STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HEALTH CARE AND RETIREMENT ) CORPORATION, d/b/a JACARANDA ) MANOR, )
)
Petitioner, )
)
vs. ) Case No. 01-3072
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Respondent. )
_________________________________) AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Petitioner, )
)
vs. ) Case No. 01-3616
)
JACARANDA MANOR, )
)
Respondent. )
_________________________________)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in these consolidated cases on November 7 through 9 and December
19 through 21, 2001, in St. Petersburg, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Michael P. Sasso, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Suite 310-G
St. Petersburg, Florida 33701
For Respondent: Alfred W. Clark, Esquire
117 South Gadsden Street, Suite 201 Post Office Box 623
Tallahassee, Florida 32301-0623 STATEMENT OF THE ISSUES
DOAH Case No. 01-3072: Whether Respondent's licensure status should be reduced from standard to conditional.
DOAH Case No. 01-3616: Whether Respondent committed the violations alleged in the Administrative Complaint dated August 23, 2001, and, if so, the penalty that should be imposed.
PRELIMINARY STATEMENT
By letter dated June 27, 2001, Health Care and Retirement Corporation, d/b/a Jacaranda Manor ("Jacaranda Manor") was notified by the Agency for Health Care Administration ("AHCA") that its Skilled Nursing Facility license had been subjected to a rating change from "standard" to "conditional" as a result of two Class II deficiencies found in a licensure and certification survey completed on May 11, 2001. Jacaranda Manor timely filed a Petition for Formal Administrative Proceeding on July 17, 2001, contesting the proposed Agency action. On August 7, 2001, AHCA forwarded the matter to the Division of Administrative Hearings ("DOAH") for assignment of an Administrative Law Judge and conduct of a formal hearing.
This matter was assigned DOAH Case No. 01-3072 and set for
hearing on October 9 through 11, 2001.
By Administrative Complaint dated August 23, 2001, AHCA notified Jacaranda Manor of its intent to impose a civil penalty of $2,000 for two Class III deficiencies found in a return survey conducted on June 19 and 20, 2001. Jacaranda Manor timely filed a Petition for Formal Administrative Proceeding on August 29, 2001, contesting the proposed Agency action. On September 12, 2001, AHCA forwarded the matter to DOAH for assignment of an Administrative Law Judge and conduct of a formal hearing. This matter was assigned DOAH Case No.
01-3616. On September 14, 2001, the parties filed an Agreed Motion for Consolidation and Continuance, which was granted by order dated September 17, 2001. The consolidated cases were set for hearing on November 7 through 9, 2001. The hearing was held but not completed on those dates, necessitating a continuance and completion of the hearing on December 19 through 21, 2001.
At the formal hearing, AHCA presented the testimony of Ann Sarantos, a registered nurse and survey integrity manager for the Agency (expert in nursing practices and long-term care); Marsha Lisk, a registered nurse consultant for the Agency; Franklin E. May, a senior pharmacist for the Agency (expert in pharmacology); Kriste Mennella, a health services and facilities consultant for the Agency; Patricia Procissi, a registered nurse consultant for the Agency; Mary Maloney, a
health services and facilities consultant for the Agency; Patricia Reid Caufman, the Agency's field service manager (expert in clinical social work); Susan Acker, director of the Agency's health standards and quality unit (expert in long- term care); Kevin Mulligan, a Medicaid specialist for the Agency; and Randy Martin, Lisa Stone, and Grizier Cruz,
all employed by Life Path Hospice of Hillsborough County. AHCA's Exhibits 1 through 18 were accepted into evidence.
Jacaranda Manor offered the testimony of Alma Hirsch, its chief administrator (expert in nursing home administration); Carol Heinz, Jacaranda Manor's psychiatric nurse manager (expert in psychiatric nursing care); Sharon Laird, admissions director of Jacaranda Manor; Linnea Gleason, director of social services at Jacaranda Manor; Linda Farrer, an employee in the social services department at Jacaranda Manor; and Rosa Redmond, director of nursing at Jacaranda Manor (expert in long-term care nursing). Jacaranda Manor's Exhibits 1 through
8 and 10 through 40 were accepted into evidence. These exhibits included the deposition testimony of Stuart Strikowsky, M.D.; Gabriel DeCandido, M.D.; Atilio Carra, M.D.; Marilyn Funk, a supervising registered nurse at Jacaranda Manor; Elaine Teller, a licensed practical nurse at Jacaranda Manor; and Alma Hirsch.
A Transcript of the proceeding was filed at the Division
of Administrative Hearings on March 15, 2002. Pursuant to an approved agreement between the parties, the proposed recommended orders were to be filed no later than May 17, 2002. Both parties timely filed Proposed Recommended Orders.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:
AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes.
Jacaranda Manor operates a 299-bed licensed nursing home at 4250 66th Street, North, St. Petersburg, Florida. The facility has a staff of approximately 225 persons, including
15 registered nurses ("RNs"), 25 licensed practical nurses ("LPNs"), and 100-125 certified nursing assistants ("CNAs"). Contract nurses also work at the facility on a daily basis.
Jacaranda Manor accepts residents from throughout the United States. It is known as a facility that accepts residents with psychiatric or behavioral idiosyncrasies that other nursing homes might be unwilling to handle. Jacaranda Manor residents are admitted from state mental hospitals, the psychiatric units of general hospitals, assisted living facilities, group homes, and other nursing homes. Jacaranda
Manor also accepts admissions from the Pinellas County Jail, mostly homeless persons whose mental condition makes them inappropriate for a jail setting.
While all of Jacaranda Manor's residents have a primary diagnosis relating to a need for nursing home care, almost
90 percent of its residents have a specific mental illness as a secondary diagnosis. All of the residents cited in the AHCA survey deficiencies suffered from mental disorders. One hundred percent of Jacaranda Manor's residents receive services related to mental illness or retardation, compared to a statewide average of 2.6 percent. Jacaranda Manor's population includes residents with Alzheimer's disease, schizophrenia, dementia, multiple sclerosis, cerebral palsy, muscular dystrophy, Huntington's chorea, spinal cord injuries and closed head injuries.
Over 97 percent of Jacaranda Manor's residents are expected never to be discharged. More than 40 of Jacaranda Manor's residents have lived there for at least 25 years. Statewide, 59.2 percent of nursing home residents are never expected to be discharged.
Two-thirds of Jacaranda Manor's residents are male, as opposed to a statewide average of 31.3 percent. Thirty- five percent of Jacaranda Manor's population is under age 50. Ninety-one percent of Jacaranda Manor's residents are Medicaid
recipients, as opposed to a statewide average of 64 percent.
Jacaranda Manor also operates the HCR Training Center, a licensed vocational school for CNAs, located across the street from the main nursing home. The center provides free training for prospective CNAs, and Jacaranda Manor employs the trainees and graduates. The course of study lasts six weeks, and each class usually has 20-25 students. The school day consists of four hours of classes followed by paid on-the-job training at Jacaranda Manor. Students generally work 30 hours per week at Jacaranda Manor.
As part of its effort to create a home-like atmosphere for residents, Jacaranda Manor does not require staff to wear uniforms. The facility has no particular dress code for employees, aside from a requirement that they wear safe, protective shoes. Some of the administrative personnel wear name tags, but are otherwise indistinguishable from other employees. Thus, an outside observer could not be certain, without further inquiry, whether the "staff person" she sees in the facility is a nurse, a CNA, a CNA trainee, or a maintenance worker.
The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies
the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency.
One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency.
On April 3 through 6, 2001, AHCA conducted a licensure and certification survey of Jacaranda Manor, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey noted one deficiency related to difficulty in opening two exit doors at the facility, but noted no deficiencies as to resident care. AHCA found Jacaranda Manor to be in substantial compliance with
42 C.F.R., Part 483, Requirements for Long Term Care Facilities.
Pursuant to the mandate of the federal Centers for Medicare and Medicaid Services ("CMS") (formerly the Health Care Financing Administration, or "HCFA"), AHCA maintains a
"survey integrity and support branch," also known as the "validation team." To ensure the quality and consistency of its survey process, AHCA sends the validation team to re- survey facilities that have received deficiency-free initial surveys.
Because its April 2001 survey revealed no deficiencies related to resident care, Jacaranda Manor was considered deficiency-free. On May 8 through 11, 2001, AHCA's validation team conducted a second survey at Jacaranda Manor.
The validation team alleged a total of thirteen deficiencies during the May 2001 survey. At issue in these proceedings were deficiencies identified as Tag F241 (violation of 42 C.F.R. Section 483.15(a), relating to resident dignity); Tag F250 (violation of 42 C.F.R. Section 483.15(g), relating to social services); and Tag F272 (violation of 42 C.F.R. Section 483.20(b)(1), relating to resident assessment).
All of the deficiencies alleged in the May 2001 survey were classified as Class III under the Florida classification system for nursing homes. At the time of the survey, Class III deficiencies were defined as those having "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 (2001).
