (new admit) | monitor needs | get pt. to activities |
No. 365 Alzheimer's disease, free from ADV. program bladder tumors, con- harm and injury
fused, disoriented,
wanders ADV. program
potential for de- & take to
creased social stimula- parties tion & mental status
No. 328 OBS, osteoarthritis, will attend encourage
periods of confusion and depression memory loss and has good past recall | activities, be- come acquainted with others; not to be em- barrassed when she forgets | to parti- cipate in activities introduce to other residents; do not argue or dwell on things | ||
No. | 011 | arthritis & hyperten- sion, altered mental status, unaware of needs | provide needs keep free from harm and in- jury | 24 hour supervi- sion & adv prog. |
For the most part these plans lack specificity and individualization. They do not specify the severity of Alzheimer patients' disease. They are vague enough that it would be, in many instances, difficult to say whether they had been complied with.
Nor was Mr. Melvin impressed with the 20-member Alzheimers Adventure Group in action. When he observed, a woman lay on the floor without participating in the group's activities. But the family of the recumbent resident, well aware of her proclivity to stretch out, agreed with staff that letting her lie was the more sensible and humane course. The other patients sat in rows "for hours in the room . . . [without] any programming . . . except the break at lunchtime". (T 120) Arts and crafts were not available to them.
CONCLUSIONS OF LAW
After respondent TCC filed its petition for formal administrative hearing, HRS forwarded the matter, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987), to the Division of Administrative Hearings, which now "has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1987)
By statute, HRS is entitled to "promulgate, publish and enforce rules" "to provide safe and sanitary," Section 400.441(1), Florida Statues (1987), nursing homes. HRS is authorized to "deny, revoke, or suspend a license or impose an administrative fine," Section 400.414(1), Florida Statutes (1987), if it can prove
(a) An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.
* * *
(d) Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part.
Section 400.412(2), Florida Statutes (1987).
HRS does not seek in this proceeding to revoke or suspend TCC's license to operate a nursing home, but does seek to revoke or suspend TCC's superior rating, action which is practically more significant than levying an administrative fine in an amount less than the loss of income a $50,000 drop in revenues would occasion.
In the absence of "demonstrated financial instability," Section 400.417(1), Florida Statutes (1987), nursing home license renewal is ministerial. Since HRS has not alleged financial instability, expiration of TCC's license does not shift the burden of proof. Dubin vs. Department of Business Regulation, 262 So.2d 273 (Fla. 1st DCA 1972) ("refusal to renew a license to a person who has once demonstrated that he possesses the statutory prerequisites to licensure cannot be used as a substitute for a license revocation proceeding." at 274) Accord, Wilson vs. Pest Control Com'n of Florida, 199 So.2d 777 (Fla. 4th DCA 1967). HRS stipulated that the Department has the burden of proof. (T. II. 12) Under Rule 10D-29.128(6)(e)(3), Florida Administrative Code, however, the nursing home has the burden of going forward, the initial burden to "provide verifiable evidence that all of the items related to a superior rating are occurring on an ongoing basis."
HRS has adopted rules delineating the "standard" and "superior" rating categories:
10D-29.128 Evaluation of Nursing Home Facilities and Rating System.
* * *
Standard rating. A nursing home facility shall be assigned a standard rating if it meets the following minimum requirements:
The facility has not been cited for any deficiencies which the Department determines present an imminent danger to
the residents or guests of the nursing home facility or a substantial probability that death or serious physical harm would result there from or categorizes as a Class I deficiency; and
The facility has not been cited for any deficiencies which the Department determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, or categorizes as a Class II deficiency for that particular
referenced area; and
The facility has corrected all cited Class III deficiencies within the time period prescribed by the Department; and
The facility is in compliance with all conditions contained in the Nursing Home Licensure Survey Report.
