STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, AGENCY FOR ) HEALTH CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 98-2554

)

OAK TERRACE SPECIALTY CARE )

CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, November 9, 1998, in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: Michael O. Mathis, Senior Attorney

Agency for Health Care Administration 2727 Mahan Drive, Suite 3408-D

Fort Knox Building III Tallahassee, Florida 32308

For Respondent: R. Davis Thomas, Jr.

Qualified Representative Broad and Cassel

215 South Monroe Street, Suite 400 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Oak Terrace Specialty Care Center, should have received a "conditional" rating for the period February 12, 1998, through May 8, 1998.

PRELIMINARY STATEMENT

By letter dated May 8, 1998, Petitioner, the Agency for Health Care Administration, notified Respondent, Oak Terrace Specialty Care Center, that its license rating, effective February 12, 1998, was "conditional." On or about May 28, 1998, Respondent filed a Petition for Formal Administrative Hearing with Petitioner challenging this proposed decision.

Respondent's petition was filed with the Division of Administrative Hearings by Notice from Petitioner on June 3, 1998. The petition was designated Case No. 98-2554, and was assigned to the undersigned.

The Agency for Health Care Administration was incorrectly designated as "Respondent" in both the petition and the Notice filed with the Division of Administrative Hearings. At the commencement of the formal hearing, the style was corrected to reflect that the Agency for Health Care Administration had the burden of proof in this matter and, therefore, was Petitioner.

At the formal hearing Petitioner presented the testimony of Paula Havird and Nancy Smith. Petitioner's Composite Exhibits A and B were entered into evidence.

Respondent presented the testimony of Merrie Wilner, Kathleen Maddox, and Stacey Britton. Respondent's Exhibits 1 and

2 were entered into evidence.

A transcript of the hearing was filed on November 18, 1998.

Proposed orders were, therefore, due on or before December 8, 1998. Respondent, however, requested an extension to December 23, 1998, to file proposed orders. The requested

extension was granted by an order entered December 14, 1998. Both parties filed proposed orders. The proposed orders have been fully considered in entering this Recommended Order.

FINDINGS OF FACT

1. The Parties.

   1. Petitioner, the Agency for Health Care Administration (hereinafter referred to as "AHCA"), is an agency of the State of Florida. AHCA is charged with the responsibility for, among other things, evaluating nursing home facilities in the State of Florida and rating their licenses. Section 400.23, Florida Statutes (1997).

   2. Respondent, Oak Terrace Specialty Care Center (hereinafter referred to as "Oak Terrace"), is a nursing home located in Green Cove Springs, Florida. Oak Terrace is licensed by the State of Florida.

2. AHCA's Initial Survey.

   1. Between February 9 and 12, 1998, AHCA staff conducted a survey of Oak Terrace to determine how its license should be rated (hereinafter referred to as the "Initial Survey"). The Initial Survey was part of AHCA's annual evaluation of Oak Terrace.

   2. Prior to the Initial Survey, Oak Terrace's license was rated "Superior," as it had been for the past two years.

   3. Following the conclusion of the Initial Survey, AHCA issued a survey report (hereinafter referred to as the "Initial Report") in which it concluded that Oak Terrace had committed a number of violations of regulatory standards.

3. AHCA's Follow-up Surveys.

   1. AHCA staff returned to Oak Terrace on April 17, 1998, to determine if the deficiencies found during the February 1998 evaluation had been corrected (hereinafter referred to as the "Second Survey"). AHCA concluded that all but two of the deficiencies found during the Initial Survey had been corrected. Those deficiencies were as follows: (a) Oak Terrace had failed to maintain residents' dignity; and (b) Oak Terrace had failed to maintain adequate nutritional parameters for residents. These deficiencies were identified in AHCA's survey report completed after the Second Survey (hereinafter referred to as the "Second Report") as "Tag Number F241," relating to resident's dignity, and "Tag Number F325," relating to nutritional parameters.

   2. The two uncorrected deficiencies found during the Second Survey were classified by AHCA as "Class III" deficiencies.

   3. As a result of AHCA's determination that the some of the alleged deficiencies found during the Initial Survey had not been corrected between February 12, 1998, and April 17, 1998, AHCA changed the rating on Oak Terrace's license from "superior" to "conditional" retroactive to February 12, 1998.

   4. Oak Terrace was required to post the conditional license conspicuously near the facility's entrance and its name was included on a list of facilities with conditional licenses provided by AHCA to newspapers throughout Florida.

