STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Petitioner, )
)
vs. ) Case No. 02-3511
)
EGREMONT HEALTH CARE )
ASSOCIATES, d/b/a NURSING )
CENTER AT MERCY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on November 20, 2002, in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Kathryn F. Fenske, Esquire
Agency for Health Care Administration 8355 Northwest 53rd Street
Miami, Florida 33166
For Respondent: Alex Finch, Esquire
Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011
Winter Park, Florida 32790-2011
STATEMENT OF THE ISSUE
Whether the Respondent committed the violations alleged in the Administrative Complaint dated August 1, 2002, and, if so, the penalty that should be imposed.
PRELIMINARY STATEMENT
In an Administrative Complaint dated August 1, 2002, the Agency for Health Care Administration ("AHCA") charged Egremont Health Care Associates, d/b/a Nursing Center at Mercy ("Nursing Center"), with having violated Title 42, Section 483.25, Code of Federal Regulations; Rule 59A-4.1288, Florida Administrative Code; and Rule 59A-4.106(4)(aa), Florida Administrative Code.
Specifically, AHCA alleged that the Nursing Center's staff "failed to prevent hypoglycemia in a resident, as a result of inappropriate insulin use, and then failed to adequately treat a severe hypoglycemic incident" in resident J.D., who is identified in the Administrative Complaint as Resident #1.
AHCA identified this failure as a Class II deficiency and predicated the rule violations on its determination that the Nursing Center failed to provide the necessary care and services for a resident to attain or maintain his highest practicable physical, mental, and psychological well-being, in accordance with the resident's assessment and plan of care. The penalties sought by AHCA in the Administrative Complaint were the imposition of an administrative fine in the amount of $2,500.00
and the reduction of the Nursing Center's licensure status from standard to conditional.
At the hearing, AHCA presented the testimony of Helen Ahmed and Christina Garcia, registered nurses employed by AHCA; Petitioner's Exhibits 1 through 11 were offered and received into evidence, with hearsay objections having been made with respect to Petitioner's Exhibits 1, 2, 6, and 8. The Nursing Center presented the testimony of Caridad Hernandez, Gina Berret, Rose Destin, and Jackie Laurent; Respondent's Exhibit 1 was offered and received into evidence. At AHCA's request, official recognition was taken of Title 42, Section 483.25, Code of Federal Regulations.
The two-volume transcript of the proceedings was filed with the Division of Administrative Hearings on December 4, 2002, and an extension having been granted, the parties timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
AHCA is the state agency responsible for licensing and regulating the operation of nursing home facilities, including ensuring that nursing homes are in compliance with criteria
established by Florida statute. Chapter 400, Part II, Florida Statutes (2002). AHCA is authorized in Section 400.23(7), Florida Statutes (2002), to assign a licensure status to a nursing home and in Section 400.23(8), Florida Statutes (2002) to impose administrative fines on nursing homes that fail to meet the applicable criteria.
The Nursing Center is a skilled nursing home located in Homestead, Florida. At the times material to this proceeding, the Nursing Center was licensed by AHCA and was required to comply with all rules, regulations, and statutes applicable to skilled nursing homes.
On May 16 and 17, 2002, AHCA conducted an investigation at the Nursing Center in response to a complaint regarding an incident involving a resident named J.D. Helen Ahmed was the principal investigator; Christina Garcia participated in the complaint investigation on May 17, 2002, only.
The results of the complaint investigation were set forth in a Statement of Deficiencies and Plan of Correction, which is a form prescribed by the federal Department of Health and Human Services, Health Care Financing Administration, and is commonly referred to as a "Form 2567." The Form 2567 completed by the AHCA investigators as a result of the May 16 and 17, 2002, complaint investigation identified three deficiencies, only one of which is at issue herein.
The deficiency at issue herein was identified in the Form 2567 with the federal tag number "F 309," which is associated with a violation of the quality of care requirements set forth in Title 42, Section 483.25, Code of Federal Regulations; F 309 is the tag number assigned to a deficiency that is not covered by Section 483.25(a) through (m).1
The deficiency was classified in the Form 2567 at a federal scope and severity level of G, on a scale of A to L, with A being the most severe.. The deficiency was also identified as a violation of Rule 59A-4.106(aa), Florida Administrative Code, and as a Class II deficiency under Florida law.
