Judges: LARRY J. SARTIN
Agency: Agency for Health Care Administration
Latest Update: Oct. 19, 1988
Summary: As stated in the Prehearing Stipulation filed by the parties, the "issue to be litigated is whether Petitioner is entitled to a Superior or Standard rating on its license for the period September 1, 1986 through August 31, 1987"?Petitioner failed to prove nursing home license should be rated superior instead of standard.
86-4182.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE MAGNOLIAS NURSING AND ) CONVALESCENT CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4182
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 8, 1988, in Pensacola, Florida.
APPEARANCES
For Petitioner: Jonathan S. Grout, Esquire
Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32302
For Respondent: Michael O. Mathis, Staff Attorney
Office of Licensure and Certification Department of Health and
Rehabilitative Services 2727 Mahan Drive
Tallahassee, Florida 32308 INTRODUCTION
The Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), issued an Administrative Complaint on March 13, 1986, seeking to revoke the superior rating of the license of the Petitioner, The Magnolias Nursing and Convalescent Center. The Petitioner requested an administrative hearing to contest this proposed action and the request for hearing was assigned case number 86-1432.
By letter dated September 16, 1986, the Department informed the Petitioner that its license rating was being changed from a superior rating to a standard rating for the period September 1, 1986, to August 31, 1987. The Petitioner requested an administrative hearing to contest this proposed action and the request was assigned case number 86-4182.
Case number 86-1432 and case number 86-4182 were consolidated by Order dated April 7, 1987.
Prior to the commencement of the formal hearing the parties filed a Prehearing Stipulation. Pursuant to the Prehearing Stipulation the Department agreed to dismiss, with prejudice, the Administrative Complaint which is the subject of case number 86-1432. Accordingly, an Order Closing File has been issued simultaneously with this Recommended Order relinquishing jurisdiction over case number 86-1432 to the Department and closing the Division of Administrative Hearings' file.
At the formal hearing the Petitioner presented the testimony of L. Howard Bennett and Kattie Mayo. Ms. Mayo was accepted as an expert in nursing home care.
The Department presented the testimony of Catherine Denson and Howard Chastain. Ms. Denson was accepted as an expert in nursing home care and Mr. Chastain was accepted as an expert in nursing home evaluations. The Department also presented seven exhibits for identification. These exhibits were marked as "Respondent's" exhibits. Respondent's exhibits 1-5 and 7 were accepted into evidence. Respondent's exhibit 6 was not offered into evidence.
Official recognition of Chapter 10D-29, Florida Administrative Code, and Chapter 400, Florida Statutes, was taken.
During the formal hearing the parties stipulated that only observations identified as NH 100 and NH 102 in DHRS exhibit 2 are at issue in this proceeding. It was further stipulated that unless the standard of care required of the facilities charge nurse is determined to be out of compliance the Petitioner is entitled to a superior rating on its nursing home license for the period September 1, 1986, through August 31, 1987. Finally, it was stipulated that the financial loss to the Petitioner if it is not granted a superior rating on its nursing home license will be approximately $100,000.00.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
ISSUE
As stated in the Prehearing Stipulation filed by the parties, the "issue to be litigated is whether Petitioner is entitled to a Superior or Standard rating on its license for the period September 1, 1986 through August 31, 1987"?
FINDINGS OF FACT
The Petitioner, The Magnolias Nursing and Convalescent Center, is a 210-bed nursing home located in a four-story building in Pensacola, Florida. It is licensed as a nursing home by the State of Florida pursuant to Chapter 400, Florida Statutes. Howard Bennett and his wife have been the owners of the Petitioner since it was built in 1978.
On April 28-30, 1986, and May 1-2, 1986, the Department conducted an annual Licensure and Certification survey (hereinafter referred to as the "Annual Survey") of the Petitioner's nursing home as required by Section 400.23, Florida Statutes.
Based upon the Annual Survey conducted by the Department, the Department determined that the Petitioner's facility failed to meet nursing home
licensure requirement numbers (NH) 100 and 102, as identified on the Department's Nursing Home Licensure Survey Report, DHRS exhibit 2.
The deficiencies found by the Department and which in fact existed during the Annual Survey relating to NH 100 and 102 were as follows:
The charge nurse for each shift on each of the four floors of the facility is responsible, under direction from Director of Nursing, for the total nursing activities in the facility during each tour of duty. The charge nurses are thus responsible for ensuring that nursing personnel carry out the direct nursing care needs of specific patients and assist in carrying out these nursing care needs. This responsibility is not always met in that: On the day of the survey, there were urine odors noted on the halls, rooms of fourth and third floors, indicating lack of attention by nursing. Other instances of lack of personal attention by nursing on the above mentioned floor in that: One patient required oral hygiene. Fourteen residents required fingernail care, one resident's fingernails were long, thick, and black indicating a need for attention. Two residents had redden buttocks, three residents were wet, three residents needed shaving, three residents needed hair cuts. One resident needed colostomy bag changed.
One resident had a small amount of feces on backside, and was not properly cleaned around the rectum and scrotum.