Jacaranda Manor disputed the deficiencies alleged in the May 2001 survey and elected to go through the federally authorized Informal Dispute Resolution ("IDR") process. See
42 C.F.R. Section 488.331. The IDR process allows the facility to present information to an AHCA panel, which may recommend that the deficiencies alleged in the survey be deleted, sustained, or modified. Under AHCA's application of the process, the three-member AHCA panel considers the facility's information and then makes a recommendation to Susan Acker, the director of AHCA's health standards and quality unit, who makes the final decision.
The IDR meeting was held via teleconference on June 11, 2001. The IDR resulted in AHCA's upholding all the deficiencies alleged in the May 2001 survey. AHCA modified the state level classification of Tag F241 from Class III to Class II. At the time of the survey, Class II deficiencies were defined as "those which the Agency determines 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). This change in classification was recommended by the IDR panel and approved by Ms. Acker.
The IDR meeting also resulted in AHCA's changing Tag F272 to Tag F309 (violation of 42 C.F.R. Section 483.25, relating to quality of care) and to classify the alleged Tag
F309 deficiency as Class II. This change was made by Ms. Acker alone. The IDR panel recommended upholding the original Class III, Tag F272 findings, but increasing the federal scope and severity rating from D (no actual harm but with potential for more than minimal harm) to G (actual harm that is not immediate jeopardy). Ms. Acker overruled that recommendation and imposed the change to Tag F309.
Based on the increased severity of the alleged deficiencies in Tags F241 and F309, from Class III to Class II, AHCA imposed a conditional license on Jacaranda Manor, effective May 15, 2001. The license expiration date was February 28, 2002.
On June 19 and 20, 2001, AHCA conducted a follow-up survey of Jacaranda Manor to determine whether the deficiencies alleged in the May 2001 survey had been corrected. The survey team determined that Tags F241 and F250 were uncorrected Class III deficiencies. This determination resulted in the filing of an Administrative Complaint seeking imposition of a $2,000 civil penalty.
May 2001 Survey A. Tag F241
The May 2001 validation survey allegedly found violations of 42 C.F.R. Section 483.15(a), which states that a facility must "promote care for residents in a manner and in an environment that maintains or enhances each resident's
dignity and respect in full recognition of his or her individuality." In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F241." Tag F241 is commonly referred to as the "quality of life" or "dignity" tag.
For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of E for Tag F241. A rating of E indicates that there is a pattern of deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. After the IDR process, the federal scope and severity rating for Tag F241 was increased to H, meaning that there is a pattern of deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The increase of the federal scope and severity rating from E to H corresponded to the increase of the state level classification from Class III to Class II.
The Form 2567 for the May 2001 survey listed nine separate incidents under Tag F241, the dignity tag. The first surveyor observation involved Resident 31, or "R-31":
On 5/11/01 at 8:30 a.m., R-31 was observed in a 4 bed room, sitting on his/her bed eating breakfast. The resident had no clothes on, had a colostomy bag and foley catheter visible to anyone walking by in the hallway. A staff member went into the room to another resident but did not cover
R-31. A second staff member came to the doorway of the room to talk to the first staff member and also did not attempt to cover the resident.
Marsha Lisk was the AHCA team coordinator for the May 2001 survey and was the team member who recorded the observation of R-31. Ms. Lisk stated that this was a random observation, made without benefit of reviewing R-31's records.
Ms. Lisk could not identify the two staff members who failed to cover R-31, aside from a recollection that one of them was a CNA. She was "astounded" that the staff persons did not intervene to cover the naked resident, especially because they could see that Ms. Lisk was standing in the doorway taking notes. Ms. Lisk would have thought nothing more of the incident had the staff members done anything to obscure the view of the resident from the hallway.
Ms. Lisk admitted that R-31 appeared to be in no distress, and that no other resident complained about his nudity. Twenty minutes after this observation, Ms. Lisk saw R-31 fully clothed and being pushed in a wheelchair down the hall.
Ms. Lisk noted this incident as a deficiency because she believed nudity cannot be considered to meet community standards under any circumstances. Even if the resident consciously preferred nudity, or was so mentally incapacitated
as to be unaware he was nude, it was staff's responsibility to cover the resident, pull a curtain around him, or move his bed to a place where it could not be seen from the hall.
At the hearing, it was established that R-31 was a 59-year-old male with multiple medical and psychiatric diagnoses, including schizophrenia and dementia due to organic brain syndrome. He preferred to sleep in the nude and to dress himself, though he required some assistance to do so properly. He was able to close his own privacy curtain.
R-31 was very resistant when staff approached to dress him, to the point of physically lashing out. R-31 would refuse to eat if he was pushed to clothe himself near meal time. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, stated that the main goal was to get R-31 to eat his breakfast, and that staff was concerned that any effort to dress him would disrupt his meal. Ms. Heintz offered no reason why the door could not be closed or the privacy curtain drawn while R-31 ate his breakfast in the nude.
R-31 also preferred to keep his colostomy uncovered.
Staff would cover it and encourage him to keep it covered, but he would refuse to do so.
Ms. Lisk, the surveyor, admitted that she did not review R-31's record even after her observation. She made no attempt to interview R-31 and admitted that she was unaware of his habits and preferences.
The second surveyor observation on Tag F241 concerned Resident 21,1 or "R-21", and stated:
During the tour on 5/08/01, at approximately 10 a.m., a staff member invited the surveyor into a room to meet [R-21]. He/she was in adult briefs uncovered lying on his/her bed. There was no attempt to cover the resident to insure privacy.
At approximately 4:40 p.m. [R-21] was observed from the hallway lying in bed in his/her adult brief with no pants on and the privacy curtain not drawn.
Kriste Mennella was the survey team member who recorded the observation of R-21, identified only as a male resident. She did not review the facility's records relating to R-21, and offered no testimonial details beyond the facts set forth in her observation. She did not interview the resident and did not know whether the resident was able to respond to questions.
Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-21 uncovered in his bed.
The third surveyor observation on Tag F241 concerned Resident 8, or "R-8," and stated:
[R-8] was observed on 5/8/01 wheeling out of the dining area with several staff present. He had a black polo shirt on inside out and his Khaki pants, along with his adult brief, were down to his knee's [sic] exposing his right lower side and hip. There was no intervention by staff. He was unshaven and had dirty hand [sic]
and his fingernails were ragged and dirty. His hair was unkempt. On 5/9/01 through out [sic] the day [R-8] was observed to have on two different shoes. One was a tennis shoe with his name written across the top and the other a brown loafer.
Ms. Mennella recorded the observations of R-8.
Ms. Mennella identified the unnamed staff persons as "management folks" who were following the surveyors around the facility, and the person in charge of the dining room. These staff persons told Ms. Mennella on May 8 that they did not intervene because R-8 was "resistive to care."
Ms. Mennella subsequently discussed R-8 with a CNA, who told her that the resident may or may not be combative, depending on how he is approached. Ms. Mennella believed that some intervention should have occurred even with a combative resident, if only verbal prompting to tell the resident that his pants were down and he should pull them up. She observed R-8 throughout the three days of the survey, but did not see him with his pants down again after the May 8 observation.
On May 9, when she saw R-8 wearing unmatched shoes, Ms. Mennella went to the resident's room and confirmed that he did have matching shoes.
R-8 was a 46-year-old male with multiple medical and psychiatric diagnoses, among them paranoid schizophrenia. R-8 saw a variety of mental health professionals, including a psychiatrist, a psychiatric ARNP for medication management, a
psychologist for individual therapy, and a licensed clinical social worker for group therapy.
R-8 was classified as an elopement risk, paranoid and suspicious with a history of aggression. R-8 did not require a wheelchair to ambulate. R-8 habitually carried his "things" (e.g., a radio, or a box containing items sent him by a relative) with him as he moved about the facility. He liked to use a wheelchair to more easily carry his possessions.
R-8 dressed himself, usually with some assistance in the morning. He changed clothes five or six times a day. Sometimes he would wear two different outfits in layers, or wear unmatched shoes. Jacaranda Manor staff uniformly noted that there was nothing unusual in R-8 having his shirt on inside-out or backwards, because he was constantly taking his clothes off and on. R-8 liked to wear his pants unbuttoned. He often moved about the facility holding his pants up with one hand, and his pants would often droop down to his knees.
Jacaranda Manor staff constantly intervened in an effort to keep R-8 properly clothed. He was sometimes compliant, but other times would resist pulling up his pants. He would curse and run out of the room, or threaten to tell the President of the United States about his treatment.
R-8 was indifferent to his appearance, displaying anxiety about his clothing only when staff attempted to change it. He would muss his hair as soon as it was brushed. His
hands would get dirty because R-8 had a habit of rooting on the ground or through ashtrays for cigarette butts to smoke. Since the survey, Jacaranda Manor has addressed this problem by installing ashtrays that the residents cannot reach into.
Ms. Mennella testified that she knew nothing about R-8's preferences or behaviors regarding clothing. She did
not know he had a habit of tousling his own hair. She did not know he had a habit of rooting for cigarettes. She did not ask who wrote R-8's name on his shoe.
Jacaranda Manor has a policy of not marking residents' clothing, for privacy reasons. However, R-8 would write his own
name on his shoes and other items he received from his family because he was proud of them.
