STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
BEVERLY HEALTH AND REHABILITATION SERVICES-PALM BAY,
Respondent.
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) Case No. 01-1605
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RECOMMENDED ORDER
Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing of this proceeding on October 23 and 24, 2001, in Viera, Florida, on behalf of the Division of Administrative Hearings ("DOAH").
APPEARANCES
For Petitioner: Dennis L. Godfrey, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North, Room 310L St. Petersburg, Florida 33701
For Respondent: R. Davis Thomas, Qualified Representative Broad & Cassel
215 South Monroe Street, Suite 400 Tallahassee, Florida 32302
STATEMENT OF THE ISSUE
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 8 through May 30, 2001.
PRELIMINARY STATEMENT
By letter dated March 22, 2001, 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 June 27, 2001, because that was the first month that both counsel stated they were available in their joint response to the Initial Order from DOAH. On June 6, 2001, Respondent filed an unopposed motion for continuance. The ALJ rescheduled the hearing for August 23 and 24, 2001. On August 15, 2001, the ALJ sua sponte rescheduled
this matter for September 27 and 28, 2001. On September 14, 2001, Petitioner filed an unopposed motion for continuance, and the ALJ scheduled the hearing for October 23 and 24, 2001, in Viera, Florida.
The style of the documents filed in the case prior to October 23, 2001, denoted the state agency as 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 October 23, 2001, 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 October 23 and 24, 2001, Petitioner presented the testimony of four witnesses and submitted seven exhibits for admission in evidence. Respondent presented the testimony of four witnesses, and submitted six exhibits for admission in evidence. There was one joint exhibit filed by the parties. The identity of the witnesses and exhibits and any attendant rulings are set forth in the two-volume Transcript of the hearing filed on December 13, 2001.
On October 24, 2001, the ALJ ordered the parties to file their proposed recommended orders ("PROs") no later than ten days after the transcript is filed. On December 13, 2001, the parties filed a joint motion for an extension of time to file their PROs. The ALJ ordered the PROs filed by January 15, 2002. On
January 11, 2002, Respondent filed an unopposed motion for a second extension of time to file the PROs. The ALJ extended the time and ordered the PROs filed by February 1, 2002.
FINDINGS OF FACT
Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 5405 Babcock Street, Northeast, in Palm Bay, Florida (the "facility").
Petitioner conducted an annual survey of the facility that Petitioner completed on March 8, 2001 (the "March survey"). 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". Petitioner conducted a follow-up survey of the facility that Petitioner completed on April 17, 2001 (the "April survey").
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 five tags at issue in this proceeding. The March survey cites two Class II deficiencies and three Class III deficiencies. The April survey cites repeat violations of three Class III violations.
In this case, Section 400.23(8)(b) and (c), Florida Statutes (2000) establishes the deficiency classifications referred to as Classes II and III. All statutory references in this Recommended Order are to Florida Statutes (2000) unless otherwise stated.
Section 400.23(8)(b) defines Class II deficiencies as
those:
. . . which the agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility resident. . . .
Section 400.23(8)(c) defines Class III deficiencies as
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.
The March survey sets forth allegations against Respondent in Tags F224, F282, F314, F325, and F363. Petitioner classifies Tags F224 and F314 as class II deficiencies and Tags F282, F325, and F363 as class III deficiencies.
Tag F224 in the March survey generally alleges that Respondent failed to implement policies and procedures to prevent abuse to a resident by another resident.
Tag F314 generally alleges that Respondent failed to provide necessary assessment, treatment, and documentation for pressure sores for one resident.
Tag F282 generally alleges that the facility failed to provide care and services in accordance with the plan of care for two residents.
Tag F325 generally alleges that the facility failed to ensure that one resident maintained acceptable parameters of nutritional status, including body weight.
Tag F363 generally alleges that the facility failed to provide menus that meet the nutritional needs of the residents by not following menus for pureed and dysphagia diets.
The April survey sets forth allegations against Respondent in Tags F282, F325, and F363. Petitioner classifies each alleged violation as a Class III deficiency.
Tag F282 in the April survey generally alleges that Respondent failed to follow a resident’s plan of care by failing to provide a weighted spoon and plate guard. Tag F325 generally alleges that the facility failed to ensure that a resident maintained acceptable parameters of nutritional status, including body weight. Tag F363 generally alleges that the facility failed
to ensure that menus designed to meet the nutritional needs of the residents were prepared in advance and followed.
Florida Administrative Code Rule 59A-4.1288 establishes the requirement for nursing home facilities licensed by the State of Florida to adhere to federal rules and regulations as found in Section 483 of the Code of Federal Regulations (CFR). In relevant part, the state rule provides:
Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference.
(All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order).
Applicable federal and state laws require Petitioner to assign to the deficiencies alleged in the 2567 a scope and severity rating required by federal regulations. In the
March survey, Petitioner assigned a "G" rating to Tags F224 and F314, both of which are Class II deficiencies. 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.
Petitioner assigned a "D" rating to the three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey. A "D" rating means that there is no actual harm but
there is potential for more than minimal harm without actual jeopardy.
