vs. ) Case No. 00-2606
Respondent. )
Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing of this proceeding on December 6, 2000, and January 10, 2001, in Ft Myers, Florida, on behalf of the Division of Administrative Hearings ("DOAH").
Michael P. Sasso, Esquire
525 Mirror Lake Drive, Room 3106 St. Petersburg, Florida 33701
For Respondent: R. Davis Thomas, Qualified Representative Broad & Cassel
The issue in this case is whether Respondent committed the allegations in the notice of intent to assign a conditional license and, if so, whether Petitioner should have changed the
rating of Respondent's license from standard to conditional for the period March 9 through April 11, 2000.
By letter dated April 13, 2000, Petitioner alleged that Respondent had violated various provisions of Florida Statutes and the Florida Administrative Code and provided notice that Petitioner changed Respondent's license rating from standard to conditional. Respondent timely requested an administrative hearing.
The ALJ initially set the case for hearing on September 21, 2000, because that was the first month that both counsel stated their they were available in their joint response to the Initial Order from DOAH. On August 24, 2000, Respondent filed an unopposed motion for continuance that did not state new dates on which both parties were available for a hearing. The ALJ rescheduled the hearing for October 12, 2000. On September 11, 2000, the parties filed a joint notice of conflict and requested a hearing some time between December 4 and December 22, 2000.
The ALJ scheduled the hearing for December 6, 2000, and the parties filed a Joint Prehearing Stipulation on December 4, 2000.
The parties underestimated the time needed to conclude the hearing and returned on January 10, 2001, to finish. Different counsel represented Petitioner on December 6, 2000, and on January 10, 2001.
The style of the documents filed in the case prior to December 6, 2000, denoted the state agency as the respondent and denoted the nursing home facility as the petitioner. That style, however, misrepresented the burden of proof in the case. The state agency has the burden of proof to substantiate the proposed agency action and properly should appear as the petitioner in the style of the case. Pursuant to the agreement of the parties on December 6, 2000, the ALJ amended the style of the case, nunc pro tunc, to show the state agency as Petitioner and to denote the nursing home facility as Respondent.
At the hearing conducted on December 6, 2000, and January 10, 2001, Petitioner presented the testimony of three
witnesses and submitted one exhibit for admission in evidence. Respondent presented the testimony of one witness, submitted the deposition testimony of a physician in lieu of his personal appearance at the hearing, and submitted six exhibits for admission in evidence. The identity of the witnesses and exhibits and any attendant rulings are set forth in the three- volume Transcript of the hearing filed on January 24 and
April 30, 2001.
Acquisition of the transcript for that portion of the hearing conducted on December 6, 2000, proved to be problematic. The court-reporting agency was unable, for some time, to obtain the transcript from the court reporter.
Pursuant to the agreement of the parties, the ALJ placed the case in abeyance on February 28, 2001. The order required the parties to notify the ALJ no later than April 9, 2001, as to the status of the missing transcript.
On March 19, 2001, Respondent filed a motion for a recommended order in its favor on the grounds that the missing transcript contained evidence necessary for Petitioner to satisfy its burden of proof. Counsel for Petitioner agreed with the motion, and the ALJ entered a Recommended Order of Dismissal on April 5, 2001, closed the DOAH file, and referred the matter to Petitioner.
On April 30, 2001, the court reporting agency filed the missing transcript. On May 8, 2001, counsel for Petitioner filed a motion asking Petitioner to remand the case back to DOAH. By Order dated August 16, 2001, Petitioner remanded the case back to DOAH over Respondent's objection. On August 27, 2001, Respondent filed a motion with DOAH asking the ALJ to reject the remand or, in the alternative, to reaffirm the original Recommended Order.
On September 6, 2001, the ALJ entered an order denying Respondent's motion and an order requiring the parties to file their proposed recommended orders ("PROs") no later than October 8, 2001. The parties filed their respective PROs on October 8, 2001.
Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 3636 10th Avenue North in St. Petersburg, Florida (the "facility").
Petitioner conducted an annual survey of the facility from March 6 through March 9, 2000. Petitioner noted the results of the survey on a Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567".
The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "tags"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. In order to protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number rather than by the name of the resident.
There are two tags at issue in this proceeding. Tag F327 generally alleges that Respondent provided inadequate hydration to three residents. Tag F490 generally alleges that
Respondent failed to effectively administer the facility for the reasons stated in Tag F327.
