STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LIVING CARE, INC., D/b/a )

DUNEDIN CARE CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3710

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an Administrative Hearing was held before William

R. Cave Hearing Officer with the Division of Administrative Hearings on March 18, 1985 in Winter Park, Florida.

APPEARANCES

For Petitioner: Jonathan S. Grout Esquire

Suite 500, Day Building 605 East Robinson Street Post Office Box 1980 Orlando, Florida 32802

For Respondent: Gerry Clark Esquire

District VII Legal Counsel

400 West Robinson Orlando Florida 32801

The Amended Petition For Formal Administrative Hearing arises out of an annual survey of Petitioner, Dunedin Care Center, Inc., conducted by Respondent, Department of Health and Rehabilitative Services, Office of Licensure and Certification, during the period of August 6-8, 1984. The annual survey, HRS Form 553, charged Petitioner with failure to follow physician orders as prescribed and classified such failure as a Class II deficiency specifically NH-

1. In addition, Petitioner takes exception to Respondent's failure in its annual survey to make a determination of "unusually effective functioning" in the area of nursing services.

   
   

   Accordingly, the issues are: (1) whether the citation by Respondent alleging that Petitioner did not follow physician orders as prescribed constitutes a Class II or Class III deficiency, and (2) whether Petitioner demonstrated "unusually effective functioning" in the area of aides and orderlies or whether Petitioner substantially exceeded minimum requirements in the area of staffing ratio of aides and orderlies.

   
   

   The Respondent proceeded first and was charged with the initial burden of proof.

   Respondent presented the testimony of Carol Edwards. Respondent's Exhibit No. 1 was received into evidence.

   
   

   Petitioner presented the testimony of Barbara Ladd, Kathleen Wingard and Charles Heinz. Petitioner's Exhibits Nos. 1-6 were received into evidence.

   
   

   The Petitioner submitted post hearing proposed findings of fact and conclusions of law pursuant to Section 120.57(1)(b)(4), Florida Statutes (Supp. 1984). A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessarily. The Respondent did not file any post hearing proposed findings of fact and conclusions of law as provided for in Section 120.57(1)(b)(4), Florida Statutes (Supp. 1984).

   
   

   FINDINGS OF FACT

   
   

   1. At all times material hereto, Petitioner was licensed as a nursing home by the State of Florida, Department of Health and Rehabilitative Services, Respondent, and certified to participate in the Florida Medicaid Program.

      
      

   2. Respondent conducted the annual licensure survey of Petitioner during the period August 6-8, 1984 and its findings were transmitted to Petitioner on August 31, 1984, on HRS Form 553.

      
      

   3. In conducting the annual survey the Respondent pulled a sample of 10 patient records out of a census of 96, census being the number of patients in the facility on a particular day. Of the 10 records pulled and reviewed, 4 of the patients' records indicated that physicians' orders had not been followed. The 4 patients records where physicians orders had not been followed revealed:

      (a) the failure to apply Lotromin Cream to patient's left foot and toes twice a day for a week as prescribed; (b) the failure to apply Clears eyedrops 4 times daily as prescribed; (c) failure to timely take a potassium blood test as ordered; and (d) failure to timely take a test for occult blood in the stool as ordered.

      
      

   4. Lotromin Cream prescribed by Dr. Gary Goodman on June 30, 1984 to be applied to the patient's left foot was never administered by Petitioner.

      
      

   5. Lotromin Cream prescribed in this situation for a fungus condition may improve the conditions but generally, is not a cure.

      
      

   6. During the time frame of the annual survey, Clears eyedrops were prescribed by Dr. Arthur Barlin for a patient to be administered 4 times a day to the left eye. This order was not followed because the patient had lost his contact lens and the purpose of eyedrops was to lubricate the contact lens. The reason for not administering eye drops was not documented at the time by Petitioner.

      
      

   7. The test for occult blood in the stool ordered by Dr. Raymond D. Hansen on July 20, 1984 was never taken. A stool specimen is necessary for this test and is usually obtained where there is a bowel movement but there are other methods of obtaining a stool specimen. The patient's bowel movements were

      irregular and no stool specimen by any method was ever obtained to run this test. However, on July 30, 1984, the patient had a nasogastric tube inserted for tube feeding and the patient's condition improved and it was subsequently determined that the problem was not related to any gastrointestinal bleeding. No further order was given for testing occult blood in stool on this patient.

      
      

   8. On June 22, 1985 Dr. Samuel A. Pettina ordered a potassium blood level test to be taken in approximately 1 month. This potassium blood level test was not taken until August 7, 1984, approximately 6 weeks after the order when it was brought to Petitioner's attention by a member of the survey team, Carol Edwards. No other potassium blood level test was ordered by the physician for this patient during this period of time.

      
      

   9. None of the 4 patients suffered any identifiable ill effects in regard to their health as a result of Petitioner's noncompliance with the physicians' orders as prescribed.

10 Under a previous Director of the Office of Licensure and Certification a NH-68 violation was considered to be a Class II deficiency unless the surveyor could justify to the Director that it deserved another classification. This survey was conducted under a different Director and the memorandum classifying a NH-68 violation as a Class II deficiency was no longer being used.