Several residents had on clothing that was too tight, zippers open, buttons not fasten, soil wrinkled and threads hanging around the bottom. It is also noted, that there are 116 total care, and 17 self care residents in the facility indicating a need for constant intensive nursing care to the residents. Ref. 10D-29.108(3)(d)(1)
Based upon the totality of these deficiencies, it was concluded that the Petitioner failed to comply with the standard of care to be provided by the charge nurse.
The deficiencies cited by the Department during the Annual Survey were classified as Class III deficiencies.
The Annual Survey was conducted by Christine Denson. Ms. Denson had conducted nine to ten annual surveys of the Petitioner prior to the survey which is the subject of this proceeding. During Ms. Denson's inspection of the
Petitioner's nursing home, Ms. Denson pointed out the deficiencies which are noted above to the director of nursing who accompanied Ms. Denson during her inspection.
Ms. Denson normally records in some manner the identity of a resident to whom a deficiency relates; by noting the room number or bed number. Ms. Denson did not follow this procedure during the Annual Survey.
Ms. Denson met with Howard Bennett, the owner of the Petitioner, at the conclusion of the Annual Survey. After Ms. Denson had explained the deficiencies she had found during her inspection, Judge Bennett stated to Ms. Denson: "I know the place is going down hill. We are letting it slide. Judge Bennett did not ask Ms. Denson for any information concerning the identity of the residents to which deficiencies related.
The Petitioner had policies in effect at the time of the Annual Survey which addressed each of the deficiencies cited by the Department. Those policies were not, however, followed.
Ms. Denson did not know when the residents to which the deficiencies she found related had been admitted to the Petitioner, their medical condition, how long the fingernail problems had existed or how long the residents had resided at the Petitioner. Ms. Denson did not speak to the residents about the problems she noted, review their medical or dental records or talk to any residents' physician. Finally, Ms. Denson did not remember whether any of the residents were continent or incontinent.
On August 13, 1986, a letter was issued by the Department informing the Petitioner that its license rating was being converted from a superior rating to a standard rating.
The August 13, 1986, letter from the Department also indicated that the deficiencies noted in the Annual Survey had been corrected based upon a July 31, 1986, follow-up inspection conducted by the Department.
The Petitioner requested an administrative hearing challenging the proposed rating of its license by letter dated September 24, 1986.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
Section 400.23(1), Florida Statutes, provides that it is the intent of the Legislature that rules be published which include standards by which a reasonable and consistent quality of resident care can be ensured in nursing homes in Florida. Pursuant to this requirement, the Department has promulgated Chapter 10D-29, Florida Administrative Code.
In order to insure compliance with the standards applicable to nursing homes, Section 400.23(3), Florida Statutes, and Rule 10D-29.128(2), Florida Administrative Code, require that all nursing homes in the State be evaluated by the Department at least annually to determine the degree of compliance by nursing homes with minimum standards. The procedures to be employed by the Department in evaluating nursing home facility deficiencies are provided in Rule
10D-29.128(1), Florida Administrative Code. In particular, Rule 10D- 29.128(1)(a), Florida Administrative Code, provides the following:
Deficiencies shall be based on the failure of the licensee to meet the conditions, standards and element's contained in sections 10D-29.100 through and including 10D-29.126, F.A.C., Chapter 400, Part I, F.S. and the Nursing Home Licensure Survey Report which is incorporated by reference. The severity of each deficiency may be categorized as Class I, Class II, or Class III, as defined in section 400.23, F.S.
Based upon the annual evaluations conducted by the Department, nursing homes are to be assigned a rating. Section 400.23(3), Florida Statutes. The ratings which a nursing home can achieve include, from the highest rating to the lowest, a superior rating, a standard rating or a conditional rating. Rule 10D- 29.128, Florida Administrative Code.
In order to be entitled to a superior rating, Section 400.23(3)(a), Florida Statutes, requires that a nursing home be in compliance with minimum standards and that it exceed minimum standards in several enumerated areas, which are to be categorized as Level I or Level II areas. A Level I area is one that is essential to maintaining the health, safety or security of residents. A Level II area is one that is less directly related to the health, safety or security of residents but which is important to the overall quality of care and services of the nursing home. Section 400.23(3)(b), Florida Statutes. In order to be entitled to a superior rating, a nursing home must exceed minimum standards established for all Level I areas and a majority of Level II areas and comply with minimum standards for the remaining Level II areas. Id.
Among the areas enumerated in Section 400.23(3)(a), Florida Statutes, is nursing services. Pursuant to Rule 10D-29.128(5)(c), Florida Administrative Code, nursing service is a Level I area. Therefore, in order for a nursing home to be entitled to a superior rating, its nursing services must exceed minimum requirements.
Nursing services standards for nursing homes are provided in Rule 10D- 29.108, Florida Administrative Code. At issue in this proceeding is the requirement of Rule 10D-29.108(3)(d)1, Florida Administrative Code, which provides the following:
The Director of Nursing Services shall designate one qualified licensed nurse on each shift to serve as charge nurse.