The AHCA investigators supported the citation for a Class II deficiency under F 309 with the assertion in the
Form 2567 that, "[b]ased on interview, record review and review of policies and procedures, the facility staff failed to prevent hypoglycemia as a result of inappropriate insulin use and failed to adequately treat a severe hypoglycemic incident in one of four sampled residents, resident #1 [J.D.]."
J.D. was admitted to the Nursing Center with the diagnoses of pneumonia; congestive heart failure; left hydronephrosis; hypertrophy (benign) of the prostate; atrial fibrillation; Type II [diabetes] (non-insulin dependent type); status post myocardial infarction; old cerebrovascular disease;
dementia; depression; cardiac pacemaker; and aortocoronary by-pass status.
At the time material to this proceeding, J.D. was a "brittle" diabetic whose blood sugar levels were difficult to control.
The Care Plan developed for J.D. on April 18, 2002, identified as a priority problem his potential for abnormal blood sugar related to diabetes mellitus. The goal developed for this problem stated: "Resident will not exhibit s/s [signs/symptoms] of hypo/hyperglycemia thru 7/18/02." This goal was to be met by administering medications as ordered by J.D.'s physician and by providing J.D.'s diet as ordered.
In accordance with the recommendation dated April 24, 2002, of an endocrinologist who examined J.D. on April 3, 2002, J.D.'s treating physician wrote a medication order dated
April 24, 2002, for Humalog insulin, which was to be administered by injection, in an amount to be determined on a sliding scale depending on his blood sugar levels. The order specified that the Humalog insulin was to be administered "A/C", or before meals. "A/C" is commonly understood in nursing practice to mean that a meal should be given within 30 minutes after medication is administered.
Humalog is a very fast-acting type of insulin, with a therapeutic onset time of six to 15 minutes and a peak of 45
minutes to one hour. The therapeutic effect of Humalog insulin on blood sugar levels lasts from four to six hours. It is optimum to provide a meal within 15 minutes after the administration of Humalog insulin, and a delay in the ingestion of food after Humalog insulin is administered can result in the onset of severe hypoglycemia, or insulin shock.
At the time material to this proceeding, the early morning medication pass at the Nursing Center routinely began at 6:00 a.m. and was completed at about 7:00 a.m. A medication pass is the discrete period of time during which prescription medications are administered to the nursing home residents.
The practice of the nurse who administered the Humalog insulin injection to J.D. on the morning of April 26, 2002, was to give insulin injections at the end of the medication pass.
When checked during the 6:00 a.m. medication pass on April 26, 2002, J.D.'s blood glucose was 84. In accordance with the sliding scale included in the physician's orders for J.D., six units of Humalog insulin were administered to J.D. by injection.
J.D. was the last resident on his wing to receive an insulin injection on the morning of April 26, 2002, which would have placed the time of the injection at approximately
7:00 a.m., a time that was within acceptable nursing standards for administration of medication during a medication pass.
At the time of the injection, the nurse observed that
J.D. opened his eyes and shook his head in response to her calling his name.
The usual practice at the Nursing Center was to deliver breakfast to the wing on which J.D. resided at 7:15 a.m. Pursuant to the policy at the Nursing Center, meals were to be served first to diabetic residents.
In the normal course of business at the Nursing Center, delays in delivery of meals are reported to the administrator. The administrator received no report indicating that breakfast was delivered late to J.D.'s wing on April 26, 2002.
The nurse who administered the insulin injection to
J.D. on the morning of April 26, 2002, checked on him between 7:15 a.m. and 7:30 a.m., and his status did not appear to have changed since she administered the injection. J.D.'s breakfast tray was being delivered at the time of the nurse's visit, but she did not return to see if J.D. had eaten the breakfast; rather, she gave her report at 7:30 a.m. and left the facility.
J.D. was unresponsive and could not eat his breakfast by the time it was delivered to his room.2
It is the normal practice at the Nursing Center for staff to check to make sure a resident has eaten; the staff will
feed a resident if the resident cannot feed himself or herself and if a family member has not fed the resident.