   5. On May 8, 1998, AHCA returned to Oak Terrace for a second follow-up evaluation. It was determined at this time that the two deficiencies which had determined to still exist during

      the Second Survey had been corrected. A license rated "standard" was issued by AHCA effective May 8, 1998.

4. Tag Number F241.

   1. Tag Number F241 relates to 42 Code of Federal Regulations, Section 483.15(a), which requires the following:

      The facility must promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality.

   2. In evaluating this regulation, AHCA staff are provided the following guidance in AHCA's State Operations Manual concerning what constitutes "dignity":

      "Dignity" means that in their interactions with residents, staff carry out activities which assist the resident to maintain and enhance his/her self-esteem and self-worth.

      . . . .

      
      

      . . . . As part of the team's information gathering and decision-making, look at the actions and omissions of staff and the uniqueness of the individual sampled residents and on the needs and preferences of the resident, not on the actions and omissions thereof. [Emphasis in original].

      Several examples of "dignity" are provided in the Operations Manual. Those examples emphasize the need to recognize the individual wishes and preferences of residents.

   3. The conclusion that Oak Terrace had violated residents' dignity during the Initial Survey was based upon five findings.

   4. The first finding made during the Initial Survey was that "signs identifying care needs were located in resident rooms

      on the West and East Wings. These signs, noted to be in full public view, may not maintain the self-worth of all residents."

   5. During the formal hearing of this case, AHCA's staff who testified about this finding only identified one "sign" identifying resident needs that had been observed. The "sign" consisted of a paper note that was placed on the outside of a closet door located in a resident's room. The note was visible from inside the room but not from the hallway. The note had been placed on the door by the resident's family and directed that the resident was not to wear pants, make-up, or nail polish. The resident, who was alert but "confused," was not interviewed by the consultant who concluded that the resident's dignity "may" not have been maintained. The evidence failed to prove that the resident knew about the sign or cared whether the sign was on the door. The evidence also failed to prove that anything contained in the note was offensive or undignified.

   6. The evidence also failed to prove that any other signs were observed during the First Survey. The only evidence concerning other signs was hearsay, uncorroborated by any other admissible evidence.

   7. The first finding in the Initial Report concerning notes was not found as a deficiency during the Second Survey. Therefore, this deficiency was corrected between the Initial and Second Surveys. This finding, therefore, does not constitute a Class III deficiency. Additionally, when the nature of the note, the condition of the resident, the fact that the family requested the placement of the note on the door, and the location of the

      note do not constitute a violation of 42 Code of Federal Regulations Section 483.15(a).

   8. The second finding made during the Initial Survey was that the same resident with the note on the closet door was observed at 8:50 a.m. lying in bed "with a fitted sheet only halfway covering the mattress, exposing bare mattress. The resident was lying on top of the partially sheeted bed in a hospital gown askew with right leg exposed to buttocks." Of greatest concern to AHCA's staff member that witnessed this incident was the fact that the Oak Terrace staff member with her at the time of the incident took no action to fix the sheet and cover-up the resident.

   9. The resident's exposed leg and buttock were facing toward the wall and away from the door to the hallway. The evidence failed to prove how long the resident was uncovered.

   10. The second finding in the Initial Report was not found as a deficiency during the Second Survey. Therefore, this deficiency was corrected between the Initial and Second Surveys. The second finding in the Initial Report, therefore, does not constitute a Class III deficiency. Additionally, given the nature of this incident, it is concluded that the incident does not constitute a violation of 42 Code of Federal Regulations Section 483.15(a). The only people who saw the resident were both nurses; the resident was not visible to anyone outside of her room, and the incident was corrected that morning.

   11. The third finding made during the Initial Survey was that a number of residents had told AHCA staff that "the

       breakfast meal is not always served on time. 'Last week, the breakfast meal came as late as 9:00 am' . . . ." The evidence concerning this finding was hearsay. No evidence was presented at hearing by any individual who actually experienced the late serving of the breakfast meal noted in the Initial Report. The only evidence concerning this issue was testimony that residents told AHCA staff that meals were served late. As a consequence, the evidence failed to prove any specifics concerning late meals. In particular, the evidence failed to prove whether the late served meals occurred on more than one day or how late the meal(s) were. The evidence also failed to prove whether AHCA staff discussed the matter with staff of Oak Terrace to determine whether there was any reasonable explanation for meals that were served late.

