STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 80-1364
) MANHATTAN CONVALESCENT CENTER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before P. Michael Ruff, Hearing Officer of the Division of Administrative Hearings, in Tampa, Florida, on October 21, 1980 and December 12, 1980. At the conclusion of the hearing the parties requested a transcript of the proceedings and waived the 30 day requirement for filing of the Recommended Order. Pursuant to an extension of time granted the Respondent, proposed Findings of Fact and Conclusions of Law were timely filed.
APPEARANCES
For Petitioner: Amelia Park, Esquire
District VI Legal Counsel and Janice Sorter, Esquire
Assistant District VI Legal Counsel
W. T. Edwards Facility
4000 West Buffalo Avenue, 4th Floor Tampa, Florida 33614
For Respondent: Kenneth E. Apgar, Esquire
Edward P. de la Parte, Jr., Esquire de la Parte and Butler, P.A.
403 North Morgan Street, Suite 102 Tampa, Florida 33602
By Administrative Complaint dated June 5, 1980, the Petitioner, Department of Health and Rehabilitative Services, seeks to impose a $4,250 administrative fine for alleged violation of Chapter 400, Part I, of the Florida Statutes.
Specifically, the Respondent was charged with violating the provisions of Sections 400.022(1)(j) and 400.141, Florida Statutes, as well as Chapter 10D-29, Florida Administrative Code, in that it failed to:
Maintain its premises and equipment and conduct its operations in a safe and sanitary manner;
Provide adequate and appropriate health care consistent with the
established and recognized practiced standards within the community and with the rules promulgated by the department;
Maintain minimum nursing service staffing standards for skilled nursing homes.
The Petitioner, therefore, brings this action pursuant to Section 400.102(c), Florida Statutes, and seeks to impose the administrative fine pursuant to Section 400.121.
The deficiencies, as charged in paragraphs 1-10 of the Administrative Complaint, relate to various inspection tours made by staff members of the Petitioner in which they allegedly observed vermin infestations, urine odors in various portions of the facility, portions of the building in disrepair and a general unkempt and untidy condition of the grounds as well as the building itself. Additionally, a number of the patients' rooms allegedly had inoperative nurse calling equipment and several patients were allegedly improperly restrained while another patient was allowed to leave the facility unsupervised. Finally, it is charged that on March 3 and March 6, 1980, there were inadequate stocks of bed linen and medical supplies of various kinds, that on March 6, 1980, 14 incontinent patients were observed lying on sheets that had been previously wet, dried and were wet again, that there was insufficient nursing staff and that controlled drugs were not maintained under proper security.
ISSUES
The issues are thus whether the acts and omissions charged occurred, whether they constitute violations of Section 400.022(1)(j) and 400.141, Florida Statutes, and related rules, and whether an administrative fine is appropriate pursuant to 400.102(c) and Section 400.121, Florida Statutes.
Upon the commencement of the hearing, the petitioner moved to amend paragraph 8 of its Complaint, so that the date "March 4" would read March 14." The motion was granted on the basis that there was only a clerical error involved and paragraph 8 correctly alleges that there-was a nursing staff shortage from February 20 to March 14, 1980. Eight witnesses were called by the Petitioner, and two by the Respondent. Ten exhibits were adduced as evidence.
The Respondent has submitted and requested rulings upon ninety-five proposed findings of fact. In that connection, all proposed findings, conclusions, and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein they have been accepted, and to the extent such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith they have been rejected.
FINDINGS OF FACT
Manhattan Convalescent Center is a nursing home facility located in Tampa and licensed by the Department of Health and Rehabilitative Services. On January 22, February 20, February 25, March 3, March 6, and March 14, 1980, a number of Department employees representing the Department's medical review team, and the Office of Licensure and Certification, consisting of registered
nurses, hospital consultants and Department surveillance team members, made inspections of the Respondent's facility for the purpose of ascertaining whether the premises, equipment and conduct of operations were safe and sanitary for the provision of adequate and appropriate health care consistent with the rules promulgated by the Department and whether minimum nursing service staff standards were being maintained.