Normally, J.D.'s wife was with J.D. and fed him his meals. On the morning of April 26, 2002, J.D.'s wife was unable to go to the Nursing Center, and, at a time that is unspecified in the record, J.D.'s daughter arrived to feed J.D. his breakfast.
The Nursing Center's nursing notes reveal that, at 8:30 a.m. on April 26, 2002, J.D. was unresponsive; his pupils were symmetrical and reactive to light; his blood pressure was 110/70, his pulse was 88, and his respiration was 24; his breathing pattern was even, unlabored and non-diaphoretic; and there was no cyanosis. In addition, J.D. had no detectable blood sugar.
The Nursing Center's written policy and procedure for the treatment of insulin shock, or severe hypoglycemia, in effect at the time material to this proceeding required that a physician be notified immediately; that sugar be administered orally or through a glucose IV as ordered by the physician; that the resident be transported to the hospital if ordered by a physician; and that a responsible party be notified. These procedures were consistent with the practices generally found in skilled nursing homes at the time, although the policies and
procedures would ideally have included more creative and proactive treatment options.
The Nursing Center's procedures for the treatment of insulin shock were followed: A nurse placed a call to J.D.'s treating physician. Emergency response personnel were called; they arrived before the doctor and administered a dextrose solution intravenously. The doctor was located in the facility and arrived at J.D.'s room at approximately 8:40 a.m. J.D. was transferred to the Mercy Hospital Emergency Room at approximately 8:45 a.m., with a transfer diagnosis of "altered mental status." The nurse's notes reflect that he was unresponsive at the time of his transfer.3
J.D.'s daughter, who had been present throughout the emergency, accompanied him to Mercy Hospital.
At the time of the incident on April 26, 2002, there was no glucose gel at the Nursing Center to administer to patients who became hypoglycemic, nor was there a standing physician order for glucagon injections for patients who became hypoglycemic. In the opinion of one of the AHCA investigators, these changes in the Nursing Center's procedures for treating hypoglycemic residents would improve its procedures for the treatment of insulin shock: Glucose gel is a better option than glucose tablets because there is no need for the gel to dissolve before becoming effective, and glucagon injections avoid the
need for administering glucose intravenously, which may sometimes be difficult in a person experiencing insulin shock. These treatments for severe hypoglycemia are not, however, standard in nursing homes.
Summary
The evidence presented by AHCA, together with facts not in dispute herein, are sufficient to establish clearly and convincingly that the Nursing Center staff failed to provide the care necessary to prevent J.D. from becoming severely hypoglycemic after he received six units of Humalog insulin at or about 7:00 a.m. on April 26, 2002. It is uncontroverted that, because Humalog is a very fast-acting type of insulin, it is necessary that the injection precede a meal by no more than
15 to 30 minutes. In addition, the April 24, 2002, order of J.D.'s physician specified that Humalog insulin was to be administered to him before a meal, and it is understood in the nursing profession that a physician's order requiring that a medication be administered before a meal means that the meal should be provided no more than 30 minutes after the medication is administered.
Although the evidence establishes that J.D.'s breakfast was delivered between 7:15 a.m. and 7:30 a.m., the Nursing Center admitted that J.D. was unable to eat his breakfast at the time it was delivered. The Nursing Center's
practice is to check on a resident to make sure meals are eaten and to feed a resident if a family member is not present to do so, but there was no evidence presented to establish that any member of the Nursing Center's staff checked at or about 7:30
a.m. to see if J.D. had eaten his breakfast. The only member of the Nursing Center's staff who checked on J.D. within 30 minutes of the time the Humalog insulin injection was administered was the nurse who had administered the injection, and J.D.'s breakfast was just being delivered when she looked in on him. Although the evidence reflects that J.D.'s daughter arrived the morning of April 26, 2002, to feed J.D. his breakfast, there is no evidence establishing the time of her arrival.
