STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

BEVERLY HEALTHCARE OF KISSIMMEE,

Respondent.

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) Case No. 01-3142

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RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing of this proceeding on November 14, 2001, in Orlando, Florida, on behalf of the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Dennis L. Godfrey, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, Room 310L St. Petersburg, Florida 33701

For Respondent: R. Davis Thomas, Jr.

Qualified Representative Broad & Cassel

215 South Monroe Street, Suite 400 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent committed the allegations in the notice of intent to assign a conditional

license and, if so, whether Petitioner should have changed the rating of Respondent's license from standard to conditional for the period June 14 through August 10, 2001.

PRELIMINARY STATEMENT

By letter dated July 13, 2001, Petitioner alleged that Respondent had violated various provisions of Florida Statutes and the Florida Administrative Code and provided notice that Petitioner changed Respondent's license rating from standard to conditional. Respondent timely requested an administrative hearing.

The ALJ initially set the case for hearing on October 23 and 24, 2001, because that was the first date both counsel stated in their joint response to the Initial Order that they were available for hearing. On September 14, 2001, Respondent filed an unopposed motion for continuance. The ALJ rescheduled the hearing for November 13 and 14, 2001.

The style of the documents filed in the case prior to November 14, 2001, denoted the state agency as Respondent and denoted the nursing home facility as Petitioner. That style, however, misrepresented the burden of proof in the case. The state agency has the burden of proof to substantiate the proposed agency action and properly should appear as Petitioner in the style of the case. Pursuant to the agreement of the parties on November 14, 2001, the ALJ amended the style of the

case, nunc pro tunc, to show the state agency as Petitioner and to denote the nursing home facility as Respondent.

At the hearing conducted on November 14, 2001, Petitioner presented the testimony of three witnesses, and submitted five exhibits for admission in evidence. Respondent presented the testimony of one witness, and submitted two exhibits for admission in evidence. The identity of the witnesses and exhibits and any attendant rulings are set forth in the Transcript of the hearing filed on December 17, 2001.

On November 14, 2001, the ALJ ordered the parties to file their proposed recommended orders ("PROs") no later than 10 days after the transcript was filed. The Transcript was filed on February 17, 2002. On December 20, 2001, the parties filed a joint motion for an extension of time to file their PROs. The ALJ ordered the PROs filed by February 1, 2002.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 1120 West Donegan Avenue, Kissimmee, Florida (the "facility").

2. Petitioner conducted an annual survey of the facility from May 7, through May 10, 2001 (the "May survey"). Petitioner conducted a follow-up survey of the facility on June 14, 2001 (the "June survey").

3. The May survey cites one Class III violation. The June survey cites a repeat deficiency of a Class III violation.

4. Subsection 400.23(8)(b) and (c), Florida Statutes (2000), refers to deficiency classifications as Class I-III deficiencies. All statutory references are to Florida Statutes (2000) unless otherwise stated.

5. Section 400.23(8)(c) defines Class III deficiencies as those deficiencies

   . . . which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies.

   
   

   The statutory definitions of Class I and II deficiencies are not relevant to this case because this case involves only a Class III deficiency.

6. Florida Administrative Code Rule Rule 59A-4.1288 requires nursing home facilities licensed by the State of Florida to adhere to federal regulations in Section 483 of the Code of Federal Regulations ("CFR"). All references to rules are to rules promulgated in the Florida Administrative Code on the date of this Recommended Order. In relevant part, Rule 59A- 4.1288 provides:

   Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483,

   Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference.

   
   

7. Applicable federal regulations require Petitioner to assign a scope and severity rating to the deficiencies alleged by Petitioner. Petitioner assigned a "D" rating to the deficiencies alleged in the May and June surveys. A “D” rating means that there is no actual harm with potential for more than minimal harm that is not actual jeopardy.

8. When Petitioner alleges that the Class III deficiency from the May survey was not corrected within the time established by the agency, the agency may change the rating of the facility license from standard to conditional. Petitioner determined in the June survey that the facility had not corrected the deficiency alleged in the May survey. Effective June 14, 2001, Petitioner changed the rating of the facility's license from standard to conditional.

9. Petitioner noted the results of the May and June surveys on a Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567".

10. The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "Tag"). Each tag on the 2567 includes a narrative

    description of the allegations against Respondent and cites a provision of relevant state rules violated by the alleged deficiency.

11. There is only one tag at issue in the May and June surveys. It is Tag F282. In order to protect the privacy of nursing home residents, Tag F282, the 2567, and this Recommended Order refer to each resident by a number rather than by the name of the resident.

12. Tag F282 alleges in the May and June survey that the facility failed to satisfy the requirements of 42 CFR Section 483.20(k)(ii). In relevant part, the federal regulation provides:

    Comprehensive Care Plans.

    
    

    (3). The services provided or arranged by the facility must—

    
    

    (ii) Be provided by qualified persons in accordance with each resident’s written "plan of care."

    
    

    This standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288.

