STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BEVERLY HEALTH AND )
REHABILITATION CENTER, )
FORT PIERCE, )
)
Petitioner, )
)
vs. ) Case No. 01-1989
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on December 17, 2001, in Fort Pierce, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Donna H. Stinson, Esquire
Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
For Respondent: Alba M. Rodriguez, Esquire
Agency for Health Care Administration 8355 Northwest 53rd Street
Miami, Florida 33166 STATEMENT OF THE ISSUE
Whether the Petitioner's licensure status should be reduced from standard to conditional effective April 5, 2001.
PRELIMINARY STATEMENT
In a letter dated April 17, 2001, the Agency for Health Care Administration ("AHCA") notified the Beverly Health and Rehabilitation Center, Fort Pierce, Florida, ("Beverly Fort Pierce") that its nursing home license had been downgraded to conditional as a result of deficiencies identified during an annual re-certification survey of the facility. Beverly Fort Pierce filed with AHCA on April 30, 2001, a Petition for Formal Administrative Hearing, in which it challenged the reduction in licensure status and "the false and misleading findings contained in the 2567." AHCA transmitted Beverly Fort Pierce's petition to the Division of Administrative Hearings for assignment of an administrative law judge, and the case was set for final hearing on July 11, 2001. After the hearing was twice continued, the final hearing was held on December 17, 2001.
On December 3, 2001, two weeks before the final hearing, AHCA filed an Unopposed Motion for Leave to Amend Charging Document, in which AHCA asserted that the charging document was the letter issued April 17, 2001, notifying Beverly Fort Pierce of the change in licensure status to conditional, and that it wished to file a formal charging document to "clearly outline[] the alleged deficient practices, which caused AHCA to issue the intent letter." The motion was granted in an order entered December 5, 2001, and the Administrative Complaint dated
December 3, 2001, was accepted as the charging document setting forth the basis for AHCA's decision to reduce Beverly Fort Pierce's licensure status to conditional.
The Administrative Complaint included five counts, summarized as follows:
Count I derives from the annual re-certification survey conducted April 2 through 5, 2001; the heading is "BEVERLY FORT PIERCE FAILED TO ENSURE THAT RESIDENTS RECEIVED PROPER TREATMENT AND CARE FOR FOOT CARE"; the allegations relate to the care given to resident #18; and the alleged violation is classified as a Class II deficiency.
Count II derives from the annual re-certification survey conducted April 2 through 5, 2001; the heading is "BEVERLY FORT PIERCE DID NOT ENSURE THAT A RESIDENT WHO ENTERED FACILITY WITHOUT PRESSURE SORE DID NOT DEVELOP PRESSURE SORES AND A RESIDENT WHO ENTERED FACILITY WITH PRESSURE SORE RECEIVED NECESSARY TREATMENT TO PROMOTE HEALING"; the allegations relate to the care given to residents #13 and #19; and the alleged violation is classified as a Class II deficiency.
Count III derives from the annual re-certification survey conducted April 2 through 5, 2001; the heading is "BEVERLY FORT PIERCE DID NOT ENSURE CARE PLANS WERE COMPREHENSIVE AND INDIVIDUALIZED FOR 5 OF 26 RESIDENTS"; the allegations relate to the care given to residents #7, #12, #16,
#18 and #19; and the alleged violation is classified as a Class III deficiency.
Count IV derives from the first revisit survey conducted May 18, 2001; the heading is "BEVERLY FORT PIERCE DID NOT PROVIDE CARE FOR THE FEET OF A DIABETIC RESIDENT"; the allegations relate to the care given to resident #4 (identified in Count I as resident #18); and the alleged violation is classified as a Class III deficiency.
Count V derives from the first revisit survey conducted May 18, 2001; the heading is "BEVERLY FORT PIERCE DID NOT ENSURE CARE PLANS WERE COMPREHENSIVE AND INDIVIDUALIZED FOR
2 OF 14 RESIDENTS"; the allegations relate to the care given to residents #4 (resident #18 in Count I) and #12; and the alleged violation is classified as a Class III deficiency.
