STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. )

)

DELTA HEALTH GROUP, INC., ) d/b/a FOUNTAINHEAD CARE CENTER, )

)

Respondent. )

Case No. 05-2789

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case by video teleconference on December 6, 2005, between Miami and Tallahassee, Florida, before Administrative Law Judge Claude

B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Tria Lawton-Russell, Esquire

Agency for Health Care Administration Spokane Building, Suite 103

8350 Northwest 52nd Terrace Miami, Florida 33166

For Respondent: R. Davis Thomas, Jr.

Delta Health Group, Inc.

2 North Palafox Street Pensacola, Florida 32502

STATEMENT OF THE ISSUES

Whether Respondent is guilty of the isolated Class III deficiency alleged in Count II of the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On July 12, 2005, Petitioner filed an Administrative Complaint that alleged certain facts and, based on those facts, alleged in two separate counts that Respondent was guilty of two Class III deficiencies. Petitioner contended that Respondent should be fined $1,000.00 for each deficiency and that the status of its licensure should be downgraded from the classification of “standard” to the classification of “conditional.”

Respondent denied the material allegations of the Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

In response to the Prehearing Order entered in this proceeding, the parties filed a Joint Prehearing Stipulation, which contained certain factual stipulations. The stipulated facts found to be relevant are included in this Recommended Order.

Prior to the start of the final hearing, counsel for Petitioner advised that Petitioner was abandoning the Class III

violation based on the allegations of Count I of the Administrative Complaint. Consequently, the final order to be entered in this proceeding should dismiss Count I of the Administrative Complaint. Petitioner also did not pursue the allegations in Count II pertaining to inadequate care of a resident (identified in the Administrative Complaint as Resident #9) who had a catheter in place.

The only allegations at issue at the final hearing were those in Count II pertaining to the perineal care provided by Respondent’s staff to residents who had suffered episodes of incontinence during the initial survey of the facility and during the first follow-up survey.1 Based on the factual allegations pertaining to that perineal care Petitioner alleged, in paragraph 23 of the Administrative Complaint, that Respondent " . . . did not provide care and services to prevent potential urinary tract infection . . . " for the subject residents. In paragraph 42 of the Administrative Complaint Petitioner charged that Respondent:

. . . violated Section 483.25(d)2, Code of Federal Regulations as incorporated by Rule and [sic] 59A-4.1288, Florida Administrative Code, [which is] . . . classified as a Class III deficiency pursuant to Section 400.23(8)(b), Florida Statutes, [and] carries a fine of $1,000.00 and gives rise to a conditional rating pursuant to Section 400.23(7)(b), Florida Statutes.2

At the final hearing, Petitioner presented the testimony of

Barbara Catinella, a registered nurse who participated in the initial survey pertinent to this proceeding (February 28 - March 3, 2005). Petitioner presented five exhibits, each of which was admitted into evidence. Petitioner's Exhibit 1 was the deposition testimony of Eleanor Kennedy, a registered nurse who participated in one of the follow-up surveys pertinent to this proceeding (April 19-20, 2005). Respondent presented the testimony of Brenith Delson, a registered nurse who, at the time of the final hearing, served as Respondent's director of nursing. Respondent offered three sequentially numbered exhibits, two of which were admitted into evidence and one of which was withdrawn.

A transcript of the proceedings was filed on December 28, 2005. Each party filed a Proposed Recommended Order, which has been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is a licensed, skilled nursing home facility located in North Miami, Florida. Respondent was at all times pertinent hereto licensed by Petitioner pursuant to the provisions of Chapter 400 Part II, Florida Statutes.

2. Petitioner is the agency of the State of Florida with the responsibility to regulate skilled nursing homes in Florida.

3. Petitioner surveys nursing home facilities to evaluate

   their compliance with applicable rules. Petitioner classifies any deficiency noted by a survey according to the nature and scope of the deficiency. The severity of the deficiency determines the amount of any administrative fine and whether the licensure status of the facility should be "standard" or "conditional."