Petitioner relies on two grounds for changing Respondent's license rating from standard to conditional. When Petitioner alleges two Class II deficiencies in the 2567, as Petitioner did in the March survey, applicable rules require Petitioner to change the rating of a facility's license. Applicable rules also authorize Petitioner to change a facility's license rating when the facility does not correct Class III deficiencies within the time prescribed by Petitioner. Petitioner alleges that Respondent failed to correct three Class III deficiencies alleged in Tags F282, F325, and F363 in the March survey by the time Petitioner conducted the April survey.
Effective March 8, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Effective May 31, 2001, Petitioner changed the rating of the facility's license from conditional to standard.
The allegations in Tag F224 in the March survey pertain to two residents in the dementia unit of the facility who are identified individually as Resident 1 and Resident 13. Tag F224 in the March survey alleges that the facility failed to meet the requirements of 42 CFR Section 483.13(c). The federal regulation provides in relevant part:
The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property.
The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.
The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288.
Tag F224 does not allege that the facility failed to develop the written policies required by 42 CFR Section 483.13(c) and Rule 59A-4.1288. Rather, Tag F224 alleges that Respondent failed to implement its policy.
Tag F224 alleges that the facility failed to provide care and services to Resident 13 to prevent the resident from sexually intimidating a female resident identified as Resident 1. Tag F224 further alleges that Resident 13 had a past history of abusive and aggressive behavior to other residents but was not reassessed, "care planned," and monitored.
The allegations in Tag F224 are based on observations of one of Petitioner's surveyors who participated in the March survey. On March 5, 2001, the surveyor observed Resident 13 in the dementia unit standing over Resident 1. The surveyor did not observe any overt sexual misconduct by Resident 13. Rather, the surveyor concluded that sexual misconduct occurred because she determined that Resident 13 was "invading [the female resident's]
space," Resident 1 appeared "very anxious," "nervous," and "uncomfortable", and screamed for 15 minutes for Resident 13 to leave.
The surveyor also relied on the history of Resident 13 to conclude that Resident 13 engaged in sexual misconduct on March 5, 2001. Resident 13 had, on two occasions, previously expressed a desire to have sex with female residents in the dementia unit and on other occasions had wandered into the rooms of female residents. Based on the inappropriate sexual statements by Resident 13 prior to March 5, 2001, the surveyor alleged in Tag F224 that Resident 13 engaged in sexual misconduct with Resident 1 on March 5, 2001.
The preponderance of evidence does not show that Resident 13 engaged in sexual misconduct on March 5, 2001, by standing in front of Resident 1. Resident 13 did not engage in any overt sexual act or gesture. Resident 13 did not utter any inappropriate sexual comments. Resident 13 suffered from dementia and was elderly. He was mentally incapable of forming the requisite intent to sexually intimidate Resident 1 and was physically incapable of carrying out any such intent.
In the absence of any overt sexual misconduct on March 5, 2001, the only evidence to support the allegation of sexual misconduct in F224 is the inference of the surveyor based on the gender difference between Residents 13 and 1 and the past
history of inappropriate sexual statements by Resident 13. The inference of the observer does not satisfy the requirement for a preponderance of the evidence.
The resident’s physician was qualified as an expert witness without objection. The physician testified that he was aware of Resident 13’s aggressive behavior, including the two occasions on which the resident expressed a desire to have sex with female residents. However, such incidents are typical of demented residents, do not reflect that Resident 13 was going to attack other residents in the dementia unit, and do not require any alteration to the care plan that was already in place.
The only evidence that Petitioner provided to the contrary was the non-expert opinion of its surveyor. The non- expert opinion of the surveyor was insufficient to refute the physician’s expert opinion.
Resident 13 suffered from severe cognitive impairment and was not physically or mentally capable of premeditating a plan to sexually intimidate Resident 1 and then carry out that plan. Resident 1 was paranoid of men. Her response to the encounter with Resident 13 was precipitated by her paranoia rather than by Resident 13's intent to sexually intimidate Resident 1.
Although Resident 13 voiced a desire to have sex with other residents on two occasions during his stay at the facility,
he never acted on those statements and was physically and mentally incapable of acting on them. On those two occasions, Respondent monitored Resident 13 closely but the resident did nothing to indicate that he would act on his stated desires or that he even remembered voicing them.
Petitioner did not allege that Resident 13 engaged in any behavior on March 5, 2001, other than sexual misconduct. Even if Tag F224 were to have alleged that Resident 13 engaged in abuse other than sexual abuse, the preponderance of the evidence failed to show that Resident 13 engaged in non-sexual abuse.
As a threshold matter, the evidence that the incident lasted for 15 minutes is not credible. It is implausible that a surveyor would allow apparent sexual intimidation to continue after she perceived the incident to be sexual intimidation, much less allow Resident 1 to endure such intimidation for 15 minutes.
The surveyor testified that she could not locate a certified nursing assistant ("CNA") on the dementia unit when the incident occurred on March 5, 2001. The dementia unit is a locked unit comprised of resident rooms that open at regular intervals along a 60-foot hallway, and an activities room. There were two CNAs on duty at the time. One of those CNAs was in the hallway at the time of the alleged incident. The surveyor did not inform any member of the staff or administration at the facility that the incident had occurred before Petitioner
provided Respondent with the allegations in the 2567 at the conclusion of the March survey.
