STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EDGEWATER AT WATERMAN VILLAGE, )
)
Petitioner, )
)
vs. )
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Respondent. )
Case No. 02-0698
)
RECOMMENDED ORDER
A formal hearing was conducted in this case on July 22-23, 2002, in Leesburg, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Jay Adams, Esquire
Broad & Cassel
215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302
For Respondent: Gerald L. Pickett, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701
STATEMENT OF THE ISSUES
The issues are whether Respondent should issue Petitioner a conditional license based on the following citations for
violations of Rule 59A-4.1288, Florida Administrative Code:
Class II deficiency for failing to provide necessary social services; (b) Class II deficiency for failing to provide assessment, care and services to prevent the development of pressure sores; and (c) Class I deficiency for failing to ensure that residents received thickened liquids pursuant to physician
order.
PRELIMINARY STATEMENT
On or about November 28, 2001, Respondent Agency for Health Care Administration (Respondent), issued a Notice of Intent to Assign Conditional License Status to Petitioner Edgewater at Waterman Village (Petitioner). The notice advised that the change in licensure status of Petitioner's skilled nursing facility from Standard to Conditional was effective on September 14, 2001, as a result of a survey completed that same day. According to the survey, Petitioner had one Class I deficiency and two Class II deficiencies for violations of Rule 59A-4.1288, Florida Administrative Code.
Petitioner filed a Petition for Formal Administrative Hearing with Respondent on December 17, 2001, to contest the facts upon which Respondent based the conditional license and the underlying deficiencies. On February 15, 2002, Respondent referred the case to the Division of Administrative Hearings.
On March 4, 2002, the parties filed a Joint Response to Initial Order. Subsequently, a Notice of Hearing dated March 11, 2002, scheduled the hearing for April 25, 2002.
On April 12, 2002, the parties filed a Motion to Reschedule Final Hearing. After a telephone conference on April 15, 2002, the undersigned issued an Order Granting Continuance and
Re-Scheduling Hearing for June 6-7, 2002.
On May 17, 2002, Respondent filed a Notice of Conflict and Agreed Upon Motion to Continue. On May 20, 2002, the undersigned issued an Order Granting Continuance and
Re-Scheduling Hearing for July 22-23, 2002.
On June 27, 2002, Respondent filed a Motion to Compel or Motion in Limine or Motion for Other Appropriate Relief.
Petitioner did not file a response in opposition to the motion. On July 10, 2002, the undersigned issued an Order Granting Motion to Compel.
During the hearing, Respondent presented the testimony of four witnesses and offered 13 exhibits that were accepted into evidence. Petitioner presented the testimony of five witnesses and offered 18 exhibits that were accepted into evidence.
The parties filed a two-volume Transcript of the proceeding with the Division of Administrative Hearings. The first volume was filed on August 30, 2002. The second volume was filed on September 3, 2002.
On September 17, 2002, Petitioner filed a Motion for Extension of Time to File Proposed Recommended Order. The undersigned granted the motion in an Order dated September 19, 2002.
On September 30, 2002, the parties filed a Joint Motion for Extension of Time to File Proposed Recommended Orders. This motion is hereby granted.
Petitioner filed its Proposed Recommended Order on October 14, 2002. Respondent filed its Proposed Recommended Order on October 17, 2002.
FINDINGS OF FACT
Respondent is the state agency that is charged with, among other things, the licensure and inspection of nursing homes in Florida.
Petitioner is a licensed skilled nursing facility.
Petitioner's facility is located in Mt. Dora, Florida.
Respondent conducted an annual Medicare/Medicaid
re-certification survey, state licensure survey, and life safety survey of Petitioner's facility on September 11, 2001, through September 14, 2001. During the survey, Respondent also investigated two complaints against Petitioner. After the survey, Respondent prepared a survey report, Form 2567, detailing alleged deficiencies in the standards of care found at Petitioner's facility.
