STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY

FOR HEALTH CARE ADMINISTRATION,

Petitioner, CASE NO.: 98-4686

AHCA NO.: 08-98-326-NH

vs. RENDITION NO.: AHCA-99-299-

FOF-OLC

EMERALD OAKS (Beverly Enterprises Florida, Inc.),

Respondent.

/

FINAL ORDER

This cause was referred to the Division of Administrative Hearings for a formal administrative hearing. The assigned Administrative Law Judge ("ALJ") has submitted a Recommended Order to the Agency for Health Care Administration ("AHCA"). The Recommended Order of September 23, 1999 is incorporated by reference.

RULING ON EXCEPTIONS

Beverly first excepts to the ALJ's finding that the survey at issue began on August 1, 1998. The uncontradicted evidence of record establishes that the survey began on August 3, 1998. See the transcript of the final hearing at pages 23 and 67. The exception is granted. The survey began on August 3, 1998 and concluded on August 5, 1998.

Next, Beverly challenges the factual basis found by the ALJ supporting his conclusion that Beverly failed to comply with two regulatory requirements and that the deficiencies were properly classified as class II. The relevant regulatory requirements are one, a facility must implement written policies to prohibit and prevent neglect of residents and two, a facility must provide appropriate care to prevent the development of pressure sores after a resident is admitted to the facility and provide appropriate treatment to promote the healing of any pressure sore(s) that do develop. A facility may avoid a deficiency under the second regulatory requirement by showing that the development or persistence of a pressure sore(s) was clinically unavoidable.

Regarding resident 2, the ALJ concluded that a class II deficiency existed based on Emerald Oaks' failure to effectively implement the resident's care plan. A pressure sore is classified from stage 1 to 4 depending on the severity of the sore. The development of a pressure sore at stage 2 or higher may constitute a class II deficiency. Resident 2 developed a stage 3 pressure sore within 15 days of admission. Based on the development of a stage 3 sore and multiple observations of the surveyors that resident 2 was not being repositioned every two hours as required by the care plan, the ALJ inferred that resident 2's care plan was not- effectively implemented. See paragraphs 22 through 26 and 38 of the recommended order.

Beverly excepts to the ALJ's finding that a review of the medical record of resident 2 disclosed she had a stage 2 pressure sore at the time she was admitted to Emerald Oaks. Having reviewed the entire record of this proceeding, the challenged finding is not supported by the record; therefore, the exception is granted and the finding is stricken. Beverly also excepts to the finding that Emerald Oak's staff failed to reposition resident 2 every two hours as required by the care plan. Here, Beverly is asking the agency to reweigh the conflicting evidence. The agency has no authority to reweigh the evidence at this level of review.

Heifetz vs. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). The challenged finding is supported by competent, substantial evidence; therefore, the exception is denied. Finally as to resident 2, Beverly excepts to the finding that development of the stage 3 pressure sore was avoidable.

This finding is supported by competent, substantial evidence and the exception is denied.

Regarding resident 4, the ALJ concluded that a deficiency existed because the facility failed to implement the resident's care plan so as to prevent neglect of the resident. The ALJ further concluded that the neglect was serious enough to justify classification of the deficiency as class II. Resident 4 was observed lying on a bed pad soaked with urine. The resident did not appear to have been moved regularly, and her buttocks were excoriated. Resident 4 was not wearing protective booties - to prevent damage to the skin of her heels as called for by her care plan. See paragraphs 4 through 6 and 39 of the recommended order. Beverly excepts to two findings of fact regarding resident 4. First, the finding that Emerald Oaks had not done a current assessment of resident 4; and second, that resident 4 developed a pressure sore after she was admitted. The challenged findings are not supported by competent, substantial evidence and are therefore, stricken. Beverly contends that without the successfully challenged findings, the ALJ's conclusion that a class II deficiency existed is not supported by the record.

There is ample support in the record of this proceeding

establishing the existence of a class II deficiency; therefore, the exception is denied.

Regarding resident 6, the ALJ concluded that no deficiency was established because the care plan was implemented and development of a pressure sore was unavoidable. This resident was incontinent of bowel and bladder, the resident smelled of feces, and the resident did not appear to have been moved on any of the surveyor's several visits to his room. Resident 6 developed a stage 2 pressure sore while at Emerald Oaks.