13. Tag F282 does not allege that the facility provided care to residents by unqualified persons. Rather, Tag F282 alleges that Respondent failed to follow the plan of care for two residents. Tag F282 alleges in the May survey that the facility failed to provide care and services in accordance with

    the plan of care for Residents 3 and 1. Tag F282 alleges in the June survey that Respondent failed to follow the plan of care for Resident 1. The resident identified as Resident 1 is not the same resident in the May and June surveys.

14. Before proceeding to the merits of the allegations in Tag F282, two policy issues must be resolved in order to make findings of fact in a manner that is consistent with Petitioner's officially stated agency policy. One issue is procedural and the other involves the definition of terms.

15. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the "Manual"). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce.

16. The Manual authorizes surveyors to determine whether a facility has complied with Tag F282 only after surveyors have identified violations of standards relating to: quality of care, defined in 42 CFR Section 483.25(a)–(m); quality of life, defined 42 CFR Section 483.15(a)–(h); or residents rights, defined 42 CFR Section 483.10(a)–(o). The state agency's written policy set forth in the Manual requires its surveyors to identify an issue of quality of care, quality of life, or residents’ rights before proceeding to a determination of whether the facility has violated Tag F282.

17. The second issue involves the interpretation of the terms "inadequate", "incorrect", and "consistent." The Manual indicates that violations occur if surveyors can demonstrate inadequate or incorrect implementation of the care plan. The Manual does not define the term “inadequate.” The common meaning of the term suggests that something less than perfect implementation satisfies the requirements of the regulatory standard. That construction is consistent with other provisions in the Manual. The Manual further provides that violations of standards occur only if a facility fails to “consistently” implement the plan of care for a resident.

18. Petitioner's surveyors acknowledged in their testimony that the goal for the quality of care regulations is to achieve positive resident outcomes and is identical to the goal of Tag F282. Petitioner offered no credible reason, within the meaning of Section 120.68(7)(e)3, why the standard for implementation of a resident’s care plan under Tag F282 should be stricter than that required by the quality of care regulations.

19. Resident 3 had many compromising conditions and was near death at the time of the May survey. Resident 3 had 10 to

    12 care plans to address his various medical problems and conditions. Each care plan contained an average of 15 separate interventions.

20. One of the care plans for Resident 3 addressed the risk of developing pressure sores and contained 20 separate interventions for staff to implement. One intervention required staff to turn and reposition the resident every two hours.

21. On May 7, 2001, a surveyor stationed herself outside of Resident 3’s room from 1:00 p.m. to 4:00 p.m. in the afternoon to observe who entered the resident’s room and what care was given to the resident. During that time, the surveyor observed that no staff member entered the room to turn and reposition the resident. The care plan required staff to turn the resident once during the three-hour period.

22. The allegations in Tag F282 pertaining to the failure to reposition Resident 3 during a three-hour period on May 7, 2001, deviate from Petitioner's written agency policy in two respects. First, Petitioner did not cite the facility for any violation relating to quality of care, quality of life, or resident rights. Second, a single isolated failure to implement one intervention prescribed in one of 12 care plans for Resident 3, during a three-hour period, on one of four days of a survey, does not demonstrate inadequate care by failing to consistently implement a care plan.

23. Petitioner failed to explain by a preponderance of the evidence why it deviated from its official written policy in its determination that Respondent violated the standard prescribed

    in Tag F282. The surveyor provided no credible explanation to justify a deviation from agency policy with respect to Resident 3. Nor did Petitioner present any evidence that Resident 3 developed any pressure sores or had any pressure sores worsen as a result of the failure to turn and reposition the resident on May 7, 2001. The evidence shows that the

    failure to turn and reposition Resident 3 presented nothing more than a minimal chance of negative impact.

24. Tag F282 alleged in the May survey that the facility failed to provide care for Resident 1 in accordance with the care plan. Resident 1 suffered from a condition that caused his chin to droop toward his chest. The condition caused positioning problems for the resident while he was in his wheelchair.

25. The physical therapist for the facility examined Resident 1 and recommended periodic placement of a Futuro cervical collar while the resident was in his wheelchair in order to elevate the resident's chin. The recommendation required staff to place the collar on the resident when he was in his wheelchair for two hours and then to remove it for two hours. Staff was not to place the collar on the resident during meals or while the resident was in bed. The resident would sometimes remove the collar after it was placed on him.

26. On May 8, 2001, Petitioner’s surveyor made five observations of the resident between 10:45 a.m. and 1:50 p.m. The surveyor did not see the resident wearing the collar during any of the observations. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:45 a.m. until 1:50 p.m.

27. The surveyor did not know if or when the collar should have been placed on the resident during the observations on

    May 8, 2001. It is uncontroverted that the resident would have eaten lunch for one hour during the time that the surveyor observed the resident and that the care plan did not require staff to place the collar on the resident during meals.

    Petitioner offered no evidence that the failure to put the collar on the resident during the observed instances presented potential for any harm to the resident.