Tag F327, in relevant part, alleges that the facility:
. . . did not identify and appropriately assess residents with risk factors for dehydration; develop appropriate preventive Care Plans for residents with dehydration or identified at risk for dehydration and/or provide sufficient fluids to maintain proper hydration and health for 3 (#3, #11 and #14) of 7 sampled residents reviewed for dehydration of a total sample of 14 active residents and 2 extended sample residents.
Tag F490 in the 2567 alleges, in relevant part, that the facility:
. . . administration did not ensure that residents with risk factors for dehydration were identified and appropriately assessed. The facility administration did not ensure that appropriate preventive. (sic) Care Plans were developed for residents with dehydration or identified as at risk for dehydration. This deficient practice endangered the physical well being of the residents.
Applicable federal and state laws require Petitioner to assign two ratings to the deficiencies alleged in the 2567. One rating is a scope and severity rating required by federal regulations. Petitioner assigned a "G" rating to Tags F327 and F490. A "G" rating means that the alleged deficiency was isolated, caused actual harm to one or more residents, but did not involve substandard quality of care.
The other rating that Respondent must assign is a class rating required by state law pursuant to applicable rules in the Florida Administrative Code. Petitioner assigned a Class II rating to the deficiencies alleged in Tags F327 and F490. A Class II rating is authorized in Section 400.23(8)(b), Florida Statutes (1999), for any deficiency that has a "direct or immediate relationship to the health, safety or security of the nursing home facility residents." The Class II rating is the only rating at issue in this proceeding.
When Petitioner alleges two Class II deficiencies in the 2567, applicable rules require Petitioner to change the rating of a facility's license. Effective March 9, 2000, Petitioner changed the rating of the facility's license from standard to conditional.
In a follow-up survey of the facility on April 11, 2000, Petitioner determined that Respondent had corrected the deficiencies alleged in Tags F327 and F490. Effective April 11, 2000, Petitioner changed the rating of the facility's license from conditional to standard.
The Class II rating from Petitioner rests on three allegations in Tag F327. Each allegation pertains to one of three residents who are identified individually as Resident 3, Resident 11, and Resident 14.
The first allegation in Tag F327 is that Respondent did not identify and assess the particular resident as having risk factors for dehydration. The second allegation is that Respondent did not develop an appropriate preventive care plan for the resident. The third allegation is that Respondent did not provide sufficient fluids to maintain proper hydration and health for each resident.
Proof of the first two allegations concerning each resident is not sufficient to support the Class II rating from Petitioner without proof of the third allegation because the essential statutory requirement for a Class II rating is that the alleged deficiencies have a direct or immediate relationship to the health, safety, or security of the resident. For that reason, the allegation that Respondent did not provide sufficient fluids to maintain proper hydration and health for each resident is the gravamen of the complaint against Respondent. Accordingly, Tag F327 concludes that the alleged deficiencies resulted in harm from dehydration to all three residents and that Resident 3 suffered further harm from complications such as constipation and fecal impaction that required hospitalization on February 26 and 27, 2000, to disimpact Resident 3 for hard stools.
Petitioner failed to prove the first two allegations in Tag F327 by a preponderance of the evidence. Rather, the
preponderance of the evidence shows that Respondent properly identified and assessed Residents 3, 11, and 14 as having risk factors for dehydration and that Respondent developed an appropriate care plan for each resident.
Respondent identified and properly assessed Resident 3 as being at risk for dehydration. The admitting diagnosis for Resident 3 was extensive and included glaucoma, depression, a lack of coordination, and cerebral vascular accident. In relevant part, Resident 3 was incontinent of both bladder and bowel, had a history of constipation and urinary tract infections, suffered from nutritional deficiencies, had hemiplegia, had difficulty swallowing, suffered from reflux esophagitis and heartburn, and had hypertension.
Respondent identified and properly assessed Resident 11 as being at risk for dehydration. Respondent admitted Resident
11 with organic brain syndrome, dementia, Alzheimer's disease, protein and calorie malnutrition, congestive heart failure, gout, and renal failure. The facility's records properly assessed Resident 11 as at risk for dehydration from a diuretic for congestive heart failure and in need of assistance with meals.
Respondent identified and properly assessed Resident 14 as being at risk for dehydration. Resident 14 was 97 years old. Respondent properly identified and assessed many debilitating medical conditions in Resident 14 including hypothyroidism,
hypertension, cancer, dementia, hyponatremia, a hip fracture, and incontinence of bladder and bowel.
Respondent developed an appropriate care plan for Resident 3. The care plan prescribed appropriate interventions that included a maintenance program of medication for frequent urinary tract infections, assistance with eating, drinking and personal hygiene, and assistance with mobility and swallowing. The care plan also prescribed Milk of Magnesia for numerous complaints of constipation from Resident 3.
