vs. ) Case Nos. 01-4331
Respondent. )
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on May 7, 2001.
For Petitioner: Nelson E. Rodney
Agency for Health Care Administration 8355 Northwest 53rd Street, First Floor Miami, Florida 33166
For Respondent: Karen L. Goldsmith
Goldsmith, Grout & Lewis, P.A. Post Office Box 2011
The issue is whether Respondent failed to maintain the nutritional status of two residents, as required by 42 Code of Federal Regulations Section 482.25(i), so as to justify the
imposition of a conditional license rating upon Respondent's skilled nursing facility, pursuant to Section 400.23(7)(b), Florida Statutes, and an administrative fine of $2500, pursuant to Section 400.23(1)(b), Florida Statutes.
By Administrative Complaint dated December 14, 2001, Petitioner commenced DOAH Case No. 01-4331. The Administrative Complaint alleges that Respondent did not ensure that Resident ##9 and 18 maintained acceptable nutritional parameters, as evidenced by their weight loss while residing at the facility. The Administrative Complaint alleges that Respondent thus violated Sections 400.022(1)(l) and 400.141(9), Florida Statutes, Rule 59A-4-1288, Florida Administrative Code, and Regulation 482.25(i)(l), Code of Federal Regulations. The Administrative Complaint seeks the imposition of a conditional license, in accordance with Section 400.23(7)(b), and reasonable attorneys' fees, expenses, and costs, in accordance with Section 400.121, Florida Statutes.
By Administrative Complaint dated January 3, 2002, Petitioner commenced DOAH Case No. 02-0674. The Administrative Complaint alleges that Respondent did not ensure that Resident ##9 and 18 maintained acceptable nutritional parameters, as evidenced by their weight loss while residing at the facility. The Administrative Complaint alleges that Respondent thus
violated Sections 400.022(1)(l) and 400.141(9), Florida Statutes, Rule 59A-4.1288, Florida Administrative Code, and Regulation 482.25(i)(l), Code of Federal Regulations. The Administrative Complaint seeks the imposition of an administrative fine of $2500, in accordance with Section 400.23(1)(b), Florida Statutes, and reasonable attorneys' fees, expenses, and costs.
At the hearing, Petitioner called three witnesses and offered into evidence seven exhibits: Petitioner Exhibits 1-7. Respondent called five witnesses and offered into evidence three exhibits: Respondent Exhibits 1-3. All exhibits were admitted.
The court reporter filed the transcript on June 3, 2002.
The parties filed their proposed recommended orders by June 13, 2002.
At all material times, Respondent has owned and operated a skilled nursing facility located at 7300 Del Prado South in Boca Raton.
On August 2, 2001, Petitioner completed a survey of the facility. The surveyors cited Respondent for Tag 325, which they classified as a class II (state) or Level G (federal) deficiency. Tag 325 concerns two residents: Resident #9 and Resident #18. The following four paragraphs restate the stipulation into which the parties entered at the hearing.
Resident #9 was admitted to the facility on May 22, 2000, with the following diagnoses: stroke, pneumonia, stage III pressure sore at the coccyx, hypothyroidism, urosepsis diabetes, tracheotomy, respiratory dependency on a ventilator, and nutritional dependency on a percutaneous endoscopic gastronomy (PEG) feeding tube.
At all times, Resident #9 was wholly dependent on internal feeding for 100 percent of his nutritional needs. At the time of the survey, Resident #9 required Glucerna at
one-half strength at the rate of 60 cc hourly plus a supplemental protein powder. At the time of the survey, the coccyx of Resident #9 had a stage III wound, measuring 0.16 inches by 0.08 inches by 0.08 inches. A dietary note states that the amount of feeding for Resident #9 was below his estimated needs. However, the management of Resident #9's feeding was problematic due to his gastrointestinal problems.
Resident #18 was admitted to the facility with the following diagnoses: pneumonia, dehydration, fever, atrial fibrillation, and nutritional dependence on PEG tube feeding.
A dietary assessment dated July 17, 2001, did not address Resident #18's alleged seven-pound weight loss. Nothing in the clinical records for Resident #18 indicates that the alleged seven-pound weight loss was planned.
Resident #18 was admitted to the facility on
January 19, 2001 at 78 years of age. At that time, Respondent's staff completed a Nutrition Risk Assessment. The Nutrition Risk Assessment determined that Resident #18's desirable weight range was 128-156 pounds. At admission, Resident #18 weighed 121.5 pounds.
According to Respondent's weight log for Resident #18, he weighed the following on the indicated dates in 2001: January 24--121 pounds; January 30--122.2 pounds; February
7--121 pounds; February 14--123 pounds; February 21--119 pounds;
February 28--119.4 pounds; March 4--119 pounds; April 4--120
pounds; April 11--122 pounds; May 4--128 pounds; June 6--129 pounds; and July 4--122 pounds.
Resident #18's weight decreased by 5.4 percent from June 6, 2001, to July 4, 2001. However, the record does not suggest that this weight loss evidenced any nutritional problems. To the contrary, for 2001, Resident #18's normal weight approximated 122 pounds.
