vs. ) CASE NO. 83-3413
Respondent. )
After due notice a hearing was held on March 8, 1984, in Jacksonville, Florida. The Hearing Officer was Charles C. Adams. The transcript of proceedings was filed with the Division of Administrative Hearings on April 9, 1984, and it has been reviewed prior to the entry of the Recommended Order. The parties in the person of counsel have submitted Proposed Recommended Orders and associated argument, the last filing being received on April 20, 1984. To the extent that the proposals are consistent with the Recommended Order, they have been utilized. To the extent that the proposals are inconsistent with the Recommended Order, they are rejected as being immaterial, irrelevant, or contrary to facts found.
For Petitioner: Jonathan S. Grout, Esquire
For Respondent: Michael J. Dewberry, Esquire
John P. Cattano, Esquire 1300 Gulf Life Drive Jacksonville, Florida 32207
Petitioner cited Respondent with deficiencies related to its nursing home operation, as a result of an annual survey. The deficiencies were classified as Class II deficiencies. Respondent has challenged the classification of the deficiencies, in view of the effect of such classification on the rating assigned to the Respondent. The hearing was conducted to consider that challenge.
Mandarin Manor nursing home is a facility in Jacksonville, Florida, which is licensed by the State of Florida, Department of Health and Rehabilitative Services, to provide nursing home services. An annual inspection of the nursing home facility was conducted by Petitioner beginning June 13, 1983, and concluding on June 15, 1983.
During the course of the inspection, on June 13, 1983, it was discovered that patient W in the B Wing of the facility who was supposed to have received ice cream on the evening of June 12, 1983, had not received that snack, notwithstanding the fact that it had been charted in the medical record as having been received. The ice cream had been found in a refrigerator on the wing and was identified as being for the benefit of that patient. (This snack and all subsequent snacks or meals that are reported in this Recommended Order had been ordered by physicians who were treating the patients in the facility.)
On June 13, 1983, patient R.T. in the A Wing was found to have missed the provision of Travasorb at 10:00 a.m., June 10, 1983. Travasorb is a canned supplemental feeding given to increase calories and protein within the diet, or in some instances forms the diet plan for patients who cannot eat solid food. It was noted in the patient's chart that all required feedings had been given the patient on June 10, 1983.
Further inspections were made on June 14, 1983, to determine whether required feedings and meal supplements were being given patients in the facility. On the B Wing it was indicated that for patient M at hour of sleep on June 13, 1983, the patient had received Travasorb. Notwithstanding the charting in the patient's record, the patient had not received that substance. Again, this was determined by finding the substance in the storage area on the wing. (On all other subsequent occasions reported related to the failure to provide the supplement or feeding, verification was made by finding the substance in the storage area on the wing where the patient was housed.) Patient C-1, a diabetic patient, was charted in the medical chart as receiving milk on June 13, 1983, at hour of sleep, when in fact the patient had not received milk. The patient had received juice instead, an inappropriate substitute for milk. As observed on June 14, 1983, patient S was supposed to have received Travasorb at 8:00 p.m. on June 13, 1983, but did not receive that substance. It was not charted as refused. Patient D was supposed to receive four ounces of cranberry juice on June 13, 1983, at time of sleep but did not receive that sub- stance. Nonetheless, the substance was charted in the medical records as given. Patient C-2, another diabetic patient, was supposed to receive several substances as part of the diet for the patient. These substances were to be received at hour of sleep on June 13, 1983, and included diabetic fruit, low-cal cranberry juice, and skim milk. Although these substances were charted as being given to the patient, they were not received by the patient. Patient W, the same W as the evening before, was indicated as having received a Travasorb milkshake at hour of sleep on June 13, 1983, when in fact he (she) did not receive that substance, notwithstanding the entry in the medical records.
On June 14, 1983, the A Wing supplemental food situation was reviewed and it was found that patients J-1 and J-2 supposedly had been given WN-34 at 2:00 p.m. and at hour of sleep, respectively, when in fact the patients had not received the substance. One of the J's was a diabetic. WN-34 is nourishment which is a chemicalized formula preparation. Patient C-3 was charted as having received ice cream on June 13, 1983, at 2:00 p.m., when in fact he (she) had not received that substance. A number of other patients in the A Wing on June 14,
1983, refused their supplemental food or diet, as reflected in the notes of the inspector, a copy of which is found as Petitioner's Exhibit 3, admitted into evidence. This same exhibit notes the other findings that are set forth in discussing the patients who have been identified by initials. 1/
No particular review by Petitioner was made of the patient records to determine medically the exact condition of the patients and the effects of not providing the diet or supplemental snacks.