1. Carol Edwards, a member of the survey team, requested from Barbara Ladd (Ladd) Director of Nursing, the following information in regard to the staffing of orderlies and aides for the 6 months (February - July, 1984) previous to the survey: (a) the census of patients for each day of 1 week, the week to be picked by Ladd, for each of the previous 6 months; and (b) the actual number of orderlies and aides on any 2 of 3 shifts for each day, the shifts to be picked by Ladd, for each week selected in (a) above. Barbara Ladd collected this information and calculated the adjusted census for Carol Edwards. Based on the adjusted census provided by Barbara Ladd, Carol Edwards then calculated the minimum staffing requirements for orderlies and aides for each shift on each day in the weeks selected by Ladd for the previous 6 months. Based on this information, the Petitioner failed to substantially exceed the minimum staffing requirements for aides and orderlies on 5 out of 14 shifts during the week of February 13-19, 1984, on 6 out of the 14 shifts during the week of March 5-11, 1984, on 4 out of 14 shifts during the week of April 9-15, 1984 and on 1 out of

   14 shifts during the week of June 11-17, 1984. Petitioner's Exhibit No. 6 shows Petitioner substantially exceeding the minimum staffing requirements for aides and orderlies on the p.m. and night shifts during the July, 1984 and during June, 1984 with the exception of the night shift on June 1 and 4, 1984, and the

   P.M. shift on June 22, 1984. While Petitioner's Exhibit No. 5 shows Petitioner substantially exceeding the minimum staffing requirements for orderlies and aides, calculated on a monthly basis by hours, in all shifts for February, March, April, May, June, and July, 1984 with the exception of the a.m. shift in February and March, 1984, the more credible evidence is contained in Respondent's Exhibit No. 1 and Petitioner's Exhibit No. 6 since they are calculated by shifts on a daily basis. The record is not clear, but it appears that Respondent considers exceeding the minimum requirements by 10 percent satisfies the language "substantially exceeds" the minimum requirements.

   
   

2. The testimony of Ladd in regard to aides and orderlies assisting patients beyond their normal duties was credible and could be considered as demonstrating "unusually effective functioning" of orderlies and aides. This testimony was supported by documents in Petitioner's Exhibit No. 2 from members of patients' families and from the aides. The record is unclear but apparently

the Respondent did not consider whether or not orderlies and aides had demonstrated "unusually effective functioning" but was concerned more with staffing and whether the minimum staffing requirements had been substantially exceeded.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding.

13, Section 400.23 Florida Statutes, requires the Respondent to establish performance standards related to nursing homes in areas within the facility to include nursing service. Additionally Section 400.23(3), Florida Statutes, requires the Respondent to, "at least annually, evaluate all nursing home facilities and make a determination as to the degree of compliance...with minimum standards...as a basis for assigning rating to that facility." Upon a determination by the Respondent of the nursing home facility's compliance with the minimum standards, the facility is given a superior, standard or conditional rating.

1. Section 400.23(4) Florida Statutes provides that when minimum standards are not met, then such deficiencies shall be classified according to the nature of the deficiency. In that regards a Class II deficiency 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 resident, other than Class I deficiencies." The alleged violations of the minimum standards by the Petitioner is claimed by the Respondent to be a Class II deficiency and if that classification is correct then the Petitioner is not entitled to a superior rating, having failed to comply with the requirements of Rule 10D-29.128, Florida Administrative Code.

   
   

2. The alleged violation referred to as a NH-68 is a violation envisioned by Rule 10D-29.108(b), Florida Administrative Code, which requires that all physicians' orders be followed as prescribed. And that where such orders are not followed the reason for not following such orders shall be recorded in the resident's medical record during the shift the order was to be carried out and notify the physician, "unless in the judgment of the charge nurse; the situation is not life threatening." This is also covered in Rule 10D-29.107(11), Florida Administrative Code.

   
   

3. The facts are undisputed that in 4 instances involving 4 patients, the Petitioner failed to follow the physician's orders as prescribed and additionally; failed to record the reasons for such noncompliance in the resident's medical records. While the appropriate physician was not notified, it did not appear that any of these cases were life threatening situations. Although in none of these circumstances did any of the residents suffer any ill effects to their health, this could not have been known at the time of such noncompliance. When a physician orders medication or tests it is for the benefit of the resident's health or otherwise it would not have been ordered. And, therefore, has a "direct relationship" to the resident's health. A Class II deficiency has been proven.

   
   

4. Petitioner contended that it substantially exceeded the minimum staffing requirements for aides and orderlies as provided in Rule 10D-29.108, Florida Administrative Code.

5. Rule 10D-29.128(2)(a)5.b, Florida Administrative Code, requires that not only must the nursing home facility substantially exceed the minimum staffing requirements for orderlies and aides but that this requirement be consistently met during the proceeding 6 months. The facts show that the Petitioner substantially exceeded the minimum staffing requirements for orderlies and aides the majority of the time, however, the Petitioner was not consistent in substantially exceeding the staffing requirements for orderlies and aides.

   
   

6. The facts show that Petitioner requested its orderlies and aides to perform certain tasks for their patients outside their normal scope of duties which if performed would demonstrate "unusually effective functioning" of orderlies and aides as envisioned by Rule 10D-29.128, Florida Administrative Code. The facts also show that some of Petitioner's orderlies and aides demonstrated "unusually effective functioning." The Respondent had provided no guidelines in this area and presented no evidence that Petitioner's orderlies and aides were not performing these tasks outside the normal scope of their duties. Therefore, Petitioner's evidence was sufficient to show compliance with the requirements of Rule 10D-29.128, Florida Administrative Code to demonstrate "unusually effective functioning" of its orderlies and aides.

RECOMMENDATION

Based upon the findings of facts and conclusions of law recited herein, it

is

RECOMMENDED that the Respondent enter a Final Order classifying the NH-68

violation as a Class II deficiency and denying Petitioner a Superior Rating.

Respectfully submitted and entered this 5th of August, 1985, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of August,1985.

COPIES FURNISHED:

Jonathan S. Grout, Esquire Suite 500, Day Building 605 East Robinson Street

P. O. Box 1980 Orlando, Florida 32802

Gerry Clark, Esquire District VII Legal Counsel

400 West Robinson Orlando, Florida 32801

David Pingree Secretary

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-003710

Orders for Case No: 84-003710