Thus, on January 22, 1980 a member of the medical review team, witness Maulden, observed a rat run across the floor in one of the wings of the nursing home facility. On February 20, Muriel Holzberger, a registered nurse and surveyor employed by the Petitioner, observed rodent droppings in one of the wings of the facility and on February 20, March 12 and March 14, 1980, numerous roaches were observed by various employees of the Department making inspections throughout the facility.
On February 20, 1980 strong urine odors were present on the 200, 300 and 400 wings of the facility as well as in the lobby. The odor was caused by urine puddles under some patients' chairs in the hallway, wet sheets, and a spilled catheter.
On February 20 and 25, 1980 the grounds were littered with debris and used equipment, the grass and weeds on the grounds needed cutting and there was a build up of organic material, food spills and wet spots on the floors. The Respondent's witness, Ann Killeen, as well as the Petitioner's hospital consultant, Joel Montgomery, agreed that a general state of disrepair existed at the Respondent's facility, consisting of torn screens, ill fitting exterior doors with inoperative or missing door closers and missing ceiling tile. Interior and exterior walls were in need of repair and repainting.
Additionally, eleven bedside cords for the nurse paging system were cut, apparently by patients, and on February 25, 1980, a total of 36 nurse paging stations were inoperative. A substantial number of these cords were cut by a patient (or patients) with scissors without the knowledge of the Respondent and steps to correct the condition were immediately taken.
On January 22, 1980 Petitioner's representatives, Mary Maulden and Alicia Alvarez, observed a patient at the Respondent's facility free himself from physical restraints, walk down the hall and leave the facility. A search for nursing staff was made but none were found on the wing. After three to five minutes the Assistant Director of Nurses was located and the patient was apprehended. Nurse Alvarez's testimony revealed that the Respondent's nursing staff was in and out of, and working in that wing all that morning except for that particular point in time when the patient shed his restraints and walked out of the facility.
On March 3, 1980 Department employee, William Musgrove, as part of a surveillance team consisting of himself and nurse Muriel Holzberger, observed two patients restrained in the hall of the facility in chairs and Posey vests, which are designed to safely restrain unstable patients. The witness questioned the propriety of this procedure, but could not establish this as a violation of the Respondent's patient care policies required by Rule 10D-29.41, Florida Administrative Code. The witness reviewed the Respondent's written patient care policy required by that Rule and testified that their policy complied with it and that the policy did not forbid restraining a patient to a handrail in the facility as was done in this instance. The witness was unable to testify whether patients were improperly restrained pursuant to medical orders for their own or other patients' protection.
A hospital consultant for the Department, Bill Schmitz, and Marsha Winae, a public health nurse for the Department, made a survey of the Respondent's facility on March 12, 1980. On that day the extensive roach infestation was continuing as was the presence of liquids in the hallways.
On February 20, 1980 witness Joel Montgomery observed a lawn mower stored in the facility's electrical panel room which is charged as a violation in paragraph 3 of the Administrative Complaint. The lawn mower was not shown to definitely contain gasoline however, nor does it constitute a bulk storage of volatile or flammable liquids.
Nurse Holzberger who inspected the Respondent's nursing home on February 20, February 25, March 3 and March 6, 1980, corroborated the previously established roach infestation and the presence of strong urine odors throughout the facility including those emanating from puddles under some patients' chairs, the soaking of chair cushions and mattresses and an excess accumulation of soiled linen. Her testimony also corroborates the existence of 36 instances of inoperative nurse paging devices including the 11 nurse calling cords which had been cut by patients. This witness, who was accepted as an expert in the field of proper nursing care, established that an appropriate level of nursing care for the patients in this facility would dictate the requirement that those who are incontinent be cleaned and their linen changed more frequently and that floors be mopped and otherwise cleaned more frequently. Upon the second visit to the facility by this witness the nurse call system had 9 paging cords missing, 11 cords cut, and 15 of the nurse calling devices would not light up at the nurses' station. This situation is rendered more significant by the fact that more than half of the patients with inoperative nurse paging devices were bedridden. On her last visit of March 6, 1980 the problem of urine puddles standing on the floors, urine stains on bed linen, and resultant odor was the same or slightly worse than on the two previous visits. An effective housekeeping and patient care policy or practice would dictate relieving such incontinent patients every two hours and more frequent laundering of linen, as well as bowel and bladder training.
