vs. ) Case No. 97-0575
Respondent. )
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Administrative Law Judge, on August 21, 1997, in Brooksville, Florida. The appearances were as follows:
For Petitioner: Thomas W. Caufman
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
The issues to be decided in this proceeding concern whether the Respondent’s license to operate a nursing home should be
disciplined by the imposition of the a Conditional License due to purported violations of nursing home regulatory rules.
This cause arose upon the issuance of a Conditional License by the Agency for Health Care Administration to the above-named Petitioner (Eastbrooke; Petitioner) because of purported deficient care instances allegedly discovered in surveys of the facility conducted on May 31 and October 31, 1996. Eastbrooke challenges the findings upon which the intended Conditional License is based. Upon formerly availing itself of its rights to challenge that initial Agency decision, the cause was ultimately transmitted to the undersigned Judge and came on for hearing as noticed.
Upon convening the hearing the Agency presented the testimony of four (4) witnesses and offered two (2) exhibits which were admitted into evidence. The Petitioner presented the testimony of two (2) witnesses and had four (4) exhibits admitted into evidence. Upon conclusion of the proceedings, the parties obtained a transcript thereof and requested an extended period of time in which to file proposed recommended orders. A Recommended Order was duly submitted by the Petitioner, but one has not been received from the Respondent.
The Respondent is an agency in the State of Florida charged with inspecting nursing homes and enforcing nursing home licensure requirements and performance standards in accordance with Chapter 400, Florida Statutes, and Rule 59A-4.128, Florida Administrative Code. The Petitioner rates nursing home licensees as either superior, standard, or conditional pursuant to this rule provision.
The Petitioner is a licensed nursing home located and operating in Brooksville, Florida. It is known as Eastbrooke Health Care Center. (Eastbrooke; Petitioner). The Respondent surveyed the Petitioner for performance evaluation purposes on May 31, 1996, and conducted a follow-up survey visit on October 31, 1996. The Respondent claimed at hearing that the
Petitioner was deficient in four (4) categories, referred to in the records as “tags”: F248, F250, F279, and F326. Each tag corresponds to a particular regulation. The findings in these tags or categories are incorporated into a survey report known as a “2567,” which is provided to the nursing home after the survey is completed. This form serves as a charging document for issuance of a Conditional License.
Tag F248, concerning the May 1996 survey, requires that a nursing home “must provide for an ongoing program of activities designed to meet, in accordance with the comprehensive
assessment, the interests and the physical, mental, and phychosocial well-being of each resident.” Under this category that Agency asserted the Eastbrooke was deficient because residents complained that they wanted more activities outside the building, like shopping. The Agency acknowledged that nothing in the rule required activities outside the building.
Eastbrooke has a comprehensive and varied activities program, as evidenced by its activities calendar and its efforts to provide a variety of programs for its residents. It conducts resident meetings once a month, and attempts to meet the requests of residents expressed at those meetings. No request had been made for outside activities until May 1996, as evidenced by the Minutes of those meetings. An outside event was scheduled in June of 1996 for residents.
While the Agency asserted as a deficiency that there had been no assessment of Resident 7’s activity preferences, the evidence actually shows, including excerpts from the resident’s file, that a complete assessment of such preferences, including a specific recreational assessment, and a care plan which provided for individualized activities, was done.
AHCA also found, as a deficiency, that Resident 7 was to be involved in “group activities,” because the “therapeutics” of such activity, related to vision impairment, was not clear. It was explained by the Petitioner’s administrator, however, that such involvement was to prevent social isolation caused by the
vision impairment. The Agency, in any event, failed to explain how involving a resident in group activities could violate the requirement to provide an activities program.
The Agency asserted that the activities program for Resident 9 was deficient because she liked arts and crafts but not the activities that were offered to her. The Agency acknowledged that there was an activities plan for Resident 9, however. Additionally, the evidence shows that the resident had exceptionally long finger nails which she refused to cut and which prevented her from participating in most arts and crafts. Further, she was being treated for depression which was a cause for her refusal to participate in activities. The Agency’s assertion of the deficiency was based solely on the comments of the resident and not on any substantive evaluation.