Resident 13’s primary behavior problem did not involve physical aggression toward other residents. Rather, the primary behavior problem was Resident 13's tendency to become aggressive with staff when they attempted to provide personal care, especially that care required for the resident's incontinence.
Petitioner incorrectly concluded that the inappropriate behavior by Resident 13 indicated that he was a risk to assault or intimidate other residents. Resident 13’s historical experience at the facility did not involve aggression toward other residents. Instead, Resident 13 directed his aggressive behavior to situations with staff who were attempting to provide personal care for him.
Irrespective of the proper characterization of Resident 13's behavior on March 5, 2001, the behavior did not occur because of any failure by the facility to assess Resident 13 or to develop and implement appropriate care plans to address the Resident 13's inappropriate behavior. Respondent acknowledged that Resident 13 wandered the hall, wandered into residents’ rooms, occasionally urinated in inappropriate places, and occasionally made inappropriate sexual remarks. However, those behaviors are typical of residents who suffer from dementia, and
the inappropriate behavior cannot be eliminated through a care plan.
Facility staff knew to monitor Resident 13 and to re- direct him if he engaged in inappropriate behavior that affected other residents. The chart for Resident 13 is replete with instances of staff consistently implementing those interventions.
The care plan for Resident 13 directed staff to approach him calmly, let the resident choose the timing of his care, assess him for pain as a potential cause of agitation, and leave the resident alone and approach him later if the resident became upset during care. All of these interventions were appropriate for the identified behavior problem, and the record is replete with instances of the successful implementation of appropriate interventions.
A physician saw Resident 13 and evaluated the resident almost weekly. The physician was aware of and assisted in the evaluation of the resident’s behavior. The physician considered several alternative interventions including the use of anti- anxiety medications to address the resident’s aggressiveness. The physician called in a psychiatric nurse practitioner to evaluate the resident and to recommend medications that might be effective in controlling aggressive episodes. At various times during the course of Resident 13’s stay at the facility, the physician prescribed Seraquil, Risperdal, BuSpar and Ativan for
the resident. When aggressive incidents occurred, staff administered these medications with positive effects.
Petitioner offered no specific evidence that any intervention used by the facility was not appropriate or that there was another intervention that the facility failed to identify and implement that would have changed any of the inappropriate behavior. Rather, the surveyor concluded that whatever the facility did was inappropriate because Resident 13’s behavioral problems did not subside or disappear while he was at the facility. The surveyor's conclusion fails to adequately understand dementia. The inappropriate behavior displayed by Resident 13 is typical of residents in a dementia unit and cannot be eliminated.
Petitioner did not prove that Respondent failed to adequately reassess Resident 13. The resident’s medical record is replete with examples of efforts by the staff to continually re-evaluate the resident and to modify care plan approaches. The facility conducted quarterly re-assessments of the resident. The facility required staff to chart all incidents of inappropriate behavior in the resident’s medical record in an effort to identify any triggering events.
The facility provided staff with in-service training for Resident 13 by the resident’s physician. The scope of the
training encompassed the care of residents with dementia but focused in particular on the care that was required for Resident 13. The physician wanted to assure that Resident 13 would not become over-medicated and implemented frequent assessments and readjustments of the dosages of the resident's medications. Petitioner offered no evidence that Respondent failed to assess the resident in a timely manner or that any assessment performed by the facility was inappropriate.
Petitioner did not allege in the March survey that the incident between Residents 13 and 1 was a result of Respondent's failure to consistently implement Respondent's policy regarding investigations of abuse. Therefore, any evidence relevant to such an allegation at the hearing is irrelevant to the allegations for which Petitioner provided adequate notice in the March survey. A contrary ruling would violate fundamental due process requirements for notice of the charges that substantially affect Respondent's license to operate the facility.
Assuming arguendo that Petitioner can prove charges at the hearing that were not included in the allegations in the March survey, Petitioner's surveyor testified at the hearing that the incident she observed on March 5, 2001, occurred because the facility did not implement its policy and procedure regarding investigations of abuse of residents. As evidence of Respondent's failure to implement its policy, the surveyor
contended that the facility did not properly investigate another incident described in nursing notes on January 31, 2001, before the March survey. In the January incident, the nursing notes indicated that Resident 13 made sexual advances to other residents. The implication is that the facility would have done something different with the resident had it properly investigated the January incident and would have, in turn, been able to prevent the occurrence of the incident the surveyor observed on March 5, 2001.
Respondent maintains an adequate anti-abuse policy.
Respondent’s anti-abuse policy requires its designated staff members to investigate and report to abuse agencies, if necessary, any suspected incidence of abuse of its residents. However, the facility did not fail to implement this policy with regard to Resident 13.
Abuse is defined in Respondent's policy as the "willful infraction [sic] of injury . . . resulting in physical harm, pain or mental anguish." Due to Resident 13's dementia, he was not capable of willfully inflicting harm on anyone. No facility investigator could reasonably conclude that an incident involving Resident 13 constituted abuse within the meaning of the written policy of the facility.