The failure of the Nursing Center's staff to ensure that J.D. ate his breakfast within 15 to 30 minutes after receiving the Humalog insulin injection was a material omission in his care; a violation of the physician's order that the Humalog insulin be given before meals; and inconsistent with the goal set forth in J.D.'s care plan to prevent J.D. from exhibiting signs and symptoms of hypoglycemia. No evidence was presented to establish an alternative cause for J.D.'s severe hypoglycemia on the morning of April 26, 2002, and the credible evidence is sufficient to prove clearly and convincingly that the failure of the Nursing Center to ensure that J.D. actually ate his breakfast caused him to become severely hypoglycemic.4
As a result his severe hypoglycemic condition, J.D. was unresponsive for an unspecified period of time and required intravenous administration of a dextrose solution by emergency response personnel and transfer to a hospital emergency room. Although there was no evidence presented to establish that J.D. failed to recover fully from the hypoglycemic incident, the facts that he went into insulin shock and was unresponsive for more than 15 minutes are sufficient to support the inference that, until he was fully alert and responsive, he was unable to maintain his optimal physical condition during the hypoglycemic incident.
The greater weight of the credible and persuasive evidence presented by AHCA is not sufficient to establish that the staff of the Nursing Center failed to adequately treat J.D. during the hypoglycemic incident. The uncontroverted evidence establishes that the staff of the Nursing Center followed the facility's insulin shock policy and procedures in treating J.D. and that the policy and procedures prescribed treatment of hypoglycemia that was the standard among skilled nursing homes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2002).
Standards of Proof
AHCA, as the party seeking to reduce the Nursing Center's licensure status and impose an administrative fine, bears the burden of proof in this case. See Board of Trustees of the Northwest Florida Community Hospital v. Department of Management Services, Division of Retirement, 651 So. 2d 170, 172 (Fla. 1st DCA 1995)(Burden of proof is on the party seeking to change the status quo.)
AHCA reduced the Nursing Center's licensure status from standard to conditional from May 17, 2002, to October 31, 2002. In order to support this reduction in the Nursing Center's licensure status, AHCA must prove the allegations in the Administrative Complaint by a preponderance of the evidence. See Section 120.57(1)(j), Florida Statutes (2002)("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, . . ."); cf. Department of Banking and Finance, Division of Securities and Investor
Protection v. Osborne Stern and Co., 670 So. 2d 932
(Fla. 1996)(The "clear and convincing evidence" standard applies when agency seeks to suspend or revoke a license.)
AHCA also seeks in its Administrative Complaint to impose an administrative fine on the Nursing Center, and, in order to support the imposition of an administrative fine, AHCA
must prove the allegations in the Administrative Complaint by clear and convincing evidence. See Osborne Stern, 670 So. 2d at 932-33 (Fla. 1996)(The "clear and convincing evidence" standard applies when agency seeks to impose an administrative fine.).
AHCA is relying on the same allegations of fact to support both the reduction in the Nursing Center's licensure status to conditional and the imposition of an administrative fine. Applying different standards of proof in weighing the sufficiency of the evidence presented herein is problematic. Nonetheless, the quantity and the quality of the evidence have been carefully considered in determining whether AHCA has met its differing burdens of proof in these cases.
Substantive Violation
Section 400.19(1), Florida Statutes (2002), grants AHCA the authority to inspect a nursing home facility in response to a complaint, and AHCA is directed in
Section 400.23(2), Florida Statutes (2002), to adopt rules that
include reasonable and fair criteria in relation to:
* * *
(f) The care, treatment, and maintenance of residents and measurement of the quality and adequacy thereof, based on rules developed under this chapter and the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100- 203)(December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related
Programs), Subtitle C (Nursing Home Reform), as amended.
Rule 59A-4.1288, Florida Administrative Code, provides in pertinent part:
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. [5]
Therefore, for nursing home facilities certified to participate in the federal Medicare and/or Medicaid programs, AHCA classifies deficiencies with respect to the requirements of Title 42, Sections 483.10 through .75, Code of Federal Regulations, using federal tag numbers to designate the nature of the particular deficiencies. See Rule 59A-4.128(1), Florida Administrative Code.
AHCA also classifies deficiencies identified in a facility survey in accordance with the criteria set forth in Section 400.23(8), Florida Statutes (2002), as Class I, Class II, Class III, or Class IV deficiencies:
A Class I deficiency is defined in
Section 400.23(8)(a), Florida Statutes (2002), as one which "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 defined in
Section 400.23(8)(b), Florida Statutes (2002), as one which "has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychological well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services";
A Class III deficiency is defined in
Section 400.23(8)(c), Florida Statutes (2002), as one which "will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychological well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services"; and
A Class IV deficiency is defined in
Section 400.23(8)(d), Florida Statutes (2002), as one which "has the potential for causing no more than a minor negative impact on the resident."