AHCA maintained that Resident 21’s recreational preferences were not known. However, this is inaccurate, as the recreational assessment was in the resident’s file and shows that the resident had been assessed for activities, was offered activities, and made his own independent choices. This assessment was either overlooked or not considered by the Agency.
Concerning the October survey visit, the Agency did not review Residents 7, 9, or 21, who had been reviewed in the May survey to determine whether the alleged deficiencies it claimed to have found had been corrected. Instead it reviewed a different set of residents and the numbers do not correlate.
Resident 9, surveyed in October, in effect is not the same person as Resident 9, who was surveyed in May.
The Agency alleged in October that Resident 9 was provided one-on-one activities but did not receive them for
two (2) weeks because he was asleep at the time the visits were scheduled. It therefore contended that Eastbrooke was deficient. The Agency does not dispute, however, that the effort was made to visit the resident, nor that there was an activities program in place for the resident. The record establishes that the resident was also participating in group activities during this time.
The Agency’s assertion that the last activity for Resident 13 had been in January was shown, by October entries from that resident’s file, to be in error. The resident, who was completely unaware of her surroundings, was regularly provided various forms of sensory stimulation.
Concerning the May visit and Tag F250, the Agency asserts that the failure to provide Resident 6 with lower dentures was a deficient practice. The Agency maintains that the resident claimed that she was embarrassed by not having her dentures. The evidence shows, however, that she was admitted to the nursing home from her own home without dentures and that she regularly went out to eat with her family after being placed in the nursing home without dentures and that she was on a regular diet with no problems in eating or maintaining her weight. It appears that dentures were not medically required and that their
absence caused the resident no distress. The Agency’s findings were based solely on the resident’s isolated comment without further investigation. She had not expressed any interest in dentures before the survey was made.
The Agency also cited the Petitioner concerning Resident 9, in spite of the surveyors acknowledgment that Resident 9 received all necessary social services and was being appropriately treated for the problem of motivation. The Agency’s admission contradicts any finding of a deficiency with regard to this resident.
The Agency asserted that Resident 7 had dental pain and infection and should have had a dental consultation. The testimony and records reflect that the resident, while “at risk” for dental problems, did not suffer from pain and infection and that the facility was attempting to obtain a dental consultation, but had difficulty finding a dentist who would come to the facility in Brooksville. Reasonable efforts had been made to provide this service. They should continue.
The Agency also found that the absence of social service notes for the discharge concerning Resident 20, constituted a deficiency. The records reflect that resident was in for a short term of rehabilitation for her broken hip and that constant contact was maintained with her family with regard to her planned return home to Michigan. Her family was made aware
of her follow-up needs. The discharge needs in fact were fully addressed by the Petitioner.
The Agency also contends that there was a lack of discharge planning for Resident 19 in violation of the pertinent regulation. The Petitioner, however, had only one (1) day’s notice of her discharge, as she was moved by her husband to another facility closer to their home when a bed became available there. Her husband had taken care of all the planning for the move although Eastbrooke did provide her with a discharge summary to assist the new facility in understanding her care needs.
Upon re-surveying the Petitioner in October 1996, the Agency did not attempt to review Residents 6, 7, 9, 20, or 19, from the May survey to determine whether the alleged deficiencies as to them had been corrected. Resident 9 in the October visit had vision problems and the Agency alleged that the plan to have a vision consultation in December was not soon enough. The resident had had an evaluation in April and already wore glasses. She was being monitored for signs of vision problems. There was no urgent need to have her eyes examined before December, and the surveyor’s opinion that an examination should have been scheduled immediately, was unsupported by the established facts.
Tag F279 requires a nursing home to “develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident’s medical, nursing, and mental and psychosocial needs that are
identified in the comprehensive assessment.” The Agency has asserted that, with regard to the May survey, that although Resident 1 should have had a care plan for dental problems, there was none. The records show, however, that there was a dental care plan, and it had been in existence since August 2, 1995, with periodic reviews and updates.