The dietary consultant to Mandarin Manor, Faith Robinson Welch, who is a registered dietitian, in her monthly inspection of the facility, observed problems with the provision of diet items or supplemental snacks ordered by the physicians and the charting of those items in the medical records of the patient as early as December, 1982, and continuing through June 1983. It was recommended that procedures be followed for indicating if the food had been accepted or refused, with special reference to diabetic patients. The administrator had been provided copies of the reports and had discussed these problems with the dietary consultant. Therefore, at the point of the June, 1983, inspection by the Petitioner the facility was on notice of the problems observed in the course of the inspection. As shown in Petitioner's Exhibit 6, which was admitted into evidence, which is a copy of the dietary consultant's reports, the problems in the past were much the same as were observed in the June, 1983, inspection by the Petitioner. These problems, as noted by the dietitian, had led the nutritionist inspector, Sharron Lucks, employee of the Petitioner, to inspect the A and B Wings within the facility on June 13 and 14, 1983. The reports by Welch do not refer by name to patients who would be the same as checked by Petitioner in its June, 1983, inspection.
As established, all of the food had been ordered by physicians for the patients in those instances of problems identified in the June 13 and 14, 1983, inspections. As such, it was important to comply with the physicians' instructions. It was particularly so related to the diabetic patients, in that their frequent feeding is a part of a diet plan and not in the category of a supplemental snack. None of the diabetics who were overlooked are "brittle" diabetics, such that the missing of a meal would cause radical swings in blood sugar levels. Nonetheless, some of the diabetics who were involved were receiving insulin and a proper caloric count is important.
Dr. Jack Edward Giddings, a medical doctor, who is on the staff at the Mandarin Manor facility and has served as medical director of that facility, testified that the oversight on occasion of provision of diet to the diabetics or supplemental snacks to other patients, would not be detrimental. Over an extended period of time he feels that the patient would suffer. His observations establish that diabetics are receiving the subject food as part of their diet and are in a more critical category, although he saw no harm on this occasion. Dr. Giddings had reviewed some of the charts of the patients subsequent to the events that are in question related to the inspection of June
13 and 14, 1983, and found no indication of health problems subsequent to the inspection, which were attributable to missing parts of the diet or snacks. It is not clear whether he examined charts of all the patients which are at issue on the topic of missing the feedings. Dr. Giddings and other treating physicians also indicated in a pro forma letter or note that certain patients were not affected by the oversights set forth in this account. Those documents may be found as part of Petitioner's Exhibit 5, admitted into evidence. These letters or memoranda do not speak to the patients C-1, S, and C-3.
Patient M-2 had been prescribed a special diet of 60 grams of protein,
2 grams sodium. Lucks, in inspecting the food preparation and delivery on June 13, 1983, noticed that when the tray for M-2 had been prepared only one pat of oleo was provided instead of the three called for, and that four ounces of milk that was not called for was placed on the tray. Cornbread was provided instead of bread, but was similar in amount and is an acceptable substitution. Once these matters had been noted by Lucks and also by the dietary consultant Welch, the tray was taken off the service line and corrections made to the diet plan before the patient received the meal.
The tray of patient M-2 was also observed by Lucks at breakfast on June 14, 1983. The tray was passed by the hot food servers and beyond that point the tray was held up by Lucks in view of the fact that bacon had been placed on the tray and the bacon was not called for. The patient has problems with renal failure and bacon is a substance high in sodium and is not normally called for in a special diet such as patient M-2 was receiving, in that a patient with this condition has trouble eliminating extra sodium from his (her) system. Lucks having discovered the problem, the patient received the appropriate meal.
In Dr. Giddings' opinion, had patient M-2 received the milk, there was not sufficient salt in it to alter the patient's health. Neither would Dr. Giddings find a problem with the receipt on this one occasion of the bacon that was mistakenly placed on the tray on June 14, 1983, for the breakfast meal.
This patient was subsequently discharged and returned home.
Following the inspection, the problems as observed on June 13 and June 14, 1983, related to provision of diet and supplemental snacks were found to be a NH-110 violation, Class II. The problems with the preparation of the meal tray for patient M-2 were cited as a NH-111 violation, Class II. This coding pertains to Rule 10D-29.110(3)(d)3. and (3)(e)1., Florida Administrative Code, respectively. The effects of such declaration of violation would cause the, Respondent to lose superior rating as a nursing home. Consequently, it challenged the classification of the two violations leading to the Subsection 120.57(1), Florida Statutes, hearing. Should the violations be found to be Class III and not Class II violations, the parties have stipulated that all other prerequisites to recognition of the nursing home as a superior facility have been achieved, specifically related to the dietary area. See Rule 10D- 29.128, Florida Administrative Code.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action per Section 120.57, Florida Statutes.