Superior rating. A nursing home facility shall be eligible to be assigned a superior rating if it:
Meets minimum requirements as defined in paragraph (5); and
Is in compliance with all standards contained in the Nursing Home Licensure Survey Report; and
Exceeds minimum requirements in all of the following areas here categorized as Level I areas which the Department deems as being essential to maintaining the health, safety, or security of residents:
Nursing services;
Dietary or nutritional services;
Housekeeping and maintenance; and
Activities and volunteer services; and
Exceeds minimum requirements in four of the following seven areas 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:
Staffing ratio of aides and orderlies; training of aides and orderlies;
Pre-service and in-service training of aides and orderlies;
Physical environment;
Physical and restorative therapy; self-help activities;
Social services;
Professional consultant services; and
Notification and monitoring of visitation by physicians.
The facility exceeds minimum requirements on a regular and ongoing basis, enhancing the quality of resident life and care:
The facility offers residents choices and opportunities for decision- making regarding the daily care and services provided to residents in all areas categorized in Level I.
The facility provides additional programs or services, in all areas categorized in Level I and in at least four of the seven areas categorized in Level II, that enhance resident life and care through increased staffing levels, through unusually effective functioning of staff, or through the use of staff with a higher level of professional credentials or through other resources that exceed minimum requirements.
The facility must provide verifiable evidence that all of the items related
to a superior rating are occurring on an ongoing basis. A one time activity will not be sufficient evidence of exceeding minimum requirements.
A superior rating shall be revoked by the department if the department determines that the facility no longer meets the criteria specified in subsection 10D-29.128(6).
The rules cited in the surveyors' statement of deficiencies, HRS' Exhibit No. 1, are also found in Chapter 10D-29, Florida Administrative Code:
10D-29.108 Nursing Services.
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(3) Supervision of nursing services.
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Responsibilities of the Director of Nursing Services shall include, at a minimum, the following:
Coordinating nursing services with other services;
Direction of the planning, implementing, and evaluating of nursing care services for all residents on a 24 hour, seven day a week basis;
Development of work assignments for all nursing services personnel, which are: written, dated, and posted; based on the licensure, qualifications, and competency of nursing services
personnel; in keeping with the specific nursing care need of residents; and made with consideration of the size and physical layout of the nursing home facility;
Development and maintenance of a plan for obtaining relief nursing services personnel and the policies and directions for utilization;
Advising the facility Administrator as to: the number and qualifications of nursing services personnel required to meet the residents' needs and the type and amount of specific nursing care equipment required to meet the residents' needs;
Assuring that all physicians' orders are followed as prescribed, and, if not followed, assuring that the reason is recorded on the resident's medical record during that shift and that the resident's attending physician is promptly notified and his instructions recorded, unless in the judgment of the charge nurse, the situation is not life threatening;
Assuring that each resident's attending physician and family or responsible party are promptly notified of any significant change in the resident's health status;
Assuring that each resident's attending physician is notified in advance of the recommended schedule of physician's visits in accordance with the time frames specified in Rule 10D- 29.107(6), F.A.C.
Assuring that, where possible, a reasonable effort is made to inform the resident and the resident's family or responsible party about impending physician's visits and that they are given the opportunity to ask questions or present information to the physician at the time of the visit;
Establishing a methodology for assessing the nursing care needs of residents and ensuring that the nursing care component of the resident care plan is developed and implemented for each resident and that this plan is periodically reviewed and modified as necessary;
Serving on committees as defined and required by these rules and by the facility's policies;
Development, implementation, and maintenance of written nursing service objectives and standards for nursing
care practices with procedures for implementation;
Assuring that each accident or unusual incident involving a resident is fully documented and reported in accordance with the policies and procedures of the nursing home facility developed in accordance with Rule 10D- 29.106(3), F.A.C.
Assuring that staff education is provided to nursing services personnel
in accordance with the staff education plan;
Assuring that nursing services personnel are not required to perform any duties or functions outside of their assigned resident care duties; anal
Ensuring that the facility's resident care policies and procedures and the policies and procedures developed by the pharmaceutical services committee and the infection control committee, which relate to nursing services, are implemented.
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(5) Nursing care.