On March 6, 1980 controlled drugs were resting on counters in all of the facility's four drug rooms instead of being stored in a locked compartment, although two of the drug rooms themselves were locked. The other two were unlocked, but with the Respondent's nurses present.
Ms. Holzberger participated in the inspections of March 3 and March 6, 1980. On March 3, 1980 there were no more than 14 sheets available for changes on the 4:00 p.m. to midnight nursing shift. On March 6, 1980 there were only 68 absorbent underpads and 74 sheets available for changes for approximately 65 incontinent patients. The unrefuted expert testimony of Nurse Holzberger established that there should be available four sheets for each incontinent patient per shift. Thus, on these two dates there was an inadequate supply of bed linen to provide changes for the incontinent patients in the facility. On March 6, 1980 Nurse Holzberger and Nurse Carol King observed 12 patients who were lying on sheets previously wet with urine, unchanged, dried and rewet again. This condition is not compatible with generally recognized adequate and appropriate nursing care standards. Incontinent patients should be examined every two hours and a change of sheets made if indicated. If such patients remain on wet sheets for a longer period of time their health may be adversely affected.
On March 6, 1980 these same employees of the Petitioner inspected a medical supply room and found no disposable gloves, no adhesive tape, no razor
blades and one package of telfa pads. There was no testimony to establish what the medical supply requirements of this facility are based upon the types of patients it cares for and the types and amounts of medical supplies thus needed. The testimony of Robert Cole, the facility's employee, who was at that time in charge of dispensing medical supplies, establishes that in the medical supply room (as opposed to the nurses' stations on the wings) there were at least six rolls of tape per station, 50 razors, four boxes or 80 rolls, 300 telfa pads and
200 sterile gloves.
Nurses Holzberger and King made an evaluation of the Respondent's nurse staffing patterns. Ms. Holzberger only noted a shortage of nursing staff on February 24, 1980. Her calculations, however, were based on an average census of skilled patients in the Respondent's facility over the period February
20 to March 4, 1980 and she did not know the actual number of skilled patients upon which the required number of nursing staff present must be calculated on that particular day, February 24, 1980. Further, her calculations were based upon the nurses' "sign in sheet" and did not include the Director of Nurses who does not sign in when she reports for work. Therefore, it was established that on February 24 there would be one more registered nurse present than her figures reflect, i.e., the Director of Nurses. Nurse King, in describing alleged nursing staff shortages in the week of March 7 to March 13, 1980, was similarly unable to testify to the number of skilled patients present on each of those days which must be used as the basis for calculating required nursing staff.
She rather used a similar average patient census for her calculations and testimony. Thus, neither witness for the Petitioner testifying regarding nursing staff shortages knew the actual number of patients present in the facility on the days nursing staff shortages were alleged.
In response to the problem of the roach infestation, the Respondent's Administrator changed pest control companies on March 26, 1980. The previous pest control service was ineffective. It was also the practice of the Respondent, at that time, to fog one wing of the facility per week with pesticide in an attempt to control the roaches. Further, vacant lots on all sides, owned and controlled by others, were overgrown with weeds and debris, to which the witness ascribed the large roach population. The problem of urine odors in the facility was attributed to the exhaust fans for ventilating the facility which were inoperable in February, 1980. She had them repaired and, by the beginning of April, 1980 (after the subject inspections), had removed the urine odor problem. The witness took other stops to correct deficiencies by firing the previous Director of Nurses on March 14, 1980, and employing a new person in charge of linen supply and purchasing. A new supply of linen was purchased in February or March, 1980. The Respondent maintains written policies concerning patient care, including a provision for protection of patients from abuse or neglect.
The Respondent's Administrator admitted existence of the torn screens, broken door locks, missing ceiling tiles and the roach infestation. She also admitted the fact of the cut and otherwise inoperable nurse paging cords in the patients' rooms, but indicated that these deficiencies had been repaired. The various structural repairs required have been accomplished. All correction efforts began after the inspections by the Petitioner's staff members, however.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.
Section 400.141, Florida Statutes, provides in pertinent part, as follows:
Administration and Management of Nursing Facilities. - Every facility shall comply with all applicable standards, rules and regulations of the Department of Health and Rehabilitative Services and shall:
(4) Maintain its premises and equip- ment and conduct its operations in a safe and sanitary manner.