The Agency also contended that Resident 4 had a problem related to activities that should have been addressed in her care plan. In fact, the comprehensive assessment, a standardized process, did not reveal a problem related to activities. An activities assessment and update had been done, nonetheless.
The citation for Resident 7 was the same as that under F248. The surveyor did not understand why she should be involved in group activities. The purpose of this activity is well explained by the Petitioner. See Petitioner’s Exhibit 3, May Tab
8 A, B; Transcript pages 102-103.
The Agency’s concern with regard to Resident 9 was apparently that there was not a specific goal related to mobility on the care plan. The problem of mobility was addressed on the care plan, however, as an “approach” rather than a “goal,” though there were documented problems getting the resident to agree to get out of bed. In any event the problem was addressed in the care plan as required by the regulation.
In October the Agency did not review Residents 1, 4, 7, or 9, who had been surveyed in the May visit, to determine
whether the alleged deficiencies were corrected. The problem found by the Agency with regard to Resident 7 in October was that although the resident was obese, the care plan did not show a goal of losing weight, but instead had a goal to be free of complications of obesity. The surveyor who offered this opinion, however, was not a nurse, doctor, or dietician. Care plans are formulated and reviewed at Eastbrooke by an inter-disciplinary team of health care professionals. The opinion of a surveyor without such expertise, who had not examined the resident in question, is of little probative value. Moreover, Eastbrooke presented sufficient reasons as to why a goal of losing weight would have been inappropriate for this resident.
The Agency criticized the care plan for Resident 6 because the fluid level intake goal was not given in a specific measure. Other documents in the resident’s file, however, show the amount of fluid to be provided and the prescribed amount of fluid was put on the resident’s food tray by the dietary staff. The goal was therefore measurable in conjunction with other records in the file. There was no reason to restate the numbers in the care plan.
AHCA also claimed that the goal for Resident 9 was not measurable, because it provided for the resident to “not display signs/symptoms of functional decline.” Functional abilities are measured by an instrument called a “Minimum Data Set,” or “MDS,”
which is reviewed for each resident at least quarterly. This goal was therefore measurable.
The Agency also criticized the care plan for Resident 13 as non-measurable in that it referred to “optimal quality of life.” The surveyor who made this notation did not have a copy of the care plan and did not know its date. The Petitioner presented the testimony of a registered nurse, who
reviewed that resident’s entire file and was unable to locate a care plan containing a goal as described by the Agency. The Agency failed to prove this purported deficiency in the care plan.
Concerning Tag F316, the Agency presented testimony concerning the May survey visit. The Agency presented no testimony regarding this “tag” related to the October survey. Without a repeat or continuation of the deficiency, it cannot form a basis for imposition of a conditional license, as explained in the Conclusions of Law below.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of this proceeding and the parties hereto.
The Agency has the burden of proof to show by a preponderance of the evidence that the allegations of the complaint or charging document are true and therefore that there exists a basis for imposition of a Conditional License. Young v.
State, Department of Community Affairs, 567 So. 2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).
In determining whether a licensee has violated
Section 400.121, Florida Statutes, one “must bear in mind that it is, in effect, a penal statute . . . this being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it.
Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee”. Lester v. Department of Professional and Occupation Regulation, 348 So. 2d 923, 925 (Fla. 1st DCA 1977). Disciplinary action with respect to a license is limited to offenses or facts alleged in the administrative complaint. Sternberg v. Department of Professional Regulation, Board of Medical Examiner, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987).
A conditional licensure rating “means that a facility has . . . Class III deficiencies not corrected within the time established by the Agency, is not in substantial compliance at the time of the survey with criteria established under this part, [or] with rules adopted by the Agency . . ,” Section 400.23, Florida Statutes.
Rule 59A-4.128 sets forth somewhat more specific requirements for assignment of a conditional rating:
(b) if at the time of the re-licensure survey, the facility has Class III deficiencies, or Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm and at the time of the follow-up survey, such deficiencies are not substantially corrected within the time frame specified by the agency and continue to exist.
Rule 59A-4.128 further states that “for rating purposes, the following deficiencies are considered equal in severity: Class III deficiencies and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm.”