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Nursing care provided to residents shall include, but is not limited to, the following nursing measures:
Personal hygiene to maintain health skin, resident comfort, and to prevent infection;
Measurement of basic vital functions, including height and weight measurements on all residents, with abnormalities documented in the resident's medical record and reported to the attending physician;
Maintenance of adequate hydration, with amounts and types of fluids adjusted for residents with special needs. Residents whose fluid intake or output is not within normal range shall be reported to the attending physician for further assessment in regard to fluid and electrolyte status except as provided in 10D-29.110(5) and (6);
Promotion of normal elimination patterns through diet and exercise;
Provision of encouragement and assistance in achieving and maintaining maximum joint range of motion and active range of motion. Every effort shall be
made to keep residents active and out of bed for reasonable periods of time unless contraindicated by the resident's condition or the attending physician's orders;
Institution of a preventive regimen for any resident liable to develop pressure sores.
Residents confined to bed or having limited mobility shall have their position changed at least every two hours to prevent circulatory stasis and pressure to body parts;
Residents who are at risk of developing pressure sores shall have a daily skin examination for redness, discoloration, or blistering at body pressure points;
Promotion of normal sleep patterns without the aid of sleep inducing medications;
Protection from accident, injury, neglect, and abuse;
Control of occurrence of infection through use of aseptic techniques, surveillance of personnel and environmental conditions, identification of high-risk, infection prone residents, health education, counseling, and practicing health promoting habits;
Promotion of resident socialization to maintain reality orientation and alleviate loneliness;
Maintenance of sensory awareness through adequate stimulation, with specific techniques utilized for those residents with sensory impairments;
Promotion of resident's self- concept or self-esteem through promotion of resident independence and self-care activities designed to assist the resident in maintaining an optimal level of functioning in the activities of daily living;
Recognition of signs and symptoms of early disease or complications of disease, documenting observations in the resident's medical record, and reporting observations to the attending physician;
Treatment of residents with kindness and respect to preserve human dignity;
Supervision of resident nutrition except as provided in 10D-29.110(5) and (6):
Ensuring that each resident's diet is served as prescribed and that the resident's food and fluid intake and
output is observed; reporting deviations from normal to the charge nurse or Director of Nursing Services with documentation in the resident's medical record; reporting persistent unresolved food and fluid intake or output problems to the attending physician and Dietary Services Supervisor;
Ensuring that residents are prepared for meals; providing timely assistance with food and fluid intake to residents in need of such assistance; assisting residents, as necessary, in the use of adaptive, self-help devices so as to promote independence in eating;
Being aware of resident's nutritional needs and ensuring that special feelings and nourishments are provided when ordered by the attending physician;
Encouraging and assisting residents, including those seated in wheelchairs, to eat at tables in the dining areas;
Rehabilitative and restorative nursing care:
Rehabilitative and restorative nursing care shall be an integral component of the overall nursing care program, and shall be provided on a 24 hour, seven day a week basis.
Rehabilitative and restorative nursing care provided to residents shall include, but is not limited to, the following:
Positioning and turning. Nursing services personnel shall encourage and assist residents in maintaining good body alignment while standing, sitting, or lying in bed. Particular attention shall be given to the proper positioning and turning of residents confined to bed, who shall be encouraged and assisted in changing positions at least every two hours in order to stimulate circulation and prevent pressure sores and contractures. Residents confined to bed and wheelchairs shall have adequate support for their extremities with necessary and appropriate equipment;
Bowel and bladder training. Nursing services personnel shall assist incontinent residents in gaining bowel and bladder control;
Activities of daily living. Nursing services personnel shall encourage, and when necessary, teach
residents to function at their maximum level in appropriate activities of daily living, for as long as and to the degree that they are able;
Nursing services personnel shall assist residents in carrying out prescribed physical, occupational, speech, or audiological therapy exercises between sessions with the therapist;
Nursing services personnel shall encourage and assist residents who are learning to use and adjust to the use of adaptive equipment and prosthetic devices;
Nursing services personnel shall assist residents in the psychosocial acceptance of their limitations and assist them in redirecting interests and activities, when necessary.