The fourth surveyor observation on Tag F241 concerned an unnamed resident:
During an observation on 5/9/01, outside in the lifestyles patio area, at approximately 9:10 a.m., a staff person who was on break under the pavilion shouted across the courtyard to a resident in a loud voice, "MR. (name) PULL UP YOUR PANTS." There was [sic] several staff on break and at least
15 other residents out side [sic] in the patio area at the time.
Ms. Mennella recorded this observation. She testified that the staff person who yelled was an aide. By the time she looked to see whom the staff person was calling
to, Ms. Mennella could see no resident with his or her pants down. Not having seen the resident, Ms. Mennella was unable to say whether the staff person could have reached the resident before his or her pants came down. Her concern was the tone and manner in which the instruction was given, and the embarrassment it could have caused the resident. Despite not having seen the resident,
Ms. Mennella was certain that the staff person was addressing a male.
Rosa Redmond, the director of nursing at Jacaranda Manor, testified that she learned of the incident shortly after it happened. A CNA and a trainee from the HCR Training Center told her of the incident. It was the trainee who called out to the resident. The trainee told Ms. Redmond that a female resident's slacks were starting to fall. The trainee was concerned that the resident would fall, and could not reach the resident in time to pull up her slacks, so the trainee called out to the resident.
The fifth surveyor observation on Tag F241 was a general statement:
Residents were observed during numerous random observations out in the patio area during all three days of the survey to have on only socks, no shoes on their feet. As a result the socks were black on the bottom.
These general observations were made by surveyors
Mary Maloney and Kriste Mennella. Ms. Maloney testified that she has surveyed nursing homes from Pensacola to Key West, including homes that accept mental health residents and have secured units, but that she has never seen another facility in which residents are allowed to walk around barefoot or only in dirty socks. In her experience, staff would intervene and redirect the residents to put on shoes or change their socks.
Ms. Maloney testified that she asked one resident why he was not wearing shoes. The resident told her that he did not want to wear shoes, and showed Ms. Maloney several pairs of shoes in his closet. Ms. Maloney did not cite this instance as a deficiency. However, she noted other shoeless residents who appeared confused or cognitively impaired, and did cite these instances as deficiencies because of staff's failure to intervene or to assess why the residents resisted wearing shoes.
Ms. Maloney admitted that the survey team discussed the issue of residents not having proper footwear, and determined that it caused no actual harm to the residents.
Jacaranda Manor did not contest the fact that residents often go barefoot or wear only socks. Through various sources, the facility maintains an ample supply of shoes and socks for the residents, and attempts to keep the
residents properly shod. However, the facility also tolerates residents' preferences in clothing and footwear, and does not consider the question of footwear a pressing issue. Some residents simply do not want to wear shoes. Some residents feel steadier when they can feel the floor against their bare feet. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, testified that neither therapists nor family members have ever expressed concerns over the issue.
No evidence was presented that going barefoot or wearing socks posed a safety risk to the residents. The alleged harm was simply that some of the residents had dirty feet, or dirty socks on their feet.
The sixth surveyor observation on Tag F241 offered more specific information on the question of resident footwear:
The facility did not assist residents to wear appropriate footwear, in that some of the residents who resided on 1 West, the secure unit, were observed wearing socks without shoes or were barefoot throughout the survey. During the initial tour on 5/08/0 [sic], it was observed that several residents were pacing and walking throughout 1 West, with only socks on.
Some of these residents walked outside on a sidewalk. The soles of these resident's [sic] white socks were soiled dark gray.
On 05/08/01, at 6:50 p.m., there were three male residents observed to walk around the unit with white socks on. One of these residents had holes in the socks. On 05/09/01 at 10:15 a.m., there was one male resident walking outside in the enclosed courtyard wearing white socks, as well as a
female resident who was pacing back and forth on the side walk wearing socks only. On the morning of 05/10/01 at 7:45 a.m., there was a male resident sitting in a chair outside who was barefoot. On 05/11/01, at 9:30 a.m., during the resident's [sic] arranged smoking time on the enclosed courtyard on 1 West, there were several residents walking around wearing only socks on their feet. One male resident was wearing black shoes, but they were different style shoes. This was shown to the direct care staff who were not aware. They were not sure if these shoes belonged to this resident. The staff also stated that some of the resident's [sic] shoes were missing or the residents chose not to wear their shoes. Resident #16 was observed walking around in loose-fitting cloth slippers with rubber soles on 05/09/01, on 05/10/01. The resident showed that she/he had one black dress shoe, because the other shoe was missing. On 05/11/01, the resident was wearing open- toed bedroom slippers. This resident was identified as a fall risk due to akinesia (involuntary movement of the body). The resident's current care plan included an approach "to wear proper fitting shoes with non-skid soles." The resident was observed with a shuffling gait.
Resident 16, or "R-16," was a 39-year-old male with HIV, cerebral atrophy, and a history of AIDS-related dementia with delusions. He suffered from depression, anxiety, psychosis, paranoia, and bipolar disorder. He was childlike and possessed poor judgment, forming unrealistic plans to get a job and live on his own outside a clinical setting. R-16 was an elopement risk, which caused a community-based HIV program to reject him for participation. Jacaranda Manor tried placing R-16 in its open unit, but he tried to leave
without telling anyone, which necessitated placing him in the facility's secure unit. R-16 abused alcohol, liked to smoke and drink coffee constantly, and was prone to giving away his clothes.
R-16 had pronounced preferences as to footwear.
While he would occasionally wear regular shoes, he most often wore a pair of fuzzy, open-toed slippers. He would have a temper tantrum if not allowed to wear his slippers. R-16 was at risk of slipping and falling due to akinesia, and staff explained to him the potential safety problems in wearing slippers. R-16 had a peculiar gait, described by Jacaranda Manor personnel as "shuffling" or as a "sashay." His slippers had rubber soles to help prevent slipping.
The seventh surveyor observation on Tag F241 concerned Resident 32, or "R-32", and an unnamed resident:
On 05/08/01, at 6:50 p.m., during the evening meal, [R-32] was observed from the hallway, sitting in a chair in his room wearing only a t-shirt and an incontinent brief. Several staff were observed to walk past this resident's room and did not attempt to intervene.
On 05/09/01, at 10:15 a.m., during a random observation, there was a confused male resident walking outside in the enclosed courtyard, who was removed his pants [sic] and exposed his incontinent brief. There was a female resident pacing back and forth nearby. A direct care staff person who was escorting another resident, walked past this resident without intervening. The surveyor went inside to inform the medication nurse of the situation.
Mary Maloney was the surveyor who recorded the observation of R-32 and the unnamed resident. R-32 was a male resident who preferred not to wear trousers. Jacaranda Manor staff tried to convince R-32 to wear trousers. Staff tried different kinds of pants, such as pull-ups, zippered pants, and shorts. R-32 would occasionally accede to wearing the shorts, but while in his room always dressed in his brief and a t-shirt. Jacaranda Manor did not dispute Ms. Maloney's observation of
R-32.
Jacaranda Manor was unable to address Ms. Maloney's subsequent observation, as she was unable to name the "confused male resident," the pacing female resident, or the staff person who allegedly failed to intervene. Ms. Maloney's observation implies that the unnamed staff person should have intervened, but offers no information as to whether the staff person could have safely abandoned the other resident he or she was escorting at the time.
The eighth surveyor observation on Tag F241 concerned Resident 4, or "R-4," and stated:
During the breakfast meal observation on 05/09/01 and 05/10/01 at about 9:30 a.m., [R-4] was observed to be fed her/his breakfast at the nurse's station. The staff person was observed to be standing and feeding the resident who was seated in a reclining chair. The resident's meal tray was placed on the counter of the nurse's station, where the resident could
not see her/his food. There was a high level of staff activity and residents walking around the area.
Ms. Maloney was the surveyor who recorded this observation. Both Alma Hirsch, Jacaranda Manor's chief administrator, and Carol Heintz, the psychiatric nurse manager, testified that R-4 is fed entirely by means of a gastrointestinal tube and thus could not have been eating breakfast at the nurses' station.
At the hearing, Ms. Maloney conceded that she might have misidentified the resident on the Form 2567, but was certain that she saw a particular male resident being fed breakfast at the nurses' station on May 9 and 10. Jacaranda Manor did not contest the fact that residents are often fed at the nurses' station.
AHCA cited this incident as a deficiency because feeding the resident at a busy nurses' station does not promote his dignity. Ms. Maloney inquired and learned that the resident could not be fed in his room because it was being painted. She acknowledged that the resident in question was difficult to feed, and so prone to violent outbursts that Jacaranda Manor had removed all the furniture from his room for his safety.
Ms. Maloney nonetheless thought that Jacaranda Manor staff should have chosen a quieter, less stimulative environment in
which to feed the resident.
The ninth surveyor observation on Tag F241 concerned Resident 16, or "R-16," and stated:
On 05/10/01, at about 3:30 p.m., [R-16] approached the nurse's station and asked the medication nurse for some coffee. (The resident had his/her own personal jar of instant coffee.) The nurse denied the resident the coffee. The nurse stated that the resident's coffee was being rationed to several times per day. According to the nurse, the resident's coffee consumption was restricted because the resident prefers the coffee extra strong, and the resident exhibits effects from the excessive caffeine, described as "bouncing off the walls." From review of the clinical record, there was no physician's order for a caffeine restriction. According to facility policy, the coffee served to the residents is decaffeinated, the nurse reported.
