vs. )
) Case No. 00-4360
Respondent. )
A hearing was held in this case in Largo, Florida, on February 6, 2001, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Alfred W. Clark, Esquire
For Respondent: Michael P. Sasso, Esquire
The issue for consideration in this case is whether the Petitioner should be issued a Conditional license effective September 12, 2000, for its nursing home located at 1430 Pasadena Avenue South, South Pasadena, Florida.
By letter dated September 21, 2000, the Agency for Health Care Administration (Agency) advised Pasadena Manor (Pasadena) that it intended to issue a Conditional license to the facility, a downgrading of the licensure rating, as a result of deficiencies noted in a survey of the facility conducted by the Agency in August, 2000. On October 10, 2000, Pasadena filed its Petition for Formal Administrative Hearing, and this hearing ensued.
At the hearing, the Agency presented the testimony of Benny P. Palazzo, a registered nurse specialist, who conducted the survey in question, and Patricia A. Hall, Informal Disputes Resolution (IDR) coordinator for the Agency. The Agency also introduced its Exhibits A through E. Pasadena presented the testimony of Lynda K. Lovell, administrator of the facility; Erika L. Smith, a certified nurse assistant (CNA) at Pasadena; Chari L. Lovely, assistant director of nursing for clinical services at Pasadena Manor; and Leanne E. Mallory, director of nursing at Manor Care, another facility operated by HCR Manor Care. Pasadena also introduced its Exhibits 1 through 9.
February 22, 2001. Subsequent to the filing of the Transcript counsel for both parties submitted matters in writing which
were carefully considered in the preparation of this Recommended Order.
At all times pertinent to the issues herein, the Agency for Health Care Administration was the state agency responsible for the licensure of nursing homes and for the regulation of the nursing home industry in Florida. Pasadena operated a nursing home under that name located at 1430 Pasadena Avenue, South, in South Pasadena, Florida.
In early August, 2000, Benny P. Palazzo, a registered nurse specialist employed by the Agency as a surveyor of nursing homes, received a complaint by telephone regarding Pasadena from an individual purporting to be a registered nurse suggesting he look at a care plan regarding a particular patient with special attention paid to "abuse." Specifically, the complaint filed by a family member of the resident, a 99- year-old woman, was that the resident had been dropped on her head. This caused the resident to sustain a fractured skull requiring hospitalization. The complainant also alleged that the facility had failed to notify the family of the incident in a timely manner and when notification was given, had recounted several conflicting stories as to what had happened. Further complaints included other injuries and a report of attacks on the resident.
The complainant, who claimed to visit the resident every day, was concerned about the age of the resident and was convinced that the resident was physically incapable of tipping over the wheel chair by herself. She correctly assumed that the chair was tipped over by a staff member.
Mr. Palazzo, an Agency surveyor, went to the facility on August 4, 2000, to conduct an investigation into the incident. He spoke with both the administrator and the director of nursing telling them he was there to look at falls in general. He mentioned the name of the complainant's family member along with others. Mr. Palazzo went on a tour of the facility during which he saw the resident in question. Though it was near 10:00 a.m., the resident was still in bed. Though she seemed alert, when Mr. Palazzo tried to talk with her, she did not respond.
After completing his tour, Mr. Palazzo went to the nurses' station and spoke with the charge nurse on duty. He asked her if she knew of any falls within the last few months, and she listed several. Palazzo examined the records of the complainant's relative and three other residents to see if they reflected the falls and what had been done in each case. The falls were reflected.
Mr. Palazzo did a thorough examination of the records relating to the complainant's relative, focusing on the last
year of the twelve years she had been at the facility. He looked at the nurses' notes, the minimum data set (MDS), and the care plan. He had some questions about the care plan regarding which he inquired of the charge nurse. He found that the fall in issue, which had occurred on July 24, 2000, was not addressed in the care plan nor was it noted that the resident now used a Gerry chair instead of a wheel chair.
Mr. Palazzo then left the nurses' station and asked a passing CNA if she had an assignment sheet which told her how to care for her residents. The CNA replied that she was given one but did not have it with her. Another CNA overheard the conversation and said she had hers, which she showed to him. One area of the sheet dealt with falls; one with skin care; and one with transfers. Mr. Palazzo then looked at the assignment sheet dealing with the complainant's relative, but there was nothing about falls, skin care, or the Gerry chair on it.