AHCA predicated the Class II deficiency cited in the Form 2567 completed as a result of the May 16 and 17, 2002, complaint investigation on a violation of Title 42,
Section 483.25, Code of Federal Regulations, and on a violation of Rule 59A-4.106(4)(aa), Florida Administrative Code.
Rule 59A-4.106(4)(aa), Florida Administrative Code, provides in pertinent part:
Each facility shall maintain policies and procedures in the following areas:
* * *
(aa) Specialized rehabilitative and restorative devices.
Based on the findings of fact herein, AHCA failed to prove by a preponderance of the evidence that the Nursing Center failed to have in place a policy and procedure dealing with the recognition and treatment of insulin shock that met the standards generally accepted in skilled nursing homes.
Accordingly, AHCA has failed to prove that the Nursing Center violated Rule 59A-4.106(4)(aa), Florida Administrative Code, with the requisite degree of certainty to support either the reduction in its licensure status to conditional or the imposition of an administrative fine.
Title 42, Section 483.25, Code of Federal Regulations, provides in its preface: "Each resident [of a nursing home facility] 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." Section 483.25 is composed of subsections (a) through (m), with each subsection setting forth one or more specific requirements
that a nursing home facility must meet. AHCA did not, however, cite the Nursing Center for having violated any specific provision of Section 483.25; rather, AHCA charged the Nursing Center with having violated the general requirement set forth in the preface to that section quoted above. This violation is described in the Form 2567 as a "quality of care deficienc[y] not covered by s483.25(a)-(m)" and was assigned the F 309 tag number, which is apparently reserved for such deficiencies.
Based on the findings of fact herein, AHCA has proven by clear and convincing evidence that the Nursing Center violated Title 42, Section 483.25, Code of Federal Regulations, by failing to provide adequate care to prevent J.D. from becoming severely hypoglycemic on the morning of April 26, 2002. The Nursing Center failed to ensure that J.D. actually consumed a meal within 30 minutes of having been administered an injection of six units of Humalog insulin, resulting in J.D.'s suffering severe hypoglycemia. Because AHCA has proven this violation of Title 42, Section 483.25, Code of Federal Regulations, by clear and convincing evidence, its proof is sufficient to support both the reduction in its licensure status to conditional and the imposition of an administrative fine, but only if the deficiency is properly classified as a Class II deficiency.
Based on the findings of fact herein, AHCA has proven by clear and convincing evidence that J.D.'s ability to maintain his highest practicable physical well-being was compromised as a result of the Nursing Center's failure to ensure that the Humalog insulin was administered in accordance with the physician's order. When J.D. was discovered at 8:30 a.m. on April 26, 2002, he was suffering from severe hypoglycemia; he was unresponsive and required emergency care to ameliorate the effects of the hypoglycemia, including intravenous administration of a dextrose solution and transfer to the Mercy Hospital Emergency Room. The adverse effects of hypoglycemia were implicitly recognized by the Nursing Center because one of the goals of J.D.'s care plan, developed April 18, 2002, was to ensure that J.D. had no hypoglycemic incidents. Based on the findings of fact herein, it is not reasonable to conclude that
J.D. suffered "no more than minimal physical . . . discomfort" as a result of the severe hypoglycemic incident on April 26, 2002, and, therefore, a classification of the deficiency as a Class III deficiency would not be appropriate. See
Section 400.23(8)(c), Florida Statutes (2002). Accordingly, the Nursing Center's violation of Title 42, Section 483.25, Code of Federal Regulations, is properly classified as a Class II deficiency under Section 400.23(8)(b), Florida Statutes (2002).
Licensure reduction.
Based on the results of the May 16 and 17, 2002, complaint survey, AHCA issued a conditional license to the Nursing Center, effective from May 17, 2002, to October 31, 2002.6 Pursuant to Section 400.23(7)(b), Florida Statutes (2002),
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. . . .
Because the Nursing Center was properly cited for a Class II deficiency as a result of the May 16 and 17, 2002, complaint investigation, its licensure status was properly reduced from standard to conditional for the period extending from May 17, 2002, to October 31, 2002.