Ms. Maloney recorded this observation. R-16 is the same resident cited in the sixth surveyor observation for wearing open-toed slippers.
Jacaranda Manor serves only decaffeinated coffee to all residents. R-16 had a personal, "special" jar of instant decaffeinated coffee that was in fact provided by Ms. Hirsch, at her own expense. R-16 was allowed to believe that his "special" coffee was caffeinated. R-16 was incapable of making his own coffee. His jar of coffee was kept in the medicine room near the nurses' station, and R-16 had to ask a nurse to prepare his coffee. The nurse would go to the kitchen for hot water, then prepare the coffee.
R-16 drank coffee all day, every day. There were no medical restrictions on how much coffee he could drink. He carried a large mug, and would ask the nurses to prepare his coffee as many as thirty times a day. R-16 would ask insistently until his coffee was made. If the nurses were not busy, they would make the coffee immediately. If they were in the middle of a procedure, they would ask R-16 to wait until they were finished.
Elaine Teller was the nurse referenced in the ninth observation. She was the charge nurse at the time of the incident. Ms. Teller was passing medications and speaking to Ms. Maloney when R-16 approached and demanded his coffee.
Ms. Teller told R-16 that she was busy and would get his coffee in a few minutes.
Ms. Maloney testified that Ms. Teller's response was "inappropriate," in that it had the potential to embarrass R-
16 in front of the people at the nurses' station. Ms. Maloney believed it would have been more appropriate to take R-16 aside and speak with him.
Ms. Teller denied treating R-16 rudely or disrespectfully. She was "firm" with R-16 "because that's what [he] needs." Ms. Teller was close to R-16, such that he referred to her as his "second mom." At the time, Ms. Maloney voiced no concern over Ms. Teller's treatment of R-16. Ms. Teller testified that she had delayed but never "denied"
coffee to R-16. She had on occasion lectured R-16 that he drank too much coffee, but never stated that R-16's coffee intake was restricted.
Surveyors employ a "Guidance to Surveyors" document for long-term care facilities contained in the "State Operations Manual" promulgated by the federal CMS. The guidelines for Tag F241 state:
"Dignity" means that in their interactions with residents, staff carries out activities that assist the resident to maintain and enhance his/her self-esteem and self-worth. For example:
Grooming residents as they wish to be groomed (e.g., hair combed and styled, beards shaved/trimmed, nails clean and clipped);
Assisting residents to dress in their own clothes appropriate to the time of day and individual preferences;
Assisting residents to attend activities of their own choosing;
Labeling each resident's clothing in a way that respects his or her dignity;
Promoting resident independence and dignity in dining (such as avoidance of day-to-day use of plastic cutlery and paper/plastic dishware, bibs instead of napkins, dining room conducive to pleasant dining, aides not yelling);
Respecting resident's private space and property (e.g., not changing radio or television station without resident's permission, knocking on doors and requesting permission to enter, closing doors as requested by the resident, not
moving or inspecting resident's personal possessions without permission);
Respecting resident's social status, speaking respectfully, listening carefully, treating residents with respect (e.g., addressing the resident with a name of the resident's choice, not excluding residents from conversations or discussing residents in community setting); and
Focusing on residents as individuals when they talk to them and addressing residents as individuals when providing care and services.
The same document sets forth survey procedures, and emphasizes examining the context of staff's actions:
. . . As part of the team's information gathering and decision-making, look at the actions and omissions of staff and the uniqueness of the individual sampled resident and on the needs and preferences of the resident, not on the actions and omissions themselves.
The issue of patient dignity was the subject of extensive testimony at the hearing. Ann Sarantos, survey integrity and support manager for AHCA and an expert in long- term care nursing practice, testified that the surveyors understood that residents will remove their shoes and clothing, particularly in a facility with the resident population of Jacaranda Manor. The survey team acknowledged that Jacaranda Manor's population was unique in terms of the number of mentally ill residents.
Ms. Sarantos stated that AHCA's central concern was staff's lack of sensitivity. The surveyors repeatedly saw
staff making no effort to cover the residents or get them into shoes, even when the surveyors pointed out the problems.
Ms. Sarantos stated that AHCA does not set a different dignity standard for patients with psychiatric or organic conditions. She noted that a high percentage of residents in any nursing home will have some form of dementia or behavioral problem, and that the facility must plan its care to manage these problems. She stated that AHCA employs the same survey procedures for all facilities, regardless of the patient population.
Patricia Reid Caufman, an expert in social work, opined that the residents are nursing home patients regardless of their diagnoses. When the facility accepts these patients, it does so on the basis that it can meet their needs, including their dignity needs.
Susan Acker is the nursing services director of AHCA's health standards and quality unit. She is an expert in long-term care and was the person who made the final decision as to the classification of Jacaranda Manor's deficiencies. Ms. Acker stated that the provision of adequate clothing and footwear is a "fundamental level of compliance." The individuals listed under the Tag F241 deficiencies had portions of their bodies exposed in a way that does not conform to the community standard of a nursing home.
The "community standard" for a nursing home includes an expectation that a resident will be dressed in his or her own clothes and assisted in dressing and making appropriate selections, or, if the resident's judgment is impaired, will be provided with selections allowing them to appear in a dignified manner. Ms. Mennella offered the common sense view that, in applying a "community standard," the surveyor should ask herself whether a mentally impaired resident would be embarrassed under normal circumstances. The exposure of these residents demonstrated noncompliance with the requirement that the facility maintain or enhance the self-esteem and dignity of the residents.
Ms. Acker acknowledged the right of the residents to select their own clothing or to be undressed within the confines of their rooms. However, the facility must continually provide these residents with encouragement or assistance in dressing. Staff must act if the residents lack the ability to make their own judgments. The issue was not that the facility should deny choice to the residents, but that a therapeutic environment should be established that maintained and enhanced resident dignity.
Ms. Acker found that the "key point" in the deficiencies was the proximity of staff to the cited residents. In each instance involving nudity or improper dress in a resident's room, staff was available to pull the
privacy curtain or to assist the resident in redressing. The staff person may not have minded the resident's dress, but should have acted to protect the resident's dignity when a stranger walked into or past the room. Staff could have re- established the community standard by clothing the resident or providing the privacy that would protect the resident's dignity, but failed to do so.
Ms. Acker characterized these incidents as staff's failure to provide services to the community standard for residents who were unable to exercise their own judgment to maintain their own dignity.
Ms. Acker testified that, to change the scope and severity of Tag F241 from E to H, the IDR panel members would have to believe that the situation resulted in a negative outcome that compromised the ability of the resident to maintain or reach the highest practicable physical, mental or psychosocial well-being, as defined in the Resident Assessment Protocol ("RAP"). She concurred with upgrading Tag F241 to a Class II deficiency because there was a direct impact on the residents observed and on those residents who witnessed the failure to deliver adequate care.
Carol Heintz, the psychiatric nurse manager and an expert in psychiatric nursing care, opined that Jacaranda Manor is not below community standards in terms of patient dignity. She agreed that "it would be nice" if more than 200
residents with physical and mental health issues wanted to wear appropriate clothing, shoes and socks every day, but for these people "things like that may not be the priority that it is to you or [me]." Clothing issues can be difficult with some residents, because they do not perceive their unorthodox dress or even nudity as an issue. If a resident resists wearing proper clothing or using a privacy curtain, the staff just keeps trying to reinforce proper dress and modesty.
Ms. Heintz acknowledged the facility's responsibility to respect the rights of others not to be subjected to the improper dress of residents. However, she also stated that residents' modes of dress have had no adverse impact on them, and that no therapist or any resident's family has ever complained about the facility's methods of dealing with clothing and footwear issues.
In light of all the factual and expert testimony, it is found that the IDR panel's decision to upgrade Tag F241 from Class III, with a scope and severity rating of E, to Class II, with a scope and severity rating of H, was supported by the evidence presented, though not as to all nine observations made under Tag F241.
The first observation, for R-31, supports the Agency's finding a Class II deficiency. R-31 was sitting on his bed eating breakfast in the nude and was plainly observable from the hallway. Staff persons were present but
did nothing to remedy the situation. Granting that it may have been counterproductive to attempt to dress R-31 while he was eating, no evidence was presented to show that pulling the privacy curtain or closing the door would have disturbed R- 31's meal. Even if, as Jacaranda Manor implied, these staff persons may not have been direct care employees, they should have alerted the nursing staff to the situation. The dignity of R-31 and of any other resident who happened to pass his room were directly affected by this incident.
The second observation, for R-21, supports the Agency's finding a Class II deficiency. R-21 was seen twice lying in bed wearing uncovered adult briefs. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-21 and of any other resident who happened to pass his room were directly affected by this incident.