Even if the incident described in the January 31, 2001, nursing notes were relevant to the allegations in the March
survey, Petitioner failed to show that the incident which the surveyor observed on March 5, 2001, was the product of any failure by Respondent to implement its policy on January 31, 2001. The facility’s director of nursing adequately investigated the incident described in the nursing notes on January 31, 2001, and determined that Resident 13 made no sexual advances to anyone and did not direct any inappropriate sexual comments to other residents. Rather, the investigation found that Resident 13 made inappropriate sexual comments to a CNA. Staff appropriately monitored Resident 13 after he made that statement to the CNA, and Resident 13 did nothing to act on the statement. The director of nursing notified Resident 13’s physician, and the physician determined there was no need to alter the resident’s care plan.
Petitioner failed to show that the deficiency alleged in F224 was a Class II deficiency. Petitioner presented no evidence that the incident the surveyor observed on March 5, 2001, was anything other than an isolated incident or presented a threat of harm to other residents.
Tag F314 alleges that Respondent violated 42 CFR Section 483.25(c). The federal regulation requires, in relevant part:
Pressure Sores. Based on the comprehensive assessment of a resident, the facility must ensure that—
A resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and
A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.
The federal regulation is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288.
The March survey alleges in Tag F314 that the facility failed to provide required treatment and services to
Resident 2. The surveyor determined the facility was out of compliance after she determined that Resident 2 had pressure sores. The surveyor based her findings on her observation of Resident 2 and a review of the records.
In the nursing notes of February 22, 2001, the facility noted small open areas to the left thigh, back of scrotum, and buttocks. On March 5, 2001, the resident’s medical record indicated that the resident had two reddened areas on his buttocks. On March 6, 2001, the surveyor observed that the resident had two open areas on his right buttock and two on his scrotum.
Petitioner charged in F314 in the March survey that these areas were pressure sores, and that the areas identified on March 6th were those which had been initially identified on
February 22, 2001. Petitioner further charged that the facility failed to provide necessary treatment and services because staff failed to notify the resident’s physician and obtain a treatment order to the areas in accordance with the facility's policy relating to pressure sore care.
A threshold issue is whether the reddened areas on Resident 2 were pressure sores or were reddened areas that did not satisfy Petitioner's definition of a pressure sore. If the areas were not pressure sores, Petitioner acknowledges that there would be no deficiency and no violation of the facility's pressure sore policy.
The guidelines promulgated by Petitioner to guide its surveyors in the interpretation of the standard applicable under Tag F314 define a pressure sore as:
. . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer.
The areas identified on February 22, 2001, were located on Resident 2’s buttocks, scrotum, and thigh. None of those areas were located over any bony prominence within the meaning of Petitioner's promulgated definition of a pressure sore. Additionally, the areas identified on February 22nd were healed the next day. Pressure sores do not typically heal overnight.
A nurse practitioner examined the areas identified on March 5th and 6th during the survey. The nurse practitioner diagnosed those reddened areas as a rash.
Petitioner relies on records that identify the reddened areas on forms that the facility uses for both pressure sores and reddened areas that are not located over a bony prominence. For convenience, the facility uses a single form to identify both reddened areas and pressure sores.
Petitioner seeks to rely on the facility forms, including elements of the plan of care on such forms, as though they were admissions by the facility that define pressure sores and then attempt to require the facility to prove the areas are not pressure sores. Petitioner is bound by its own definition of a pressure sore, cannot deviate from that definition, and cannot rely on a different definition as a basis for disciplinary action against the licensee.
Petitioner limits the definition of a pressure sore to those ischemic ulcerations and/or necrosis of tissues that overlie a bony prominence. Those ischemic ulcerations and/or necrosis of tissues that do not overlie a bony prominence are not pressure sores within the meaning of the definition adopted by the state agency. The use by the facility of pressure sore treatment forms and the use of the term pressure sore in the
medical records does not create a bony prominence where none exists.
The preponderance of evidence shows that the reddened areas at issue were not located over a bony prominence. Clearly, there is no bony prominence in the scrotum, thigh, or buttocks where the reddened areas were located on Resident 2.
Assuming arguendo that the areas were pressure sores, Respondent provided all treatment and services to the areas necessary to promote their healing. The facility treated the areas identified on February 22, 2001, by cleansing and application of Lantiseptic, a skin protector. The effectiveness of the treatment is reflected by the complete healing of the areas on the next day.
Facility staff properly notified the treating physician and treated the areas identified on March 5th with Lantiseptic.
A physician’s assistant examined the areas identified in the March survey and confirmed the use of Lantiseptic on the areas.
The surveyor found no record of any plan of care for the pressure sores alleged in the March survey. The facility subsequently produced a note by a nurse practitioner dated
March 6, 2001, stating that Lantiseptic was applied to a rash on the buttocks and scrotum, a doctor’s order for treatment, and a care plan for pressure sores after the physician’s note of February 23, 2001.
The surveyor testified that the additional documents did not alter her testimony that the areas were pressure sores and that the facility failed to provide an adequate plan of care. The testimony of the surveyor does not refute the preponderance of evidence at the hearing. The areas at issue did not overlay a bony prominence.
In any event, Petitioner failed to show that the deficiency alleged in F314 in the March survey was a Class II deficiency. Even if the areas were pressure sores and it were determined that the facility failed to provide necessary treatment and services, the evidence does not demonstrate that the problem suffered by Resident 2 was systemic or likely to occur with other residents in the facility. At most, the evidence demonstrates a limited failure to provide care to one resident. Accordingly, Petitioner failed to prove that the identified deficiency presented an immediate threat to other residents in the facility.