Section 400.022 provides in pertinent part as follows:
Patients' Rights - (1) All nursing home facilities shall adopt and make public a statement of the rights and responsi- bilities of the patients residing in such facilities and shall treat such patients in accordance with the provisions of said statement. The statement shall insure each patient
the following:
. . . (j) The right to be free from mental and physical abuse and from physical and chemical restraints, except those restraints authorized in writing by a physician for a specified and limited period of time or as are necessitated by
an emergency. In case of an emergency, restraint may only be applied by a qualified licensed nurse who shall set forth in writing the circumstances requiring the use of restraint, and in the case of use of a chemical restraint, a physician shall be consulted immediately thereafter.
Section 400.102 provides in pertinent part as follows: Action by Department against Facilities;
Grounds. - Sub (1) Any of the following
conditions shall be grounds for action by the Department of Health and Rehabilitative Services against a facility;
An intentional or negligent act materially affecting the health or safety of residents of the facility;
Misappropriation or conversion of the property of a resident of the facility;
Violation of provisions of this Chapter or of minimum standards, rules, or regulations promulgated pursuant thereto; and,
Any act constituting a ground upon which application for a license may be denied.
Section 400.121 provides as follows:
Denial, Suspension, Revocation of License; Moratorium on Admissions; Administrative Fines; Procedure,
The Department of Health and Rehabilitative Services may deny, revoke, or suspend a license or impose an administrative fine, not to exceed
$500.00 per violation per day, for a violation of any provision of Section 400.102(1)(a), (b) or (d). All hearings shall be held within the county in
which the licensee or applicant operates or applies for a license to operate
a facility as defined herein.
The Department, as part of any final order issued by it under the provisions of this Chapter, may impose such fine as it deems proper, except that such fine shall not exceed $500.00 for each violation. Each day a violation of this Chapter occurs shall constitute a separate violation
and shall be subject to a separate fine, but in no event shall any fine aggregate more than $5,000.
A fine may be levied pursuant to this Section in lieu of and notwithstanding the provisions of Section 400.23.
In addition to the above statutory authority, Rule 10D-29.49, Florida Administrative Code, provides as follows:
Plant Maintenance and Housekeeping
Maintenance - Every nursing home and related health care facility shall have an effective maintenance plan and necessary staff to:
Keep the building in good repair and free of hazards such as cracks in
floors, walls or ceilings; warped or loose boards, tile, linoleum, handrails or railings, broken window panes, and any similar hazard.
Keep all heating, air conditioning, electrical, mechanical, water supply, fire
protection and sewage disposal systems in a safe and functioning condition and current certification of regulations for these systems shall be maintained on file. Electrical wiring cords and appliances shall be maintained in a safe condition.
Emergency generators shall be tested weekly.
Keep all plumbing fixtures in good repair, properly functioning and satis- factorily provided with protection to prevent contamination from entering the water supply system.
Paint the interior and exterior of the building as needed to keep it reasonably attractive. Loose, cracked or peeling wallpaper or paint shall be
promptly replaced or repaired to provide a satisfactory finish.
Keep all furniture and furnishings attractive, clean and in good repair.
Keep the grounds and buildings in
a safe, sanitary and presentable condition. Grounds and buildings shall be kept free from refuse and litter, as well as insect and rodent breeding areas.
Housekeeping - Every nursing home and related health care facility shall have an effective housekeeping plan and necessary staff to:
Maintain the building in a clean, safe, and orderly condition.
Keep all rooms and corridors clean and arranged in an orderly fashion. This includes food preparation, storage and serving areas.
Keep all floors clean, as non-slip as possible, free from throw or scatter rugs and other tripping hazards.
Control odors within the housekeeping staff's area of responsibility by cleanliness and proper ventilation. Deodorants shall not be used to cover up persistent odors caused by unsanitary conditions or poor housekeeping practices.
Keep storage areas in a safe and neat condition; and keep attics, basements and similar areas free of accumulations of refuse, discarded furniture, old newspapers, boxes, discarded equipment and supplies, and similar items.
Keep the home free of unnecessary accumulations of possessions, including equip- ment and supplies, of patients, residents, staff or the home's owner.