Private duty nurses, aides, orderlies or sitters employed by the resident and not by the facility are excluded from the requirements for certification of nursing assistants as specified in Section 400.211, F.S.
* * * 10D-29.109 Resident Care Plans
The Director of Nursing Services shall serve as coordinator of an interdisciplinary team responsible for the development, implementation, maintenance, and evaluation of each resident's plan of care. It shall be the responsibility of each interdisciplinary team member involved in the resident's care to provide input into the development, implementation, maintenance, and evaluation of the resident's plan of care.
10D-29.116 Resident Activities.
Each nursing home facility shall have written policies and procedures which ensure the provision of an activities program for its residents.
Each nursing home facility shall have an organized activities section in accordance with a written Table of Organization which describes the structure of the activities section, the lines of authority and communication, and the relationship of the activities section to other sections.
Supervision of activities.
The Administrator of each nursing home facility shall designate one person
as Activities Director who shall be responsible and accountable for the supervision and administration of the total activities program.
Responsibilities of the Activities Director shall include, at a minimum, the following:
Coordinating and integrating the activities program with other services,
Serving on committees as defined and required by these rules and by the facility's policies;
Development of work assignments for all activities personnel, which are: written, dated, and posted; based on the qualifications and competency of activities personnel; in keeping with the specific needs of the residents; and made with consideration as to the size and physical layout of the facility;
Advising the facility Administrator as to: the number and qualifications of activities personnel required to meet the residents' needs and the type and amount of supplies and equipment required to fulfill the objectives of the activities program;
Assuring that staff education is provided to activities personnel in accordance with the staff education plan;
Development and maintenance of written objectives for the activities program with procedures for implementation;
Establishing a methodology for assessing the needs and interests of each resident and ensuring that the activities component of the resident care plan is developed, approved by the resident's physician, and implemented for each resident and that this plan is periodically reviewed and modified as necessary; and
Ensuring that the facility's resident care policies and procedures and the policies and procedures developed by the infection control committee, which relate to the activities program, are implemented.
Activities shall be summarized and recorded in the resident's medical record no less often than quarterly.
A sufficient number of activities personnel shall be employed to fulfill the responsibilities and objectives of the activities program.
Space, supplies, and equipment necessary for fulfilling the objectives of the activities program shall be provided.
The activities program shall provide diversified independent and group activities for each resident, including those confined to bed, commensurate with each resident's needs, abilities, and interests.
Activities planned and offered shall include recreational, social, and educational opportunities for the residents.
The activities component of each resident's care plan shall identify and specify the types of therapeutic recreational activities which will contribute to the resident's well-being and which will positively contribute to the restorative and rehabilitative goals established for the resident. Therapeutic recreational activities shall be planned and developed in consultation with nursing service personnel; appropriate qualified therapists, as necessary; and the attending physician.
Residents shall be assisted, as necessary, to participate in religious activities of their own choosing.
Residents shall be assisted, as necessary, to participate in the voter registration and voting process so as to ensure the fullest exercise of their civil rights.
A self-governed resident council shall be organized and maintained to allow residents to work for improvement in resident care and to present grievances to the facility Administrator.
Staff education requirements for activities personnel.
Staff education shall be conducted for activities personnel in accordance with Rule 10D-29.104(11) F.A.C.
The Activities Director shall be administratively responsible for the staff education programs provided to activities personnel.
Pre-service and in-service training for activities personnel shall be conducted in accordance with the staff education plan.
The in-service training program
shall include, at a minimum, the following content:
The psychosocial needs of the elderly and the institutionalized resident;
Communication skills necessary for working with residents who are hearing, speech, or vision impaired;
Rehabilitative and restorative techniques which promote and maintain the self-help skills of residents;
Those items specified in Rule 10D- 29.104(11)(e), F.A.C.; and
An overview of applicable State and Federal nursing home laws and regulations.