4. A licensee’s failure to comply with an applicable statute or rule is a deficiency. A survey results in a report that lists each deficiency that is found, identifies the applicable regulatory standard that the surveyor believes has been violated, provides a factual basis for the alleged violation, and indicates the scope and severity of the deficiency. A facility is given a deadline to correct each alleged deficiency found during the initial survey. Disciplinary action is typically initiated if a facility has not corrected a deficiency as determined by a follow-up survey.

5. Petitioner conducted a survey of Respondent during the period February 28 - March 3, 2005 (the initial survey). Barbara Catinella, who is a registered nurse and an experienced surveyor, participated in the initial survey on behalf of Petitioner.

6. On March 1, 2005, Ms. Catinella observed perineal care being administered to two female residents (identified as Resident 26 and Resident 27). Each resident was being attended

   to following an episode of urinary incontinence. The first observation began at approximately 2:00 p.m. and the second began approximately thirty minutes later. Two certified nurses assistants (CNAs) administered the perineal care to Resident 26 and two different CNAs administered the perineal care to Resident 27. In both instances, the CNAs failed to properly perform the perineal care. In each instant, the CNAs performing the perineal care failed to open and clean the labia.

7. At all times pertinent to this proceeding, Respondent had a policy as to perineal care for female residents that conformed to accepted perineal care standards. Paragraph 15 of the policy required Respondent's staff to do the following in sequence for a female resident who had suffered an episode of incontinence, whether the episode was of bowel, bladder, or

both:

1. For a female resident:

   1. Wet washcloth and apply soap or skin cleansing agent.

   2. Wash perineal area, wiping from front to back.

      1. Separate labia and was area downward from front to back.

      2. Continue to wash the perineum moving outward to and including thighs, alternating from side to side, and using downward strokes.

      3. Rinse perineum thoroughly in same direction, using fresh water and a washcloth.

      4. Gently dry perineum.

   3. Instruct the resident to turn on her side.

   4. Rinse wash cloth and apply soap or skin cleansing agent.

   5. Wash the rectal area thoroughly, wiping from the base of the labia and extending over the buttocks.

   6. Rinse.

   7. Dry area.

      
      

      8. At all times pertinent to this proceeding, Respondent had a policy as to perineal care for male residents that conformed to accepted perineal care standards. Paragraph 16 of the policy required Respondent's staff to do the following in sequence for a male resident who had suffered an episode of incontinence, whether the episode was of bowel, bladder, or

      both:

      
      

2. For a male resident:

   1. Wet washcloth and apply soap or skin cleansing agent.

   2. Wash perineal area starting with the urethra and working outward.

      1. Retract foreskin of the uncircumcised male.

      2. Wash and rinse urethral area using a circular motion.

      3. Continue to was the perineal area, including the penis, scrotum and inner thighs.

   3. Thoroughly rinse perineal area in [the] same order using fresh water and clean washcloth.

   4. Gently dry perineum following [the] same sequence.

   5. Reposition foreskin of uncircumcised male.

   6. Instruct or assist the resident to turn on his side.

   7. Rinse washcloth and apply soap or cleansing agent.

   8. Wash and rinse the rectal area thoroughly, including the area under the

scrotum, the anus, and the buttocks.

i. Dry area.

1. The perineal care policy was adopted ". . . to provide cleanliness and comfort to the resident, to prevent infections and skin irritation, and to observe the resident's skin condition." Respondent's staff is trained to adhere to the perineal care policy.

2. The perineal care provided Resident 26 and Resident 27 as observed by Ms. Catinella failed to adhere to Respondent's policy and constituted a failure to provide care and services to prevent potential urinary tract infection as alleged in the Administrative Complaint.

3. Respondent argued that the failure to adhere to its policy by failing to spread and cleanse the labia would not cause a urinary tract infection as alleged in the Administrative Complaint. Respondent correctly argues that urine, in the body, is sterile and would not by itself cause a urinary tract infection. Most, but not all, urinary tract infections are caused by the e-coli bacteria found in feces. Respondent established that incontinent residents typically receive perineal care from Respondent's staff 10 times during a 24-hour period. Respondent also established that the facility uses only anti-bacterial soap for perineal care. Based on those considerations, Respondent argued that the perineal care

   observed by the surveyors may have led to a skin irritation, but that it would not have resulted in a urinary tract infection as alleged in the Administrative Complaint.