As noted in the guidelines to 42 Code of Federal Regulation Section 483.25(i), the desirable weight range stated for Resident #18 is approximate because "ideal body weight charts have not been validated for the institutionalized elderly." Thus, the guidelines warn that "weight loss (or gain) is a guide in determining nutritional status. An analysis of
weight loss or gain should be examined in light of the individual's former life style as well as current diagnosis." The guidelines offer "[s]uggested parameters for evaluating significance of unplanned and undesired weight loss": five percent over one month is "significant loss" and over five percent over one month is "severe loss."
Over a five-month period, Resident #18 gained one pound. Petitioner implicitly places considerable emphasis upon the 128-pound minimum desirable weight range for Resident #18, even though the guidelines suggest caution in establishing ideal weights for the institutionalized elderly. Reliance upon this minimum desirable weight allows Petitioner to ascribe significance to the loss between June 6 and July 4 of the weight gained between April 11 and May 4.
However, the record fails to suggest that Resident #18 suffered any nutritional problems for the first two and one-half months of his residency at the facility, when he consistently weighed 119-122 pounds. The record likewise fails to suggest that Resident #18's gain and loss of seven pounds over a three- month period was indicative of any nutritional problems.
This short-term change in Resident #18's weight appears either to have been a harmless anomaly or, as Respondent suggests, a measurement error. Evidence supportive of a measurement error is found by comparison of the weight log entry
for May 4, which marked the first time Resident #18 weighed as much as 128 pounds, with the Dietary Enteral Assessment for
May 2, which showed that Resident #18 weighed only 123.6 pounds two days earlier. Although the latter source documented a weight of 129 pounds on June 6, which corresponds exactly with the data from the weight log, the unlikelihood that Resident #18 gained 4.4 pounds over two days suggests measurement error, such as by using different scales.
Resident #9 presents a more complicated case. She was
69 years of age at the time of admission, but suffered from complex medical problems, including serious gastrointestinal difficulties that interfered with her nutrition.
At admission, Resident #9, a quadriplegic, was five feet, four inches, tall and weighed 185.4 pounds, according to her Nutrition Risk Assessment, or 191.5 pounds, according to her weight log. According to her Nutrition Risk Assessment, Resident #9's desirable weight range was from 108-132 pounds. Notwithstanding any uncertainty concerning the ideal body weights for the institutionalized elderly, Resident #9 was obese and remained so during the period at issue.
Resident #9's Nutrition Risk Assessment deletes the portion of the printed form stating that Resident #9 would suffer "moderate risk" to her nutritional status if she were to lose less than 5 percent of total body weight within one month,
less than 7.5 percent of total body weight within 90 days, or less than 10 percent of total body weight within six months. An updated Nutrition Risk Assessment dated June 1, 2000, notes that Resident #9 had gained six pounds, but does not delete the "moderate risk" parameters concerning rates of weight loss.
Resident #9 experienced several significant weight losses while a resident at the facility. According to her weight logs, Resident #9 weighed 206-208 pounds from June 7 through August 9, 2000. On August 20, 2000, she weighed 217 pounds, and she gained two more pounds through September 13, 2000. Between September 13 and 27, Resident #9 lost 13 pounds. From September 27 to October 5, Resident #9 regained four pounds to 210 pounds. She weighed within four pounds of 210 through October 25, at which time she weighed 207.4 pounds.
Petitioner contends that the first significant weight loss was from 214 pounds on October 18, 2000, to 191.0 pounds on November 14 and 15, 2000, which is a loss of ten percent of body weight within one month. It is also a loss of ten percent of body weight within three months, and the loss of merely one-half pound within six months. Although no one would opine that Resident #9 were healthier at 200+ pounds than at 191 pounds and her weight, over six months, did not change, Respondent must maintain Resident #9's nutrition at all times within the six months in question. However, the improved health at a lower
weight and absence of change from admission weight are factors that must inform the determination whether Respondent maintained Resident #9's nutritional status.
Petitioner contends that the next two significant weight losses occurred in December 2000 and January 2001. According to the weight log, Resident #9 weighed 184 pounds on December 6, 187 pounds on December 15, 185.4 pounds on December 20, and 186 pounds on December 28. Resident #9 thus lost seven percent of her body weight between November 8 and December 6.
Resident #9 continued to lose weight in January 2001.
She weighed 181.8 pounds on January 3, 175 pounds on January 10,
178 pounds on January 17, 177.6 pounds on January 24, and 176 pounds on January 30. Between the end of December and end of January, Resident #9 lost 5.4 percent of her body weight. Between December 15 and January 10, she lost 6.4 percent of her body weight. For the three months ending at the end of January, Resident #9 lost 15.1 percent of her body weight, and for the six months ending at the end of January, Resident #9 lost 15.4 percent of her body weight.
On February 14, Resident #9 weighed 171.8 pounds, and on March 28 she weighed 172.4 pounds; in between, she weighed more, but never over 179 pounds. On April 4, Resident #9 weighed 167 pounds, but on April 18 and 25, she weighed,
respectively, 173 and 174 pounds. Petitioner contends that the next significant weight loss was in April 2000 when she lost 6.2 percent of her body weight between March 7 and April 4.