The final hearing in this case was held on December 17, 2001. Prior to the beginning of the hearing, AHCA filed with the undersigned an Amended Administrative Complaint dated December 11, 2001. Counsel for Beverly Fort Pierce stated that she had received a copy of the Amended Administrative Complaint prior to the hearing, and she had no objection to the Amended Administrative Complaint being substituted for the Administrative Complaint dated December 3, 2001. The Amended Administrative Complaint consisted of three counts, summarized as follows:
Count I derives from the annual re-certification survey conducted April 2 through 5, 2001; the heading is "BEVERLY FORT PIERCE DID NOT ENSURE THAT A RESIDENT WHO ENTERED FACILITY WITHOUT PRESSURE SORE DID NOT DEVELOP PRESSURE SORES"; the allegations relate to the care given to resident #13; and the alleged violation is classified as a Class II deficiency.
Count II derives from the annual re-certification survey conducted April 2 through 5, 2001; the heading is "BEVERLY FORT PIERCE DID NOT ENSURE CARE PLANS WERE COMPREHENSIVE AND INDIVIDUALIZED"; the allegations relate to the care given to resident #16; and the alleged violation is classified as a Class III deficiency.
Count III derives from the first revisit survey conducted May 18, 2001; the heading is "BEVERLY FORT PIERCE DID NOT ENSURE CARE PLANS WERE COMPREHENSIVE AND INDIVIDUALIZED"; the allegations relate to the care given to resident #12; and the alleged violation is classified as a Class III deficiency.
After filing the Amended Administrative Complaint, counsel for AHCA made an ore tenus motion to amend the Amended Administrative Complaint to delete Counts II and III and clarified that AHCA's intent in making this motion was to voluntarily dismiss Counts II and III of the Amended Administrative Complaint as grounds for reducing Beverly Fort Pierce's licensure status to conditional. Counsel for AHCA made
it clear that it intended to present evidence directed to proving only those allegations contained in Count I of the Amended Administrative Complaint.
At this point in the proceedings, counsel for Beverly Fort Pierce made an ore tenus motion for entry of a summary recommended order with respect to the remaining Class II deficiencies and the uncorrected Class III deficiencies which AHCA set forth in its Administrative Complaint as the basis for the change in Beverly Fort Pierce's licensure status.
Specifically, Beverly Fort Pierce requested that a finding of fact be included in a summary recommended order that these deficiencies were unfounded. AHCA opposed this motion, and, after considering the arguments of counsel at the hearing, the undersigned requested that the parties present as part of their proposed recommended orders legal argument in support of and in opposition to the motion.
In a telephone conference with the parties subsequent to the hearing, the undersigned requested that Beverly Fort Pierce file a memorandum of law in support of its ore tenus motion for a summary recommended order and that AHCA file a memorandum in response. Instead of filing a memorandum of law in support of the ore tenus motion, Beverly Fort Pierce filed a Motion for Finding of Abandonment, in which it argued that "AHCA has abandoned the allegations of deficiency originally cited in the
survey report, yet AHCA does not amend the survey report itself" and that "[i]t is fundamentally unfair for AHCA to retain the original charging document - the survey report - without amendment, as the document shared with the public." AHCA timely filed its response in opposition to the motion. For the reasons set forth in the Conclusions of Law below, Beverly Fort Pierce's Motion for Finding of Abandonment is denied.
At the hearing, AHCA presented the testimony of Julie Dawkins and of Judy Spiritu, who was qualified as an expert in gerontological nursing; AHCA Exhibits 1 through 3 and 5 through
7 were offered and received into evidence. Beverly Fort Pierce presented the testimony of Julie Dawkins, who was qualified as an expert in gerontological and long-term care nursing; Beverly Fort Pierce's Exhibits 1 through 4 were offered and received into evidence. At the request of the parties, the record in this case was held open to allow the parties to late-file the transcripts of the depositions of their physician expert witnesses. By order entered January 11, 2002, the parties were given an extension of time within which to file the deposition transcripts until February 4, 2002. The parties proposed findings of fact and conclusions of law were to be filed within
10 days of the date the deposition transcripts were filed with the Division of Administrative Hearings.