When Mr. Palazzo again met with the administrator and director of nursing he pointed out this discrepancy. Both assured him it would be taken care of immediately. The director of nursing said she was new and needed to examine several different care areas to decide how she wanted things done. However, both the administrator and the director of nursing assured him that they would reassess the resident,
update the care plan and the CNA assignment sheet, and make sure that everybody knew what they were supposed to be doing. Since the facility uses some temporary nursing service personnel from outside the facility from time to time, it was critical that the care plan and the assignment sheets be current and correct.
When Mr. Palazzo then went back to the nurses' station, he asked the charge nurse why the care plan had not been updated. The nurse said she did not consider it to be her responsibility to do it but that of the IDC or the night staff. Mr. Palazzo is of the opinion that the resident in question here should have been in a Gerry chair rather than a wheel chair because she was not ambulatory. It is not always done that way in many nursing homes, however, so he did not follow up with further inquiry on that point.
Mr. Palazzo asked the administrator and the director of nursing about their investigation into the incident in issue. He was told that facility policy called for two CNAs to transfer a resident from bed to a chair. One of the CNAs said there were two CNAs present for the transfer, but once the resident was in the chair one of them left. The CNA who remained said she noticed the resident's foot was puffy and when she tipped the chair back to put a stool under the
resident's feet, she tipped it too far and the resident fell over, hitting her head.
The evidence regarding the incident indicates the fall took place about 5:45 a.m., but the family was not advised until after 9:00 a.m. The family was upset about that. Mr. Palazzo concluded that the tipping of the chair by the CNA was accidental but careless. He determined that fault lay with the CNA and the facility staff for not having anti- tip devices on the chair and for putting the resident into a wheel chair in the first place.
Mr. Palazzo was unable to complete the survey on August 4, 2000, because he had to review copies of the records and his notes and because he wanted to discuss the matter with his supervisor. He was not able to return on either
August 7 or 8, 2000, because of other inquiries in which he was involved. However, on August 8, 2000, he received word that the complainant in this case wanted to talk with him. When he contacted the complainant, she was upset because the resident had been again injured by a staff member while being wheeled through a doorway. The resident's hand was scraped against the door jamb causing a minor skin break.
The following day, when Mr. Palazzo went to the facility, he was taken to the resident, her dressing was removed, and he could see the injury. The incident had been
entered in the resident's records. He also looked at the care plan but found nothing had been added to it. When he asked the charge nurse about this, she said she knew nothing about it. He then spoke with the CNA who had caused the injury, but when he asked to see her assignment sheet she didn't have it. She assured him, however, that she had it the day of the injury. The CNA also told him that her experience with this resident was that the resident always kept her hands in her lap. Therefore, she did not check to see if they were there when she wheeled the resident through the doorway. She claimed to be unaware of the original fall. When Palazzo spoke with the charge nurse about the previously promised changes to the care plan, she admitted they had not been made. So did the director of nursing.
Based upon Mr. Palazzo's review of the situation, he determined that the citation in issue here regarding care plans (Tag F-280) was appropriate. He also found there was a failure in the assessment process involving the filling out of the minimum data set which advises staff on what to plan for. Here, the facility planned as it should have for pressure sores, but the resident's care plan did not show what was needed to be done in planning for protection against skin injury.
On April 15, 2000, the facility staff had done a skin risk assessment which called for quarterly reviews. As of that date, the resident was graded 8, which means she needed care. On May 23, 2000, another skin assessment also resulted in a grade of 8, but on July 18, 2000, ten days before the resident's first accident, she was graded 10. Both a grade of 8 and a grade of 10 call for development of preventive measures on the care plan and assignment sheets. These were not in place, and Mr. Palazzo concluded that the facility had failed to fulfill its own self-imposed requirement. None of the changes required were documented in the care plan and, therefore, the facility's care planning was found to be inadequate.
Mr. Palazzo found that the scope of this deficiency was isolated and assigned a "D" rating to it. This means that the resident had a potential for further harm if something was not done to prevent it. He also recommended it be classified as a Class III deficiency. He concluded that neither incident involving this resident was willful or blatant neglect or the result of ignoring directions but was carelessness only.
