STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

GULF COAST HEALTH CARE ASSOCIATES, LLC, d/b/a SEA BREEZE HEALTH CARE,

Respondent.

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) Case Nos. 04-0334

) 04-0338

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RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) conducted a final hearing in the above-styled matter on May 17, 2004, in Panama City, Florida.

The following appearances were entered:

APPEARANCES

For Petitioner: Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North Sebring Building, Room 330K St. Petersburg, Florida 33701

For Respondent: R. Davis Thomas, Jr.

Qualified Representative Broad and Cassel

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

STATEMENT OF THE ISSUES

The primary issue for determination is whether Sea Breeze Health Care (Respondent) committed the deficiencies as alleged in the Amended Administrative Complaint dated April 2, 2004, which amended both complaints in the above-styled consolidated cases. Secondary issues include whether Petitioner should have changed the status of Respondent's license from Standard to Conditional for the time period of August 28, 2003 until October 29, 2003; and whether Petitioner should impose administrative fines for alleged deficiencies that are proven to be supported

by the evidence.

PRELIMINARY STATEMENT

On December 16, 2003, Petitioner issued Administrative Complaints alleging that Respondent committed two class II violations of nursing home regulations. Further, the Administrative Complaints notified Respondent that Petitioner had changed Respondent's license rating from Standard to Conditional, and that Petitioner had proposed two $2,500 administrative fines.

Respondent requested administrative hearings regarding the Administrative Complaints and Petitioner's actions. Petitioner referred the matter to DOAH on January 28, 2004, for conduct of formal administrative proceedings. The two cases were

consolidated on March 19, 2004, by order of Administrative Law Judge E. J. Davis, the judge initially assigned to the matter.

On April 2, 2004, Petitioner filed its First Amended Administrative Complaint, amending each of the original Administrative Complaints in this consolidated case and asserting three new class II violations against Respondent. The First Amended Administrative Complaint notified Respondent that it proposed three new $2,500 administrative fines against Respondent.

This consolidated case was subsequently transferred to the undersigned to conduct the final hearing scheduled for May 17, 2004.

At the final hearing, Petitioner presented the testimony of one witness and submitted four exhibits into evidence.

Respondent presented the testimony of three witnesses and submitted one composite exhibit into evidence. Respondent also submitted the deposition transcripts of two witnesses in lieu of their live testimony. The identity of the witnesses and exhibits and any attendant rulings are set forth in the one- volume Transcript of hearing filed on June 16, 2004.

The transcript of the final hearing was filed with DOAH on June 17, 2004. Both parties timely filed Proposed Recommended Orders which have been reviewed and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes (2003). Respondent is licensed to operate a nursing home located at 1937 Jenks Avenue, Panama City, Florida 32405 (the facility).

2. By stipulation of the parties, the facts reveal that Respondent is a long term care facility that receives Medicare and Medicaid funds for compliance with Federal statutory and rule requirements. Petitioner is required to classify deficiencies according to the nature and scope of the deficiency. The classification of deficiencies is also determinative of whether the licensure status of a nursing home is "standard" or "conditional" and also governs the amount of administrative fine to be imposed.

3. Petitioner conducted an annual survey of Respondent's facility from August 25th through August 28th, 2004. Upon completion of that survey, Petitioner prepared a report that charged Respondent with violations of various nursing home regulations. This report organized each of the charged violations under “Tags,” which are shorthand references to the regulatory standards that Petitioner alleges were violated. Additionally, Petitioner assigned, as required by law, class II

   ratings to the four deficiencies or Tags ( F223, F241, F314, and F318) at issue in this proceeding.

4. Resident 6 is a 56 year old, cognitively alert male who was admitted to Respondent's facility on May 21, 2003. He had a history of diabetes. When admitted to the facility, he had pressure ulcers on his coccyx and right heel, and his left leg had been amputated above the knee. He was referred to physical therapy to improve his functional mobility.

5. On July 25, 2004, a doctor ordered that Resident 6 was to receive a sliding board to assist staff in transferring the Resident from his bed to his wheelchair, based upon a recommendation for the board made by the facility’s physical therapist. The sliding board was never ordered.

6. Additionally, the doctor ordered a knee brace for Resident 6's right knee that had been recommended by the therapist for the purpose of increasing the Resident's range of motion and decreasing muscle spasms to his right hamstring. Respondent provided Resident 6 with a knee brace from July 25th until August 4th; however, the Resident complained of pain that it was causing him. The nursing staff then asked the physical therapist to re-evaluate the brace. A new brace, to have been ordered for the Resident, was processed incorrectly by the supply manager at the facility. The brace request was then rejected by Respondent's corporate office.

7. While awaiting the receipt of the new brace, the physical therapist directed the restorative nursing staff to use a temporary brace and pillows as wedges around the Resident’s leg in lieu of the permanent brace, which they did. Additionally, the Resident's pain medication was increased until the new brace could be obtained. During the course of Petitioner's survey, the surveyor observed that the Resident complained on six separate occasions of pain and muscle spasms. The knee brace did not arrive until September 3, 2003.

8. The failure of the facility's supply manager to order the devices on the correct form deprived Resident 6 of devices needed to improve his range of motion.

9. As noted above, Resident 6 was admitted to the facility with pressure sores on his coccyx and right heel, classified as stage IV wounds. Respondent's facility’s treatments of the Resident's coccyx wound was inadequate because Resident 6 had a physician’s order to treat his coccyx wound daily with calcium alginate. However, the wound care nurses did not follow that order and instead followed the facility’s wound protocols that directed staff to treat the wound every three to four days and as necessary, such as when the wound became contaminated with feces.

