STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 99-2025

)

1. H. FLOYD SUNSHINE MANOR, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Sarasota, Florida, on August 24, 1999.

   APPEARANCES

   
   

   For Petitioner: Karel L. Baarslag

   Senior Attorney

   Agency for Health Care Administration Post Office Box 60127

   Fort Myers, Florida 33906-0127

   
   

   For Respondent: Alfred W. Clark

   Attorney

   Post Office Box 623

   Tallahassee, Florida 32302-0623 STATEMENT OF THE ISSUE

   The issue is whether Petitioner lawfully reduced Respondent's certificate to operate a nursing home from Superior to Conditional.

   PRELIMINARY STATEMENT

   
   

   By letter dated April 9, 1999, Petitioner advised Respondent that Petitioner had reduced Respondent's nursing home license to Conditional. Respondent requested a formal hearing. In its petition, Respondent requested that Petitioner enter a final order increasing Respondent's license to Superior.

   Reportedly due to misinformation that she received from a building manager unassociated with this case, the court reporter left the hearing location to drive back to her home in Lakeland prior to the arrival of the attorneys or Administrative Law Judge. Counsel for Petitioner was unable to reach her or her employer, which is reportedly located in Fort Lauderdale. The secretary of counsel for Petitioner was unable to obtain another court reporter, even one not on the approved list for state agencies. By agreement of the parties and at the suggestion of the Administrative Law Judge, the hearing commenced at 9:30 a.m. with the testimony, argument, and rulings tape recorded. Without objection, the Administrative Law Judge left the audio tapes in the custody of counsel for Petitioner.

   At the hearing, Petitioner called two witnesses and offered into evidence one exhibit. Respondent called eight witnesses and offered into evidence 26 exhibits. All exhibits were admitted.

   The parties did not order a transcript.

   FINDINGS OF FACT

   
   

   1. Respondent is licensed to operate a nursing home known as Sunshine Manor in Sarasota.

   2. Petitioner conducted an annual relicensure survey of Sunshine Manor on March 1-3, 1999. Two tags arising out of that survey are the subject of this case.

   3. Tag F 224 states that Respondent's staff neglected Resident 2 by failing to document a condition in which he suddenly developed five small blisters on his right hand. Tag F

      224 states that the staff left Resident 2 unattended with the catheter tubing wrapped around his right ring finger while his right hand was under his right leg and that this caused the blisters. Tag F 224 alleges that the staff first documented this injury on December 17, 1998. Tag F 224 concludes by stating that the staff left Resident 2 lying for 12 hours without assessing his catheter or turning him.

   4. Resident 2, who weighed over 200 pounds, was admitted to Sunshine Manor in October 1998 with diagnoses of coronary artery disease, hypertension, and diabetes. He was fed by a gastrostomy tube and required a urinary foley catheter. He needed assistance to get into and out of bed and had limited ability to move even while in bed.

   5. On the morning of December 7, 1998, a nurse discovered that Resident 2 had developed five blisters on the top of his right hand sometime during the night. The nurse reported this

      discovery to her supervisor, who joined her in treating and dressing the hand. The nurse supervisor then prepared an incident report and an unusual circumstances report and notified Resident 2's physician. The nurse supervisor also arranged for the wound care center to treat the wound at Resident 2's regularly scheduled appointment the following day. The wound care center treated the hand wound the following day, and it healed unremarkably.

   6. It is unclear how the blisters developed on Resident 2's hand. Respondent's staff cared for him throughout the night and early morning hours of December 6 and 7. Petitioner has failed to prove that Respondent's staff neglected Resident 2, or that any neglect caused the injury.

   7. Tag F 325 states that Resident's staff failed to maintain acceptable nutrition for Resident 12. Tag F 325 states that Resident 12 was admitted to Sunshine Manor on January 8, 1999, with the primary diagnoses of chronic obstructive pulmonary disease (COPD), Congestive Heart Failure (CHF), and weight loss. Tag F 325 states that Resident 12 weighed at admission 115.8 pounds, which was at least 18 pounds below ideal body weight.

      Tag F 325 states that he weighed 119 pounds on February 1, 1999,

      
      

      but only weighed 102 pounds on March 2, 1999. Tag F 325 then asserts the details of allegations that generally state that Respondent failed to design and implement an adequate nutrition plan for Resident 12, failed to monitor his weight adequately,

      and erroneously described a physician's order to the frequency of supplemental milkshakes.