The Form 2567 alleged that Petitioner had violated three federal regulations, each of which was identified on the form by a corresponding code or "tag." The form provided a summary of the violation for each "tag" and set forth specific factual allegations that Respondent believed supported the violation. The Form 2576 also indicated the scope and severity of the noncompliance for each alleged violation.
The severity of a violation relates to the effect on resident outcome. The four severity levels are as follows:
Level 1, no actual harm with potential for minimal harm;
Level 2, no actual harm with potential for more than minimal harm that is not immediate jeopardy; (c) Level 3, actual harm that is not immediate jeopardy; and (d) Level 4, immediate jeopardy to resident health or safety.
The scope of a violation relates to the number of residents potentially or actually affected. The three scope levels are as follows: (a) an isolated violation affecting one or a very limited number of residents; (b) a pattern of violations affecting more than a limited number of residents; and (c) widespread violations affecting or having potential to affect a large portion of all residents.
During a survey, Respondent uses an enforcement matrix to assign alleged violations, depending on their severity and
scope, to one of four class deficiencies. Only three of the four class deficiencies are cited on the Form 2567.
The three class deficiencies that Respondent cites on the Form 2567 are as follows: (a) Class I, a situation that requires immediate corrective action because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident; (b) Class II, a situation that has compromised a resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services; and (c) Class III, a situation that will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to do so, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.
The Form 2567 at issue here included one alleged Class I deficiency, with a scope and severity rating of K
(a pattern of violations affecting four residents, one of which Respondent determined to be in immediate jeopardy.) According to the Form 2567, Petitioner violated 48 C.F.R. Section 483.25(i), Tag F-326, by failing to ensure that Resident 1, Resident 13, Resident 15, and Resident 18 received thickened liquids as ordered by their physicians. Respondent's
allegations in this regard focused primarily on Resident 15, the only resident that Respondent determined to be in immediate jeopardy.
The Form 2567 at issue here included two Class II deficiencies with a scope and severity rating of G (isolated violations resulting in actual harm but no immediate jeopardy to any resident.) First, Petitioner allegedly violated 42 C.F.R. Section 483.15(g), Tag F-250, by failing to provide necessary social services to assist Resident 4 and Resident 16 with financial and mental health issues, creating a situation which caused the residents mental or psychosocial distress. Second, Petitioner allegedly violated 48 C.F.R. Section 483.25(c),
Tag F-314, by failing to provide assessment, care, and services to prevent development of an avoidable pressure sore on Resident 5.
Tag F-250
Tag F-250 states that "[t]he facility must provide medically-related social services to attain or maintain the highest physical, mental, and psychosocial well-being of each resident." 42 C.F.R. Section 483.15(g). Respondent alleges that Petitioner failed to provide appropriate social services to Resident 4, who was concerned about her finances and wanted to be transferred out of the facility. Respondent also alleged that Petitioner failed to provide adequate grief counseling to
Resident 16, who had been injured in an automobile accident, which killed her daughter. According to Respondent, Petitioner's inaction resulted in psychosocial harm to these residents.
Resident 4
Resident 4 was admitted to Petitioner's facility on July 17, 2001, as a private pay patient. The initial discharge plan called for Resident 4 to return to her home after discharge from Petitioner's facility.
On July 27, 2001, Petitioner's social worker performed an assessment of Resident 4's psychosocial status. This assessment did not indicate that Petitioner was concerned over her personal finances and the cost of an extended stay in Petitioner's facility. The social worker projected that Resident 4 would be discharged within 31-90 days.
A July 30, 2001, Resident Assessment Protocol (RAP) summary indicated that Resident 4 required limited assistance with activities of daily living. She participated in therapy at Petitioner's facility so that she could become strong enough to return to her home.
A care plan dated August 2, 2001, referenced Resident 4's desire to return to her home to live alone with home care services. The care plan called for Petitioner to
refer Resident 4 to home health agencies and to educate her family about her home health issues.