   12. Meals at Oak Terrace are served in five different locations. Serving times are staggered. Breakfast trays are delivered to the resident floor beginning at 7:30 a.m. and ending at approximately 8:30 a.m. It normally takes approximately 15 minutes for staff to deliver trays to the residents. It is possible that the one individual quoted in the Initial Survey was scheduled to receive breakfast between 8:30 and 8:45 and, therefore, only received it 15 to 30 minutes late. It is also possible that an emergency occurred on the day to which the quote relates.

   13. Based upon the foregoing, AHCA failed to prove the finding in the Initial Report that breakfast meals were served

       late. There cannot, therefore, be any Class III deficiency related to late served meals.

   14. During the Second Survey, three findings related to food service were made. First, the Second Report contains a notation that meals were not always served on time. Again, this finding was based largely on hearsay and, therefore, was not proved at hearing. The only evidence not based upon hearsay was an actual observation of one breakfast meal that was served approximately 20 minutes late on April 17, 1998. That finding was the only deficiency concerning the late serving of meals and, therefore, cannot constitute a Class III deficiency.

   15. The second finding concerning food in the Second Report was that residents had reported during a group meeting that they had been served food on paper plates and that this had occurred on a Sunday and on several other occasions. It was also noted that these incidents had occurred when the water had been turned off or when the dishwasher was not in service. Finally, it was noted that residents had not been given advanced notice that the water would be turned off. It was this last observation, and not the use of paper plates, which led AHCA staff to conclude that there was a deficiency.

   16. The guidelines used by the AHCA consultants indicate that nursing home facilities should avoid the "day-to-day" use of plastic culinary and paper/plastic dishware. The evidence concerning this issue failed to prove that paper plates were used "day-to-day." The evidence proved that paper plates were only used four times between January and November 1998.

   17. To the extent that Oak Terrace admitted that paper plates had been used to serve residents, Oak Terrace adequately explained the circumstances when paper plates were used: (1) when water service was turned off by the utility provider; or (2) when the dishwasher was not working. These circumstances justify the use of paper plates. The evidence also proved that when these incidents occurred, it was without warning or advanced notice.

   18. The last finding made the Second Survey concerning food was that food was not always served hot. This finding was supported primarily by hearsay. None of AHCA staff who participated in the surveys actually witnessed food being served cold. To the extent that Oak Terrace admitted that food may have been served that was not hot, Oak Terrace adequately explained the circumstances that may have caused such incidents.

   19. Obviously, when food is served on paper or plastic plates it is possible that it will not be as hot as when it is served on china. This is because hot plates, which are normally used to keep food warm when it is served on china, cannot be used when food is served on paper or plastic. Even if food is not hot when it arrives, Oak Terrace has made provisions to reheat the food. Microwave ovens are provided throughout the facility. A resident merely has to request that the food be warmed, even when it is served on paper plates.

   20. The evidence failed to prove that Oak Terrace violated resident dignity in its provision of food services to residents.

   21. The fourth finding made during the Initial Survey was that some residents had been disturbed by noise during the

       changing of the night shifts. Again, the evidence concerning this finding was hearsay and, therefore, AHCA did not prove that the incident occurred. Additionally, if the incident did occur, the evidence failed to prove when the incident took place, whether it took place more than once, how long the incident lasted, or how many residents heard the noise.

   22. During the Second Survey, an AHCA staff member did observe one change of shift at 3:00 p.m. which she characterized as "an increased level of noise not respectful of the facility residents." The 3:00 p.m. shift change is the largest shift change at Oak Terrace because it involves two large groups of employees. Noise levels, therefore, are louder than at other times. The building, which is cement block with no acoustical tiling, doesn't keep noise levels down.

   23. In light of the failure to prove that a shift change was too noisy during the Initial Survey, the evidence failed to prove that, even if the noise actually observed by AHCA staff was contrary to resident dignity, the incident was not a repeat offense. Therefore, noise levels during shift changes were not Class III deficiencies.

   24. AHCA staff also observed a member of the nursing staff yelling the name of a resident down the hall at 8:45 a.m. during the Second Survey.

   25. The evidence failed to prove that, even if the noise caused by nursing staff yelling down the hall constitutes a deficiency, the incident was not a repeat offense. Therefore, yelling down the hall was not a Class III deficiency.

   26. Finally, it was reported in the Second Report that at 9:25 a.m. a nursing staff member called out for another staff member down a hallway. No witness to this alleged incident testified at the formal hearing of this matter. The evidence, therefore, failed to prove that the incident took place.