4. The greater weight of the credible evidence established clearly and convincingly that the failure to spread and cleanse the labia has the potential for various adverse consequences for the resident, including urinary tract infection.3 If staff does not spread and cleanse the labia, the fact that anti-bacterial soap is being used is irrelevant. If the soap does not reach the labia, that area will not be cleansed, regardless of the number of times perineal care is administered during a typical day.

5. Petitioner established the Class III violations pertaining to perineal care as to the initial survey by the requisite evidentiary standard. Petitioner also established that the violations should be considered "isolated" since there were some 55 incontinent residents in Respondent's facility at the time of the initial survey and only two episodes of improper perineal care were observed.

6. Respondent was provided with a correction date thirty days from the conclusion of the initial survey to correct the noted deficiencies by coming into substantial compliance with accepted perineal care standards.

7. The first follow-up survey occurred April 19-20, 2005.

   Eleanor Kennedy participated in that follow-up survey and testified, in her deposition, as to three incidents of perineal care that she observed.

8. During the course of the follow-up survey, Ms. Kennedy observed two CNAs administering inappropriate perineal care to a female resident referred to as Resident 15. Ms. Kennedy observed that this resident had suffered an episode of incontinence involving both bowel and bladder. In the course of administering the perineal care, the CNAs failed to open and clean the labia.

9. In addition to observing perineal care to Resident 15, Ms. Kennedy observed perineal care administered to a female resident referred to as Resident 16 and a male resident referred to as Resident and to a male resident referred to as Resident

1. The perineal care administered to Resident 16 and to Resident 17 were inconsistent with Respondent's perineal care policy.

2. The CNAs performing the perineal care for Resident 16 did not follow the proper sequence for cleaning. They first washed the resident's abdominal folds and thigh creases and then opened and washed the labia with the same disposable cloth.

   Ms. Kennedy testified that the sequence of the cleaning is significant because it risked the transfer of bacteria from the

   areas first washed to an area that could result in a urinary tract infection.

3. The CNAs who performed the perineal care for Resident

   
   

   17 first washed the resident's face, underarms, and back. Then, without changing water, the CNAs took a clean cloth and washed the resident's groin area, his retracted foreskin area, and the urinary urethral meatus. The CNAs then dried the resident, but failed to follow the required sequence. As with Resident 16, Ms. Kennedy testified that the incorrect sequence followed by the CNAs risked the transfer of bacteria to an area that could result in a urinary tract infection.

4. Although this sequence clearly violated Respondent's perineal care policy, Respondent established that the potential for urinary tract infection as a result of the sequence was reduced because anti-bacterial soap was used. Ms. Kennedy was uncertain as to whether the use of anti-bacterial soap would alleviate the concerns she had as to the care given these two residents. Because of that uncertainty, it is found that Petitioner did not prove that the perineal care provided Resident 16 and Resident 17 constituted a failure to provide care and services to prevent potential urinary tract infection as alleged in the Administrative Complaint.

5. The perineal care provided Resident 15 as observed by Ms. Kennedy failed to adhere to Respondent's policy and

   constituted a failure to provide care and services to prevent potential urinary tract infection as alleged in the Administrative Complaint.

6. On May 26, 2005, Petitioner conducted a second follow- up survey and determined that Respondent was in substantial compliance with applicable regulations.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

8. The burden of proof in this case is on Petitioner.

   
   

   See Beverly Enterprises - Florida v. Agency for Health Care Administration, 745 So. 2d 1133 (Fla. 1st DCA 1999). The burden of proof for the assignment of a licensure status is by a preponderance of the evidence. See 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). The burden of proof to impose an administrative fine is by clear and convincing evidence. See Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

9. When Petitioner seeks to take disciplinary action against a licensee, such action may be based only upon those

   offenses specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Chrysler v. Department of Professional Regulation, 627 So. 2d 31 (Fla. 1st DCA 1993); Klein v.