Maintain an adequate supply of linen to provide clean and sanitary conditions for each patient at all times.
The Respondent has filed a Motion to Dismiss the Administrative Complaint on the ground that it alleges violations of Sections 400.022(1)(j) and 400.141, Florida Statutes, and the rules promulgated thereunder, and that those alleged violations do not constitute grounds to proceed with an action and to levy an administrative fine pursuant to Section 400.102(c) and Section 400.121, Florida Statutes. The Respondent contends that the Petitioner has no jurisdiction to levy an administrative fine pursuant to Section 400.121, Florida Statutes, because the Complaint does not allege violations of Section 400.102(a), (b) or (d) which the Respondent maintains is the only means by which a fine may be imposed under Section 400.121. Thus, the Respondent has moved to strike all references to Section 400.121 from the Administrative Complaint.
Section 400.102(1)(c) provides that an action may be taken by the Department in the case of:
Violations of provisions of this Chapter or of minimum standards, rules or regulations promulgated pursuant thereto.
The Respondent asserts that Section 400.102(c) is the only means by which the Petitioner can take the actions sought against the Respondent since there is no allegation in the Complaint of any action intentionally or negligently done as envisioned in Section 400.102(1)(a) or any language which alleges to violation of Section 400.102(1)(b) or (1)(d). There is no question that the ground for action by the Petitioner in this case is clearly Section 400.102(1)(c). The Respondent thus avers that the Petitioner can not seek to impose the administrative fine pursuant to Section 400.121 because that statute by its expressed terms precludes that remedy in that it states:
The Department of Health and Rehabilitative Services may deny, revoke or suspend a license or impose an administrative fine, not to exceed $500.00 per violation per day, for a violation of any provision of Section 400.102(1)(a), (b) or (d).
Thus, the Respondent contends that the Petitioner has no jurisdiction to impose a fine pursuant to a violation of Section 400.102(1)(c) because section 400.121(1) simply does not provide for it.
The Respondent is correct in its assertion that Section 400.121(1) (as applicable at times pertinent hereto) permits no fine pursuant to the violation of .102(1)(c). The Respondent, however, overlooks the fact that Section 400.121(2) permits the Department to impose such fine as it deems proper, not to exceed $500.00 for each day of violation, for any violation of Chapter 400 and not just limited to the three above quoted subsections. (Emphasis supplied). Section 400.121(2), which is a section the Petitioner actually seeks to use to levy the fine, when jux taposed with the language of Section 400.102(1)(c) which permits the Petitioner to institute an action for violation of any of the provisions of this Chapter or of the minimum standards, rules or regulations promulgated thereunder, clearly indicates that the Petitioner has a separately identifiable general fining authority under Subsection 2 from that contained in
.121(1) for any other violations falling within the entire ambit of its enforcement jurisdiction under Chapter 400, to which .102(c) is clearly directed. The separate fining authority accorded the Department in Subsection 2 of 400.121 is further evidence by the fact that that provision contains a separate statement of limitation on administrative fines from that contained in Subsection 1. Further, Subsection 1 clearly refers to fines imposed in license suspension or revocation actions with the fine provided for thereunder merely being a lesser penalty for violations for which the Department may suspend or revoke licenses. Subsection 2 is a more general fining authority which may be used for any violation of the Chapter which the Department successfully proves pursuant to Section 400.102(c) which is a ground of action wholly apart from these with regard to which suspension or revocation may be sought. Thus, it is clear that the Petitioner is within its jurisdictional authority in seeking to impose an administrative fine under Section 400.121(2), Florida Statutes and the Motion to Dismiss in this regard should be denied.
An additional ground for the Motion to Dismiss is asserted on the ground that the factual allegations of the Administrative Complaint do not constitute violations of the requirements of the rules cited in support of those allegations. Because of the reasons and results revealed in the Conclusions of Law reached herein below, the Motion to Dismiss should be denied in this regard also.