The third observation, for R-8, does not support the Agency's finding a Class II deficiency. The initial rating of this as a Class III deficiency was supported by the evidence. While the bare facts set forth in the observation were concededly accurate, the surveyor focused entirely "on the actions and omissions themselves," and made no effort to assess the "uniqueness of the individual sampled resident" or "the needs and preferences of the resident." The facts established that R-8 was subject to unbuttoning his pants and
allowing them to droop. In three days of constant observation, Ms. Mennella witnessed one such brief incident. R-8 was also subject to digging for cigarette butts and tousling his own hair, making it very likely that at some point over a three-day period he could be observed with dirty hands and unkempt hair. R-8 wrote his own name on his shoes, because he was proud of them. Testimony established that staff of Jacaranda Manor conscientiously cared for R-8, but that it was impossible to maintain appropriate appearance for this resident all day, every day. There was no evidence of any impact on this resident's dignity or self-esteem.
The fourth observation was of the staff member shouting to a resident to pull up her pants. This observation does not support the Agency's finding a Class II or a Class III deficiency. Had the surveyor made inquiry into the circumstances of the incident, she would have learned that it involved a sudden reaction to a potentially critical situation. The trainee called out to the resident because she couldn't reach the resident in time to keep her pants from falling, which in turn could have caused the resident to fall. Concern for the resident's possible embarrassment cannot be held more important than the resident's physical safety when an emergency arises.
The fifth and sixth observations involved residents walking around barefoot, in only socks, or, in the case of R-
16, in slippers. The deficiencies noted for these observations do not support the Agency's finding a Class II or a Class III deficiency. The only harm alleged by the Agency was that the residents' dignity is impaired by their having dirty feet. It is found that Jacaranda Manor was acceding to the wishes of its residents regarding footwear, and that dirty feet or socks are a necessary and essentially harmless incident of choosing not to wear shoes.
The seventh observation, of R-32 and an unnamed resident, supports the Agency's finding a Class II deficiency. As to the unnamed resident observed in the courtyard with his brief exposed, the surveyor could not provide enough information to allow Jacaranda Manor to defend itself. The surveyor could not name the resident, the female resident allegedly in the vicinity, or the staff person who allegedly walked past. This portion of the deficiency was unproven. However, the surveyor adequately stated her observation of R- 32, who was seen from the hallway sitting in a chair in his room, wearing only a t-shirt and adult brief. Several staff members walked past the room and did not intervene. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-32 and of any other resident who happened to pass his room were directly affected by this incident.
The eighth observation, of a resident initially identified as R-4, supports the Agency's finding a Class II deficiency. The surveyor guidelines expressly describe promoting "dignity in dining." While the underlying facts explained why Jacaranda Manor could not feed the resident in his room, they did not explain why the resident was being fed at the busy, noisy nurses' station rather than in the dining room or some other, quieter location. The resident was difficult to feed and subject to violent outbursts, but these facts do not explain the choice of feeding the resident at the nurses' station, leading to the inference that this choice was likely made for the convenience of the nurses. The dignity of this resident was directly affected by this incident.
The ninth observation, of R-16, does not support the Agency's finding a Class II or a Class III deficiency. The facts established that Ms. Teller, the nurse in question, had a close relationship with R-16 and could speak somewhat sternly to him without affecting his dignity or self-esteem. Ms. Teller's version of the incident is credited. Requiring R-16 to wait a few minutes for his coffee while Ms. Teller finished passing medications caused the resident no harm whatever.
In summary, of the nine observations listed under Tag F241, four supported the Agency's finding of a Class II deficiency; one supported the initial finding of a Class III
deficiency; and four supported a finding of neither a Class II or a Class III deficiency. Thus, the Agency's overall finding of a Class II deficiency for Tag F241 is supported by the record evidence.
Tag F250
The May 2001 validation survey allegedly found a violation of 42 C.F.R. Section 483.15(g), which states that a facility must "provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident," and sets forth the standards for resident social services. This requirement is referenced on Form 2567 as "Tag F250," or the "social services tag."
For purposes of the Form 2567, the validation team gave the alleged deficiency on the May 2001 survey a federal scope and severity rating of D for Tag F250. A rating of D indicates that there is an isolated deficiency causing no actual harm to the resident but with potential to cause more than minimal harm.
This alleged deficiency was rated Class III, and was not part of the basis for imposing a conditional license on Jacaranda Manor. Its significance is that it was determined to be an uncorrected deficiency in the June 2001 return survey, and thus formed part of the basis for the civil penalty imposed after the return survey.
The May 2001 survey found one instance in which Jacaranda Manor allegedly failed to provide medically related social services. The surveyor's observation on Form 2567 concerned R-16, the same resident discussed above in the sixth and ninth observations under Tag F241:
[R-16] was admitted to the facility on 09/29/00, and the resident's comprehensive assessment of [10/05/00]2 indicated that the resident had dental caries. The care plan stated that the resident's "teeth will be clean and oral mucosa will be free of signs and symptoms of infection at all times." One of the approaches on the care plan was for the "resident to see the Dentist as needed." The resident revealed that she/he had not seen a dentist since admission and desired dental services.
Observation of the resident's teeth and gums, indicated that there was evidence of abnormal oral mucosa. There was no documentation in the resident's clinical record to indicate that the resident had seen the dentist since admission. The nursing management staff person was asked on 05/11/01, if there was any information to show that the resident had seen the dentist. Later that day, the nursing management staff indicated that the resident now has a dental appointment scheduled on 05/23/01. The lack of dental services can lead to dental problems, oral infection, changes in food consistency, and decrease resident's self-esteem.
Ms. Maloney observed R-16 and noted that the edge of his gums was black, perhaps indicating periodontal disease.
R-16 showed no evidence of pain and was eating normally. Ms. Maloney interviewed R-16, who told her he wanted to see a dentist. On May 11, 2001, Ms. Maloney told the director of
nursing that she could find no indication in the record that R-16 had ever seen a dentist, and asked for any information not apparent in the record. Later that day, the director of nursing told Ms. Maloney that R-16 now had a dental appointment scheduled for May 23.
Ms. Maloney was left with the understanding that nothing had been done for R-16 up to that time, and that his appointment was made only in response to her inquiry.
The evidence established that R-16's dental appointment for May 23 had actually been scheduled by the facility on May 7, prior to the survey. The appointment was scheduled because R-16 had expressed to Ms. Hirsch a desire to have his teeth cleaned and whitened. The only complaint R-16 voiced about his teeth was that they were discolored.
The key to Ms. Maloney's finding a deficiency was her impression that the facility did not respond to R-16's request to see a dentist until Ms. Maloney herself inquired and pressed the issue. In fact, the appointment had been made before the AHCA survey team arrived at Jacaranda Manor. The nurse manager to whom Ms. Maloney spoke was apparently unaware the appointment had been made. The evidence does not support the finding of a deficiency under Tag F250.
Tag F309
As noted above, the deficiencies alleged under Tag F309 were originally placed under Tag F272. Tag F272 is the
Form 2567 reference to violations of 42 C.F.R. Section 483.20(b), which states that a facility "must conduct initially and periodically a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity," and sets forth at length the standards that must be observed in performing these comprehensive assessments.
Tag F309 references 42 C.F.R. Section 483.25, which states that each resident "must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care," and sets forth at length the standards by which a facility's quality of care is measured.
The significance of the change from Tag F272 to Tag F309 is that Tag F272 merely alleges a failure to conduct or update the assessment of the resident. Tag F309 alleges a deficiency in the quality of care provided to the resident, inherently a more serious violation.
For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of D for Tag F272. A rating of D indicates that there are isolated deficiencies causing no actual harm to the residents but with potential to cause more
than minimal harm. The IDR panel recommended upholding the deficiencies as cited by the survey team.
However, Ms. Acker believed that the presence of a negative outcome for Resident 7, discussed below, merited changing the tag from F272 to F309 and making it a Class II deficiency with a federal scope and severity rating of G, meaning that there are isolated deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents.
The May 2001 survey, as modified by the IDR process, set forth two alleged deficiencies under Tag F309. The first alleged deficiency concerned Resident 7, or "R-7:"
[R-7] triggered on the Resident Assessment Protocol (RAP) Summary for behavior. On the 06/02/00 Minimum Data Set (MDS) this resident was coded as having moderate daily pain. Subsequently on the 02/22/01 MDS this resident was coded as having daily pain which was sometimes severe. During the initial tour at 9:30 a.m. on 05/08/01, the resident was described as refusing to get out of bed and refusing showers due to pain. Clinical record review and staff interview revealed there was no documentation of an ongoing evaluation of this resident's pain since 1999. The behavior assessment identified pain and chronic illness but did not reflect the increase in pain or an evaluation of the resident refusing care.
R-7 was admitted to Jacaranda Manor on March 23, 1999. She received a comprehensive psychiatric evaluation upon admission. R-7 was a 41-year-old female, bipolar with a
history of psychosis, dementia, and manic episodes. She was a hermaphrodite. Her physical illnesses included pickwickian syndrome, a condition characterized by obesity, decreased pulmonary function and somnolence.
R-7 also suffered from psoriatic arthritis, a condition that caused her chronic pain and limited her movement. She complained of pain when being moved. When she was in bed and not moving, she did not complain of pain.
