vs.
Respondent.
) Case No. 01-2152
Pursuant to notice, a final hearing was held in this case on August 9, 2001, in St. Petersburg, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Michael P. Sasso, Esquire
St. Petersburg, Florida 33701
For Respondent: Alfred W. Clark, Esquire
Whether Respondent violated Sections 400.102, 400.121, and 400.23, Florida Statutes, and Rule 59A-4.133(16)(d), Florida Administrative Code; and, if so, what penalty should be imposed.
By Administrative Complaint (Complaint) dated April 26, 2001, the Agency for Health Care Administration (Agency) notified Golfview Nursing Home (Respondent) that it intended to impose a civil penalty of $25,000.00.
The Complaint based the civil penalty on the following two allegations: (1) Respondent failed to ensure that the resident environment remained as free of accident hazards as possible in that “there was a lack of a facility-wide system to ensure the control of hot water used by the residents and (2) Respondent failed to administer the facility to ensure the highest practicable physical well-being of each resident in that “excessive hot water temperatures placed the residents at risk for burns and scalding.” The Complaint charged that these alleged offenses were violations of Sections 400.102, 400.121, and 400.23, Florida Statutes, and Rule 59A-4.133(16)(d), Florida Administrative Code.
Respondent timely challenged the allegations contained in the Complaint and the civil penalties imposed therein, and requested a formal hearing. The Agency referred the matter to the Division of Administrative Hearings on June 1, 2001.
At the final hearing, the Agency presented the testimony of two of its employees, Mary Maloney, a registered dietician, employed as a health services and facility coordinator, and Mary
St. Clair, a registered nurse specialist. The Agency's Exhibits
1 through 8 were admitted into evidence. Respondent presented the testimony of Mary Masters, a registered nurse and former director of nursing at Golfview; Bradley Smith, the former administrator at Golfview; and Al Williams, the maintenance director and housekeeping supervisor at Golfview. Respondent had one exhibit admitted into evidence.
At the conclusion of the hearing, the time for filing proposed recommended orders was set for ten days from the date the Transcript of the hearing was filed. The Transcript of the proceeding was filed on August 21, 2001. On August 29, 2001, the parties filed an Agreed Motion for Extension of Time to File Proposed Recommended Orders (Motion). The Motion was granted and the time for filing proposed recommended orders was extended to September 14, 2001. Both parties timely filed Proposed Recommended Orders under the extended time frame, which have been considered in the preparation of this Recommended Order.
Petitioner, the Agency for Health Care Administration (Agency), is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida.
Respondent, Golfview Nursing Home (Respondent/Golfview), operates a licensed nursing home at 3636 10th Avenue North in St. Petersburg, Florida. At all times
relevant to this proceeding, the facility had fifty-seven (57) beds, but the usual occupancy was between thirty-two (32) and thirty-five (35).
The Agency conducted an annual licensure survey of Golfview on April 3-5, 2001, during which the Agency surveyors evaluated the facility's compliance with state and federal regulations governing the operation of a nursing home.
At the outset of the survey, on the morning of April 3, 2001, the surveyors expressed to Golfview staff concerns over the adequacy of the hot water temperature of the facility's dishwasher. One of the surveyors was concerned that the dishwasher was required to run four cycles before reaching 125 degrees, the specified temperature for operation of the type of dishwasher used at the facility.
Based on the previous year's survey, Golfview staff members were aware of that concern and had a procedure in place to address the issue related to the dishwasher water temperature. Golfview established a procedure for achieving the specified hot water temperature of the dishwasher. The procedure was to run the dishwasher three cycles before running a wash cycle to overcome the cooling effect of a nearby air conditioner on the metal dishwasher.
Golfview's standard dishwasher procedures did not include raising boiler temperatures. Nonetheless, in response
to the concern raised by the surveyors regarding the dishwasher temperature, Respondent's maintenance director increased the temperature of the boiler at Golfview in order to increase the temperature of the water going into the dishwasher.