COUNT I
In view of the above Findings of Fact regarding the presence of the rat and the roach infestation, urine odors, rodent droppings, the food spills, urine puddles on the floors, the unkempt condition of the facility grounds, as well as the general state of disrepair extant at the facility, it is concluded that the Petitioner has met its burden of proof and presented competent, substantial evidence sufficient to establish a violation of Section 400.121(4) and the above Rule and has thus substantially proven Count I of the Administrative Complaint. The above Rule requires that every such nursing home have an effective maintenance plan to insure a properly maintained and operated nursing home facility in the above enumerated particulars and the Petitioner has proven that the maintenance plan of the Respondent, at the times pertinent, if indeed a formal maintenance plan existed, was ineffective, and the premises, equipment and operations of the home were not maintained and conducted in a safe and sanitary manner. It was established by the Respondent that steps were taken to correct these deficiencies but the fact remains that its own maintenance operations, to the extent that they existed, were not sufficient to prevent or correct these unsafe, unsanitary conditions before they were called to the Respondent's attention by the Petitioner's representatives. Further, certain conditions, especially the urine odors emanating from soiled laundry, puddles on the floor, a spilled catheter and other causes, were shown to be worse on subsequent inspections by the Petitioner's representatives after they had been initially discovered on February 20, 1980. Thus, a recommended fine of $200.00 is reasonable, appropriate and is warranted in this instance.
COUNT II
Rule 10D-29.52(4)(36) requires, in pertinent part, that a nurse call system be maintained from beds, toilet, bath, shower to corridor and nursing stations in a nursing home of this type and class. Count II of the Administrative Complaint contained the allegations involving torn screens, ill fitting inoperative doors, missing ceiling tiles, walls in need of repair and repainting as well as the eleven (11) cut nurse paging cords found on February
20, 1980, and the thirty-six (36) total inoperative nurse call stations found on February 25, 1980. Unrefuted evidence was presented by the petitioner establishing the existence of these conditions, as found above, and indeed the Respondent acknowledged their existence. The problem involving the nurse paging cords cut by a patient with scissors was corrected only after it had been allowed to persist for five days and on the subsequent visit, after the facility had been informed that the inoperative nurse paging devices must be repaired, an even greater number were found to be inoperative. It is obvious that the required housekeeping and maintenance plans have not to this extent been effectively carried out. Thus, it must be concluded in view of the evidence presented, as well as the above findings of fact, that Count II of the Administrative Complaint has been proven and that the above cited Rules and Section 400.141, Florida Statutes, have been violated in that regard. In view of the fact that prior to these inspections by the Petitioner the Respondent had made efforts to have a construction contractor repair the structural damages involving doors, ceilings, walls and screens and other items, but had unfortunately fallen into a dispute over the manner and means by which the work was to be accomplished, the entire amount of the recommended fine in Count II is unwarranted, but rather it is concluded that a $100.00 fine is appropriate as to Count II.
COUNT III
The alleged violation of Rule 10D-29.50(11), Florida Administrative Code, involving the lawn mower stored in the facility was not established by the evidence adduced by the Petitioner. That provision prohibits the storage of bulk, flammable and volatile supplies inside the nursing home facility. The Petitioner did not establish that the lawn mower actually contained gasoline nor that it constitutes a bulk supply of flammable, volatile material. Accordingly, it is concluded that Count III of the Administrative Complaint should be dismissed.
COUNT IV
Count IV of the Administrative Complaint was supported by unrefuted evidence by the Petitioner. There is no question that the patient involved freed himself from a restraint and left the facility by way of a back door and that none of the nursing staff were available on that wing quickly enough to restrain the patient and prevent his escape from the facility. This constitutes a violation of Rule 10D-29.38(1), Florida Administrative Code, since in that instance a registered nurse designated by the Administrator of the nursing home to supervise all details of nursing care of the patients, was not in effective supervision of that wing of the nursing home at that time and of that patient in particular (Emphasis supplied by undersigned). This episode demonstrates a patent failure to maintain the premises and conduct of operations in a safe manner as required by Section 400.141(4). This is a serious violation in that the evidence reflects that the patient was of an aggressive nature and ambulatory and therefore could have injured someone or more particularly could have been injured himself upon gaining access to the streets outside. Consequently, the propriety of the recommended fine of $300.00 has been amply justified.