The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on December 28, 2001; the transcript of the deposition of AHCA's expert witness, Rudolph P. Scheerer, M.D., was filed February 28, 2002. The parties timely filed their proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
AHCA is the state agency responsible for licensing and regulating the operation of nursing home facilities, including ensuring that nursing homes are in compliance with criteria established by Florida statute. Chapter 400, Part II, Florida Statutes (2000).1
Beverly Fort Pierce, located in Fort Pierce, Florida, is a facility licensed to operate as a nursing home pursuant to the provisions of Chapter 400, Part II, Florida Statutes, and the rules found in Chapter 59A-4, Florida Administrative Code.
AHCA conducted an annual relicensure survey of Beverly Fort Pierce from April 2 through April 5, 2001, ("April 5, 2001, survey") for the purpose of determining Beverly Fort Pierce's compliance with the state and federal criteria applicable to
nursing homes. As is AHCA's usual practice, the alleged deficiencies found during the survey were reported on a form used by the federal Department of Health and Human Services, Health Care Financing Administration, HCFA-2567, which is commonly referred to as a "Form 2567."
The deficiencies cited on the Form 2567 were identified in accordance with the criteria set forth in the State Operations Manual, which is published by the federal Health Care Financing Agency and provides guidance to state surveyors in interpreting and applying the federal regulations applicable to nursing homes receiving reimbursement from Medicaid and/or Medicare. The State Operations Manual, Guidance to Surveyors, includes "tag numbers" corresponding to provisions of the regulations found in Title 42, Chapter 483, Code of Federal Regulations. In the State Operations Manual, a "tag number" is associated with each provision of the federal regulations, and the intent of the regulation is set forth, together with guidelines, procedures, and probes which are to be used by the state surveyors in determining whether a particular regulation has been violated.
The deficiencies cited on the Form 2567 completed as a result of the April 5, 2001, survey of Beverly Fort Pierce were each identified by the federal tag number, by a citation to the applicable provision of the Code of Federal Regulations, by a
citation to the applicable Florida administrative rule, and by a Florida statutory classification as either a Class II or
Class III deficiency. The Form 2567 included citations for three Class II deficiencies and for several Class III deficiencies.
On May 18, 2001, AHCA returned to Beverly Fort Pierce and conducted the first "revisit survey" subsequent to the April 5, 2001, survey. The Form 2567 prepared for the May 18, 2001, revisit survey indicated that two deficiencies from the April 5, 2001, survey remained out of compliance.
In its original five-count Administrative Complaint, dated December 3, 2001, AHCA identified as the bases for the reduction of Beverly Fort Pierce's licensure status to conditional two of the three Class II deficiencies and one of the several Class III deficiencies cited in the Form 2567 for the April 5, 2001, survey, as well as the two Class III deficiencies cited in the Form 2567 for the May 18, 2001, revisit survey. The Amended Administrative Complaint filed on the date of the hearing contained only three counts, and, at the hearing, AHCA voluntarily dismissed two of the three counts in the Amended Administrative Complaint. Accordingly, at the hearing, AHCA offered proof only with respect to the Class II deficiency identified in the Form 2567 for the April 5, 2001, survey based on the allegations that resident #13 developed
pressure sores on her right heel, left heel, and right great toe while she was a resident at Beverly Fort Pierce.2
At the time of the April 5, 2001, survey, resident #13 was 92 years of age and had resided at Beverly Fort Pierce since November 21, 1995. Resident #13 was chosen by the survey team prior to the commencement of the survey as one of the residents to be observed during the team's visit to Beverly Fort Pierce. During the initial tour of the facility on April 2, 2001, the survey team leader, Judy Spiritu, visited resident #13's room and noticed that she was lying on her back in bed and was wearing heel protectors, although the one on the left leg was around her calf. Ms. Spiritu decided to observe resident #13 more closely during the survey, and she reviewed her clinical records and interviewed her caregivers.
The Nurses Notes for resident #13 indicate that "pressure areas to bilateral heels" were noted by the care specialist at approximately 10:30 p.m. on March 1, 2001, and the resident's feet were elevated off of the bed. At 10:00 a.m. on March 2, 2001, resident #13's right heel and great toe were sprayed and wrapped and socks and heel protectors were applied.