At the conclusion of Petitioner's case in chief, Respondent moved to dismiss the allegations in Tag F282 on the grounds that Tag F282 in the March and April surveys alleged different deficiencies and therefore were not relevant or material to a change in license that is based on uncorrected deficiencies. After hearing arguments from both parties, the ALJ granted the motion to dismiss with leave for Petitioner to
revisit the issue in its PRO if Petitioner could provide legal authority to support its position.
Petitioner argues in its PRO that the ALJ erred in granting the motion to dismiss. However, Petitioner does not cite any legal authority to support its argument.
Tag F282 in the March and April surveys alleges that the facility failed to provide care and services in accordance with the plan of care for two residents in violation of 42 CFR Section 483.20(k)(ii). The federal regulation provides in relevant part:
Comprehensive Care Plans.
(3). The services provided or arranged by the facility must—
(ii) Be provided by qualified persons in accordance with each resident’s written plan of care.
The federal standard is applicable to nursing homes in Florida pursuant to Rule 59A-4.1288.
In the March survey, Tag F282 did not allege that Respondent provided services to residents by unqualified staff. Instead, Tag F282 charged that Respondent's staff incorrectly fastened a clip belt in the back of Resident 21 while she was in her wheel chair and failed to toilet her once in accordance with a physician’s order. In addition, Tag F282 alleged that staff did not weigh Resident 3 weekly as required by his care plan.
However, a preponderance of the evidence showed that the facility did not miss any required weights after January 13, 2001.
In the April survey, Tag F282 did not allege that Respondent failed to correct the deficiencies alleged in the March survey regarding Residents 21 and 3. Nor did Tag F282 allege that Respondent failed to comply with the plan of corrections submitted by Respondent after the March survey. Rather, Tag F282 in the April survey alleged that Respondent failed to provide a plate guard and weighted spoon for Resident 7 in violation of a physician's order.
Petitioner argues that the alleged deficiencies in Tag F282 in the March and April surveys, pertaining to Residents 21 and 7, respectively, involved the failure to comply with a physician's order and, therefore, represent uncorrected deficiencies. Even if Petitioner's definition of an "uncorrected deficiency" were accepted, it would not be dispositive of the issue. The evidence showed that the physician who ordered the weighted spoon and plate guard for Resident 7 terminated the order at the conclusion of the April survey. Even if Respondent failed to follow a physician's order for Residents 21 and 3 in the March survey, Respondent did not fail to follow a physician's order for Resident 7 during the April survey. Moreover, the termination of the physician's order evidences a medical
determination that the failure to comply with the order did not cause any harm to Resident 7.
In any event, the definition of an "uncorrected deficiency" asserted by Petitioner is not persuasive. Notwithstanding the request of the ALJ, Petitioner did not submit any legal authority to support its asserted definition of the phrase "uncorrected deficiency." In the absence of a technical definition established by statute, rule, or judicial precedent, the phrase "uncorrected deficiency" is properly construed in accordance with the plain and ordinary meaning of its terms.
The allegations in Tag F282 in the March survey are rooted in a physician’s order that called for a clip belt to be placed around Resident 21 while she was in her wheelchair. The purpose of the order was to guard the safety of Resident 21. The order further directed staff to check the belt every thirty minutes and release it every two hours to toilet the resident.
During the March survey, a surveyor observed that staff had placed the clip belt on Resident 21 improperly on one day, and further determined that the resident had not been taken to the toilet. Based upon that information, the surveyor charged that the facility failed to follow the doctor’s order for checking and releasing the belt.
The surveyor’s observations established, at most, a single isolated instance of failure to follow the care plan for
Resident 21. The surveyor's observations failed to establish a consistent failure to implement the care plan.
The alleged deficiency presented no potential for harm to Resident 21. Resident 21 was cognitively alert and could notify staff if she needed to be toileted or needed her belt removed. At the time that the surveyor observed Resident 21, the resident was in a supervised setting with staff readily available to her in the event she needed attention. She was not shown to have experienced any incontinent episode or to have even requested that she be toileted or otherwise released from the belt. Petitioner acknowledges that any failure by staff to remove the resident’s belt during this time presented nothing more than a minimal risk of harm to the resident.
Resident 3 was admitted to the facility on January 13, 2001, and had a care plan that called for the resident to be weighed weekly. Between the resident’s admission to the facility and the March survey, the facility weighed the resident in accordance with the care plan except for one omission in late February. This one instance of failing to do a weekly weight did not demonstrate a consistent failure to implement the care plan. Petitioner provided no evidence that this single instance of failing to weigh the resident caused the resident harm or presented even the potential for harm to the resident.
After the March survey, Respondent submitted a plan of correction to address the alleged deficiencies relating to Tag F282. Applicable law precludes Respondent from arguing the validity of the alleged deficiencies in its plan of correction. In the plan of correction, Respondent indicated that it would focus on restraints and weekly weights to insure that the alleged deficiencies would not re-occur. Petitioner accepted the plan of correction and, in April, did not find that staff at the facility failed to properly apply restraints to residents, failed to do weekly weights for residents, or otherwise failed to implement the plan of correction.