Jacaranda Manor prepared a formal pain assessment of R-7 upon her admission. She was seen weekly by her attending physician, psychiatrists, and therapists, and was seen several times a day by the nursing staff. All of the medical professionals who saw her entered written notes into her medical record. AHCA's observation accurately notes that R-7's medical record lacks a document formally titled "evaluation" or "assessment" of R-7's pain, but testimony and documentary evidence at the hearing established that R-7's condition, including her pain, was consistently monitored and noted by Jacaranda Manor staff.
Franklin May, a senior pharmacist, was the AHCA surveyor who made the observation of R-7. Mr. May interviewed R-7 and the treating nursing staff, and he reviewed the available medical records. Mr. May testified that he had "no problems with the way they were treating this lady."
Mr. May's concern was that R-7's pain had
apparently increased, and her condition deteriorated, but the facility could provide him with no documentation of a formal assessment or evaluation of her pain subsequent to her admission in 1999.
Jacaranda Manor did not dispute Mr. May's contention as to documentation of formal assessments, but contended that medical staff "assessed" R-7 on a daily basis and that their chart notes constituted documentation of those assessments. This contention is credited to the extent that Jacaranda Manor established that nothing was lacking in the actual care provided to R-7, and that staff of Jacaranda Manor possessed a nuanced understanding of R-7's condition and of her somewhat mercurial personality as it affected her complaints of pain. It is not credited to the extent that Jacaranda Manor contends that ongoing, formal assessments of
R-7's pain were superfluous.
Mr. May's impression was that R-7's refusal to get out of bed and to take showers was a recent phenomenon indicating an increase in pain. In fact, R-7 was mostly bed- bound throughout her stay at Jacaranda Manor, and even before her admission. Her reported pain fluctuated from time to time, as did her amenability to taking her prescribed pain medications. The totality of the evidence established that R- 7's condition was at least stable, if not markedly improved, throughout her stay at Jacaranda Manor.
In conclusion, the evidence supported Mr. May's contention that Jacaranda Manor's documentation of the care provided to R-7 was insufficient to permit a surveyor to obtain an accurate picture of her condition and treatment, and therefore supported the initial classification of Tag F272 in that R-7's formal assessment instruments were insufficiently updated.
However, the evidence did not support changing the classification to Tag F309, because no actual deficiencies in R-7's care were proven or even alleged prior to Ms. Acker's review of the IDR process.
The second alleged deficiency under Tag F309 concerned Resident 25, or "R-25:"
[R-25] was admitted on 04/10/01 directly to the secure unit upon admission to the facility. The Resident had a primary diagnosis of Cancer of the lung and paranoid schizophrenia. The Resident was receiving Hospice in another skilled nursing facility in Tampa before he/she was sent to the hospital for violent outburst of behavior. Transfer social services document from the hospital indicate [sic] that resident is to be admitted to Jacaranda Manor with Hospice services.
Monthly orders for this resident for April and May, 2001 reflected orders for Hospice. Interview of facility social services' staff, state [sic] that Resident was discontinued from Hospice due to "residents [sic] condition being stable" according to hospice. Contact was conducted with Life Path [the Tampa hospice] who confirm that this resident did meet Hospice criteria and that they do not service the St. Petersburg area and that was the only reason they had
to discharge the resident. Hospice staff said that Jacaranda admissions person was told that they were responsible to secure the services of the Hospice covering the St. Petersburg area and they would then share their records with that Hospice.
This resident was documented to be ambulatory throughout the secure unit and sociable with staff. Resident had episodes of shortness of breath and occasional use of oxygen. On 05/10/01 the resident developed cardiac arrest and was sent to the hospital by EMS where he/she was pronounced dead. The facility did not meet the needs of this resident for his/her terminal care needs.
R-25 was a large, heavy-set 67-year-old male who had been diagnosed with lung cancer, chronic obstructive pulmonary disease ("COPD"), paranoid schizophrenia, and seizure disorder. R-25 had been a resident of a Tampa nursing home until a behavioral outburst caused his admission to the psychiatric unit of Tampa General Hospital for an adjustment of his medications. While in the Tampa nursing home, R-25 had received services from Life Path Hospice, which served patients in Hillsborough County, due to his lung cancer diagnosis. The decision had been made not to treat the cancer, and R-25 had been receiving hospice services for over one year.
R-25 was an elopement risk and subject to violent outbursts, such that the Tampa nursing home declined to re- admit him after his hospital admission. Staff of Life Path Hospice knew of Jacaranda Manor's reputation for accepting
this kind of difficult resident. Grizier Cruz, a mental health counselor at Life Path, contacted Sharon Laird, Jacaranda Manor's admissions director. Ms. Laird agreed to evaluate R-25 for admission, and Jacaranda Manor admitted R-25 on April 10, 2001.
Ms. Laird testified that she initially asked Ms.
Cruz whether Life Path would continue to provide services to R-25 at Jacaranda Manor, or whether Life Path would transfer the case to the hospice serving Pinellas County. Ms. Laird testified that Ms. Cruz told her that R-25 was stable and no longer in need of hospice services.
Ms. Cruz denied telling anyone at Jacaranda Manor that R-25 was stable and not in need of hospice services. Ms. Cruz stated that she informed Jacaranda Manor that Life Path would be withdrawing services from R-25 because he was leaving Hillsborough County, Life Path's area of coverage. She testified that Jacaranda Manor would have to establish a physician for R-25 at the facility. The physician would have to write an order for hospice, at which time Life Path would make the referral to the Pinellas County hospice that would then come to Jacaranda Manor to evaluate R-25 for its program.
When R-25 was admitted, Jacaranda Manor followed its standard assessment and care planning procedures, noting his diagnosis of lung cancer and the need to contact hospice. Linnea Gleason, social services director at Jacaranda Manor,
testified that she contacted Life Path twice during the care planning process, and was told both times that R-25 was stable and in no need of hospice. Ms. Gleason's contemporaneous notes in R-25's chart are consistent with her testimony.
Dr. Gabriel Decandido was R-25's physician at Jacaranda Manor. His examination revealed that R-25's cancer was apparently slow growing, because he was relatively pain free and did not appear to be at the end stage of life. Dr. Decandido was not surprised to learn that R-25 had lasted over one year on hospice; he was surprised that R-25 had been receiving hospice services at all.
Dr. Decandido did not believe that R-25 needed hospice services. R-25 was stable, comfortable, not in pain, happy and smiling. At times, he used oxygen due to his COPD and continued smoking. He kidded with the nurses and went outside to smoke throughout the day.
Dr. Decandido noted that R-25's schizophrenia made him a poor patient with whom to discuss death because such discussions could increase his psychosis and paranoia. Given R-25's entire situation, Dr. Decandido thought it best to allow R-25 to live out his life at Jacaranda Manor, walking around, talking to people, eating, drinking, and smoking.
Another factor influencing Dr. Decandido's opinion was that x-rays taken of R-25 at Jacaranda Manor did not indicate lung cancer. Dr. Decandido did not dispute the
diagnosis of lung cancer, but did dispute that R-25 was a man about to die from lung cancer. His findings from the x-rays were that R-25 suffered from congestive heart failure and possibly pneumonia.
Ms. Gleason testified that she and her social services staff visited R-25 three times a week to offer counseling, but that R-25 showed no anxiety about his lung cancer and declined services.
Elaine Teller was the charge nurse at Jacaranda Manor during R-25's admission. She directly asked R-25 on several occasions whether he wanted hospice. She explained the advantages of hospice care in managing his medications.
On each occasion, R-25 declined hospice. Ms. Teller failed to note these declinations in R-25's chart. However, given that there was no physician's order for hospice and that R-25's capacity to consent was questionable at best, Ms. Teller's notations would have been superfluous in any event.
Life Path Hospice informed Jacaranda Manor that it would be necessary to obtain the consent of R-25's only known relative, a daughter in Jacksonville, to commence hospice services in the event they were ordered by a physician.
Ms. Laird of Jacaranda Manor contacted the daughter by telephone and sent her an admissions package by certified mail. The daughter did not accept delivery of the package. Thus, Jacaranda Manor never received signed admission
documents from R-25's family, which would have included advance directives such as hospice.
AHCA's contention that "[m]onthly orders for this resident for April and May, 2001 reflected orders for Hospice" is simply a misreading of R-25's record. The notation "hospice" appears under the term "advance directives" on a record document with the title "physicians orders and administration record." Despite its title, this sheet was used by Jacaranda Manor as a medication sheet. A notation of an advance directive for hospice was not a physician's order for hospice. Jacaranda Manor staff was fully aware that a physician's order for hospice would have been indicated by a special sticker on the sheet and by accompanying paperwork. Ms. Gleason explained this procedure to AHCA surveyors, who nonetheless cited these "orders" as deficiencies.
R-25 died on May 10, 2001, one month after his admission to Jacaranda Manor. His death was caused by cardiac arrest, unrelated to his lung cancer diagnosis.
Jacaranda Manor's version of events involving R-25 is credited. Other residents at the facility receive hospice services, and there is no reason to conclude that the facility would fail to implement a physician's order for hospice services for R-25. The evidence does not support the deficiency cited by AHCA, either under F272 or F309.