An ongoing volunteer program shall be encouraged to enrich the services provided to residents and to afford residents the opportunity to benefit from increased contact with persons from the local community. If the facility has a volunteer program, the Administrator shall designate one person as Director of Volunteer Services who shall be responsible for the supervision and administration of the facility's volunteer program. Persons designated as Directors of Volunteer Services may be either facility personnel or volunteers. Responsibil- ities of the Director of Volunteer Services shall include, at a minimum, the following:
Coordinating and integrating volunteer services with all other services in which volunteers are utilized;
Keeping accurate attendance records of all volunteers; and
Ensuring that orientation and training is provided to all new volunteers which include, at a minimum, the following content:
The role of the volunteer in the facility;
A general orientation to the facility's operation;
Communication techniques necessary for working with residents who are hearing, speech, or vision impaired;
An overview of the psychosocial needs of the elderly and the institutionalized resident; and
Those items specified in Rule 10D- 29.104(11)(e) , F.A.C.
* * * 10D-29.123 Infection Control.
An infection control committee, appointed by the facility Administrator and comprised of at least the Medical Director or Medical Consultant, the facility administrator, the Consultant Pharmacist, the Dietary Services Supervisor, the Director of Nursing Services, the Housekeeping Services Supervisor, and a representative from Maintenance, shall be established.
The infection control committee shall be responsible for the development and maintenance of written policies and procedures governing the prevention, control, and investigation of infection in the facility.
All policies and procedures developed by the infection control committee shall be reviewed no less often than annually and shall be revised as necessary.
The infection control committee shall meet no less often than quarterly and written, dated minutes of all committee meetings shall be retained on file in the facility.
The infection control committee shall seek consultation from the director of the local county health unit, as necessary.
The policies and procedures developed by the infection control committee shall include, at a minimum, policies and procedures governing the following:
Methods of maintaining sanitary conditions in general areas, which shall include, at a minimum, the following:
Handwashing;
Care of equipment;
Housekeeping;
Sterile supply storage areas;
Preparation and storage of food;
Vermin control;
Resident care practices;
Care of linen; and
Disposal of liquid and solid wastes.
Monitoring of the methods of maintaining sanitary conditions no less often than quarterly.
The admission and retention of residents, which shall include, at a
minimum, the following requirements:
Upon initial admission to a nursing home facility, or within 72 hours thereafter, each resident shall provide a statement from their attending physician detailing all known conditions that the resident has that may be communicable to others and that the resident has had sufficient examination within the past 6 months to rule out active tuberculosis.
No resident who is suffering from a communicable disease in the transmissible stage shall be admitted or retained in a nursing home facility unless the facility Medical Director or Medical Consultant in conjunction with the infection control committee determines that adequate and appropriate isolation measures are being, or can be, carried out.
The reporting of diseases as required by Chapter 10D-3, F.A.C.
The health status of personnel, which shall include, at a minimum, the following requirements:
All employees, within 15 days of commencement of their employment shall be provided, or referred for, health examinations to determine their freedom from communicable disease. The physician's report of this health examination shall include a statement that the employee shows no evidence of a communicable condition which would jeopardize the health of any person under care at the facility.
All employees not known to be tuberculin reactors shall, within 15 days of commencement of their employment, document that they have been examined for tuberculosis by means of a tuberculin skin test taken within the past 6 months. Positive reactors to such testing shall provide documentation of adequate preventive therapy or the results of a chest x-ray taken within the past 6 months.
Within 15 days of commencement of their employment, all previously identified positive reactors shall provide documentation of the results of a chest x-ray taken within the past 6 months. All non-reactors shall be tuberculin tested annually.
Any employee who either has, or exhibits signs or symptoms of a
communicable condition shall be removed from duty until determined to be non- communicable and capable of returning to duty.
Infection control measures, which shall include, at a minimum, the following:
Isolation procedures for residents in communicable stage of disease.