Petitioner charged that Respondent violated Tag F282 in April because the facility failed to provide a weighted spoon and plate guard to Resident 7 as required by a physician’s order. It is uncontroverted that the plan of correction adopted to address the March F282 deficiency pertaining to Residents 21 and 3 did not address the deficiency alleged in Tag F282 in the April survey with respect to Resident 7; and would not have prevented the deficiency alleged in the April survey pertaining to Resident 7. Accordingly, the deficiency alleged in Tag F282 in the April survey pertaining to Resident 7, even if true, did not represent an "uncorrected" deficiency. Instead, the deficiency alleged in Tag F282 in the April survey represented a new deficiency.
In any event, Petitioner failed to demonstrate that the alleged failure of the facility to comply with any of the orders at issue denied residents any necessary care and treatment, or presented even the possibility that the residents would be harmed. The physician ordered the weighted spoon and plate guard for Resident 7 due to the loss of dexterity in the resident's hand needed to assist him in the consumption of his meals. Even though the plate guard and spoon were not provided to the resident after they were ordered for him, the resident had no trouble with meal consumption. His medical records reflected that he consistently consumed his meals and that he gained almost
20 pounds during the time period that the spoon and plate guard were ordered. The weight gain and food consumption are significant because the facility initially admitted the resident as a hospice resident. The absence of any medical necessity for the physician's order requiring the spoon and plate was confirmed when the facility contacted the doctor during the survey, and the doctor issued an order discontinuing the use of the plate guard and spoon.
Tag F325 in the March and April surveys alleges that the facility failed to comply with the requirements of 42 CFR Section 483.25(i)(1). The federal regulation provides, in pertinent part:
Nutrition. 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. . . .
The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288.
Tag F325 alleges in the March survey that Respondent did not maintain acceptable parameters of body weight for Resident 4. Respondent does not dispute this charge.
Tag F325 alleges in the April survey that Respondent did not maintain acceptable parameters of body weight for Resident 9. Resident 9 lost approximately 20 pounds between August of 2000 and April 8, 2001. However, Petitioner provided no evidence that the weight the resident lost was "unacceptable" or caused by inadequate nutritional care.
Petitioner neither contended nor demonstrated that a 20-pound weight loss over seven or eight months violates any accepted dietary or health standard. Even if such a rate of weight loss were an "unacceptable nutritional parameter," Petitioner provided no evidence that Respondent failed to properly monitor Resident 9's weight, assess his dietary needs, provide the resident with an appropriate diet, or otherwise caused the weight loss. Rather, the resident’s medical records
demonstrate on-going assessments of the resident by the dietary staff and numerous interventions to address the resident's weight.
Petitioner alleges that Respondent failed to comply with several directives for supporting care for Resident 9. Facility staff had been directed to cue Resident 9 to use a "chin tuck" to address his risk of aspiration due to swallowing difficulties. Staff were directed to cue the resident to cough and tuck his chin anytime the staff determined that the resident's voice sounded wet.
During the survey, the surveyor observed three meals in which the staff provided no cues to Resident 9. However, no cues were required of staff if the resident did not have a wet sounding voice, and the surveyor acknowledged that she did not hear the resident cough during any of her meal observations.
Even if cues were required to be given to Resident 9 during the meals observed by the surveyor, the surveyor did not demonstrate that the failure to cue the resident had any negative impact either on the resident's ability to eat or on the resident's weight. Rather, the evidence shows that Resident 9 weighed 151.6 pounds on April 8, 2001, and weighed 160.2 pounds on April 20, 2001, the day after Petitioner completed the April survey. Thus, the failure of the staff to cue the resident
during the observed meals did not violate a nutritional parameter.
The surveyor testified that the facility failed to provide fortified foods to Resident 9 during the April survey in violation of the resident's dietary care plan. The allegations in Tag F325 in the April survey do not include the allegation of inadequate care to which the surveyor testified during the hearing. In the absence of adequate notice in the written allegations, the testimony of the surveyor cannot be used as a basis for any finding of deficiency.
Even if the testimony were considered as a basis for a finding of fact, the failure to provide fortified foods did not violate any nutritional requirements. Resident 9's wife provided the resident with "home-cooked" meals to satisfy his food preferences. Petitioner acknowledges that the meals the wife supplied effectively precluded the resident from eating fortified foods provided by the facility. Moreover, Resident 9 gained weight between April 8 and 17, 2001.
Tag F363 alleges in the March and April surveys that the facility failed to meet the requirements of 42 CFR Section 483.35(c)(1)-(3). The federal regulation provides in relevant part:
(C) menus and nutritional adequacy. Menus must--
Meet the nutritional needs of residents in accordance with the recommended dietary allowances of the Food and Nutrition Board of the national Research Council, National Academy of Sciences;
Be prepared in advance; and
Be followed.
The federal regulation applies to nursing homes in Florida pursuant to Rule 59A-4.1288.
Tag F363 alleges that the facility’s menu for March 8, 2001, included cranberry sauce and that the facility did not serve cranberry sauce to 11 residents in the rehabilitation dining room. The surveyor who made this charge did not evaluate the meal actually provided to the residents for its nutritional adequacy. Rather, the surveyor cited the facility because the facility failed to comply with the literal terms of the printed menu.