Petitioner had moved to dismiss the action based on the Respondent's alleged failure to make a timely request for hearing. That motion was denied as reflected in the record of these proceedings.
Section 400.23, Florida Statutes, requires the Petitioner to establish performance standards related to nursing homes in areas within the facility to include dietary or nutritional services. Per that provision, depending upon the nursing home's ability to comply with those minimum standards as verified upon an annual inspection, the nursing home is either given a superior, standard, or conditional rating. To this end, Section 400.23(4), Florida Statutes, requires the Petitioner to classify deficiencies observed in its inspection process as
compared to the expected minimum standards which the Petitioner has established. Within that classification scheme is a Class II deficiency, which is defined as ". . . those which the department determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than Class I deficiencies." The violations which are at issue here are claimed by the Petitioner to be Class II violations and if that classification is correct then the Respondent is not entitled to a superior rating, having failed to comply with requirements of Rule 10D-29.128, Florida Administrative Code, as it pertains to the Petitioner's facilities ratings. In effect, per that rule, any Class II violation found in the annual inspection would preclude a superior rating.
To address the question of classification, it must be determined whether the violations are directly or immediately related to the health, safety, or security of the nursing home residents. The first of the violations referred to as NH-110 is a violation envisioned by Rule 10D-110(3)(d)3., Florida Administrative Code, which states "in-between nourishment shall be provided to patients in accordance with the nutritional care components of their care plan." As established in the facts, on June 13 and 14, 1983, it was discovered that at times in that basic reference period the nourishment had not been provided as called for by the patients' physicians. Moreover, some of those patients were receiving those foods not as a supplement but as a principal component of their diet. This relates to the diabetic patients. While not necessarily related to these same patients, this was a condition which had existed for quite some time in the facility and the administrator was aware of those problems based upon the remarks of the dietary consultant to the facility. In spite of this intelligence, a significant number of violations were observed on June 13 and 14, 1983, related to failure to provide the nourishments. That condition was further exacerbated by the fact that in most instances the medical records of the patients indicated that the foods were provided, a patent misstatement. While it has not been demonstrated in any given case that the patient suffered an identifiable injury from the conduct of employees within the facility, the pattern of conduct by those employees as identified at the time of the annual inspection demonstrates a "direct" relationship to the health of the nursing home residents. This is particularly true with the diabetic patients who were receiving the in-between-meal nourishment as a part of the diet plan and not just as a supplemental snack. A Class II violation having been proven, Respondent is not entitled to a superior rating for the period in question.
The policy choices as referred to in the course of the hearing and through argument do not establish a radical departure by the Petitioner from past conduct, i.e., the idea of classifying these violations as Class II when in other similar cases they have classified the violations as Class III. Insufficient information was given to allow a comparison between the present facts and those of other inspections which would promote the opinion that the agency has acted inconsistently and has failed to establish the basis for this change in policy. Likewise, the impression of the agency officials on the question of the meaning in law of the words "direct" or "immediate" only has significance as it pertains to possible inconsistencies in treatment of licensees, which was not shown, and as the vehicle for noticing the Respondent of the deficiencies. Once the notification had been given, it was incumbent upon the Petitioner to prove the efficacy of such classification by underlying evidential facts. Following an assessment of those facts, the decision in law has been made on the question of whether the deficiencies are best characterized in law as "direct" or "immediate."
Pertaining to the patient M-2, an NH-111 violation is said to have transpired. This deals with Rule 10D-29.110(3)(e)1, Florida Administrative Code, which states "all diets, regular and modified, shall be prescribed by the physician in the patient's medical record and shall be served as ordered." The key phrase here is the term "served as ordered." The question is whether those mistakes as observed in the meals prepared on June 13 and 14, 1983, related to the provision of foods with salt in a low-salt diet circumstance, which were discovered on the serving line constitute "service as ordered." "Service" is concluded in law to mean placed before the patient. In view of the intervention of the Petitioner's employee and the dietary consultant on the one occasion, it will never be known whether those meals would have been placed before the patient or "served." Therefore, this violation has not been established.
Upon a full consideration of the facts found and the conclusions of law reached, it is
110 deficiency, dismisses the NH-111 deficiency, and denies Respondent's claim for superior rating in the subject period.
DONE AND ENTERED this 6th day of June, 1984, at Tallahassee, Florida.
CHARLES C. ADAMS
FILED with the Clerk of the Division of Administrative Hearings this 6th day of June, 1984.
1/ Initials are utilized in lieu of the patients' names to protect the patients' privacy.
Jonathan S. Grout, Esquire Staff Attorney
Michael J. Dewberry, Esquire and
John P. Cattano, Esquire
David H. Pingree, Secretary Department of Health and