On or about August 31, 2001, Resident 4's physician ordered a psychological consultation to determine if she was depressed. A psychiatry progress note dated September 4, 2001, stated that Resident 4 denied being depressed but realized that she could no longer live alone. According to the note, Resident 4 was interested in an assisted living arrangement. The note does not refer to any financial concerns.
Resident 4 had a friend that she designated as her power of attorney. At some point in time, the friend with power of attorney informed Petitioner that Resident 4 wanted to transfer to Petitioner's assisted living facility as soon as possible.
When Respondent's survey team interviewed Resident 4 on September 13, 2001, she indicated that she was concerned about her financial condition and that she wanted to be transferred to an assisted living facility so she would not go broke.
In accordance with industry standards, Petitioner's social worker performs an assessment of residents after admission, after each hospitalization, and every 90 days unless there is a referral by the direct care staff for more frequent
assessments. Resident 4 was not in Petitioner's facility for 90 days.
There is no persuasive evidence that Resident 4 ever expressed a concern about her financial condition prior to the interview with Respondent's staff on September 13, 2001. Petitioner had not completed her restorative therapy and was not ready for discharge at that time. After receiving discharge orders from the treating physician, Petitioner appropriately discharged Resident 4 from its skilled nursing facility to its assisted living facility on September 21, 2001.
The greater weight of the evidence indicates that Petitioner could not have discharged Resident 4 to an assisted living facility prior to September 21, 2001. There is nothing that Petitioner's social workers could have done to expedite the resident's discharge. There is no persuasive evidence that Resident 4 suffered any harm as a result of Petitioner's provision of social services.
Resident 16
Resident 16 was admitted to Petitioner's facility on August 16, 1999, after a motor vehicle accident that resulted in the death of her daughter. She was almost 89 years old at the time of her admission.
Resident 16 had a consultation with a psychiatrist on November 16, 1999. The psychiatrist prescribed psychotropic drugs to treat her anxiety and depression.
A care plan dated November 16, 2000, revealed that Resident 16 was verbalizing sadness regarding her daughter's death. At that time, Resident 16 was expressing a wish that she had died in the accident instead of her daughter.
A care plan dated February 2001 documented
Resident 16's negative statements and wishes that God had taken her instead of her daughter. The care plan included detailed approaches for Petitioner to use in addressing the resident's mood state.
The February 2001 care plan also referred to Resident 16's diagnosis of anxiety and depression, for which Petitioner would arrange a psychiatric evaluation, if needed. However, a RAP summary dated February 14, 2001, indicated that Resident 16's anxiety over the loss of her daughter was improving even though she still had tearful episodes.
Resident 16's Minimum Data Set (MDS) dated August 6, 2001, indicated that she had sad/pained/worried facial expressions up to five days a week. The MDS quoted
Resident 16's regrets that she had lived so long and her desire to die.
In an interview with Respondent's staff during the survey, Resident 16 continued to refer to her daughter's death, becoming tearful and unable to speak for several minutes at a time. Resident 16 once again expressed her wish that she had died instead of her daughter. Throughout the survey, Respondent's survey team observed Resident 16 with a sad/worried facial expression.
Resident 16's family was very supportive. They visited her frequently and took her out of the facility to church activities.
Petitioner did everything it could to encourage Resident 16 to participate in activities. Petitioner's chaplain visited with Resident 16 two times per week. A psychiatric nurse practitioner provided her with grief counseling until she achieved her highest level functioning. Resident 16's psychiatric care included treatment with medications for anxiety and depression.
The greater weight of the evidence shows that Petitioner provided Resident 16 with appropriate psychosocial services to help her with her grief, her anxiety, and her depression. There is no persuasive evidence that Petitioner's failure to offer Resident 16 additional counseling or psychiatric services caused her continued mental distress.
Tag F-314
Tag F-314, provides that "[b]ased on the comprehensive assessment of a resident, the facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores . . . and a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent pressure sores from developing." 48 C.F.R. Section 483.25(c). Respondent alleges that Resident 5 was not properly identified as having a pressure sore and that this failure possibly delayed effective treatment.