   27. The fifth finding made during the Initial Survey was that a number of residents reported that they were not always provided showers at their scheduled times. Again, only hearsay evidence was presented during the formal hearing to support these deficiencies. Therefore, no specifics, such as when the incidents occurred, how often showers were late, or how long showers were delayed, were proved at hearing. The evidence also failed to prove whether AHCA staff discussed specific incidents with the staff of Oakland Terrace in an effort to determine whether there was any reasonable explanation for why a shower may have been delayed.

   28. Showers at Oak Terrace are scheduled either daily or biweekly. When a shower is scheduled, it is either given during the first or second shift of the day. There are times, however, when a shower schedule must be modified. There are also times when a resident wants to change his or her schedule, which may result in the resident not receiving a shower exactly when wanted.

   29. During the Second Survey, one incident involving the showers was reported. During a resident meeting, a resident arrived at the meeting between the residents and AHCA staff only

       5 minutes before the meeting ended. The resident indicated that

       she was late because staff had been late with her shower. Again, this incident is hearsay.

   30. Based upon the foregoing, AHCA failed to prove the finding in the Initial Report and the Second Report that showers were given late. There cannot, therefore, be any Class III deficiency related to showers.

   31. In addition to the foregoing, one new finding was made during the Second Survey to support AHCA's conclusion that resident dignity had been violated by Oak Terrace. It was noted that "in several rooms on the East Wing, call lights were not within the resident's reach." The evidence, however, failed to prove whether this incident took place or, if it did, specifically what took place. The AHCA consultants who testified during the hearing were not involved with this incident.

5. Tag Number F325.

1. Tag Number F325 relates to 42 Code of Federal Regulations, Section 483.25(i)(l), which requires the following:

   Based on a resident's comprehensive assessment, the facility must ensure that a resident maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible.

2. While the regulation does not specify what consitutes "acceptable parameters of nutritional status," AHCA relies on standards provided in the State Operations Manual as to when acceptable parameters are not being maintained:

   1. Loss of 5% of body weight during a 30-day period;

   2. Loss of 7.5% of body weight during a 90-day period; or

   3. Loss of 10% of body weight during a 180-day period.

3. Identifying a loss of weight outside the parameters does not necessarily mean that there has been a violation. In addition to looking at the parameters, the resident's overall clinical condition must also be considered.

4. Based on the State Operations Manual parameters, AHCA concluded that Oak Terrace had failed to insure that one resident's nutritional needs were being met. AHCA noted that the resident, Resident #1, was on a weight management program which included tube feeding. The tube feeding, according to the Initial Report, "was identified was not meeting the resident's nutritional needs." It was also noted that the Registered Dietitian for Oak Terrace had recommended an increase in enteral feeding but no follow-up had been made. Finally, it was noted that Resident #1 weighed 82 pounds on January 22, 1998, and 77.1 pounds on February 11, 1998, or a loss of 4.9 pounds. This constituted a loss of more than 5% of Resident #1's total body weight in less than 30 days.

5. What AHCA did not take into account concerning Resident #1 was that she was a 93-year-old woman suffering from congestive heart failure, coronary artery disease, Parkinson's disease, dementia, and dysphagia. Oak Terrace's dietitian assessed Resident #1 on her admission and, based upon her clinical evaluation of her age, weight, height, and clinical condition, ordered a diet through tube feeding of 1,000 to 1,200 calories per day. Resident #1 was in fact fed consistent with this order.

6. Based upon Oak Terrace's dietitian evaluation, Resident #1 was provided an adequate diet between January 22, 1998, and February 11, 1998. Based upon the expert testimony of Oak Terrace's dietitian, Resident #1's loss of weight noted by AHCA was caused by her numerous clinical conditions and not Oak Terrace's effort to meet her nutritional needs.

7. As to the conclusion that orders concerning increased tube feeding had not been followed, the evidence proved that the dietitian ordered an small increase of 10 cc's in January 1998. That order was not immediately carried out. When it was carried out, however, it failed to have any impact on Resident #1's weight. The dietitian's recommendation was also not made because of any conclusion that Resident #1 needed to gain weight or that the increase would likely cause such a gain. Therefore, the evidence failed to prove that Oak Terrace failed to meet Resident #1's nutritional needs.

8. Based upon the foregoing, AHCA failed to prove that Oak Terrace is guilty of any Class III deficiencies under Tab Number F325. Without a violation during the Initial Survey, there cannot be a Class III deficiency. Despite this conclusion, the findings concerning Tag Number F325 made in the Second Report will be addressed in this Recommended Order.