The care plan for Resident 3 provided appropriate diuretic therapy. Respondent monitored Blood Urea Nitrogen ("BUN") because BUN levels may indicate dehydration. Respondent also monitored meal intake and body weight. Respondent documented that Resident 3's meal intake was 60, 40, and 30 percent, respectively, at breakfast, lunch, and dinner. The care plan placed Resident 3 on a pureed diet with honey thickened liquids and tube feedings.
Respondent developed an appropriate care plan for Resident 11. The care plan prescribed appropriate interventions that included assistance with meals, documentation of intake during meals, and the monitoring of weight levels.
Respondent developed an appropriate care plan for Resident 14. The care plan prescribed appropriate interventions that included assistance with meals, documentation of intake
during meals, and the monitoring of weight levels. The care plan required facility staff to encourage Resident 14 to consume food and liquid during meals. The care plan for Resident 14 included a high calorie liquid supplement.
Petitioner failed to prove the third allegation in Tag F327 by a preponderance of the evidence. Rather, the preponderance of the evidence shows that Respondent provided sufficient fluids to maintain proper hydration and health for Residents 3, 11, and 14.
Relevant provisions in 42 CFR Section 483.25(j) require Respondent to "provide each resident with sufficient fluid intake to maintain proper hydration and health." However, federal regulations and state rules do not define "sufficient fluid intake."
Petitioner's published guidelines interpret federal regulations and state rules (the "guidelines") to mean that a resident has sufficient fluid if he or she has the amount needed to prevent dehydration. The same guidelines define dehydration to exist when the output of fluids far exceeds fluid intake.
Dieticians in nursing homes have the duty of estimating each resident's baseline daily fluid needs. One method of estimation requires the dietician to multiply the resident's body weight in kilograms by a recommended number of cc's of fluid. However, the recommended number of cc's can vary from 25 to 30
cc's. The American Dietetic Association recommends 25 cc's for persons over 75, and Petitioner's guidelines recommend 30 cc's with no variation for age. Other adjustments in the recommended cc's are appropriate for certain medical conditions such as renal failure, cardiac distress, and obesity. The estimate of appropriate hydration for a particular resident is usually expressed as a range of the minimum and maximum amount of fluids appropriate for the resident rather than in terms of a specific number.
One method of determining whether a facility is meeting a resident's baseline daily fluid needs is a record of daily fluid intake and output for each resident (the "I and O" records.) However, no requirement mandates the use of I and O records. Moreover, I and O records can be of little utility in evaluating hydration for a resident who is incontinent or for a resident who is fed by family members with food brought from home. A facility that does not utilize I and O records may record fluid and meal consumption of a resident in the resident's Medication Administration Records or in the resident's activities of daily living records.
A facility may also measure hydration by monitoring a resident for physical signs of dehydration. Typical symptoms of dehydration include dry skin and mucous membranes, cracked lips, poor skin turgor, thirst, fever, sunken eyes, speech difficulty,
low blood pressure, decreased urine output, constipation or fecal impaction, confusion, and sudden weight loss.
Laboratory tests such as those that measure BUN level or the ratio of BUN to creatinine may also detect dehydration. An abnormally high level of nitrogen in the bloodstream may indicate that a resident is dehydrated.
Symptoms of dehydration measured by physical signs and laboratory tests are not conclusive proof of dehydration because other conditions can manifest the same symptoms. A trained medical professional is best able to determine whether the symptoms manifested by a resident show that the resident is in fact dehydrated.
The diagnostic uncertainty inherent in the symptoms of dehydration are illustrated in the allegations pertaining to Resident 3. Petitioner's surveyor considered the fecal impaction suffered by Resident 3 on February 26 and 27, 2000, to be a "sentinel event" that required a determination of whether Respondent was meeting the hydration needs of Resident 3.
The surveyor calculated Resident 3's baseline daily fluid needs at 2250 cc's by multiplying Resident 3's actual body weight of 165 pounds, converted to kilograms, by 30 cc's of fluid. The surveyor reviewed Resident 3's records and found that Respondent documented Resident 3's body weight at 165 pounds without noting Resident 3's usual body weight. The surveyor
rejected the determination by Respondent that Resident 3 had an adjusted body weight of 116 pounds, based on obesity, and rejected the corresponding baseline daily fluid need of 1581 cc's. The surveyor concluded that the appropriate baseline daily fluid level for Resident 3 was 2250 cc's.