At 1:00 p.m. on March 2, 2001, blisters were noted on resident #13's right and left heels and right great toe; the blister on the right heel measured 3 centimeters by
3 centimeters, the blister on the top of the right great toe
measured 0.5 centimeters by 0.5 centimeters, and the blister on her left heel measured 1 centimeter by 1 centimeter. The blisters were classified as Stage II ulcers, defined in Beverly Fort Pierce's records as "an ulceration in which partial thickness of skin is lost with involvement of the epidermal and/or dermal layers of skin."3
Resident #13 suffered from a number of serious medical problems, including seizure disorder, advanced Alzheimer's disease, carotid artery stenosis, a duodenal ulcer, hypertension, osteoporosis, arthritis, peripheral vascular disease, arterial sclerotic heart disease, and aortic heart disease. The Minimum Data Set dated February 15, 2001,4 indicated, among other things, that resident #13 was completely dependent on staff for turning and repositioning in bed, although she could move her legs, and that resident #13 was incontinent of bowel and bladder.
Beverly Fort Pierce prepared a Problem Summary for resident #13 based upon the problems identified in the Minimum Data Set prepared February 15, 2001. Entries made in the Problem Summary for resident #13 on February 16 and 22, 2001, reflect that, over the previous 90 days, resident #13 had significant weight loss and decline in functioning with respect to activities of daily living and that she was totally dependent on staff for bed mobility.5 It was also noted in the Problem
Summary entry for February 22, 2001, that resident #13 was at risk for the development of pressure ulcers because of incontinence, advanced Alzheimer's, and the decline in bed mobility.
Beverly Fort Pierce had in place a Plan of Care for resident #13 for February 2001, and it was noted in the February 22, 2001, entry that resident #13 was at risk of developing pressure ulcers due to incontinence; it was further noted that, at the time, she had no pressure ulcers.
A number of interventions were identified in the Plan of Care to deal with the risk that resident #13 would develop pressure ulcers, including use of a "pressure relieving mattress"; "protective/preventative skin care after each incontinent episode"; "monitor skin turgor for any area of concern"; "[i]ntervene as needed"; and "turn and reposition Q 2H [each two hours]." There is no mention in resident #13's Plan of Care that heel protectors should be used as an intervention until on or after March 2, 2001, when the Stage II ulcers on resident #13's heels and right great toe were first discovered. Although there is no indication in the Plan of Care of the date on which a pressure-relieving mattress was provided, Beverly Fort Pierce replaced all of its mattresses with pressure relieving-mattresses several years prior to the times material to this proceeding.
Skin Assessment Forms completed for resident #13 for March and April 2001 documented that resident #13's skin was assessed weekly from March 5, 2001, through April 16, 2001, and the existence of blisters on the right and left heels and the right great toe were noted on the March 5, 2001, assessment.6 In addition, the Treatment Records for March and April 2001 carry a set of initials for each shift for most days through April 22, 2001, beside the entry of an order dated February 16, 1999, which required the following care: "Both siderails up when in bed due to alteration in safety awareness due to cognitive decline. Check q [each] 30 min[.] Release q2h [each two hours] for positioning and tolieting [sic]."7
It was not the policy of Beverly Fort Pierce to make a notation each time routine care such as turning and repositioning was provided, and the only explicit indication that resident #13 was turned and repositioned was an entry in the Nurses Notes for March 23, 2001.8 The first mention of the use of heel protectors was a notation in the Nurses Notes entered at 10:00 a.m. on March 2, 2001, and the use of heel protectors for resident #13 is often mentioned in the Nurses Notes after that date.
A pressure ulcer is a sore that develops as a result of pressure to areas of the body referred to as pressure points, because the pressure diminishes the blood supply to the affected
area and results in the death of the tissue; a pressure sore can develop in a matter of hours and may first appear as a Stage II blister because the damage to the tissue may initially occur beneath the surface of the skin. A stasis ulcer is an ulcer that develops on the lower extremities, most commonly in the "inner aspect of the lower third of the leg" and on the "lateral aspect of the leg."9 A stasis ulcer is related to chronic venous disease that inhibits the flow of blood from an area or to extensive arterial disease that inhibits the delivery of blood, oxygen, and nutrition to an area; a stasis ulcer develops over a period of time, not in one or two days, and is characterized by thickening, redness, and changes in the skin referred to as stasis dermatitis. Stasis ulcers develop as a result of a resident's clinical condition and are considered unavoidable.