Once the Agency notified the facility of its intent to take action, the matter went to informal dispute resolution. The dispute panel re-identified Tag F-280 as F- 224, relating to neglect, and changed the severity and the
scope from level "D" to level "G", actual harm. Both "D" and "G" identifications indicate an isolated deficiency. It also reclassified the Class of the deficiency from Class III to Class II which supports issuance of a Conditional license.
Mr. Palazzo does not disagree with the panel's actions. He contends that though the facility rated the resident as "at risk" for skin problems it had not planned to prevent them, and this constituted neglect. This applies both to the tipping of the chair and the skin tear when the chair went into the door
The Tag was changed from F-280 to F-224 for failure to complete the care planning necessary for the charge nurse to give direction to the direct care giver through the case assignment sheet. The deficiency in the facility's actions related to its planning for the resident's care after she returned from the hospital. It failed to change her chair requirement from a wheel chair to a Gerry chair, and it failed to update the nurse's notes about her condition after the fall and after the skin injury. In substance, the facility had a responsibility to review and change if necessary. If a change was not necessary, the review should still have been noted, and that was not done.
The classifications of deficiencies are defined by Florida Statute. Class I deficiency is one which constitutes
an immediate danger to the resident. A Class II deficiency is one in which there is an immediate, direct threat of danger.
A Class III deficiency is one in which there is a prospective danger to a resident. The dispute panel at the Agency's area office made the change from a Class III deficiency to a Class II deficiency not on the issue of care planning, but on the issue of neglect causing harm.
On the issue of neglect, Lynda Lovell, Pasadena's administrator at the time both incidents occurred, indicated that the facility has a policy and procedure on both abuse and neglect. When an incident occurs, a detailed investigation is conducted to see what caused it and what can be done to prevent it from happening again. Her investigation, which included interviews with both the CNA and the charge nurse, revealed that both incidents were accidents.
Erika Smith is the CNA responsible for the care of the resident in issue on the 7:00 a.m. to 3:00 p.m. shift and has known the resident as long as she has been at the facility. Ms. Smith was not involved in the chair tipping incident but was pushing the resident's chair when the resident's hand hit the door. On August 6, 2000, after the noon meal, Ms. Smith was wheeling the resident in issue out of the dining room and accidentally bumped the resident's hand into the door. Her experience with this resident was that the
resident moves her hand as she comes to a door, and she expected the resident to do it this time as well.
Ms. Smith attends regular in-service training on various issues of resident care such as skin care, resident transfer, and the like. The assignment sheet she received usually contained everything the direct care giver had to know about the resident, including what the resident could and could not do. Even though she received one, however, she admits she rarely looked at it because she felt she knew her residents.
According to Chari Lovely, the assistant director of nursing at the facility, several days elapsed between the resident's fall from the wheel chair and the order for the Gerry chair and its being put into use. The care plan had been changed on July 3, 2000, to indicate the need for a chair for this resident. The specific type of chair was not originally indicated. When Mr. Palazzo came back and pointed out this omission on August 4, 2000, Ms. Lovely went through the entire care plan and made whatever changes were necessary. She subsequently pointed that out to Mr. Palazzo.
Ms. Lovely relates that when the resident returned to the facility from the hospital, an assessment was completed to determine the effects of the resident's head injury. No change could be found. Nothing in her condition or her
record, aside from the notation involving the Gerry chair, required anything new to be done or provided. Since the two incidents, this resident has been without problems, eats well, and has no skin problems.
According to Leanne Mallory, the director of nursing at Manor Care, the instant resident, a 99-year-old total care resident, has been at the facility since 1994. Ms. Mallory contends that the tear to the resident's hand skin was typical of those seen in very old patients, and, in her opinion, it was not serious.
Ms. Mallory contends that any accident or injury to a resident prompts an investigation resulting in a complete report. This is done to determine what happened and what can be done to prevent similar incidents in the future.
After the first accident involving this resident, a Gerry chair was ordered for the resident because it is bigger than a regular wheel chair and reclines. It is also more cumbersome. Ms. Mallory is not a supporter of Gerri chairs because, she contends, they promote contractures, can be considered a restraint, and infringe on the resident's dignity. She does not agree that this resident should not be in a wheel chair. The resident can sit up and can eat in the dining room, and a regular wheel chair makes it easier for her to get to the table.