Based on the I and O records for Resident 3, the surveyor determined that Respondent provided Resident 3 with inadequate daily average fluid intake over four months, consisting of: 766 cc's in December 1999; 1,489 cc's in January 2000; 1,334 cc's in February 2000; and 874 cc's in March 2000.
The records reviewed by the surveyor showed that Respondent did not separately record the intake of fluid and food by Resident 3 during meals. In addition, Respondent failed to document Resident 3's entire fluid intake and output in the I and O records every eight hours in violation of Respondent's policy regarding residents who were at risk for dehydration. As Petitioner correctly stated in its PRO, the documentation missing in the records reviewed by the surveyor made it impossible for the surveyor "to accurately assess the amount of fluid" that Resident 3 consumed each day.
The surveyor concluded that Resident 3 was dehydrated and that the dehydration caused the fecal impaction suffered by Resident 3. Based upon the determination that Respondent allowed Resident 3 to become dehydrated and that the dehydration led to
fecal impaction that required hospitalization, the surveyor concluded that the alleged deficiency caused harm to Resident 3.
Petitioner failed to prove the third allegation concerning Resident 3. Rather, the preponderance of evidence shows that Respondent provided sufficient fluids to maintain proper hydration and health for Resident 3.
The surveyor is a nurse and not a licensed physician.
The surveyor admitted during her testimony that she is not trained to make a medical determination that the fecal impaction suffered by Resident 3 was caused by inadequate hydration. The surveyor did not discuss the issue with Resident 3's physician.
The physician for Resident 3 reached a conclusion different from that of the surveyor. Neither dehydration nor inadequate hydration caused the fecal impaction suffered by Resident 3. Respondent 3 experienced constipation and complained of the condition irrespective of the level of hydration. If Resident 3 were to have experienced dehydration at the levels calculated by the surveyor over a three-month period, Resident 3 would have experienced far more symptoms than constipation and fecal impaction. One of those symptoms would have been low blood pressure, and Resident 3 did not experience low blood pressure during the period at issue. Rather than dehydration, it was the sedentary life style, advanced age, and an old vertebral fracture that caused the fecal impaction suffered by Resident 3.
Other expert testimony shows that the calculations utilized by Petitioner were not appropriate for Resident 3. The surveyor did not review all of the consumption records for Resident 3. Respondent did not maintain complete I and O records for Resident 3 because such records were fruitless for a resident who was incontinent of bladder and bowel. In addition, the surveyor incorrectly used 30 cc's rather than 25 cc's which would have been appropriate for Resident 3's age group. Finally, the surveyor did not adjust the weight of Resident 3 for obesity. Based on all the consumption records, Resident 3 received adequate hydration during the contested period. Those amounts were: 1803-2003 cc's in December 1999; 2,170-2,370 cc's in January 2000; and 1,843-2,043 cc's in February.
Petitioner failed to show by a preponderance of the evidence that Resident 11 suffered from dehydration. Rather, the preponderance of the evidence shows that Respondent provided sufficient fluids to maintain proper hydration and health for Resident 11.
On March 8, 2000, Petitioner's surveyor observed Resident 11 eating her lunch and dinner meals. During the lunch meal, Resident 11's meal tray included both cranberry juice and milk. However, Resident 11 drank none of the milk and only 90 cc's of the cranberry juice. The surveyor observed only two instances when facility staff encouraged Resident 11 to eat.
During the dinner meal, Resident 11 consumed no fluids but spilled those fluids offered by staff. The surveyor did not observe any staff member replace the spilled liquids and did not see any staff member encourage Resident 11 to eat or drink.
The facility records for Resident 11 showed that Resident 11 had elevated BUN levels in December 1999, and in January 2000. On December 1, 1999, the BUN level was 39. On January 7, 2000, the BUN level was 52.
Based upon the surveyor's observations of the lunch and dinner meals on March 8, 2000, and the elevated BUN levels in December 1999, and January 2000, Petitioner cited Respondent for a deficiency in Tag F327. Petitioner does not allege that the meal observations and elevated BUN levels caused actual harm to Resident 11 but only potential harm.
Petitioner offered no evidence that the elevated BUN levels in December 1999, and January 2000, reflected inadequate hydration on March 8, 2000, when Petitioner determined the existence of a deficiency. Nor did Petitioner offer any evidence that Resident 11 manifested any sign or symptom of dehydration in March of 2000.
The physician for Resident 11 reached a conclusion different from that of Petitioner. It was inappropriate to conclude from the elevated BUN levels that Resident 11 was dehydrated. Resident 11 had renal failure. Renal failure is a
medical condition that produces elevated BUN levels regardless of hydration.