Specifics of nursing care for residents with infection consistent with the facility's infection control policies and procedures and with established standards to control transmission of the disease.
Specifics for monitoring the course of infection, which shall include, at a minimum, a written report, prepared monthly by nursing services personnel, on the status of each infection present in the facility. This report shall include, at a minimum, the following:
Diagnosis;
Description of infection;
Causative organism, if identified;
Date and time of onset of symptoms, if known;
Treatment and date initiated;
Resident's progress;
Control techniques utilized; and
Specific diagnostic test employed.
A case review of all infections occurring in the facility.
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10D-29.124 Housekeeping; Linen and
Laundry.
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(2) Linen and laundry.
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The administrator of each nursing home facility shall designate one person as being responsible for linen and laundry services in the facility who shall ensure that:
Written policies and procedures for linen and laundry services, including methods of collection, storage, and transportation are developed, implemented, and maintained in conjunction with the policies and procedures developed by the infection control committee.
These are the criteria against which TCC's entitlement to a continued superior rating must be judged.
License revocation proceedings have been said to be "`penal' in nature". State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d
391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).
See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,
393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.
Assuming for purposes of decision that HRS has the same burden of persuasion when it seeks to revoke a superior rating that it has in license revocation proceedings, HRS has met the burden here, because TCC did not come forward initially with "verifiable evidence," Rule 10D-29.128(6)(e)(3), Florida Administrative Code, that all the requirements for a superior rating, notably the requirements set out in Rule 10D- 29.128(6)(e), Florida Administrative Code, were met. HRS did not establish, however, that the lapses in infection control procedures amounted to "an imminent danger . . . or a substantial probability that death or serious physical harm would result". Rule 10D-29.128(5)(a), Florida Administrative Code.
It is, accordingly, RECOMMENDED:
That HRS revoke respondent's superior rating, until and unless respondent demonstrates its renewed eligibility for the same.
DONE AND ENTERED this 9th day of January, 1989, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2326
Petitioner's proposed findings of fact Nos. 1, 2, 12 and 13 have been adopted, in substance, insofar as material.
Petitioner's proposed findings of fact Nos. 3, 4, 6, 7, 8, 9, 10, and 11, merely recite testimony.
With respect to petitioner's proposed finding of fact No. 5, the infection control log was inaccurate, subparagraphs (c) and (e) are adopted; and the remaining parts of the proposed findings relate to subordinate matters.
Petitioner's proposed finding of fact No. 14 has been adopted in part only. Respondent's proposed finding of fact No. 15 is a proposed conclusion of
law.
Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 8, 10, 14, 16, 18,
23, 24 and 27 have been adopted, in substance, insofar as material.
With respect to respondent's proposed finding of fact No. 5, a new infection control nurse began work.
Respondent's proposed findings of fact Nos. 6, 7, 9, 11 (as to
individualization) 12, 15, 19 (including secretion precautions) 22 and 26 have been rejected as against the weight of the evidence.
Respondent's proposed finding of fact No. 13 merely recites testimony.
With respect to respondent's proposed finding of fact No. 17, an HRS witness did cite the patient's opinion.
With respect to respondent's proposed finding of fact No. 20, the infection control log was up to date, but inaccurate.
Respondent's proposed finding of fact No. 21 is a proposed conclusion of
law.
Respondent's proposed finding of fact No. 25 relates to subordinate
matters.
COPIES FURNISHED:
Frederick J. Simpson, Esquire Post Office Box 2417 Jacksonville, Florida 32230-0083
R. Bruce McKibben, Jr., Esquire Dempsey & Goldsmith, P.A.
Post Office Box 10651 Tallahassee, Florida 32303
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
R. S. Power, Agency Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407
Tallahassee, Florida 32399-0700
| Issue Date | Proceedings |
|---|---|
| Jan. 09, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 02, 1989 | Agency Final Order | |
| Jan. 09, 1989 | Recommended Order | Nursing home's failure to supply verifiable evidence justified denial of superior rating but HRS did not prove infection control lapses were serious. |