Respondent does not dispute that the facility did not serve cranberry sauce to 11 residents in its rehabilitation dining room on the day in question. The facility’s menu for March 8, 2001, consisted of roast turkey, poultry gravy, cornbread dressing, peas and carrots, mandarin oranges, bread, and cranberry sauce. The menu called for one-half tablespoon of cranberry sauce. The omission was not significant. The dietician did not include the cranberry sauce in calculating the nutritional content of the meal. The cranberry sauce was only a
garnish to the plate. The remainder of the food items offered in the meal met all of the requirements for residents’ nutritional needs. Any failure by Respondent to provide the cranberry garnish presented no risk of harm to any resident.
Tag F363 alleges in the April survey that Respondent provided a saltine cracker during one meal to a resident who required a pureed diet. Tag F363 also alleges that Respondent gave a bologna sandwich to a resident whose food preferences did not include bologna sandwiches.
Petitioner provided no evidence that either of these residents received nutritionally inadequate meals. Petitioner’s apparent concern with the resident who was served the cracker was that she might attempt to eat it and choke on it because she required pureed foods and the cracker was not pureed.
The surveyor who observed the resident acknowledged that the resident did not eat the cracker. She also acknowledged that there is a regulatory standard which requires a facility to provide a therapeutic diet to residents who require such a diet, and that a pureed diet is a therapeutic diet. Accordingly, this observation is, at most, a violation of that standard, not Tag F363, and presented nothing more than a minimal chance of harm to the resident.
Petitioner failed to show that the resident who did not get the bologna sandwich was deprived of any required nutrition,
or that placing a bologna sandwich in front of the resident created any risk of harm to the resident. The surveyor acknowledged that the sandwich did not remain in front of the resident for long and that the facility immediately corrected the situation by providing the resident with an acceptable substitute.
Tag F363 also alleges that the facility posted for resident observation the same menu on Monday, April 17, 2001, that the facility posted on Sunday, April 16, 2001. The regulation at issue does not address how or even if menus must be posted in a nursing home. Petitioner failed to explain why posting the same menu on consecutive days would violate any regulation, rule, or statute. Respondent acknowledged that the Sunday menu was not removed on Monday, but demonstrated that different, nutritionally adequate meals were planned and served to residents on each of those days.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and subject matter in this proceeding. Sections 120.569 and 120.57(1). The parties received adequate notice of the hearing.
Petitioner has the burden of proof in this proceeding.
Petitioner must show by a preponderance of the evidence that Respondent committed the deficiencies alleged in Tags F224, F282, F314, F325, and F363. 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 any of the alleged deficiencies.
As a threshold matter, one policy consideration is appropriate in the interest of judicial economy and future prosecutorial discretion. In this case and in previous cases, Petitioner has consistently deviated from its promulgated definition of pressure sores.
Petitioner's written policy defines pressure sores, in relevant part, as ischemic ulcerations and/or necrosis of tissues that overlay a bony prominence. Yet, Petitioner consistently ignores the requirement of a bony prominence on the grounds that the facility documents the reddened area as a "pressure sore." In effect, Petitioner attempts to shift the burden of proof to the facility to show that the reddened area described by the
facility as a "pressure sore" does not overlay a bony prominence. In Petitioner's PRO, for example, Petitioner argues that Respondent used the term "pressure sore" and is bound by its own terms.
Petitioner's reasoning would alter the applicable burden of proof. Petitioner cannot employ a rubric used by the facility, for convenience or otherwise, to avoid Petitioner's burden of proof to show that a reddened area overlays a bony
prominence. A reddened area that satisfies the facility's definition of a "pressure sore" may not satisfy Petitioner's definition, and it is Petitioner's definition of a pressure sore that controls the outcome of these cases.
If Petitioner wishes to amend its written definition of a pressure sore to include ischemic ulcerations and/or necrosis of tissues that do not overlay a bony prominence, Petitioner should promulgate an amended definition of a pressure sore in the guidelines Petitioner prescribes for its surveyors. Petitioner cannot effectively amend its definition of a pressure sore in a de facto manner by asserting an unwritten definition of a pressure sore on a case-by-case basis.
To allow Petitioner to deviate from its written definition of a pressure sore in each case would allow Petitioner to charge Respondent with violating a written policy and, at the hearing, prove that Respondent violated an unwritten policy requirement, the definition of which is known only to certain individuals within the state agency. A facility would not know what charge it was required to defend until the time of the hearing, and different facilities may be required to defend different definitions of a pressure sore from one hearing to the next. Such a practice would violate fundamental notions of the due process requirement for adequate notice and may provide grounds for a remand pursuant to Section 120.68(7)(d) and (e).
In any event, Petitioner failed to submit evidence to explain, within the meaning of Section 120.68(7)(e)3, why Petitioner deviated in this case from its written definition of a pressure sore.
Petitioner's use of Tag F224 in light of the facts in this case failed to properly interpret the federal regulation at issue. The alleged facts asserted that Respondent neglected Resident 13 one time during the survey in a manner that allowed Resident 13 to intimidate Resident 1. However, a federal Departmental Appeals Board decision makes clear that a single allegation of neglect cannot sustain a violation under Tag F224.