The water at Golfview is heated by one 100-gallon boiler which is thermostatically controlled. The boiler is heated with propane gas and has a pilot light. Golfview has a circulating pump which circulates heated water throughout the building. The circulating pump is also thermostatically controlled.
On the morning of April 3, 2001, and after the facility's maintenance director had raised the boiler temperature, the surveyors observed that the water temperature in some of the resident sink faucets seemed hot to hand touch. Consequently, the survey team leader asked the Agency's life safety inspector surveyor to test the water temperatures in resident rooms. Upon measuring the water temperature, the surveyor reported that he found the water temperature in one resident room to be 122 degrees Fahrenheit (hereinafter all references to temperatures will be in Fahrenheit degrees). However, that room was unoccupied and no resident was assigned to that room.
Rule 59A-4.133(16)(d), Florida Administrative Code, requires the water temperature in resident rooms be between 105 and 115 degrees Fahrenheit.
Later on April 3, 2001, the surveyors advised Golfview management of their concern that the water temperatures exceeded the rule requirements. In response, the Golfview maintenance director explained to the surveyors that he had increased the boiler temperature to accommodate the surveyors' concerns about the temperature of the dishwasher water and that he would reduce the boiler temperature. Soon after the maintenance director reduced the boiler temperature, the water temperatures in the resident rooms returned to the limits required by the applicable rule.
On April 3, 2001, after 12:15 p.m., there were no resident rooms in which the water temperatures exceeded 115 degrees. Moreover, when the surveyors left Golfview at the end of the day on April 3, 2001, the water temperatures in the resident rooms were within acceptable ranges.
Due to the surveyors' expressed concern over water temperatures in discussions with facility management, Golfview called its plumber on April 3, 2001, the first day of the survey. The plumber came to Golfview within thirty (30) minutes of being called and immediately began to work on and/or evaluate the hot water system. Plumbers returned to the facility the
next day and continued to evaluate, work on, and/or adjust the hot water system throughout the April 2001 survey, including April 5, 2001. In fact, during most of the time the surveyors were at the facility, the plumbers were also there working on the hot water system.
Based on the survey team's April 3, 2001, discussion with Golfview staff, the following day the team decided to conduct another check of the water temperatures in the resident rooms.
On April 4, 2001, the thermometers to be used for the temperature checks were calibrated, and the surveyors measured the water temperature in 15 resident rooms. This water temperature check revealed that 4 of the 15 resident rooms had water temperatures higher than 115 degrees.
On April 4, 2001, the surveyors were measuring the water temperatures in the resident rooms during the time the plumbers were at Golfview evaluating, working on, and/or adjusting the water system at the facility.
On April 4, 2001, based on their water temperature measurements, the surveyors notified Golfview management that a situation of "immediate jeopardy" existed. Golfview immediately developed and implemented a plan of correction designed to protect staff, residents, and visitors from exposure to water temperatures in excess of that permitted by rule. Golfview
provided its written plan of correction to the surveyors that same day. By 5:30 p.m. on April 4, 2001, the surveyors determined that an acceptable plan of correction had been presented and that the water temperatures were and would remain within levels required by rule.
Because of the immediate action taken by the staff of Golfview as well as the physical limitations of the residents, residents of the facility were not in jeopardy of being burned or scalded by the hot water temperatures on either April 3 or 4, 2001. All but one of the residents required assistance with bathing and that resident is an alert, strong 55-year-old, wheelchair-bound male. With regard to residents needing assistance, the certified nursing assistants who provide assistance with bathing are specifically trained in the use of hot water with the elderly, including training to test water on themselves prior to bathing the residents.
In total, throughout the three-day survey, including the period while the plumbers were adjusting the system, the surveyors found water exceeding 115 degrees in 4 out of the 15 rooms that were checked.
The surveyors believed and noted on the survey report form that where the water temperature exceeded 115 degrees, the
residents assigned to the room and other residents who might go into the rooms, were at risk for burning or scalding if they used the bathroom facilities.