Administrative fine.
AHCA seeks to impose an administrative fine on the Nursing Center in the amount of $2,500.00, based on the Class II deficiency cited as a result of the May 16 and 17, 2002, complaint investigation of the April 26, 2002, incident involving J.D. Section 400.23(8), Florida Statutes (2001), provides in pertinent part:
b) . . . A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine shall be levied notwithstanding the correction of the deficiency.
Section 400.23(8), Florida Statutes (2002), provides as follows:
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 the 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.
AHCA did not cite to any rules meeting the requirements of the portion of Section 400.23(8), Florida Statutes (2002), quoted above in paragraph 50, and there is no classification of the nature and scope of the deficiency cited in the Form 2567 for the May 16 and 17, 2002, complaint investigation. Based on the findings of fact herein, however, it is clear that the deficiency involving the care given to J.D. was isolated and not patterned or widespread.
Because the Nursing Center's deficiency was an isolated Class II deficiency, imposition of an administrative fine of $2,500.00 is appropriate pursuant to
Section 400.23(8)(b), Florida Statutes (2002).
Finally, in its Administrative Complaint, AHCA has requested an award of "costs related to the investigation and prosecution of the case, in accordance with Section 400.121(1), [sic] Fla. Stat." Section 400.121(10), Florida Statutes (2002), provides that AHCA may assess certain specified costs "in any final order that imposes sanctions." No proof was submitted with respect to costs, and, even if such proof had been submitted, it does not appear that the Division of Administrative Hearings has jurisdiction to recommend such an award. Accordingly, no recommendation is included herein with respect to this request.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order
Sustaining the reduction in the licensure status of Egremont Health Care Associates, d/b/a Nursing Center at Mercy, to conditional for the period extending from May 17, 2002, to October 31, 2002; and
Imposing an administrative fine in the amount of
$2,500.00.
DONE AND ENTERED this 31st day of January, 2003, in Tallahassee, Leon County, Florida.
PATRICIA HART MALONO
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 31st day of January, 2003.
ENDNOTES
1/ Federal "tag numbers" correspond to specific provisions of the regulations found in Title 42, Chapter 483, Code of Federal Regulations, which are incorporated into the Florida standards for the "care, treatment, and maintenance of residents and
measurements of the quality and adequacy thereof" in Section 400.23(2)(f), Florida Statutes (2002).
2/ This finding of fact is derived exclusively from Respondent's Answers to Petitioner's First Request for Admissions. Request
18 of the Petitioner's First Request for Admissions required that the Nursing Center "[a]dmit or deny that on 4/26/02, the resident was unresponsive and could not eat the breakfast by the time it was delivered to his/her room." The Nursing Center's response to Request 18 was "Admitted."
The Nursing Center did not file the Respondent's Answers to Petitioner's First Request for Admissions with the Division of Administrative Hearings ("Division") at the time this document was served on AHCA. Rather, AHCA filed both its request for admissions and the Nursing Center's response with the Division on December 12, 2002, several weeks after the conclusion of the final hearing and five days before the parties' proposed findings of fact and conclusions of law were to be filed with the Division. The Nursing Center and AHCA timely filed their proposals with the Division, and, in paragraphs 16 and 25, AHCA cited the Nursing Center's admission as a basis for the proposed finding of fact that "Resident #1 was not able to eat his/her breakfast by the time it was delivered to his/her room."
Rule 1.370(b), Florida Rules of Civil Procedure provides: "Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission." The Nursing Center did not file a motion seeking to amend its admission prior to the final hearing; it did not file a motion seeking to amend its admission after the request and responses were filed with the Division by AHCA; and it did not file a motion seeking to amend its admission subsequent to the filing of AHCA's proposed findings of fact and conclusions of law, in which AHCA expressly relied on the admission in support of two of its proposed findings of fact.
The Nursing Center's response to request for admission numbered 18 is part of the record of this proceeding, and the fact admitted is conclusively established for purposes of this proceeding.