From May 2 through June 13, Resident #9 weighed from 174-178 pounds. On July 3 and July 18, she weighed 167.4 pounds and 165 pounds, respectively, but, on July 11, she weighed only
137.6 pounds. The sudden loss of 30 pounds over eight days followed by the gain of 28 pounds over the next seven days-- given a significant history of much more modest weight changes-- suggests again measurement error. This time, Petitioner seems to concede the point as in its proposed recommended order it contends only that Resident #9 suffered a six percent weight loss in July, which is the weight loss from June 6 to July 3.
Despite her obesity, none of Resident #9's weight loss was planned. Among her many gastrointestinal conditions was gastroparesis, which is the impaired ability of the stomach to transport food as part of the normal digestive process, and paralytic ileus, which is the impaired ability of the intestinal tract to transport food as part of the normal digestive process. These serious digestive disorders, as exacerbated by the effect of Resident #9's diabetes on her digestive capabilities, contributed to vomiting, constipation, diarrhea, and, on at least one occasion, the aspiration of feces, which necessitated the suctioning of feces from Resident #9's mouth. At all times,
Respondent's staff also had to manage the abdominal distention caused by these digestive disorders so that Resident #9's ventilator-dependent respiration was not compromised; sometimes, maintaining respiratory function required the reduction of nutrition. At other times, Resident #9's veins, already weakened by various diseases, precluded intravenous feeding. In December 2000, Resident #9 suffered a cardiac event; Resident #9's husband, who held a health-care power of attorney for his incapacitated wife, declined the suggestion of outside health care providers that Resident #9 be admitted to a hospital.
Respondent's staff tried dozens of interventions, including different nutritional formulas and feeding regimes, to deal with the ever-changing digestive problems that Resident #9 presented. Unable to tolerate bolus feedings, Resident #9 received small frequent feedings, which were easier for her to digest. Unable to tolerate the prescribed caloric intake, staff reduced nutritional levels to the maximum that Resident #9 could tolerate. When Resident #9 became unable to tolerate an intravenous port, staff decided to resort to a PIC line, which penetrates less deeply into the vasculature. However, Resident #9's poor vascular condition and her husband's ongoing preference to avoid more invasive treatment options limited the utility of this option.
A registered nurse practitioner working under the supervision of Resident #9's treating physician saw Resident #9 at least as often as every one to two weeks from September 2000 through the August 2001 survey. At times, under the nurse's supervision, the only relief available for Resident #9's intractable gastrointestinal problems was to allow the gut to rest by reducing foods and fluids.
The nurse and physician also addressed Resident #9's hypothyroidism, which contributed to a sluggishness. Thus, while managing direct gastrointestinal problems, they were also trying to convert Resident #9 to a new, more active thyroid state--a process that explains some of the weight loss.
Overall, Resident #9's weight loss, though unplanned, was not unexpected. Her health care providers properly accepted the weight loss as a secondary, unavoidable issue, as they struggled to reestablish crucial cardiopulmonary, gastrointestinal, and endocrinal functions. Respondent's staff and outside health care providers always monitored all reductions in nutritional levels, as they pursued other, more crucial treatments. Her new weight range ultimately contributed to her health.
Petitioner has failed to prove by a preponderance of the evidence that Respondent at anytime failed to maintain
acceptable levels of nutritional status for Resident #9 or Resident #18.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
Petitioner has the burden of proof. The parties have agreed that the standard of proof in DOAH Case No. 01-4331 is a preponderance of the evidence and the standard of proof in DOAH Case No. 02-0674 is clear and convincing evidence.
Section 400.23(7) provides in part:
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.
A standard licensure status means that a facility has no class I or class II deficiencies and has corrected all class III deficiencies within the time established by the agency.
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 or with rules adopted by the agency.
If the facility has no class I, class II, or class III deficiencies at the time of the followup survey, a standard licensure status may be assigned.
Section 400.23(8)(b) authorizes Petitioner to impose an administrative fine of $2500 for an isolated class II deficiency.
Pursuant to Section 400.23(2)(f), federal rules establish standards for the "care, treatment, and maintenance of residents." Accordingly, 42 Code of Federal Regulations Section 483.25(i)(1) provides, as to "quality of care":
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.
Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident--
Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible[.]
Petitioner has failed to prove, even by a preponderance of the evidence, that Respondent failed to ensure that Resident #9 or Resident #18 maintained acceptable
parameters of nutritional status, under the facts of this case. Obviously, the closer question concerns Resident #18, but her clinical condition amply justifies the nutrition that Respondent and her outside health care providers decided to provide her while trying to manage a series of grave, chronic conditions.
RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 01-4331 and the Administrative Complaint in DOAH Case No. 02-0674.
DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2002.
William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive
Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive
Nelson E. Rodney Assistant General Counsel
Agency for Health Care Administration 8355 Northwest 53rd Street, First Floor Miami, Florida 33166
Karen L. Goldsmith Alex Finch
Goldsmith, Grout & Lewis, P.A. Post Office Box 2011
15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