   Department of Business and Professional Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Arpayoglou v. Department of

   Professional Regulation, 603 So. 2d 8 (Fla. 1st DCA 1992); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1992); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So. 2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Sternberg v.

   Department of Professional Regulation, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of Professional

   Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

   
   

10. Section 400.23(8), Florida Statutes, states in relevant part:

    (8) . . . 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. The agency shall indicate the classification on the face of the notice of deficiencies as follows:

    
    

    * * *

    
    

    1. A class III deficiency is a deficiency that the agency determines 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 practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class III deficiency is subject to a civil penalty of

       $1,000 for an isolated deficiency, $2,000 for a patterned deficiency, and $3,000 for a widespread deficiency. . . . If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed.

    2. A class IV deficiency is a deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident. If the class IV deficiency is isolated, no plan of correction is required.

    
    

11. Section 400.23(7), Florida Statutes, provides, in pertinent part, as follows:

    1. . . . The agency shall assign a licensure status of standard or conditional to each nursing home.

       1. 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.

       2. 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 follow-up survey, a standard licensure status may be assigned.

          
          

12. Petitioner appropriately classified the violation pertaining to perineal care as an isolated Class III violation following the follow-up survey that concluded April 20, 2005.

13. Petitioner correctly argues that Respondent’s license should have been reclassified from the "standard" classification to the "conditional" classification as of April 20, 2005, because of the findings of the follow-up survey pertaining to perineal care.

14. On May 26, 2005, Petitioner conducted a second follow- up survey and determined that Respondent was in substantial compliance with applicable regulations. As of that date, Petitioner should have reclassified Respondent's license from

the "conditional" classification" to the "standard" classification.4

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is recommended that Count I of the Administrative Complaint be dismissed. It is further RECOMMENDED that Petitioner find Respondent guilty of an isolated, Class III deficiency based on Count II of the Administrative Complaint. It is further RECOMMENDED that Petitioner assess an administrative fine against Respondent in the amount of $1,000.00 for the Class III deficiency found in Count II of the Administrative Complaint and that Petitioner's records reflect that Respondent's licensure was classified "conditional" for the period April 20 - May 19, 2005, and that Respondent's licensure was classified as "standard" before and after those dates.

DONE AND ENTERED this 6th day of February, 2006, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 6th day of February, 2006.

ENDNOTES

1/ The parties stipulated that a second follow-up inspection, conducted May 26, 2005, determined that Respondent was in substantial compliance with applicable regulations. In view of that stipulation, neither party presented any evidence as to the second follow-up inspection.

2/ All references to Florida Statutes are to Florida Statutes (2005). Any reference to a rule is to the version of the rule in effect at the times relevant to this proceeding.

3/ In addition to urinary tract infection, improper perineal care can lead to fungus, skin irritation, and skin breakdown. Prior to their admission to Respondent's facility, Resident 26 and 27 had both been diagnosed with urinary tract infection and one of them was HIV positive. In making the finding pertaining to the potential for urinary tract infection, the undersigned has not overlooked the evidence that no resident suffered from urinary tract infection at the times relevant to this proceeding.

4/ In reaching this conclusion, the undersigned has not overlooked Respondent's argument that at most the violations

should be considered to be Class IV violations and that its license should not be reclassified. Nor has the undersigned overlooked the argument that any "conditional" classification should terminate as of the date of the in-house training because there was no evidence of failure of its staff to provide appropriate perineal care after that date. Respondent's first argument is rejected because Petitioner correctly classified the violation as a Class III violation that remained uncorrected as determined by the first follow-up inspection. Respondent's second argument is rejected because Respondent had had in-house training on the subject of perineal care both before and after the initial inspection without producing the desired results of staff compliance with the policy.

COPIES FURNISHED:

Tria Lawton-Russell, Esquire

Agency for Health Care Administration Spokane Building, Suite 103

8350 Northwest 52nd Terrance Miami, Florida 33166

R. Davis Thomas, Jr. Delta Health Group, Inc.

2 North Palafox Street Pensacola, Florida 32502

Richard Shoop, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Christa Calamas, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3131

2727 Mahan Drive

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: 05-002789

Orders for Case No: 05-002789