The survey report noted that the hot water temperature presented a potential for accident hazards from burns or scalding to skin, particularly for frail and elderly residents. However, despite the Agency's findings as reported and summarized on the survey report, the surveyors did not explain on the report nor did the Agency present evidence at hearing as to why or how the residents were at risk or in any imminent danger of being burned or scalded from hot water.
The survey report indicated that on April 3, 2001, the administrator took immediate action to alleviate the potential risk of harm to any resident. The report stated in relevant part the following:
Based on the excessive and fluctuating temperatures posing a serious threat to resident safety the administrator was advised of the nature of the problem and immediate jeopardy was identified. The administrator took immediate action, calling a plumber (who arrived within 30 minutes), made an announcement regarding the elevated temperature of the water over the intercom and requested that the hot water not be used until approval was given. Nursing staff then went back to each room and told all residents of the problem. The director of nursing staff stated showers were not to be given until the issue had been resolved. A department head meeting was held by the administrator. The plumber called in his
supervisor to assist in determining the problem, temperature adjustments were made and following the lowering of the boiler temperature, temperatures were measured again and determined to be from 103 to 108 degrees F. The plumbers were scheduled to return 4/04/01 to further evaluate the systems.
The facility administrator developed an acceptable action plan to maintain water temperature levels and ensure resident safety until it could be determined that the hazard was corrected.
Based on the immediate action of the supervisor and the acceptable action plan to maintain safe temperature levels the jeopardy was removed at approximately
5:30 p.m. on 04/04/01.
At the time of the April 2001 survey, Golfview had a written policy for monitoring and maintaining hot water temperatures at the facility. Included in the policy were requirements for regular monitoring and recording of water temperatures at the facility and for taking immediate corrective action in the event that water temperatures were found to be out of the designated range.
Pursuant to Golfview's policy regarding the testing and regulation of hot water, the maintenance director is responsible for checking the water temperatures at the facility, including resident rooms, showers, and the kitchen dishwasher, and keeping a weekly written record of those temperatures on a log sheet.
A copy of the log sheet, titled, "Weekly Hot Water Temperature Log Sheet," was attached to Golfview's policy regarding the testing and regulation of hot water. On the log sheet, spaces were provided to record the date of the testing, the name and title of the tester, the room where the hot water was tested and the temperature of that water. Finally, the log sheet included a section which directed the tester to document any concerns and plans of correction.
On April 3, 2001, after reviewing Golfview's policy on hot water testing and regulation, the survey team requested copies of the weekly log sheets required to be maintained by the policy. Initially, the maintenance director told the survey team that there were no logs for them to review. However, the next day, the maintenance director provided the survey team with
13 sheets of paper on which he had recorded room numbers and the hot water temperatures in those rooms. Only 1 of the 13 sheets with room numbers and hot water temperatures included the dates the temperatures were measured.
One of the sheets on which the maintenance director had recorded temperatures reflected the hot water temperatures as measured in selected rooms at Golfview on February 11, 2001, and March 29, 2001. On both days, the recorded hot water temperature for several rooms exceeded the temperature required by rule. The sheet noted that on February 11, 2001, four of the
five resident rooms where water temperatures were measured had hot water temperatures of 116 degrees, one degree above what is required by rule. On March 29, 2001, at least seven of the resident rooms had water temperatures higher than 115 degrees.
The maintenance director regularly measured and recorded the hot water temperatures at the facility. Typically, if he determined that the hot water temperature was not within the prescribed range, he made the necessary adjustments to the hot water system to resolve the problem. He did not nor did the policy require him to report the hot water temperatures to the facility administrator.
The maintenance director did not record the concern or problem that existed on February 11, 2001, or March 29, 2001, that might have caused the elevated hot water temperatures in the facility. However, he recalled the problem that resulted in the elevated hot water temperatures on March 29, 2001.