9. During the Second Survey, AHCA reviewed thirteen residents at random and found that eight of those had weight losses or identified nutritional needs. Out of those eight residents, four were identified as having weight losses that were deficiencies: Resident #1, #6, #8, and #9. Resident #1 during

   the Second Survey was not the same resident identified as Resident #1 during the Initial Survey. No evidence other than hearsay was presented concerning Resident #9. Therefore, the evidence failed to prove that any violation occurred with regard to Resident #9.

10. AHCA found that Resident #1 had suffered a 7.8 pound loss between February 1998 and March 1998, and a loss of 1.2 pounds between March 1998 and April 1999. While the loss of 7.8 pounds is more than 5% of Resident #1's total body weight, the evidence failed to prove that the weight loss was attributable to the failure to address her nutritional needs.

11. Resident #1's weight loss noted during the Second Survey was more likely attributable to a urinary tract infection and skin problems, both of which are conditions that typically cause weight loss. Lab values also support a finding that Resident #1 was not malnourished.

12. AHCA found that Resident #6 lost 15.3 pounds between March 10, 1998 and April 1998. According the Oak Terrace's records, this resident weighed 122 pounds on March 10, 1998, and

    106.7 pounds in April 1998. AHCA based its conclusion concerning this resident, in part, on a recommendation by the dietary manager that the resident receive a supplement.

13. The evidence failed to prove that the failure to give a supplement to Resident #6 was improper. The dietitian for Oak Terrace considered the dietary manager's recommendation and rejected it as unnecessary. Based upon the dietitian's review of

    Resident #6, it was reasonably concluded that the resident was already receiving adequate calories.

14. Rather than suffering from malnutrition, Resident #6's weight reading in March 1998 was more likely inaccurately taken or recorded. Otherwise, Resident #6 would have had to eat essentially nothing in order to suffer an almost 16-pound weight loss in such a short period of time.

15. The same conclusion regarding the inaccurate weight reading in March 1998 for Resident #6 is also the most reasonable explanation for the recorded weight loss of Resident #8. According to Resident #8's records, the resident weighed 144 pounds on March 14, 1998, and 127.8 pounds on April 7, 1998.

    This constitutes a loss of 16.2 pounds. According to the expert testimony of the dietitian, Respondent #8 was provided a diet adequate to maintain her weight and to promote healing of a pressure sore. Worsening of the pressure sore noted by AHCA was caused, not by lack of adequate nutrition, but by her refusal to wear heel protectors which would have protected the injured area.

16. Additionally, like Resident #6, Resident #8 would have had to essentially stop eating to have lost so much weight in such a short period of time. It is, therefore, more likely that Resident #8's March weight was improperly taken or recorded. Both residents were admitted close in time and both maintained essentially the same weight from April 1998 until October 1998.

17. AHCA should have considered the body weight of Residents #1, #6, and #8 throughout the year and not just the

    difference between an admission weight and the weight a month later. See the State Operations Manual.

18. Based upon the foregoing, the evidence failed to prove the findings concerning Tab Number F325 made in the Initial Report or the Second Report.

    CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57, Florida Statutes (1997).

20. The evidence proved that Oak Terrace had standing to institute this proceeding. Even though Oak Terrace is currently operating under a standard license and not a conditional license, Section 120.569, Florida Statutes, provides that no agency action is final until a substantially affected party has had an opportunity to contest the agency's proposed decision. Additionally, even though part of the injury Oak Terrace has suffered has already been suffered, there are continuing effects from AHCA's action. Pursuant to Section 400.23(8)(b), Florida Statutes, Oak Terrace is not currently entitled to a superior license because it received a conditional license.

21. At issue in this proceeding is the application of Section 400.23, Florida Statutes (1997):

    1. The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a rating to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys,

       interviews, investigations, and inspections. The agency shall assign one of the following ratings to each nursing home: standard, conditional, or superior.

       . . . .

       
       

       (b) A conditional rating means that a facility, due to the presence of one or more class I or class II deficiencies, or 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, with rules adopted by the agency, or, if applicable, with rules adopted under the Omnibus Budget Reconciliation Act of 1987 (Pub.L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended. If the facility comes into substantial compliance at the time of the followup survey, a standard rating may be issued. A facility assigned a conditional rating at the time of the relicensure survey may not qualify for consideration for a superior rating until the time of the next subsequent relicensure survey.

       . . . .