10. After the completion of Petitioner's survey, Respondent personnel contacted Resident 6's physician about the

    discrepancy between the order and the protocols. The physician directed that the order be changed to comport with the facility’s protocol.

11. During the survey, Petitioner's surveyor observed the wound care nurse using unclean techniques when she changed the Resident’s coccyx wound care dressing. The wound care nurse’s testimony denying this observation is not credible. The surveyor observed the wound care nurse, during the course of changing the Resident's wound dressings, retrieve calcium alginate from a previously opened sterile package with her bare hands, then cut a length for use with scissors retrieved from her pocket, all before washing her hands and without gloves. After cutting the calcium alginate for use, the wound care nurse laid this piece of medication on the dressing area, then put other supplies and gloves on top of it. When packing this medication into a wound, the medication should be kept as clean as possible and the dressing supplies should be kept on a clean dressing field.

12. The unclean manner of dressing Resident 6's wounds, coupled with the directive from personnel that he defecate in his diaper, exposed his coccyx wound to contamination from feces.

13. In the course of Petitioner's survey of Respondent's facility during the period of August 25-28, 2003, Petitioner's

    surveyor overheard Resident 6 tell the facility wound care nurse that he needed to go to the bathroom. The wound care nurse offered the Resident no assistance and told him to defecate in his diaper. Later in the course of further questioning of the patient, Petitioner's surveyor learned that Respondent's staff frequently acted in the fashion observed by the surveyor, forcing the Resident to defecate in his diaper and sit in his feces.

14. The facility wound care nurse disputed the surveyor’s account of her conversation with Resident 6, and denied that she told Resident 6 to defecate in his diaper. Her testimony is not credited.

15. Resident 6 was toileted in a manner that violated his dignity.

    CONCLUSIONS OF LAW

    
    

16. DOAH has jurisdiction over the parties and subject matter of this cause pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).

17. Florida Administrative Code Rule 39A-4.1288, Exception, states in relevant part:

    Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference.

18. While the burden of proof is on Petitioner, the assignment of licensure status may be proven by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner must show by clear and convincing evidence that Respondent committed the deficiencies alleged as a basis for the proposed administrative fine. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996). The amount, $2,500, in the instance that an administrative fine or civil penalty is deemed appropriate, is established by provisions of Section 400.23(8)(b), Florida Statutes.

19. Petitioner's First Amended Complaint contains six counts of violations committed by Respondent's facility as a result of the findings of the August 25-28 Survey. At final hearing, Petitioner moved ore tenus to amend the Complaint to withdraw Count III. The motion was granted. Additionally, Petitioner presented no evidence in support of the violation charged in Count V of the Complaint. Accordingly, Respondent is not guilty of Count V.

20. Count I of the Amended Administrative Complaint is based on 42 CFR Section 483.25(e)(2), which provides that a

    facility must ensure that a “resident with a limited range of motion receives appropriate treatment and services to increase range of motion and/or to prevent further decrease in range of motion.” Petitioner charged Respondent committed this violation because it failed to provide Resident 6 with equipment that had been recommended by the facility’s physical therapist to prevent pain, muscle spasms and decreased range of motion by the Resident. Respondent is guilty of this offense.

21. Count II of the Amended Administrative Complaint is based upon 42 CFR Section 483.25(c), which provides, in relevant part, that a nursing home must provide a resident with pressure sores “necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.” Petitioner charged that Respondent violated this requirement because staff (a) failed to follow physician orders, (b) failed to follow infection control guidelines, and (c) directed Resident 6 to defecate in his diaper, thereby exposing his pressure sore to potential fecal contamination. Respondent is guilty of this offense.

22. Count IV of the Amended Administrative Complaint is based upon requirements of 42 CFR Section 483.15(a), which provides that a nursing home must “promote care for residents in a manner and in an environment which maintains or enhances each resident’s dignity and respect in full recognition of his or her

    individuality.” Petitioner charged that Respondent failed to protect the dignity of Resident 6 because staff would not assist him when he needed to be toileted and instead told him to defecate in his diaper. Respondent is guilty of this offense.

23. In Count VI of the Amended Administrative Complaint, Petitioner seeks to impose a Conditional license for the time period of August 8 until October 29, 2003, on the basis of the class II deficiencies proven in this proceeding. Section 400.23(7)(b), Florida Statutes, states that a Conditional licensure status means a facility, due to the presence of one or more class II deficiencies, that is not in compliance "at the time of the survey with the criteria established under this part or with rules adopted by the agency." Respondent is guilty of one or more such deficiencies. Accordingly, the Conditional license status is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that Petitioner enter a final order upholding the assignment of the Conditional licensure status for the period August 28 through October 29, 2003, and imposing an administrative fine of $2,500 for each of the violations proven in Count I, Count II, and Count IV of the Amended Administrative Complaint, for a total of $7,500.

DONE AND ENTERED this 21st day of July, 2004, in Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 21st day of July, 2004.

COPIES FURNISHED:

Gerald L. Pickett, Esquire

Agency for Health Care Administration Sebring Building, Suite 330K

525 Mirror Lake Drive, North St. Petersburg, Florida 33701

R. Davis Thomas, Jr. Qualified Representative Broad and Cassel

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

Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Lealand McCharen, Agency Clerk 2727 Mahan Drive, Mail Station 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.

Docket for Case No: 04-000338

Orders for Case No: 04-000338