Based on the description in the Nurses Notes of resident #13's ulcers when they were first discovered and given the short time during which the ulcers developed, the ulcers on resident #13's heels and right great toe were pressure ulcers, not stasis ulcers,10 although the ulcers could have been caused in part by resident #13's vascular status.11
As noted in the entry on the Problem Summary of February 22, 2001, resident #13's medical condition had deteriorated during the previous 90 days, she had a number of
serious medical problems, and she was very near the end of her life. A person with such morbidity factors is more likely to develop pressure ulcers despite being provided with appropriate routine preventive care and medical services than are persons with fewer or less serious medical problems.
Although resident #13's clinical condition might have placed her at risk of developing pressure ulcers, the evidence presented by Beverly Fort Pierce establishes that the staff was aware that resident #13 was at risk of developing pressure ulcers and that certain preventive measures were included in her Plan of Care as a result of this risk, including providing her with a pressure-relieving mattress and turning and repositioning her in bed once every two hours. However, no requirement was included in the Plan of Care that heel protectors were to be used when resident #13 was in bed.
Beverly Fort Pierce presented no evidence with respect to the preventive care that was actually provided to
resident #13 prior to 10:30 p.m. on the night of March 1, 2001, when the pressure areas on resident #13's heels were noted. The evidence establishes that resident #13 was provided with a pressure-relieving mattress, but there is no evidence that she was turned and repositioned every two hours or that she was provided with heel protectors prior to 10:00 a.m. on March 2, 2001.12 Without proof of the preventive care that the staff
provided resident #13, Beverly Fort Pierce has failed to establish that the pressure ulcers on resident #13's heels and right great toe were unavoidable.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2000).
Section 400.19, Florida Statutes (2000), provides in pertinent part:
3) The agency [AHCA] shall every 15 months conduct at least one unannounced inspection to determine compliance by the licensee with statutes, and with rules promulgated under the provisions of those statutes, governing minimum standards of construction, quality and adequacy of care, and rights of residents. The agency shall verify through subsequent inspection that any deficiency identified during the annual inspection is corrected. . . .
If AHCA identifies a deficiency as a result of a compliance survey, the deficiency is classified pursuant to Section 400.23(8), Florida Statutes (2000), as a Class I, Class II, or Class III deficiency. Class I deficiencies "present an imminent danger to the residents or guests of the
nursing home facility or a substantial probability that death or serious physical harm would result therefrom."
Section 400.23(8)(a), Florida Statutes (2000). Class II
deficiencies "have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than Class I deficiencies."
Section 400.23(8)(b), Florida Statutes (2000). Class III deficiencies "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." Section 400.23(8)(c), Florida Statutes (2000).
For nursing home facilities certified to participate in the federal Medicare and/or Medicaid programs, AHCA also classifies deficiencies with respect to the requirements of Title 42, Sections 483.10 through .75, Code of Federal Regulations, using federal tag numbers to designate particular deficiencies. See Rule 59A-4.165(5)(b), Florida Administrative Code.
Beverly Fort Pierce's licensure status.
Pursuant to Section 400.23(7), Florida Statutes (2000), AHCA shall,
every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a licensure status to the facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. The agency
shall assign a licensure status of standard or conditional to each nursing home.
A conditional license is assigned to a facility when, "due to the presence of one or more Class I or Class II deficiencies, or Class III deficiencies not corrected within the time established by the agency, [the facility] is not in substantial compliance at the time of the survey with criteria established" by state law and the federal rules incorporated therein.
Section 400.23(7)(b), Florida Statutes (2000).
Title 42, Section 483.25(c), Code of Federal Regulations, which is linked to federal tag number F-314, provides in pertinent 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.
AHCA has the burden of proving by a preponderance of the evidence that there exists a basis for reducing the licensure status of Beverly Fort Pierce from standard to conditional. See Young v. Department of Community Affairs, 567 So. 2d 2 (Fla. 2d DCA 1990); Florida, Department of
Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla.