It is noted, as well, that there is nothing in the record to indicate that the admission was made in error. The Nursing Center has been represented by counsel throughout these proceedings. In its Petition for Formal Administrative Hearing and Answer to Administrative Complaint, the Nursing Center
responded to the allegation in paragraph 13 of the Administrative Complaint that J.D. was unable to eat his breakfast on the morning of April 26, 2002, by stating that it "admits in part and denies in part" the allegations contained in this paragraph; the parts of paragraph 13 that were admitted and denied are not specified in the Nursing Center's answer.
Finally, the Nursing Center did not present any evidence at the final hearing tending to establish that J.D. actually ate the breakfast that was delivered to him on April 26, 2002. Although the Joint Prehearing Stipulation filed by the parties did not include this fact as an admitted fact, this omission is ambiguous since the fact was not identified as one remaining to be litigated.
It is also noted that the only evidence AHCA presented at the final hearing to establish that J.D. did not eat his breakfast on the morning of April 26, 2002, was testimony given by the AHCA investigators based solely on information they gathered in interviews with Nursing Center staff and with J.D.'s family. This evidence is insufficient to support a finding of fact that J.D. did not eat his breakfast on the morning of April 26, 2002, because it is hearsay evidence that does not explain or supplement other evidence and that would not, on this record, be admissible over objection in a civil proceeding. See Section 120.57(1)(c), Florida Statutes (2002).
3/ The Nursing Center suggests in paragraph 23 of its proposed findings of fact that J.D. was "becoming increasingly alert and more responsive prior to leaving the facility" and that J.D. "was transported to the facility for observation." Neither of these proposed findings of fact is supported by credible evidence. A licensed practical nurse who observed J.D. being taken out of the Nursing Center, on his way to the emergency room, observed only that J.D.'s eyes were open, not that he was responsive. Tr. at 200-01. The same nurse testified that the doctor told her that J.D. was going to the emergency room for observation only. Tr. at 200-01. This testimony is hearsay that cannot support a finding of fact because it does not explain or supplement other evidence and would not, on this record, be admissible over objection in a civil proceeding. See Section 120.57(1)(c), Florida Statutes (2002).
4/ In their Joint Prehearing Stipulation, the parties included as admitted facts the following:
The resident's medication administration record (MAR) dated 4/25/02, stated that the resident received 10 units of Humalog at 4:30 p.m. and 14 units at 9:00
p.m. On 4/24/02, and based on the sliding scale order given by the physician on 4/24/02, the 10 units was to be given for a blood glucose range of 251-300 mg/dl with
3 units given at night; that the range for giving 14 units of insulin was 351-400 with
6 units given at night; that the 14 units that was given coincides with a reading of
351 blood sugar, which, according to the physician's order, was to be given before meals.
On 4/25/02, based on the physician's order the appropriate insulin dosage that was supposed to have been given to the resident at night was 6 (six) units; and the resident received too much Humalog at
9:00 p.m. on 4/25/02.
The uncontroverted evidence establishes that the therapeutic effects of Humalog insulin dissipate between four and six hours after the injection. There was insufficient persuasive evidence presented to establish that the erroneous dosage of Humalog insulin given at 9:00 p.m. on April 25, 2002, contributed in any way to the onset of J.D.'s hypoglycemia on the morning of
April 26, 2002. These facts are, therefore, irrelevant to resolution of the issues presented in this case.
5/ Although there is no proof in the record that the Nursing Center participates in the Medicare and Medicaid programs, the parties proceeded on the assumption that the provisions of Title 42, Chapter 483, Code of Federal Regulations, were applicable in these cases.
6/ The parties did not introduce any evidence at the hearing to establish the duration of the conditional licensure status. The duration is, however, included in the conditional license issued to the Nursing Center, a copy of which was attached to the Administrative Complaint.
COPIES FURNISHED:
Kathryn F. Fenske, Esquire
Agency for Health Care Administration 8355 Northwest 53rd Street
Miami, Florida 33166
Karen Goldsmith, Esquire Alex Finch, Esquire
Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011
Winter Park, Florida 32790-2011
Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
Valda Clark, General Counsel
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Lealand McCharen Agency Clerk 2727 Mahan Drive, Mail Stop 3
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. 09, 2003 | Agency Final Order | |
| Jan. 31, 2003 | Recommended Order | Agency proved that nursing home failed to provide adequate care to resident to prevent severe hypoglycemia. Deficiency is Class II; license should be reduced to conditional and $2,500 fine imposed. |