In summary, the evidence did not support the change of Tag F272 to Tag F309. The evidence did support a Class III deficiency under Tag F272 as to the documentation of Jacaranda Manor's treatment of R-7.
II. June 2001 Survey A. Tag F241
The June 2001 survey allegedly found two Class III violations of Tag F241, the "dignity tag," both from observations made on June 19, 2001, at 3:05 p.m. by surveyor Patricia Reid Caufman. The first observation involved Resident 19, or "R-19":
[R-19] was lying in bed (mattress) on the floor and receiving one to one supervision from the Certified Nursing Assistant (CNA). The resident was sleeping with the door open and the privacy curtain was not pulled around the resident. The resident faced toward the window with his adult briefs exposed to the hallway. The CNA was sitting on a chair in the hallway observing the resident. The CNA did not attempt to cover the resident to maintain his/her dignity.
R-19 was a 60-year-old male with a history of dementia and a propensity for violent outbursts. R-19 had no safety awareness, and had done such things as pull his room air conditioning unit out of the wall and attempt to walk it out into the hallway. He had a great deal of psychomotor agitation, and persistently pulled at things. He was prone to falling into chairs or his bed, pulling down curtains and
curtain rods. If approached abruptly, he might strike out. Three or four people could be needed to give him a bath. The medical staff constantly
adjusted his medications in an effort to manage his behavior without over-sedating him.
R-19 was very resistant to dressing, and could undress himself very quickly. Staff of Jacaranda Manor tried various strategies to keep him dressed, including one-piece outfits, clothing that zipped in the back, and hospital gowns with pajama bottoms, but nothing was entirely successful.
Jacaranda Manor had taken steps to ensure his safety. R-19 had been placed in a private room at the back of his hallway to minimize his interactions with other residents. All furnishings had been removed from the room, save for a mattress on the floor. Padding was placed around the mattress to minimize his thrashing. The windowsills were padded, and the air conditioner protected.
At the time of the June 2001 survey, R-19 was receiving 24-hour one-on-one care, for his own safety and that of the other residents. When R-19 slept, the CNA assigned to him was instructed to sit in the doorway to his room. A Dutch door was installed to his room. Once R-19 fell asleep, the bottom part of the door could be closed to obscure the view of passersby but still allow the CNA to peek over the top to
check on him.
Jacaranda Manor conceded the accuracy of Ms.
Caufman's observation, but contended there was no alternative plan of care for R-19. The door could not be closed completely, because the resident then could not be observed by the CNA. Placing the CNA on a chair inside the room would defeat the purpose of removing all the furnishings for safety, and would have placed the CNA in jeopardy. The privacy curtain would obscure the CNA's view of the resident.
R-19 was easily disturbed. Ms. Redmond, the director of nursing, testified that R-19 "needs to sleep when he wants to, because otherwise he is just up and going all the time."
Ms. Redmond believed that any attempt to cover R-19 with a sheet would have awakened him, "and then he would have been up and going again and wouldn't have gotten any rest."
Based upon the unique characteristics of this resident, and the extensive steps taken by Jacaranda Manor to ensure R-19's safety with some level of privacy, it is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241.
Ms. Caufman's second observation under Tag F241 involved Resident 20, or "R-20":
[R-20] was observed from the hallway lying in bed with the door open and the privacy curtains not pulled around the resident.
The resident was wearing adult briefs and the front half of the resident was exposed. Two staff members passed by the open door and failed to intervene so as to protect resident dignity.
R-20 was a male resident suffering from dementia.
He would take off his gown or shirt while lying in bed. He was capable of opening and closing his own privacy curtain. Ms. Caufman could not identify the two staff members who passed the open door.
Ms. Caufman's handwritten notes state that she observed R-20 uncovered at 3:05 p.m., but that staff had covered him when she next went past the room at 3:09 p.m. She did not explain why her formal statement omitted the fact that the resident was covered no more than four minutes after her observation.
Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-20 uncovered in his bed. On the other hand, Ms. Caufman's brief description of the incident, her failure to identify the staff members who allegedly ignored R-20, and her omission of a relevant fact render the situation ambiguous.
As noted above, staff at Jacaranda Manor do not wear uniforms. Only direct care staff are allowed to approach patients to dress or cover them. Other staff, such as maintenance or cafeteria workers, are directed to be alert to
residents' dress and to go get a direct care staff person when they see a problem. Based on Ms. Caufman's narrative and on the fact that the resident was covered within four minutes of her observation, it is as likely as not that the two people she saw pass the room were not direct care staff, and that they alerted the direct care staff, who then covered the resident.
It is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241.
B. Tag F250
The June 2001 survey allegedly found one violation of Tag F250, the "social services tag," involving Resident 14, or "R-14":
[R-14] was admitted to the facility on 7/2/98 with diagnoses that include organic brain syndrome, traumatic brain injury and dysphagia. The resident's minimum data set (MDS) of 7/3/00 indicated that the resident had broken, loose teeth and dental caries. The most recent MDS, dated 3/8/01, indicated that the resident had some or all natural teeth and needed daily cleaning.
It did not document broken, loose teeth with dental caries. The resident assessment protocol (RAP) for Dental, dated 3/8/01, documented that the resident was missing several teeth, had no dentures and the remaining teeth were discolored, but no gross caries or other problems. The status was documented as no oral hygiene problem, no problem that would benefit from a dental evaluation, but the patient was determined
to be at risk for developing an oral/dental problem. The staff was to assist the resident with oral care and monitor for problems. The care plan, dated 3/14/01, documented that the resident had dental caries (in conflict with the RAP assessment) along with missing teeth and the goal was to assist with oral care at least twice daily and obtain a dental consult as needed. A dental evaluation had been done on 8/18/98 (three years prior to the survey), and the evaluation (obtained from the thinned record) revealed that this was an initial oral examination and the resident had several missing teeth, heavy calculus and plaque noted. His teeth were documented as stable with no swelling or fractures noted and the resident was determined not to be a good candidate for routine dental care. During the initial tour with the 7-3 Supervisor, on 6/19/01, at about 9:30 a.m., the resident's teeth were observed. A front tooth was missing and a very large amount of plaque was noted, especially on the lower teeth. The supervisor commented that she observed dental caries. On 6/20/01, at 11:10 a.m., observations of the patient's teeth were made with the director of nursing (DON).
The resident was seated in a recliner,
sleeping with his mouth wide open. The left front tooth was broken and multiple dark areas in the back teeth were observed. There was a large amount of built up plaque on upper and lower teeth and on the upper and lower gum lines. An unpleasant mouth odor was detected at that time. Review of the social service notes from 7/15/98 through 5/16/01, revealed no documentation that the patient had dental needs. The current record did not contain a recent dental evaluation and the DON stated that she would review the thinned record. The initial dental evaluation, dated 8/18/98 mentioned above, was the only documented dental evaluation provided by the facility for review. Interview with the DON, on 6/20/01, at 1:50 p.m., revealed that the resident had refused dental work as
documented on the care plan, dated 2/12/01. The nurses notes did not document that a dental appointment had been made and the resident refused examination. The facility was asked to provide any documentation that the resident had been sent to a dentist and refused care. No other documentation was provided. In addition, the resident was coded as severely cognitively impaired on the MDS of 7/3/00, 2/5/01 and 3/8/01.
There was no evaluation of the resident's
capacity to provide or deny consent for treatment in the record. The resident's wife was documented as the decision maker on the MDS, but according to the DON she was unable to be contacted for a "long time" and there was no documentation that she had been involved in any decision making. The resident had no other legal representative. On 6/20/01, at 1:50 p.m., the DON stated that a doctor's order had been obtained for a dental appointment and the appointment was made. Lack of appropriate dental care may result in infections and diminish the resident's health status.
Patricia Procissi was the surveyor who recorded the observation of R-14. She found a conflict between the July 3, 2000, MDS, which documented broken, loose teeth with dental caries, and the March 8, 2001, MDS, which did not document the tooth problems. However, a RAP prepared on the same date did document dental problems for R-14.
Ms. Procissi interpreted the March 8, 2001, RAP as indicating improvement in R-14's condition without any documented dental intervention. She believed that this RAP conflicted with a care plan dated March 14, 2001, that indicated dental caries. In fact, the March 8 RAP stated "no
gross caries," which is not necessarily in conflict with a finding that R-14 had some dental caries.
Ms. Procissi noted that the director of nursing, Ms. Redmond, had told her that R-14 refused dental care, but Ms. Procissi could find nothing in Jacaranda Manor's records documenting that R-14 had been sent to a dentist and refused care.
Ms. Gleason, the social services director, testified that she asked R-14 if he would like to see a dentist, and he had refused dental care. Ms. Gleason testified that she documented this refusal in R-14's care plan, along with a notation that staff should continue to encourage him to accept dental services.
Ms. Procissi saw Ms. Gleason's note reflecting R- 14's refusal to see a dentist. However, she believed that this documentation raised the question of why there was no doctor's order that R-14 should be seen by a dentist. She stated that in most cases, there is a doctor's order followed by a nurse's note documenting why the order could not be carried out. Here, there was nothing in the record explaining the circumstances of R-14's refusal. Ms. Procissi also found it "odd" that R-14's refusal was documented in the social services care plan rather than the medical notes.