1st DCA 1981). Even though AHCA always carries the burden of proof in a licensure reduction case, the court in Emerald Oaks
v. Agency for Health Care Administration, 774 So. 2d 737, 738 (Florida 2d DCA 2000), defined the allocation of the burden of going forward with the evidence in cases involving pressure ulcers:
[T]he agency in a license reduction hearing has the burden to show that a patient developed a pressure sore after entering the facility without a pressure sore. Once the Agency has proved that fact, it then becomes necessary for the facility to go forward, in the nature of an affirmative defense, with proof to demonstrate that the pressure sore was unavoidable.
There are clinical conditions that increase the risk that a nursing home resident will develop pressure ulcers. If the facility establishes that proper routine preventive care was provided the resident and a pressure ulcer developed notwithstanding this care, then the resident's clinical condition can be considered in determining whether the pressure sores were unavoidable. See Beverly Enterprises-Florida v. AHCA, 745 So. 2d 1133 (Fla. 1st DCA 1999).
On the basis of the facts found herein, AHCA has met its burden of proving by a preponderance of the evidence that resident #13 developed a pressure sore while a resident of Beverly Fort Pierce. On the basis of the facts found herein, Beverly Fort Pierce failed to meet its burden of proving by a
preponderance of the evidence that the pressure ulcers on resident #13's heels and right great toe were unavoidable. Even though Beverly Fort Pierce noted in resident #13's Plan of Care that she was at risk for the development of pressure ulcers and included the requirements that she be turned and repositioned every two hours and that pressure relieving devices be used, Beverly Fort Pierce presented no evidence regarding the care actually provided to resident #13 prior to the time the pressure ulcers were discovered.
AHCA designated the deficiency involving the development of the pressure ulcers on resident #13's heels and great toe as a Class II deficiency, and Beverly Fort Pierce has not challenged this designation. Accordingly, pursuant to Section 400.23(7)(b), Florida Statutes (2000), AHCA has met its burden of proving by a preponderance of the evidence that Beverly Fort Pierce's licensure status should be reduced from standard to conditional.
Beverly Fort Pierce's Motion for Finding of Abandonment.
In its Motion for Finding of Abandonment, Beverly Fort Pierce requests that "an Order be entered determining that
tags F 314, F 328 and F 353 of the April survey, and tags F 279 and F 314 of the May survey have been abandoned by AHCA." Beverly Fort Pierce also contends that, if such a finding were made, AHCA should be "required to modify all documents it relies
upon to show the nature of the charges against Fort Pierce"; "all documents" presumably includes the Form 2567 completed as a result of the April 5, 2001, re-certification survey and the Form 2567 completed as a result of the May 18, 2001, revisit survey.
The Division of Administrative Hearings does not have jurisdiction to order modification or amendment of the
Form 2567s prepared by AHCA as part of its inspection function under Section 400.19, Florida Statutes (2000). See Hilliard Healthcare, Inc. v. Agency for Health Care Administration, DOAH Case No. 97-6006 (Recommended Order May 26, 1998).
The jurisdiction of the Division of Administrative Hearings in this case extends to conducting a hearing and submitting a recommended order with respect to the issue of whether Beverly Fort Pierce's licensure status should be reduced to conditional. It is clear from the procedural history of this matter and from the proof submitted at the final hearing that AHCA chose to base its proposed licensure reduction on one Class II deficiency identified in the Form 2567 completed following the April 5, 2001, survey. No formal "finding of abandonment" is required to clarify that AHCA did not present evidence with respect to any other deficiency cited in the two Form 2567s; the findings of fact and conclusions of law in this
Recommended Order speak for themselves, as will the final order entered by AHCA.
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 Beverly Health and Rehabilitation Center, Fort Pierce, had a Class II deficiency at the time of the
April 5, 2001, relicensure survey in that resident #13 developed pressure sores on her heels and right great toe that were not unavoidable; and
Reducing the licensure status of Beverly Fort Pierce from standard to conditional, effective April 5, 2001, pursuant to Section 400.23(7)(b), Florida Statutes (2000).