The recommendation arising out of the investigation of the second accident was for more care to be taken to prevent skin injuries. It also called for continuation of training given to all staff in all areas, and all care staff having been in at least a CNA program before being hired. Ms. Mallory is familiar with Ms. Smith, the CNA responsible for the resident in issue, and knows her to be an excellent nursing assistant who is very conscientious and who takes very good care of her residents.
As to care planning, according to Ms. Mallory, when a resident is admitted, the minimum data set is completed within fourteen days of admission, along with a resident assessment protocol (RAP) for any area which needs further exploration. The summary describes the problem and what can be done about it. On those areas which are identified for care planning, the plan must be written by the twenty-first day after admission.
Every resident's care plan is reviewed as needed, but at least quarterly. This RAP was followed for the resident in issue. On August 4 and August 9, 2000, staff were still in the assessment stage, looking for a significant change in the resident after her fall. There were none -- other than the call for the Gerry chair. Ms. Mallory spoke with Mr. Palazzo on both August 4 and 9, 2000. He noted that
the old care plan called for a wheel chair and wanted that updated to reflect a Gerry chair. At that point, Ms. Mallory told Ms. Lovely to make the change, and it was done immediately.
This resident was evaluated both as a result of the fall when she returned from the hospital, and of the skin injury sustained from hitting the door. Ms. Mallory was amazed to see how good the resident looked and how well she did when she returned to the facility after the fall. She was alert and appeared to be the same as before she went into the hospital. At age 99, the resident is a prime candidate for skin problems. She has senile purpura, a condition of old age which makes capillaries break easily. She is also on aspirin, a blood thinner. The regular marks on her skin have been evaluated by a physician and determined not to be bruises. Nonetheless, she has a special mattress, is turned frequently, and is administered skin creams, lotions, and body soaks. She is also evaluated regularly, at least weekly, as for all high risk residents, for skin breaks.
Ms. Mallory contends that the tipping of the wheel
chair was an accident that could have happened to anyone. As to the hand injury, she cannot think of what reasonably could have been done to prevent it other than to make sure the
resident's hands were inside the chair when going through a door.
When the facility's annual survey was done in July 2000, no neglect or care planning deficiencies were identified or reported.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. See Subsection 120.57(1), Florida Statutes.
The Agency conducted a survey of the facility in this case as the result of a complaint by a family member of the resident in issue involving several allegations of neglect by the facility. The first of these incidents resulted from the resident being accidentally tipped over in her wheel chair, which caused her to strike her head on the floor and sustain a fractured skull. It was further alleged that the facility staff failed to advise the resident's family of the incident in a timely manner.
The second incident involved a tear to the skin on the resident's hand while being wheeled out of the dining room after eating. The CNA pushing the chair failed to ensure the resident's hands were in the chair, and the resident's hand struck the door, causing swelling and a bruise.
The survey which occurred as a result of these incidents resulted initially in a finding that the facility had failed to accomplish the required comprehensive care planning required for this resident set forth at 42 CFR 483.20(k)(2), and the incidents were assigned F-tag number F-
280. The surveyor also classified the deficiency as a Class III deficiency. Pasadena protested this F-280 deficiency by taking advantage of the IDR process provided for in 42 CFR
488.331. The IDR panel which reviewed the matter determined that the primary deficiency was more neglect than a lack of planning and changed the F-tag number to F-224, classifying the deficiency as a Class II deficiency. A Class II deficiency supports the issuance of a Conditional rating.
the nursing home community. A Class II deficiency is one which has a direct or immediate relationship to the health, safety, or security of the residents of the nursing home facility. See Subsection 400.23(8), Florida Statutes. The incidents here, though both occurring to the same resident and within a relatively short period of time, are clearly isolated incidents which do not support the award of a Class II license rating.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order withdrawing the Conditional license issued to Pasadena Manor, Inc., on September 12, 2000, and issuing no less than a Standard license for that period.
DONE AND ENTERED this 27th day of March, 2001, in Tallahassee, Leon County, Florida.
___________________________________ ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2001.
Alfred W. Clark, Esquire
Michael P. Sasso, 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.