The credible testimony of the maintenance supervisor was that because the pilot light of the boiler had gone out, he came in about 5:30 a.m. on March 29, 2001. Upon arriving at the facility, the maintenance director relit the boiler and turned up the boiler temperature so that the water would reheat more quickly. He then continued to adjust the thermostatically controlled boiler while water temperatures stabilized and monitor water temperatures until they stabilized within proper
range. When this process had to be implemented, it usually took about an hour to an hour and a half to adjust the hot water temperatures and get them back down to the required temperature range.
Upon completion of the survey, the Agency documented its findings on a standard survey report form, titled "Statement of Deficiencies and Plan of Correction." On the form, each deficiency is noted and referred to as a "tag." The tags cited on the survey form for the April 3-5, 2001, survey of Respondent's facility relevant to this proceeding were Tags F323 and F490.
Tag F323, which references 42 C.F.R., Subsection 483.25(h)(1)(2001), requires that the facility ensure that the resident environment remains as free of accident hazards as is possible. On the survey form, the Agency has stated that Respondent did not ensure the control of the temperature of hot water used by residents in that 4 of 15 rooms surveyed had hot water temperatures in excess of the 115 degree allowable under Rule 59A-4.133(16)(d), Florida Administrative Code.
Tag F490, which references 42 C.F.R., Section 483.75 (2001), requires that Respondent’s facility be administered in a manner that enables it to use its resources effectively and efficiently to maintain the highest practicable physical, mental, and psychosocial well-being of each resident. On the
survey form, the Agency noted that Respondent was deficient in this area because it failed to administer the facility to ensure the highest practicable physical well-being of each resident.
Specifically, the report noted that the excessive hot water temperatures placed the residents at risk for burns and scalding.
The Agency assigned both the Tags F323 and F490 deficiencies noted on the survey form as Class I violations. The Complaint also classified both allegations as Class I deficiencies and imposed civil penalties of $15,000 for the former allegation and $10,000.00 for the latter allegation.
Golfview has no prior deficiencies related to water temperatures. Furthermore, Golfview's maintenance director has been employed by Golfview for five years and has never experienced a deficiency for water temperatures during that time or during his prior employment at another nursing home.
There is no indication that prior to the events of April 3-5, 2001, and through that time, that Golfview had experienced any incidents or resident injuries due to excessive hot water temperatures or had any complaints because of excessive hot water temperatures.
The Agency's surveyor team member who was designated as the Life Safety Inspector and who took most of the resident
room temperatures during the April 2001 survey did not testify at the hearing in this case.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Subsections 120.569 and 120.57(1), Florida Statutes.
The burden of proof in this proceeding is on the Agency. Because of the proposed penalty in this case, the Agency is required to prove the allegations against Respondent by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).
Accordingly, it is the Agency's burden to establish by clear and convincing evidence the facts which it alleges that constitute a violation of Rule 59A-4.133(16(d), Florida Administrative Code, and the law implemented thereby.
In this proceeding, the Agency asserts that Respondent violated "the provisions of Chapter 400, Part II, Florida Statutes, and provisions of Chapter 59A-4, Florida Administrative Code." The specific allegations contained in the Complaint are as follows:
The Respondent failed to ensure that the resident environment remained free of accident hazards as possible. Specifically,
there was a lack of a facility-wide system to ensure the control of hot water used by the residents.
* * *
The Respondent failed to administer the facility to ensure the highest practicable physical well-being of each resident in that excessive hot water temperatures placed the residents at risk for burns and scalding.
The Complaint alleges that each of the deficiencies cited therein is a violation of Sections 400.102, 400.121, and 400.23, Florida Statutes, and Rule 59A-4.133(16)(d), Florida Administrative Code, and constitutes a Class I violation of Chapter 400, Florida Statutes.
Section 400.102, Florida Statutes, sets forth grounds for action by the agency against a licensee. Such grounds in relevant part include "an intentional or negligent act materially affecting the health or safety of residents of the facility" and violations of the Agency's rules. Subsection 400.102(1)(a), Florida Statutes.