Resident 6 was difficult to manage because he was quarrelsome, non-compliant, uncooperative, and argumentative. He refused urinals and resisted going to the bathroom apparently choosing to void in his bed. The ALJ concluded that there was no failure of Emerald Oaks to implement resident 6's care plan. To the contrary, Emerald Oaks provided-appropriate care, but the development of the pressure sore was unavoidable due to both resident 6's clinical condition and lack of cooperation. Thus, the ALJ concluded no deficiency was established as to this resident.

Regarding resident 15, the ALJ concluded that no class I or II deficiency was established as only a minor failure to implement her plan was established. This resident was observed on one occasion not to be wearing protective booties, but no pressure sores developed on her heels. The ALJ accepted as credible the testimony of one of Emerald Oaks registered nurses that resident 6 regularly and routinely wore her protective booties.

Regarding resident 16, the ALJ concluded that no deficiency was established even though she developed two pressure sores within three weeks of being admitted to Emerald Oaks. The care plan for this resident identified her as incontinent of bladder and at risk for skin breakdown and thus, pre-disposed to develop pressure sores. Emerald Oaks did not present evidence that it took appropriate measures to prevent the development of pressure sores with regard to resident 16. The ALJ acknowledged the agency's position that the burden of going forward with the evidence shifts to the facility after the agency shows that a resident developed a pressure sore(s) while living in the facility, but the ALJ declined to apply it to this proceeding.

Instead, the ALJ placed the burden on the agency to prove that Emerald Oaks failed to implement the resident's care plan and provide appropriate preventive care. See paragraphs 20, 21, 35, and 43. Counsel for the agency excepts to the ALJ's failure to follow this established procedure.

A nursing home is obligated to identify patients at risk for pressure sores and take aggressive and appropriate preventive and

treatment measures. The burden of going forward with the evidence shifts to the nursing home upon a showing by the agency that a resident developed a pressure sore after entering the facility. Heritage Healthcare vs. Agency for Health Care Administration, 20 F.A.L.R. 4370 (Fla. Agency for Health Care Administration 1998); Agency for Health Care Administration vs. Glen Oaks Health Care, 21 F.A.L.R. 1711 (Fla. Agency for Health Care Administration 1999). Emerald Oaks did not show that it provided appropriate preventive care; thus, the development of pressure sores by resident 16 within three weeks of her admission constitutes a class II deficiency. The agency's exception is granted.

Beverly excepts to the ALJ's mutually exclusive conclusion in paragraph 44 that deficiencies were established as to residents 2 and 6, but not established as to residents 6, 15, and

16. The evidence presented by counsel for the agency supporting a conditional quality rating was based on the observation and evaluation of five residents and the facility's record of care for the five residents. Each of the five residents was given a numeric identifier-to protect the residents' privacy. The numeric identifiers are 2, 4, 6, 15, and 16. Reading paragraph

44 in context, it is clear the ALJ intended to summarize detailed findings already expressed in the recommended order. Because resident 4 is not addressed in paragraph 44, it is apparent that one of the references to resident 6 is a scrivener's error. From a review of paragraphs 4 through 6 and 39 (related to resident 4) and paragraphs 7 through 17, 40 and 41 (related to resident 6), it is clear that the ALJ intended to find that deficiencies were established with regard to residents 2 and 4 (not 2 and 6).

FINDINGS OF FACT

The agency hereby adopts the findings of fact set forth in the Recommended Order except where modified in the rulings on the exceptions.

CONCLUSIONS OF LAW

The agency hereby adopts the conclusions of law set forth in the Recommended Order except where inconsistent with the rulings on the exceptions. Although Emerald Oaks has successfully challenged certain findings of fact pertaining to residents 2 and 4, the stricken findings do not affect the conclusion that class II deficiencies existed as to those residents.

Based on the foregoing, Emerald Oaks is rated as conditional for the time period at issue.

DONE and ORDERED this 6th day of December, 1999, in Tallahassee, Florida.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION

RUBEN J. KING-SHAW, JR., DIRECTOR

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH THE FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED TO:

Karel Baarslag, Esquire Senior Attorney, Agency for Health Care Administration 2295 Victoria Avenue

Fort Myers, Florida 33901

Arnold H. Pollock Administrative Law Judge DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Jay Adams, Esquire Broad & Cassel

Post Office Drawer 11300 Tallahassee, Florida 32302

Patricia Hall

HQA - Long Term Care Section 2727 Mahan Drive

Fort Knox Building I Tallahassee, Florida 32308

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was served on the above-named people by U.S. Mail this 8th day of Dec, 1999.

R. S. Power, Agency Clerk State of Florida, Agency for

Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 850/922-5865

Docket for Case No: 98-004686

Orders for Case No: 98-004686