COUNT V
Count V alleges the improper use of physical restraints as alleged to have occurred on February 20 and March 3, 1980. While it is true that two patients were shown to be restrained in chairs in "Posey vests", fastened to
handrails in the corridor of the facility, this was not shown to be a violation of Rule 10D-29.4l(7), Florida Administrative Code, which provides that patient care policies in nursing homes shall make provision for protection of patients from abuse or neglect. The Petitioner did not establish that this restraint of the two patients in question was without authority of a physician or the charge nurse responsible for their care or that it was otherwise not permitted by the Respondent's approved patient care policy implemented pursuant to Rule 10D- 29.4l, Florida Administrative Code. Accordingly, it must be concluded that Count V of the Administrative Complaint should be dismissed.
COUNT VI
Count VI of the Administrative Complaint alleged the shortage of sufficient linen to care for the needs of the incontinent patients. Although witness Musgrove in describing linen shortage did not view the central supply room and therefore did not really know how many changes of sheets were on hand and did not know the number of incontinent patients, his testimony was corroborated and elaborated on by witness Holzberger who did observe the total supply of linen on hand including the supply room and established that on March
3 and March 6, 1980 there was insufficient bed linen available for the 65 incontinent patients to accomplish linen changes every two hours required by good nursing practice on one shift, and on March 6, 1980, there were only 68 absorbent underpads and 74 sheets available for 65 incontinent patients. Thus, evidence propounded by the Petitioner establishes a violation of Sections 400.022(1)(j), 400.141(4) and Rule 10D-29.49(2)(g), Florida Administrative Code, in that the Petitioner showed that the Respondent's housekeeping plan was not effectively administered and carried out on these occasions and these types of patients were subjected to physical abuse and unsanitary operations. In mitigation of the violation the Respondent established that in that same month an additional, adequate supply of linen had been ordered and was shortly thereafter received and that immediately following the inspection at which these violations were noticed, an adequate supply of linen was provided the patients. Additionally, the Respondent established that through use of its laundry facilities a shortage of this severity was not a regularly recurring problem in the facility. Accordingly, in view of the circumstances surrounding this violation, it is concluded that an administrative fine of $200.00 is warranted.
COUNT VII
Count VII of the Administrative Complaint charges that there were inadequate medical supplies for the care of the patients on March 6, 1980 in violation of the above discussed statutory authority as well as Rule 10D- 29.38(8) which is the provision requiring the Administrator of the nursing home to appoint a registered nurse who shall supervise and be responsible for direction of all facets of adequate nursing care of patients including, in pertinent part, the "observance of rules and regulations as they pertain to patient care. As found above, on an inspection on March 6, 1980, employees of the Petitioner questioned the adequacy of certain medical supplies such as adhesive tape, razor blades, sterile gloves, etc. There was no evidence adduced however to establish what the medical supply requirements of the facility are, based upon the types of patients it cares for, and thus it was not established that the types and amounts of medical supplies present were inadequate.
Further, the testimony of the Respondent's employee responsible for provision of medical supplies established that in the uninspected medical supply room there was a substantially greater amount of tape, razors, sterile gloves and other items which the petitioner alleged were not in sufficient supply. Accordingly, the evidence in the record does not substantiate a violation of the above
authority and particularly does not establish how this alleged condition constitutes a failure of supervision of observance of rules and regulations pertaining to patient care. Accordingly, it is concluded that Count VII of the Administrative Complaint should be dismissed.
COUNT VIII
Count VIII of the Administrative Complaint concerned various alleged shortages between February 20 and March 4, 1980 in the nursing staff on various duty shifts. Rule 10D-29.39(1)(a) and (b), Florida Administrative Code, provides staffing standards based upon the number of skilled nursing care homes such as the Respondent. The Petitioner, however, failed to carry its burden of proof in this regard, since it failed to establish the number of skilled patients residing in the Respondent's nursing home on the days it charged there was a shortage of nursing staff. Since the required nursing staff pursuant to the above Rule is directly dependent on the number of patients present in the home on a given shift, the Petitioner's evidence of a mere average number of patients during the period February 20 to March 4, 1980, compared to the number of nurses reflected on the nurses' payroll "sign-in" sheet, which the evidence reflects did not include all registered nurses, cannot constitute competent, substantial evidence of a nursing shortage in violation of the Rule. Therefore, it is concluded that violation of the Rule has not been proven. Accordingly, Count VIII of the Administrative Complaint should be dismissed.