Resident 5
Resident 5 was admitted to Petitioner's facility on August 28, 2001. Petitioner's nursing admission assessment form indicates that Resident 5 did not have pressure ulcers. However, a RAP dated September 6, 2001, shows that Resident 5 had pressure ulcers and that within the previous seven days, Petitioner had treated Resident 5 for those ulcers. Additionally, a MDS dated September 6, 2001, states that Resident 5 was admitted with a small Stage II pressure ulcer on her coccyx and Stage I pressure sores on her heals.
Interdisciplinary progress notes and daily nursing progress notes show that Petitioner had a care plan for Resident 5's pressure ulcers and that she received treatment pursuant to the plan. There is no persuasive evidence that
Petitioner failed to identify or treat Resident 5's pressure sore, thereby preventing her from maintaining or achieving her highest level of physical functioning.
Tag F-326
Tag F-326 states that "[b]ased on a resident's comprehensive assessment, the facility must ensure that a resident receives a therapeutic diet when there is nutritional problem." During the survey, Respondent selected 13 residents who had diet orders for thickened liquids. Of those residents, Respondent alleged that Resident 1, Resident 13, Resident 15, and Resident 18 failed to receive the appropriate thickened liquids. Respondent found that only Resident 15 was in immediate jeopardy, directing Petitioner to correct the problem before the surveyors left the building.
Resident 15
Resident 15, a 92-year-old man, was admitted to Petitioner's facility in December 1999. He had multiple health problems, leaving him dependent on Petitioner's staff for his daily living activities. Because he suffered from dementia and was delusional, Resident 15's daughter had power of attorney over his medical care.
A MDS dated December 27, 1999, indicates that Resident 15 needed limited assistance in eating. The MDS also
indicates that he was diagnosed as having dysphagia, requiring a mechanically altered diet.
On January 4, 2000, Resident 15 participated in a barium swallow study, which showed that he was likely to aspirate on food of all consistencies. The swallow study recommended that Resident 15 be placed on a tube feeding diet to minimize the risk of aspiration.
Petitioner's staff informed Resident 15's daughter about the tube feeding recommendation in a meeting on January 7, 2000. At the conclusion of that meeting, the daughter signed a disclaimer form indicating that she had been advised of the risks to Resident 15 but that she wanted him to have pleasure foods as he desired, contrary to the recommendations of the speech/language pathologist for tube feeding.
A care plan dated June 28, 2001, indicated that Resident 15 was at risk for nutritional decline and loss of weight. According to the care plan, one of the approaches to solve the problem was for Petitioner to provide him with a mechanically soft diet and honey thickened liquids.
As of September 5, 2001, the standing orders of Resident 15's physician included a mechanical soft diet with honey consistency liquids and fortified foods twice daily. The standing orders also stated that Resident 15 was to have dietary and alcohol liberties.
Although Resident 15 had dementia, he was able to make his preferences known to Petitioner's staff. He consistently became agitated when served thickened liquids. He especially preferred regular, thin-liquid coffee. The staff also observed Resident 15's daughter serving him regular coffee during visits.
Resident 15 was not a silent aspirator. Coughing was a natural and unavoidable consequence of the daughter's decision not to place a feeding tube in her father. Over the two years that Petitioner gave him regular liquids, Resident 15 routinely coughed and was always able to clear his breathing passages. He was able to let Petitioner's staff know if he needed assistance.
In order to ensure that Resident 15 would be able to have assistance if he ever needed it, Petitioner fed him in close proximity to a nurses' station. In fact, he was placed within ten feet of the station and facing it. Typically, a nurse was in the station and one or more certified nursing assistants were in the immediate vicinity of Resident 15 when he was eating.
During the survey, Respondent's surveyors observed Resident 15 drinking thin liquids on three occasions. On each occasion, the resident would cough and turn red without Petitioner's staff taking action to provide assistance.