   8. In fact, on admission, Resident 12's diagnoses were end-stage COPD, end-stage cardiomyopathy with CHF, weight loss secondary to the COPD and CHF, and gastroesophageal reflux disease. In combination, these conditions make it likely that

      Respondent would lose weight as he died from one or more of these diseases.

   9. The failure to reweigh Resident 12 was intentional and compassionate, as the weighing process itself was physically painful for the easily exerted resident. It was obvious to Respondent's staff, including an independent nutritional consultant, that Resident 12 was losing weight rapidly. Likewise, the short-lived (one day) mistranscription of the physician's orders concerning number of shakes was also immaterial under the circumstances, including Resident 12's inability to consume all of the milkshakes offered to him.

   10. Resident 12 died on March 16, 1999. His death was not attributable to any nutritional deficiencies caused by Respondent.

   11. At the time of the March 1999 survey, Respondent's license was rated Superior. Respondent's license had been rated Superior for the preceding ten years. Respondent reduced the rating from Superior due to the two tags, which have already been

       discussed, and the failure of Respondent to meet the minimum score.

   12. The record is relatively undeveloped to address whether Petitioner should have given Respondent the minimum score necessary to achieve a Superior rating. Petitioner objected to evidence on this point on the ground that Respondent had not raised the issue, but Respondent's petition clearly requests the restoration of its Superior rating. Thus, the Administrative Law Judge overruled the objection.

   13. Respondent's strategy was to introduce evidence showing that the conditions that earned the points necessary for a Superior rating in the 1998 survey were the same in March 1999, even though Petitioner's surveyors did not award the points in 1999. However, nothing in the record indicates whether Petitioner had legitimately chosen to make more rigorous the scoring and its surveys.

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   15. Section 400.23(8) provides:

       
       

       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.

       
       

       1. A standard rating means that a facility has no class I or class II deficiencies, has corrected all class III deficiencies within the time established by the agency, and is in substantial compliance at the time of the survey with criteria established under this part, with rules adopted by the agency, and, 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.

          
          

       2. 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.

       3. A superior rating means that a facility has no class I or class II deficiencies and has corrected all class III deficiencies within the time established by the agency and is in substantial compliance with the criteria established under this part and the rules adopted by the agency and, if

          applicable, with rules adopted pursuant to 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; and the facility exceeds the criteria for a standard rating through enhanced programs and services in the following areas:

          1. Nursing service.

          2. Dietary or nutritional services.

          3. Physical environment.

          4. Housekeeping and maintenance.

          5. Restorative therapies and self-help activities.

          6. Social services.

          7. Activities and recreational therapy.

             
             

       4. In order to facilitate the development of special programs or facilitywide initiatives and promote creativity based on the needs and preferences of residents, the areas listed in paragraph

(c) may be grouped or addressed individually by the licensee. However, a facility may not qualify for a superior rating if fewer than three programs or initiatives are developed to encompass the required areas.

(e) In determining the rating and evaluating the overall quality of care and services, the agency shall consider the needs and limitations of residents in the facility and the results of interviews and surveys of a representative sampling of residents, families of residents, ombudsman council members in the district in which the facility is located, guardians of residents, and staff of the nursing home facility.

1. Rather than treat this type of case as a

   
   

   license-renewal case with discretionary, rather than merely ministerial, responsibilities assigned to the agency, Petitioner stipulates that it has the burden of proof, at least as to the reduction of the license to Conditional. Accepting that

   stipulation, the Administrative Law Judge cannot identify a basis for placing the burden of proof on Respondent regarding the issue of whether the license should be restored to Superior, even though the determination to assign a Superior rating is more complicated than the determination to assign a Conditional rating.

2. Petitioner has failed to prove the grounds for reducing the license to Conditional.

3. Petitioner has failed to prove that Respondent is not entitled to maintain its Superior license.

RECOMMENDATION

It is

RECOMMENDED that the Agency for Health Care Administration enter a final order restoring Respondent's license to Superior from the date of the March 1999 survey.

DONE AND ENTERED this 7th day of September, 1999, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 7th day of September, 1999.

COPIES FURNISHED:

Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Karel L. Baarslag Senior Attorney

Agency for Health Care Administration Post Office Box 60127

Fort Myers, Florida 33906-0127

Alfred W. Clark Attorney

Post Office Box 623

Tallahassee, Florida 32302-0623

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-002025

Orders for Case No: 99-002025