28. Petitioner failed to show by a preponderance of the evidence that the facility failed to implement Resident 1’s care plan. Even if it were determined that the facility failed to consistently implement the care plan or inadequately implemented the care plan, Tag F282 deviates from Petitioner's officially stated agency policy because the tag does not charge the facility with any violation of quality of care, quality of life, or resident rights. Petitioner failed to explain why it deviated from its policy. Finally, the observed circumstances

    presented no more than a minimal chance of minor negative impact to Resident 1.

29. On May 9, 2001, Petitioner's surveyor observed Resident 1 on three different occasions between 10:00 a.m. and 11:05 a.m. without the collar. The surveyor did not know if or when the collar should have been placed on the resident during that time-period. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:00 a.m. until 11:05 a.m.

30. The preponderance of the evidence failed to sustain the charge that the facility did not implement Resident 1’s care plan on May 9, 2001. The observations are insufficient to demonstrate a consistent failure to implement the care plan. Petitioner provided no credible explanation for deviating from its officially stated agency policy. Finally, the circumstances presented no chance of any harm other than minimal negative impact to the resident.

31. Tag F282 alleges in the June survey that the facility failed to follow doctor’s orders for Resident 1 that required multi-podus boots to be applied every shift. Resident 1 in the June survey is not the same resident identified as Resident 1 in the May survey. Resident 1 in the June survey had pressure sores on his feet, and one of the interventions prescribed in the care plan required Resident 1 to wear multi-podus boots.

32. On June 13, 2001, at 2:45 p.m., Petitioner's surveyor observed Resident 1 lying in bed without the required multi- podus boots. Resident 1 was lying on a pressure-relieving mattress so that his heels were receiving pressure relief without the need for multi-podus boots.

33. On June 14, 2001, Petitioner's surveyor observed Resident 1 in his wheelchair in the activities room with black, hard-soled shoes on his feet instead of the multi-podus boots. The resident had dressings on his heels that protected them and was sitting so that his heels bore no weight.

34. The facility maintained medical records that described the size and appearance of the pressure sores on Resident 1's heels. The records indicated that the pressure sores healed progressively after Respondent admitted Resident 1 to the facility. The area on the right heel was completely healed by June, 2001, and the area on the left heel was closed by July 2001.

35. Petitioner deviated from its officially stated policy in two respects. First, Petitioner did not charge the facility with any violation of a quality of care, quality of life, or residents rights. Second, the instances observed by the surveyor do not demonstrate a failure to consistently implement the plan of care or a failure to provide adequate care. Petitioner offered no credible explanation for deviating from

    its policy. The events observed by Petitioner's surveyor, at most, presented the potential for causing no more than a minor negative impact on the resident.

    CONCLUSIONS OF LAW

    
    

36. DOAH has jurisdiction over the parties and subject matter in this proceeding. Sections 120.569 and 120.57(1). The parties received adequate notice of the administrative hearing.

37. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by a preponderance of the evidence that Respondent committed the acts and omissions alleged in Tag F282. 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). For the reasons stated in the Findings of Fact and incorporated by this reference, the preponderance of evidence did not show that Respondent committed the deficiencies alleged in Tag F282 in the May and June 14 surveys.

38. Petitioner alleged that a Class III deficiency at the facility in the May survey was not corrected when Petitioner surveyed the facility in on June 14, 2001, and that the deficiencies in both surveys violated the standards prescribed in Tag F282. Petitioner's written policy provides that no violation of Tag F282 can occur without two attendant violations. First, the facility must violate quality of care,

    quality of life, or resident rights. Second, there must be proof of failure to provide consistent implementation of a care plan by a facility.

39. Petitioner did not charge the facility with violations of quality of care, quality of life, or resident rights. The preponderance of evidence failed to demonstrate that the facility did not consistently implement a care plan. Petitioner did not provide any credible explanation of why Petitioner deviated from its written policy in this case.

40. Assuming arguendo that perfect implementation of a care plan is required under Tag F282, no described set of circumstances was shown to present anything more than a potential for causing minor negative impact to the identified residents. Accordingly, each deficiency was, at most, a Class IV violation.

41. A standard rating is defined in Section 400.23(7)(a), in relevant part, to mean:

. . . a facility has no class I or II deficiencies and has corrected all class III deficiencies within the time established by the Agency.

Petitioner failed to show by a preponderance of the evidence that there was an uncorrected Class III deficiency at the facility on June 14, 2001. Petitioner did not allege any Class I or II deficiencies in Tag F282 in either the May or June

surveys. Petitioner should not have issued a conditional rating of Respondent's license on June 14, 2001, and should not have continued that rating through August 1, 2001.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Agency for Health Care Administration should enter a final order revising the May 10 and June 13, 2001, survey reports to delete the deficiency described under Tag F282, and replace the previously issued Conditional rating with a Standard rating.

DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002.

COPIES FURNISHED:

Dennis L. Godfrey, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive North, Room 310L St. Petersburg, Florida 33701

R. Davis Thomas, Jr. Broad & Cassel

215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300

Diane Grubbs, 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.

Docket for Case No: 01-003142

Orders for Case No: 01-003142