When Respondent's surveyors inquired about Resident 15's coughing, Petitioner's staff replied that
Resident 15 always reacted that way and that he had a waiver that allowed him to have thin liquids.
The surveyors then looked at the above-referenced disclaimer form and rejected it because it did not specifically state that Resident 15 could have thin liquids. They also noted the physician's order calling for honey-thickened liquids but gave no weight to the same order's allowance for dietary liberties.
The surveyors noted that on one occasion Resident 15 was coughing in a somewhat reclined position. They believed that he might choke less if he were sitting upright. The survey team did not consider that Resident 15's hiatal hernia made it uncomfortable for him to sit in an upright position.
Resident 15 was able to let Petitioner's staff know when he was in an uncomfortable position.
After Respondent's survey team determined that Resident 15 was in immediate jeopardy and while the survey was still in process on September 13, 2001, Petitioner conducted a care plan meeting with Resident 15's daughter. During the meeting, the daughter confirmed that her father wanted regular liquids. She again rejected placing a feeding tube in her father. The daughter acknowledged that the waiver she signed on January 7, 2000, was intended to allow her father to have pleasure foods such as thin liquids.
Resident's 15's physician was also contacted on September 13, 2001. The doctor's nurse practitioner subsequently entered the following physician's order in Resident 15's chart:
Order clarification: Diet for pt. has been and will remain mechanical soft NAS [with] thin liqs. per patient and HCS desires despite known risk of aspiration. Waiver in chart.
A September 13, 2001, physician's progress note, signed by the doctor's nurse practitioner, states as follows:
Based on conference with responsible party/caregiver/Health Care
Surrogate . . . clarification to diet made. Based on patient wishes/demands despite known knowledge of aspiration potential, his diet has been and will remain mechanical soft, no added salt and thin liquids.
Signed waiver in chart dated 1-7-2000 and re-clarification of pt. and HCS wishes confirmed today. Discussed @ length [with] collaborating physician who concurs. (emphasis included)
In a letter dated September 17, 2001, Resident 15's physician acknowledged the daughter's continued refusal of a feeding tube based on her father's living will and previously expressed wishes. The letter also acknowledges the daughter's desire for continuation of pleasure foods, including solids, liquids, or pureed food for which her father had demonstrable preference even though some of these might have been of deleterious consistencies given his dysphagia.
The September 17, 2001, letter explained the standing order for thickened liquids as follows:
The patient's medication record does contain an order for thickening agent. This remains on the patient's record to assist the staff in giving the patient certain fluids on an as needed basis, although the family/POA/medical surrogate does clearly state that this (sic) wish an unrestricted diet (i.e. pleasure foods) be given to the patient. This provision cannot harm this patient and does not consist of a departure from the patient's/family's wishes since it is not used on a continuous basis.
Another physician's order dated September 18, 2001, states as follows:
Diet order clarification: Mechanical soft, NAS [with] thin liquids per pt. and HCS desires despite known risk of aspiration-- waiver in chart. Continue fortified foods twice daily & scoop plate to facilitate eating.
Resident 15's physician signed this order on September 21, 2001.
The greater weight of the evidence indicates that Resident 15 was never in immediate jeopardy. Additionally, to the extent that being served thin liquids posed a risk to Resident 15, Petitioner's staff honored his wishes and the wishes of his daughter, as his health care surrogate, to refuse tube feeding, to have pleasure foods as he desired instead of thickened liquids, and to allow him dietary liberties, including thin liquids.
Resident 18
Resident 18's diet order called for nectar-thickened liquids. However, during the survey, Respondent's staff observed that Resident 18 was served a bowl of soup with broken crackers in it. When the surveyors inquired whether the soup had been thickened, Petitioner's staff replied that the soup had been thickened with crackers.