AHCA has further clarified through Final Order that a conditional rating is issued only when Class III deficiencies are not substantially corrected within the time established by AHCA and where the uncorrected deficiencies “constitute a widespread potential for more than minimal harm to resident health or safety.. . .” State of Florida Agency for Health Care Administration v. Beverly, Case No. 96-4107, Final Order dated May 22, 1997. In summary, a Conditional License is to be imposed for Class III deficiencies only where the Agency demonstrates that they are uncorrected upon a re-survey and that they constitute a widespread potential for more than minimal harm.
The Conditional License in this matter was imposed because AHCA determined that there were Class III deficiencies found in the May survey which had not been corrected when the facility was
re-surveyed in October. AHCH therefore had the burden of proving that Class III deficiencies existed in May and were not substantially corrected in October.
The Agency further had the burden of showing that the deficiencies constituted a widespread potential for more than minimal harm to residents health or safety. The Agency put on no proof that the alleged deficiencies in the activities plans, social services, or care plans constituted a widespread potential for harm of any sort.
The Agency also failed to demonstrate that any alleged deficiencies cited in May were uncorrected in October, as the surveyors did not even look at the same residents. For example, the plan for Resident 4 was faulted by AHCA in May for failure to address activities, yet there is nothing to show that Resident 4’s care plans still failed to address activities in October.
The Agency has the burden of showing that the facility failed to correct specific cited deficiencies in order to impose a Conditional License. Without reviewing those deficiencies originally cited, there can obviously be no finding that they were uncorrected.
Concerning Tag F248, the Agency did not prove that Eastbrooke had failed to have an activities program designed to
meet the needs of each of its residents in either May or October. Each resident had an assessment and an individualized program.
The fact that some residents expressed an interest in additional activities or matters is not cause to find that the nursing home failed to meet the regulatory requirements.
The Agency also did not meet its burden of proof in showing that Eastbrooke failed to provide medically related social services. See Tag F250. The survey findings were largely based on incomplete reviews of the record, and the Agency’s failure to obtain explanatory information. All medically related social services needed by the residents cited in both May and October, were provided by the Petitioner.
The Agency’s findings concerning Tag F279, as to both May and October surveys, were also unsupported by the facts. The Agency also presented no testimony or evidence regarding Tag F316 for the October survey. These alleged deficiencies therefore cannot form the basis for imposition of a Conditional License.
The Agency failed to establish the existence of any of the alleged Class III deficiencies at either the May survey or at the time of the follow-up review in October. There is absolutely no evidence that any deficiencies constituted a “widespread potential for more than minimal harm” to residents.
A conditional rating is an indication that a nursing home is not being operated in compliance with the law. The license must be displayed “in a prominent place that is in clear
and unobstructed public view at or near the place where residents are being admitted to the facility.” Section 400.23(8)(g), Florida Statutes. A conditional rating is a statement by the Agency designed to notify the public that a facility is performing in less than adequate fashion. Thus such a rating should not be imposed arbitrarily or without careful consideration. The Agency has the burden of proving that the facility is below standards and in doing so, as shown by the Lester opinion, supra, the statute must be strictly construed.
No conduct is to be regarded as included within it that is not reasonably proscribed by it.
In this instance the Agency failed to establish that deficiencies alleged in May were uncorrected in October. It failed to show that any alleged deficiencies constituted a widespread potential for harm, and it failed to establish even the existence of any of the alleged deficiencies in either the May or October surveys. Therefore the Petitioner still meets the statutory requirements for a standard rating.
Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore
That a Final Order be entered by the Agency for Health Care Administration establishing a standard rating for the Petitioner and rescinding the conditional rating. DONE AND ENTERED this 8th* day of December, 1997, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 8th* day of December, 1997.
*Note: Corrective Order of January 12, 1998, references 9th day of December, 1997, as true filing date.
Thomas W. Caufman Agency for Health Care
Donna H. Stinson Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
Douglas M. Cook, Director Agency for Health Care
Jerome W. Hoffman, Esquire Agency for Health Care
15 days from the date of this Recommended Order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