In Life Care Center of Hendersonville v. Health Care Financing Administration, Department of Health and Human Services, Departmental Appeals Board Decision No. CR542 (July 22, 1998) (available at http://www.os.dhhs.gov/progorg/dab/), the federal administrative law judge stated:
In evaluating a long-term care facility’s compliance with the regulation, the questions that must be answered are: (1) has the facility developed written policies and procedures that prohibit abuse, mistreatment or neglect of residents; and (2) have those policies been implemented?
The question [regarding implementation] cannot be answered simply by identifying random episodes of abuse, mistreatment or neglect which may have occurred at a facility. A conclusion that a facility has failed to implement anti-abuse, mistreatment or neglect policies does not necessarily
follow from evidence of an isolated episode or episodes of abuse, mistreatment or neglect. A facility may be found to have implemented the required policy even if an isolated instance of abuse, mistreatment or neglect occurs at the facility despite the facility’s best efforts.
That is underscored by the guidance which HCFA gives to State survey agency Surveyors. The State Operations Manual provides that: the intent of . . . [42 CFR §483.13] is to assure that the facility has in place an effective system that . . . prevents mistreatment, neglect, and abuse of resident
. . . . However, such a system cannot guarantee that a resident will not be abused; it can only assure that a facility does whatever is within its control to prevent mistreatment, neglect and abuse of residents.
Other Appeals Board decisions make clear that allegations of inadequate care are required to be asserted as a violation of a quality of care Tag, rather than Tag F224. In Haverhill Care Center v. HCFA, Departmental Appeals Board Decision No. CR522 (March 10, 1998) (available at http://www.os.dhhs.gov/progorg/dab/), the federal administrative law judge stated:
This regulation is directed against medically unnecessary use of restraints, abuse, corporal punishment, involuntary seclusion, mistreatment, neglect and misappropriation of property. This regulation is not meant to address every type of policy or procedure which addresses resident care. [This] Resident’s . . . situation is actually a question of compliance with a general nursing standard of care, which is better addressed under 42 CFR §483.25 Quality of Care.
Petitioner cited no Final Order or case law in Florida which directs Petitioner to follow the decisions of the Departmental Appeals Board. Although not controlling, those decisions are persuasive. The Departmental Appeals Board decisions are final decisions of the Secretary of the Department of Health and Human Services, the federal agency which promulgates the regulation which is the standard by which violations of Tag F224 are measured. Because these decisions are final decisions of that agency addressing the interpretation and application of its own regulations, the decisions are entitled to deference. South Valley Health Care Center v. Health Care Financing Administration, 223 F. 3d 1221 (10th Cir. 2000). Based upon the standards articulated in these decisions, the deficiency alleged in the March survey, even if true, is not a violation of Tag F224.
Assuming arguendo that a determination were made that Petitioner proved the deficiencies alleged in Tags F224 or F314 in the March survey, Petitioner failed to show by a preponderance of evidence that either deficiency was properly classified as a Class II deficiency. Neither was shown to present an "immediate threat" to residents at the facility.
Assuming arguendo that Petitioner proved the deficiencies alleged in Tag F282 in the March and April surveys, Petitioner failed to demonstrate that the April deficiency was an
"uncorrected" deficiency from March. The two identified deficiencies were not sufficiently similar to support the determination that Palm Bay did not correct the March deficiency.
Assuming arguendo that Petitioner proved the F282 and F363 deficiencies in both March and April, and the F325 deficiency in April, Petitioner failed to demonstrate that any of those deficiencies presented something more than a minimal chance of harm to the residents involved in those deficiencies. Because the deficiencies presented nothing more than a minimal chance of harm to residents, Respondent was in "substantial compliance" with the requirements of the Tags cited in the 2567.
A standard rating is defined in Section 400.23(7)(a), in relevant part, to mean:
. . . a facility has no class I or II deficiencies and 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. . . .
Petitioner failed to prove that there was a Class I or II deficiency or an uncorrected Class III deficiency at the facility, or that the facility was not in substantial compliance with applicable regulations during either the March or April surveys. It was inappropriate for Petitioner to issue a Conditional rating on March 8, 2001, and continue that rating through May 31, 2001.
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 finding that Petitioner failed to show by a preponderance of the evidence that a factual basis existed upon which Petitioner should have issued a Conditional rating to Respondent on March 8, 2001, and revising the March 8 and April 16, 2001, 2567 reports by deleting the deficiencies described under Tags F224, F314, F282, F363 and F325 (April only); and issuing a Standard rating to Respondent to replace the previously issued Conditional rating that was in effect from March 8, 2001, until May 31, 2001.
DONE AND ENTERED this 4th day of March, 2002, in Tallahassee, Florida.
DANIEL MANRY
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 4th day of March, 2002.
COPIES FURNISHED:
Dennis L. Godfrey, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North, Room 310L St. Petersburg, Florida 33701
R. Davis Thomas, Qualified Representative Broad & Cassel
215 South Monroe Street, Suite 400 Tallahassee, Florida 32302
Diane Grubbs, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive
Suite 3431
Tallahassee, Florida 32308
William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive
Suite 3431
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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 14, 2003 | Agency Final Order | |
| Mar. 04, 2002 | Recommended Order | Nursing home did not commit deficiencies alleged in Tags F224, F282, F314, F325, and F363, and agency should not have changed license from Standard to Conditional. |