There was no immediate jeopardy with regard to Resident 18. She did not attempt to eat the soup and, therefore, did not suffer any harm. Resident 18 never choked while eating and her physician's order called for dietary liberties.
The American Dietetic Association recognizes crumbled crackers as one means of thickening a liquid. The supervisor of the secure unit in which Resident 18 was located always uses crackers as a thickening agent in soup for two reasons. First, the commercial thickening agents have a peculiar taste that the residents, including Resident 18, do not like. Second, many residents have physical conditions that cause them to shake. By thickening soup with crackers, the patients are able to get more soup into their mouths. The certified nursing assistants in the secure unit are trained to crush two packets of crackers into each bowl of soup.
The greater weight of the evidence indicates that Resident 18's soup was properly thickened. There clearly was no chance that she was in immediate jeopardy simply because Petitioner did not use a commercial agent to thicken her soup.
Resident 13
Resident 13's physician's order called for him to receive honey-thickened liquids. During the survey, Respondent's staff observed Resident 13 being served milk with Carnation Instant Breakfast in it at three meals. Respondent's staff did not know how thick the drink was but noted that it did not appear to be as thick as honey pouring out of a jar. Resident 13 was observed gurgling, but he did not choke or turn red after drinking his instant breakfast.
Resident 13 also had a recommendation for a feeding tube due to a likelihood of aspiration on any consistency of food or liquid. This recommendation was based on a swallow study completed on August 27, 2001. Resident 13 and/or his health care surrogate refused the recommendation.
During the survey on September 14, 2001, Resident 13 requested a glass of water. He became angry and refused to drink the glass of honey-thickened water that he was given.
After the survey, Resident 13's health care surrogate signed an informed consent and release of liability. In this document, the health care surrogate refused the tube feeding and
requested that Petitioner provide Resident 13 with a diet as tolerated with thin liquids despite the risk of aspiration.
There is no recognized standard for measuring the thickness or viscosity of a liquid. Individual practitioners may consider various consistencies to constitute different degrees of thickness. Manufacturers' products result in different viscosities for the same definition.
In this case, there is no persuasive evidence that the Carnation Instant Breakfast failed to properly thicken
Resident 13's drink. There clearly is no credible evidence that Resident 13 was in immediate jeopardy.
Resident 1
Resident 1's physician order called for nectar- thickened liquids. During the survey, Respondent's staff noted that Resident 1 was being served liquids that appeared to have almost a honey consistency. In other words, Respondent claims that Resident 1's liquid was too thick.
There is no persuasive evidence that Resident 1's drink was too thick. He did not choke on the liquid and was not otherwise harmed by the thickened drink. On the other hand, there is credible evidence that an overly thick liquid cannot harm a resident. Accordingly, Resident 1 was not in immediate jeopardy.
CONCLUSIONS OF LAW
The Division of Administrative Hearing has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
Respondent has the burden of proving, by a preponderance of the evidence, that Petitioner's license should be assigned conditional status. Beverly Enterprises - Florida v. Agency for Health Care Administration, 745 So. 2d 1133
(Fla. 1st DCA 1999); 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 1979; and Agency for Health Care Administration v. Beverly Healthcare Lake Mary, DOAH Case
No. 01-3143 (Recommended Order, March 5, 2002). Respondent has not met its burden.
Section 400.23, Florida Statutes, states as follows in relevant 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.
* * *
The agency shall adopt rules to provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature and scope of the deficiency. The scope shall be cited as isolated, patterned, or widespread. An isolated deficiency is a deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations. A patterned deficiency is a deficiency where more than a very limited number of residents are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same resident or residents have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the facility. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the facility or
represent systemic failure that has affected or has the potential to affect a large portion of the facility's residents. The agency shall indicate the classification on the face of the notice of deficiencies as follows:
A class I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. . . .
A class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. . . .
Rule 59A-4.1288, Florida Administrative Code, states as follows in pertinent part:
Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. Section 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference.
Quality of life standards in 42 C.F.R. Section 483.15 provide as follows in pertinent part:
A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life.