Subsection 400.121(1), Florida Statutes, provides that Petitioner may impose an administrative fine not to exceed $500 per violation per day, for a violation of any provision of Section 400.102, Florida Statutes. Section 400.121(2), Florida Statutes, provides that Petitioner "as part of any final order issued by it under this part may impose such fine as it deems proper, except that such fine may not exceed $500 for each violation." The section further provides that "[e]ach day a
violation of this part occurs constitutes a separate violation and is subject to a separate fine, but in no event may any fine aggregate more than $5,000. A fine may be levied pursuant to this section in lieu of and notwithstanding the provisions of [S]ection 400.23."
Section 400.23, Florida Statutes, provides for classification of deficiencies according to the risk posed to residents of a facility. Subsection 400.23(8)(a), Florida Statutes, provides as follows:
Class I deficiencies are those which the agency determines 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. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction.
Notwithstanding s.400.121(2), a class I deficiency is subject to a civil penalty in an amount not less than $5,000 and not exceeding $25,000 for each and every deficiency. A fine may be levied notwithstanding the correction of the deficiency.
According to Subsection 400.23(8)(a), Florida Statutes, Class I deficiencies are those deficiencies, which present an imminent danger to the residents or a substantial probability that death or serious harm, may occur. Actual harm need not occur for the Agency to cite a Class I deficiency. Further, a Class I deficiency may be cited regardless of whether
the deficiency was eventually corrected by Respondent, or whether the deficiency existed or not at the time of a prior survey.
Subsection 400.23(2), Florida Statutes, authorizes the Agency to adopt and enforce rules to implement Chapter 400, Part II, Florida Statutes. With regard to the categories of rules that the Agency is authorized to promulgate, Subsection 400.23(2)(f), Florida Statutes, provides the following:
(2) Pursuant to the intention of the Legislature, the agency . . . shall adopt and enforce rules to implement this part, which shall include reasonable and fair criteria in relation to:
* * *
(f) The care, treatment, and maintenance of residents and measurement of the quality and adequacy thereof, based on rules developed under this chapter and the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203)(December 22, 1987), Title IV (Medicare, Medicaid, and Other Health- Related programs, Subtitle C (Nursing Home Reform), as amended.
Pursuant to its rulemaking authority granted by Subsection 400.23(2), Florida Statutes, the Agency promulgated Rule 59A-4.128, Florida Administrative Code, which requires that the evaluation of nursing homes be based on the facility's compliance with the requirements set forth therein. That rule provides in pertinent part the following:
(1) The agency shall, at least every 15 months, evaluate and assign a rating to every nursing home facility. The evaluation and rating shall be based on the facility's compliance with the requirements contained in Sections 59A-4.100 through 59A-4.128, of this rule, Chapter 400, Part II and the requirements contained in the regulations adopted under the Omnibus Budget Reconciliation Act (OBRA) of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health Related Programs), Subtitle C (Nursing Home Reform), as amended and incorporated by reference.
Although the Administrative Complaint does not specifically indicate that the alleged deficiencies are violations of the federal regulations, the language therein is very similar to the provisions of 42 C.F.R., Sections 483.25(h)(1) and 483.75(2001).
Respondent, Golfview, as a nursing home licensed by the Agency, is required to follow certification rules and regulations found in Requirements for Long Term Care Facilities, 42 C.F.R., 483(2001).
50. 42 C.F.R., Section 483.25(h)(1)(2001), provides the
resident environment remains as free of accident hazards as is possible.
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 Respondent did not violate Rule 59A-4.133, Florida Administrative Code, as alleged in the Administrative Complaint and, thus should not be assessed a civil penalty.
DONE AND ENTERED this 6th day of November, 2001, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2001.
William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive
Alfred W. Clark, Esquire
Michael P. Sasso, Esquire
St. Petersburg, Florida 33701
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.