Petitioner's surveyor did not consult Resident 11's physician. The surveyor agreed in testimony during the hearing that elevated BUN levels are symptoms of renal insufficiency. The surveyor was unaware that Respondent 11 suffered from renal insufficiency when the surveyor determined the deficiency during the survey.
Based on other expert testimony, it is clear that Resident 11 consumed sufficient fluids. When all of Resident 11's conditions are considered, the appropriate baseline daily fluid intake for Resident 11 in December 1999, and January 2000 was between 1286 and 1522 cc's a day. Resident 11 consumed approximately 1375 cc's of fluid per day during that period.
Petitioner failed to show by a preponderance of the evidence that Resident 14 suffered from dehydration. Rather, the preponderance of the evidence shows that Respondent provided sufficient fluids to maintain proper hydration and health for Resident 14.
Resident 14 was 97 years old and had many debilitating medical conditions including hypothyroidism, hypertension, a history of cancer, dementia, hyponatremia, and a hip fracture. During the survey, Petitioner's surveyor observed Resident 14 during one meal. Resident 14 consumed only limited amounts of
the fluids available, and staff members offered little encouragement for Resident 14 to consume liquid.
The surveyor attempted to calculate the consumption of fluids by Resident 14 but was unable to do so based on the available records. The surveyor observed Resident 14 to be weak and to suffer from dry skin. The surveyor concluded that Resident 14 suffered from dehydration.
Resident 14's physician reached a conclusion different from that of the surveyor. The resident's generalized weakness and dry skin were caused by hypothyroidism and age.
The records of the facility were adequate to calculate the amounts of fluids that Resident 14 consumed in March 2000. The fluid intake ranged from 1476 to 1678 per day and exceeded Resident 14's needs of 1432 to 1722 cc's per day.
Petitioner claims that Respondent violated Tag F490, in relevant part, because Respondent committed the acts or omissions alleged in Tag F327. As previously found, however, Petitioner failed to show that Respondent committed the acts or omissions alleged in Tag F327.
Petitioner also alleges that Respondent violated Tag F490 because Respondent failed to provide services to residents in a manner that meets "professional standards of quality." Petitioner argues that Respondent violated the quoted standard because Respondent did not maintain I and O records for Residents
3 and 11 in violation of Respondent's own policy requiring those records.
The requirement to maintain I and O records is meaningless for residents who are incontinent. Residents 3 and
11 were both incontinent of bladder and bowel. The maintenance of those records would not have been useful in evaluating the hydration of Residents 3 and 11. In any event, Respondent maintained accurate and complete records of the consumption of fluids by both residents in other areas of the residents' medical charts.
The facility administrator did not fail to ensure that staff was following through with dietary recommendations. Petitioner failed to provide evidence of a specific recommendation by the dietician that the staff failed to implement.
Petitioner alleged in Tag F490 that Respondent did not have sufficient nursing staff on hand to provide nursing and related services to residents. Petitioner failed to provide any evidence to support this allegation. The facility's staffing summaries met all minimum standards for staffing.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and subject matter in this proceeding. Sections 120.569 and 120.57(1).
Petitioner has the burden of proof in this proceeding.
Petitioner must show by a preponderance of the evidence that Respondent committed the acts and omissions alleged in Tags F327 and 490. Florida Department of Transportation v. JWC 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). Petitioner failed to satisfy its burden of proof.
For the reasons stated in the Findings of Fact and incorporated by this reference, the preponderance of evidence shows that Respondent did not commit the acts or omissions alleged in Tags F327 and 490. Respondent properly identified and assessed Residents 3, 11, and 14, as having risk factors for dehydration and developed an appropriate preventive care plan for each resident. In addition, Respondent provided sufficient fluids to maintain proper hydration and health for each resident. Finally, Respondent administered the facility in a manner that enabled the facility to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychological well being of each resident.
Petitioner failed to show by a preponderance of the evidence that the alleged deficiencies were properly classified as Class II deficiencies. Respondent did not commit any acts or omissions that created a potential for harm to Residents 3, 11,
and 14. Respondent did not cause any actual harm to the residents.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final order finding Respondent not guilty of the acts and omissions alleged in Tags 327 and 490; and reversing the issuance of a conditional license.
DONE AND ENTERED this 7th day of December, 2001, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2001.
Michael P. Sasso, Esquire
525 Mirror Lake Drive, Room 3106 St. Petersburg, Florida 33701
R. Davis Thomas, Qualified Representative Broad & Cassel
William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive
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.