       
       

       1. The current rating of each facility must be indicated in bold print on the face of the license. A list of the deficiencies of the facility shall be posted in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to that facility. Licensees receiving a conditional rating for a facility shall prepare, within 10 working days after receiving notice of deficiencies, a plan for correction of all deficiencies and shall submit the plan to the agency for approval. Correction of all deficiencies, within the period approved by the agency, shall result in termination of the conditional rating. Failure to correct the deficiencies within a reasonable period approved by the agency shall be grounds for the imposition of sanctions pursuant to this part.

          
          

       2. Each licensee shall post its license 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. A licensee

       with a superior rating may advertise its rating in any nonpermanent medium and in accordance with rules adopted by the agency. A list of the facilities receiving a superior rating shall be distributed to the state and district ombudsman councils.

       
       

    2. The agency shall adopt rules to provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature of the deficiency. The agency shall indicate the classification on the face of the notice of deficiencies as follows:

       . . . .

       
       

       (c) Class III deficiencies are those which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies. A class III deficiency shall be subject to a civil penalty of not less than $500 and not exceeding

       $1,000 for each and every deficiency. A citation for a class III deficiency shall specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed, unless it is a repeated offense.

22. The burden of proof in this proceeding was on AHCA, the party asserting the affirmative of the issue: that Oak Terrace had committed Class III deficiencies. See 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).

23. AHCA carried out its responsibility under Section 400.23(8), Florida Statutes, by evaluating Oak Terrace. It determined that Oak Terrace had two Class III deficiencies during the Initial Survey that were not corrected by the Second Survey. Therefore, it concluded pursuant to Section 400.23(8)(b), Florida

    Statutes, that Oak Terrace should be issued a conditional license.

24. A Class III deficiency is defined as a violation of Federal rules governing nursing homes which participate in the Medicare, Medicaid, and certain other health-related programs which AHCA determines "have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies."

    Sections 400.23(8)(b) and (9)(c), Florida Statutes. Where a Class III deficiency is found during an initial visit, a conditional license may be issued by AHCA only if it is not corrected by the follow-up visit.

25. In this case AHCA concluded that Oak Terrace had committed two Class III deficiencies during the Initial Survey that were not corrected by the Second Survey. AHCA, however, failed to meet its burden of proving that many of the incidents occurred or that they constituted a deficiency. To the extent that AHCA proved that Oak Terrace had a Class III deficiency, it failed to prove that it was not corrected by the follow-up visit.

26. With regard to Tag Number F241, the evidence proved that during the Initial Survey, a sign concerning a resident was posted on the closet door and that the same resident was not completely covered while sleeping. None of the other incidents reported in the Initial Report were proved at hearing. The two incidents that were proved to have occurred were not sufficient to conclude that Oak Terrace had a Class III deficiency. Oak

    Terrace could not, therefore, have failed to correct any Class III deficiency by the Second Survey.

27. Even if it were concluded that the incidents that were proved at hearing concerning the note and the uncovered resident were sufficient to constitute Class III deficiencies, the evidence failed to prove that any similar deficiency existed at the time of the Second Survey. First, all of the incidents that were proved to have occurred during the Second Survey were adequately explained and, therefore, did not constitute deficiencies. More importantly, those incidents that were proved to have occurred were totally unrelated to the two incidents proved to have occurred during the Initial Survey. A note on a door and an uncovered sleeping resident are not sufficiently similar to noise levels and the serving of food, the only incidents proved to have occurred during the Second Survey.

28. Whereas the evidence concerning Tag Number F325 was adequate without more to conclude that the nutritional needs of some residents may have not been met, Oak Terrace provided adequate explanation to refute AHCA's conclusion that nutritional needs were not being met. Additionally, AHCA failed to prove that the first incident relied upon in its Initial Report was actually a violation. Therefore, even if AHCA had proved that violations occurred during its Second Survey, they were not repeat violations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered by the Agency for Health Care Administration rescinding the conditional license issued to Oak Terrace Specialty Care Center for the period February 12, 1998, to May 8, 1998, and issuing a standard license for the same period.

DONE AND ENTERED this day of January, 1999, in

Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings

this day of January, 1999.

COPIES FURNISHED:

Donna H. Stinson, Esquire

R. Davis Thomas, Jr. Qualified Representative Broad and Cassel

215 South Monroe Street, Suite 400 Tallahassee, Florida 32302

Michael O. Mathis, Senior Attorney Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Sam Power, Agency Clerk

Agency for Health Care Administration Suite 3431

Fort Knox Building 3 2727 Mahan Drive

Tallahassee, Florida 32308

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 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.

Docket for Case No: 98-002554

Orders for Case No: 98-002554