* * *
(g) Social services.
(1) The facility must provide medically related social services to attain or maintain the highest practicable physical,
mental, and psychosocial well-being of each resident.
Quality of care standards in 42 C.F.R. Section 483.25 provide as follows in relevant part:
Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychological well-being, in accordance with the comprehensive assessment and plan of care.
* * *
Pressure sores. Based on the comprehensive assessment of a resident, the facility must ensure that--
A resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable;
* * *
Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident--
* * *
Receives a therapeutic diet when there is a nutritional problem.
Class I Deficiency, Tag F-326
The interpretive guidelines of the State Operations Manual define a therapeutic diet as follows:
"Therapeutic diet" means a diet ordered by a physician as part of treatment for a disease or clinical condition, to eliminate or decrease certain substances in the diet (e.g., sodium), or to increase certain substances in the diet (e.g. potassium), or
to provide food the resident is able to eat (e.g., a mechanically altered diet.)
In this case, the greater weight of the evidence indicates that Petitioner is not guilty of a Class I deficiency. There is no persuasive evidence: (a) that Resident 1's drink was too thick; (b) that Resident 13's milk was not properly thickened with Carnation Instant Breakfast; and (c) that Resident 18's soup was not properly thickened with crackers. None of these residents suffered actual harm or were in immediate jeopardy.
As to Resident 15, there is no persuasive evidence that Resident 15 was served thin liquids contrary to his wishes, to the wishes of his daughter, and to his doctor's orders. To the extent that Resident 15 was in immediate jeopardy of aspirating the liquids, there is no evidence that he had suffered any actual harm. Petitioner properly honored his request to be served thin liquids despite the danger of aspiration.
Class II Deficiencies, Tag F-250
The interpretive guidelines of the State Operations Manual define medically-related social services as follows:
"Medically-related social services" means services provided by the facility's staff to assist residents in maintaining or improving their ability to manage their everyday physical, mental, and psychosocial needs.
These services might include, for example:
* * *
Discharge planning services (e.g., help to place a resident on a waiting list for community congregate living, arranging intake for home care services for residents returning home, assisting with transfer arrangement to other facilities.)
* * *
Providing or arranging provision of needed counseling services;
Through the assessment and care planning process, identifying and seeking ways to support residents' individual needs;
* * *
13. Meeting the needs of residents who are grieving.
There is no persuasive evidence that Petitioner is guilty of a Class II deficiency for failing to provide adequate social services. Petitioner transferred Resident 4 to an assisted living facility as soon as her doctor determined that it was appropriate to do so. There was nothing more that Petitioner could have done to expedite the transfer of Resident 4.
Additionally, Petitioner provided Resident 16 with appropriate counseling and treatment to help her adjust to the death of her daughter. The evidence demonstrates that Petitioner provided Resident 16 with the services necessary for her to achieve her highest level of functioning.
Tag F-314
Petitioner did not fail to identify Resident 5's pressure sores at the time of his admission to the facility. The greater weight of the evidence indicates that Resident 5 entered the facility with the pressure sores and that Petitioner properly evaluated and treated the pressure sores in a timely
manner.
Based on the foregoing Finding of Fact and Conclusions of Law, it is
RECOMMENDED:
That Respondent enter a final order finding that Petitioner had no Class I or Class II deficiencies and should not have been issued a conditional license effective September 14, 2001.
DONE AND ENTERED this 20th day of November, 2002, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
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 20th day of November, 2002.
COPIES FURNISHED:
Jay Adams, Esquire Broad & Cassel
215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302
Gerald L. Pickett, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Sebring Building Suite 310H St. Petersburg, Florida 33701
Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
Valda Clark Christian, 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 |
|---|---|---|
| Apr. 24, 2003 | Agency Final Order | |
| Nov. 20, 2002 | Recommended Order | Petitioner had no Class I or Class II deficiencies and should not have been issued a conditional license. |