At the hearing, Ms. Gleason and Ms. Hirsch testified as to the general difficulty of obtaining dental
services for Medicaid patients. Few dentists are willing to accept adult Medicaid patients. At the time of the survey, Jacaranda Manor had two dentists and an oral surgeon who would see its residents, but even these dentists limited the number of residents they would accept in a given month.
If a Medicaid resident needs dental work, the doctor or a nurse will write a note to the social services office, which phones the dentist's office and provides the resident's Medicaid information and the nature of the dental needs. The dentist's office calls back to inform social services whether the resident is eligible under the "medically necessary" criteria for Medicaid reimbursement. If the resident is eligible, social services makes the appointment, arranges transportation for the resident, and accompanies the resident to the appointment, if necessary. Jacaranda Manor also schedules routine appointments several months in advance.
R-14 was a 47-year-old cognitively impaired male.
He was a Medicaid recipient. R-14 could be verbally and physically abusive when approached. At the time of his admission to Jacaranda Manor, and at all times subsequent, R-
was fed exclusively via gastrointestinal tube, meaning that any dental problems would not affect his nutrition.
Dr. Stuart Strikowsky, Jacaranda Manor's medical director, opined that R-14 was in no pain or discomfort, had loudly and adamantly stated that he wanted no dental work, and
would require complete sedation to undergo a dental evaluation. Dr. Strikowsky believed that a dental examination was medically unnecessary for this resident.
Kevin Mulligan, AHCA's Medicaid dental specialist, testified that Medicaid covers only medically necessary dental services, and that a dental examination for a nursing home patient must be requested by the attending physician and the nursing director. Dr. Strikowsky plainly believed that such a request was unnecessary for this resident.
It is found that the evidence was at best ambiguous that the observation of R-14 constituted a deficiency under Tag F250. Jacaranda Manor conscientiously monitored and documented R-14's dental condition. R-14's physician believed that a dental examination was medically unnecessary, somewhat mooting
Ms. Procissi's concerns regarding the lack of a doctor's order for dental services.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this
proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
AHCA is authorized to license nursing home facilities in the State of Florida, and pursuant to Chapter
400, Part II, Florida Statutes, is required to evaluate nursing home facilities and assign ratings. Section 400.23(7), Florida Statutes, requires AHCA to "at least every
months, evaluate all nursing home facilities and make a determination as to the degree of compliance." AHCA's evaluation must be based on the most recent inspection report, taking into consideration findings from official reports, surveys, interviews, investigations, and inspections. AHCA must assign either a standard or conditional rating to each facility after it surveys the facility.
Section 400.23(7), Florida Statutes.
The Agency has the burden to establish the allegations that would warrant the imposition of a conditional license. Beverly Enterprises-Florida v. Agency for Health Care Administration, 745 So. 2d 1133 (Fla. 1st DCA 1999).
AHCA must show by a preponderance of the evidence that there existed a basis for imposing a conditional rating on Jacaranda Manor’s license. Florida Department of Transportation v.
J.W.C. 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).
As to the allegations of the Administrative Complaint, the standard of proof for imposition of an administrative fine is clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co.,
670 So. 2d 932, 935 (Fla. 1996).
Section 400.23, Florida Statutes (2000)3, provides in pertinent part:
(7) The agency shall, at least 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 that 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.
* * *
(b) A conditional licensure status means that a facility, 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, is not in substantial compliance at the time of the survey with criteria established under this part, with rules adopted by the agency, or, if applicable, with rules adopted under 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. If the facility comes into substantial compliance at the time of the followup survey, a standard licensure status may be assigned.
Class II deficiencies "are those which the agency determines 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).
The May 2001 survey included deficiencies identified as Tag F241 (violation of 42 C.F.R. Section 483.15(a), relating to resident dignity); Tag F250 (violation of 42 C.F.R. Section 483.15(g), relating to social services); and Tag F272 (violation of 42 C.F.R. Section 483.20(b)(1), relating to resident assessment). All of these deficiencies were identified as Class III. However, the IDR process resulted in Tag F241 being elevated to a state level Class II deficiency with a federal scope and severity rating of H, and Tag F272 being changed to Tag F309 (violation of 42 C.F.R. Section 483.25, relating to quality of care), a state level Class II deficiency with a federal scope and severity rating of G. Based on these Class II deficiencies, AHCA imposed a conditional license on Jacaranda Manor, effective May 15, 2001, with an expiration date of February 28, 2002.
The preponderance of the evidence at hearing
established that AHCA properly classified Tag F241 as Class II, though it supported such classification for only four of the nine observations in the survey. The preponderance of the evidence at hearing did not support changing Tag F272 to Tag F309 or raising its state level classification from Class III to Class II. Section 400.23(7)(b), Florida Statutes (2000), quoted above, establishes that a single Class II deficiency is
sufficient for the imposition of conditional licensure. The evidence having established that there occurred four instances of Class II deficiencies under Tag F241, the Agency's imposition of a conditional license on Jacaranda Manor should be upheld.
The IDR process resulted in the Agency's upholding the Class III deficiency found under Tag F250 in the May 2001 survey. The preponderance of the evidence at hearing did not support the finding of any deficiency under Tag F250.
In June 2001, AHCA conducted a follow-up survey of Jacaranda Manor to determine whether the deficiencies alleged in the May 2001 survey had been corrected. The survey team determined that Tags F241 and F250 were uncorrected Class III deficiencies. This determination resulted in the filing of an administrative complaint seeking imposition of a $2,000 civil penalty.
The burden of proof on AHCA in this phase of the proceeding was to demonstrate the truthfulness of the allegations in the administrative complaint by clear and convincing evidence. Osborne Stern; Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
The "clear and convincing" standard requires:
[T]hat the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion
as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
The Agency failed to establish any of the deficiencies alleged in the June 2001 survey by clear and convincing evidence. Under Tag F241, the facts established clearly that there was no deficiency at all as to R-19. Jacaranda Manor did everything within reason to protect this resident's dignity consistent with its paramount duty to protect his physical safety.
As to R-20, the evidence was ambiguous. Ms.
Caufman saw R-20 uncovered in his bed at 3:05 p.m., but by 3:09 p.m. the resident was covered. Ms. Caufman saw two staff members pass by the door, but was unable to identify the staff members, leaving open the possibility that they were maintenance or cafeteria workers. Ms. Caufman's contemporaneous handwritten notes make clear that someone covered R-20 no more than four minutes after her observation. Ms. Caufman's formal report on the Form 2567 did not mention that the resident was covered four minutes after her observation. This elision renders her observation less than fully candid and an imperfect foundation for a "clear and convincing" case that Jacaranda Manor was deficient in this
incident.
Under Tag 250, the evidence was ambiguous as to whether there was a deficiency in the dental care of R-14. The resident's attending physician definitively opined that R-
14 was not in need of dental services. No witness questioned the physician's opinion. This fact alone makes it less than clear and convincing that Jacaranda Manor failed to provide medically-related social services related to the dental needs of R-14.
AHCA has established that Jacaranda Manor should be given a conditional license as a result of the Class II deficiency that was found during the May 2001 survey. AHCA has failed to establish that Jacaranda Manor should be subject to a civil penalty as a result of the June 2001 return survey.
Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding a Class II deficiency for Tag F241, a Class III deficiency for Tag F272, and assigning conditional licensure status to Jacaranda Manor for the time period from
May 15, 2001 to February 28, 2002. It is further recommended that the Administrative Complaint be dismissed and no civil penalty assessed against Jacaranda Manor.
DONE AND ENTERED this 25th day of July, 2002, in
Tallahassee, Leon County, Florida.
___________________________________
LAWRENCE P. STEVENSON
Administrative Law Judge Division of Administrative
Hearings
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
this 25th day of July, 2002.
ENDNOTES
1/ The Form 2567 identified this resident as "Resident #1." At the hearing, AHCA's witnesses credibly testified that this was a typographical error on the form and that the subject of this observation was Resident 21.
2/ The Form 2567 gave the date of the comprehensive assessment as "10/05/01." Evidence at the hearing established that this was a typographical error, and that the assessment was made on October 5, 2000.
3/ Section 400.23, Florida Statutes, was significantly by amended Chapter 2001-45, Laws of Florida, effective May 15, 2001. Because the survey at issue in DOAH Case No. 01-3072 was completed on May 11, 2001, it is concluded that the statute in effect at the time of the survey should control the issue of conditional licensure.
COPIES FURNISHED:
Michael P. Sasso, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Suite 310-G
St. Petersburg, Florida 33701
Alfred W. Clark, Esquire
117 South Gadsden Street, Suite 201 Post Office Box 623
Tallahassee, Florida 32301-0623
Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
William Roberts, Acting General Counsel 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 |
|---|---|---|
| Feb. 04, 2003 | Agency Final Order | |
| Jul. 25, 2002 | Recommended Order | Agency established facts sufficient to justify issuance of conditional license, but failed to establish facts under separate case seeking imposition of civil penalty. |