DONE AND ENTERED this 24th day of April, 2002, in Tallahassee, Leon County, Florida.
PATRICIA HART MALONO
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 24th day of April, 2002.
ENDNOTES
1/ Chapter 400, Part II, Florida Statutes, was amended effective May 15, 2001; the conditional license in this case was imposed effective April 5, 2001, and the amendments are, therefore, not applicable in this action.
2/ There was no allegation that Beverly Fort Pierce failed to provide resident #13 with the care necessary to promote healing of the sores.
3/ Pressure sores are "staged" according to the severity of the ulceration, and there are four stages recognized in the State Operations Manual, Guidance to Surveyors, ranging from a persistent area of redness on the skin in Stage I to the loss of tissue and exposure of muscle or bone in Stage IV.
4/ A Minimum Data Set is an assessment tool that is used in long-term care facilities.
5/ There was testimony that resident #13 passed away not long after the conclusion of the April 5, 2001, survey, but no date is specified in the record.
6/ There are no Skin Assessment Forms in the record to establish that skin assessments were done prior to March 5, 2001.
7/ There are no Treatment Records in evidence regarding treatment provided resident #13 prior to March 1, 2001.
8/ There are no Nurses Notes in the record for dates prior to February 28, 2001.
9/ Deposition transcript Dr. Scheerer at 12.
10/ Julie Dawkins, Beverly Fort Pierce's expert in gerontological nursing, testified that, even though the heels are pressure points, the ulcers on resident #13's heels were stasis ulcers caused by peripheral vascular disease. Although it is not altogether clear from her testimony, Ms. Dawkins apparently assumed that the ulcer on resident #13's right great toe was a stasis ulcer; in her opinion, pressure ulcers do not develop on the great toe because it is not a pressure point.
Ms. Dawkins' based her opinion that the ulcers on resident #13's heels were stasis ulcers on her conclusion that resident #13 suffered from profound arterial and venous insufficiency and on
what she considered the "extreme coincidence" that a "stasis ulcer appeared on resident #13's right great toe at the same time that ulcers appeared on her heels.
Dr. Scheerer, AHCA's expert in wound care and vascular surgery, testified that, taking into consideration resident #13's medical condition, including the presence of
peripheral vascular disease, it was his opinion that the ulcers were pressure ulcers and that the ulcer on resident #13's right great toe was most likely related to the pressure of the bed sheet. In Dr. Scheerer's opinion, the three ulcers probably occurred as a result of resident #13's feet getting tangled in the bed sheet.
Having carefully considered the testimony of both
Dr. Scheerer and Ms. Dawkins, Dr. Scheerer's opinion has been given credence over that of Ms. Dawkins because Dr. Scheerer's opinion was based on several factors, including the existence of peripheral vascular disease, the location of the ulcers, the appearance of the skin when the ulcers were discovered, and the short period of time in which the ulcers developed.
11/ The podiatrist providing treatment to resident #13 noted on March 30, 2001, that the ulcers were "probably" due to a "combination of weight bearing and . . . [decreased neuro- vascular status]." A Doppler study of resident #13's extremities completed on April 3, 2001, noted varying degrees of stenosis. There are no studies in the record that document resident #13's atherosclerotic condition prior to March 2, 2001.
12/ Ms. Dawkins testified that Beverly Fort Pierce is not required to, and does not, keep a record of the routine care provided to its residents. However, she suggests that, because resident #13 did not develop a pressure ulcer on her coccyx, it can be inferred that she was turned and repositioned in accordance with the Plan of Care. Even if such an inference were reasonable, turning and repositioning every two hours would not, of itself, support a finding that resident #13 received routine preventive care with respect to the development of pressure ulcers.
COPIES FURNISHED:
Alba M. Rodriguez, Esquire
Agency for Health Care Administration 8355 Northwest 53rd Street
Miami, Florida 33166
Donna H. Stinson, Esquire Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, 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 |
|---|---|---|
| Aug. 29, 2002 | Agency Final Order | |
| Apr. 24, 2002 | Recommended Order | Nursing home failed to prove pressure sore that developed while patient was resident of nursing home was unavoidable; license should be reduced to conditional. |