COUNT IX
Count IX of the Administrative Complaint concerned 14 incontinent patients in the Respondent's facility who were allowed to lie on sheets wet several times without changing. Rule 10D-29.41(7), Florida Administrative Code, provides in pertinent part that each nursing home shall have a patient care policy which contains a provision for protection of patients from abuse or neglect. In consideration of the evidence presented that on March 6, 1980 12 patients had been allowed to lie on sheets previously wet multiple times without changing, the conclusion is inescapable that although the Respondent's patient care policy may provide for protection of patients from this kind of condition, the policy was either ineffective in its provisions or in its implementation. The testimony of the Petitioner's expert witness Nurse Holzberger, establishes that incontinent patients should be examined every two hours and change of sheets made if indicated and if such patients are allowed to lie for such a period of time on urine soaked sheets that it is contrary to good nursing practice and detrimental to the health of the patients. There is no doubt that observance of wet sheets is a normal occurrence in nursing homes, but the number of patients observed in this facility lying on wet sheets together with the unrefuted evidence that all of the 12 patients had been allowed to remain so for a substantial period of time such that they had dried and were wet again precludes any finding that such incidents were of an isolated and nonrecurring nature. This is a patent instance of patient abuse and neglect. The Petitioner's evidence constitutes sufficient proof that the patient care policies of the Respondent required by the above Rule are ineffective or ineffectively enforced and are neither in compliance with the Rule nor Sections 400.022(1)(j) and 400.141(4), Florida Statutes. Accordingly, it is concluded that the recommended fine of $700.00 is appropriate.
COUNT X
Count X of the Administrative Complaint alleges that controlled drugs were not maintained under appropriate security and that they were observed on
unlocked counters in certain drug storage rooms on March 6, 1980 in violation of Rule 10D-29.45(2), Florida Administrative Code, which provides that controlled medicinal substances shall be handled and as pertinent hereto stored in a special locked compartment, in a locked cabinet or in a locked box permanently installed in a locked cabinet. The Petitioner's evidence, through the testimony of its expert witness, Nurse Holzberger, establishes that on March 6, 1980 controlled drugs were indeed resting on counters in all of the four drug rooms at the facility, instead of being in locked compartments. It is true, however, that two of the drug rooms themselves were locked and the other two were unlocked, but with the Respondent's nurses in attendance. Thus, there is no question that the Petitioner has established a violation of the subject Rule.
There is no question that controlled drugs can be dangerous if they fall into the hands of those for whom they are not intended. The evidence reflects, however, that this was not a continuing, recurring type of violation but, to some extent, a technical one, and the evidence shows that the drugs were maintained under personal supervision of the nursing staff at all times and were at least behind a locked door. It is concluded therefore that imposition of the entire requested $300.00 fine for this violation would not be just and reasonable under these circumstances and that a $100.00 fine should instead be imposed for violation of the above-cited Rule.
Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the evidence in the record, it is
RECOMMENDED that for the violations charged in Counts I, II, IV, VI, IX and X of the Administrative Complaint and found herein to be proven, the Respondent should be fined a total of $1,600.00. Counts III, V, VII and VIII of the Administrative Complaint should be dismissed.
DONE AND ENTERED this 31st day of March, 1981 in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1981.
(904) 488-9675
COPIES FURNISHED:
AMELIA PARK, ESQUIRE JANICE SORTER, ESQUIRE
W. T. EDWARDS FACILITY
4000 WEST BUFFALO AVENUE, 4TH FLOOR TAMPA, FLORIDA 33614
KENNETH E. APGAR, ESQUIRE
EDWARD P. DE LA PARTE, JR., ESQUIRE
403 NORTH MORGAN STREET, SUITE 102 TAMPA, FLORIDA 33602
| Issue Date | Proceedings |
|---|---|
| Apr. 22, 1981 | Final Order filed. |
| Mar. 31, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 20, 1981 | Agency Final Order | |
| Mar. 31, 1981 | Recommended Order | Administrative fine of $1600 for allowing patients to sleep on wet sheets, leave without knowledge of staff, keeping medicine unlocked etc. |