During their specific tours of duty, i.e., shifts, persons designated as charge nurse shall be responsible for the total nursing care of the residents; shall make daily rounds to observe and evaluate the residents; shall ensure that the nursing services are delivered in accordance with the established
standards, policies, and procedures of the nursing home facility; and shall be directly responsible to the Director of Nursing Services.
Nursing care which must be provided to residents of nursing homes is provided by Rule 10D-29.108(5)(b), Florida Administrative Code, which provides in pertinent part:
Nursing care provided to residents shall include, but is not limited to, the following nursing measures:
Personal hygiene to maintain healthy skin, resident comfort, and to prevent infection;
* * *
Institution of a preventive regimen for any resident liable to develop pressure sores.
Residents confined to bed or having limited mobility shall have their position changed at least every two hours to prevent circulatory stasis and pressure to body parts;
Residents who are at risk of developing pressure sores shall have a daily skin examination for redness, discoloration, or blistering at body pressure points;
8. Protection from accident, injury, neglect, and abuse;
The evidence in this case proved that the residents of the Petitioner's facility were not receiving the nursing care required by Rule 10D- 29.108(5)(b), Florida Administrative Code, during the Annual Survey of the Petitioner. The Petitioner's charge nurse, therefore, was not fulfilling his or her responsibility for the provision of total nursing care of the residents of the Petitioner. The Petitioner has, therefore, committed deficiencies by failing "to meet the conditions, standards and elements contained in sections 10D-29.100 through 10D-29.126, F.A.C...." See Rule 10D-29.128(1)(a), Florida Administrative Code.
Although the Petitioner has not argued that the deficiencies cited by the Department did not exist, it has argued that the events cited by the Department do not constitute deficiencies. In support of this argument, the Petitioner presented evidence concerning possible explanations for the occurrences cited by the Department and evidence that the Department did not conclusively insure that these possible explanations were not the actual causes for the occurrences. For example, evidence was presented that some residents refuse to shave and that a notation is made in the resident's record when this occurs. Evidence was also presented that the Department did not ask any of the residents who had not been shaved whether they had refused to shave and that the Department did not check the residents' records to see if it had been noted that a resident had refused to shave. The Petitioner therefore suggests that because there is a possible explanation of why a resident had not been shaved and
because the Department did not disprove that possible explanation, the Department has failed to prove that a deficiency existed.
Accepting the Petitioner's argument would place too great a burden of proof on the Department. In order to accept the Petitioner's argument it would be necessary for the Department to present evidence that the deficiency existed and evidence that any possible explanation for the deficiency did not in fact exist. In the opinion of the undersigned, the Department is only required to present evidence that it found instances which constitute deficiencies. The burden then shifts to the Petitioner to prove the existence of any possible explanations for the deficiencies. Although it is true that the Department did not write down the names of the residents or otherwise identify the residents involved in the deficiencies, thereby hampering the Petitioner's ability to determine if there were legitimate excuses for the cited deficiencies, the Petitioner had ample opportunity during the Department's inspection to identify the residents. During the Department's inspection, a nurse accompanied the Department's inspector and was informed of each of the deficiencies. The owner of the facility was also told of the deficiencies immediately after they were discovered. The identity of the residents could have been noted by the nurse or requested of the Department's inspector by Judge Bennett. Additionally, if the possible explanations for the deficiencies were actual explanations, the nurse or Judge Bennett could have explained the deficiencies at that time. In light of their failure to do so, it is more likely that the possible explanations for the deficiencies did not in fact exist.
Based upon the fact that the Petitioner has failed to meet the standards of nursing care prescribed by Rule 10D-29.108, Florida Administrative Code, through its charge nurse, it is concluded that the Petitioner has failed to "exceed the minimum requirements" of providing nursing services, a Level I area. See Rule 10D-29.128(6)(c), Florida Administrative Code. The Petitioner is therefore not entitled to a superior rating for its facility for the period at issue in this proceeding.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued assigning a standard rating on the
Petitioner's license for the period September 1, 1986, through August 31, 1987.
DONE and ENTERED this 19th day of October, 1988, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4182
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The Petitioner's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Accentance or Reason for Rejection
1-3, 6-7, 81 These are matters included in the
Prehearing Stipulation. They are hereby accepted.
4-5 Statement of the issue in this case
8 Not supported by the weight of the evidence. Ms. Denson testified at pages 48-49 of the transcript that whether a nursing home was considered to be out of compliance depended on the totality of the deficiencies and that she considered all of the deficiencies she found at the Petitioner's facility.
9 12.
10-11 10.
12-13 7.
14 Irrelevant.
15-16, 19-20,
22-23, 25,
29-31 10.
17 Hearsay.
18, 28, 33-34,
36-37, 39,
41-43, 45 Hereby accepted.
21, 24, 26-27,
32, 48, 54-66,
71, 73-77 These proposed findings of fact are
generally true. They all involve, however, possible explanations for the deficiencies found at the Petitioner's facility. In order for these proposed findings of fact to be relevant it would have to be concluded that the Department had the burden of dispelling any and all possible explanations for the deficiencies. Such a conclusion would not be reasonable in this case. The Department presented testimony that the deficiencies cited existed and that, taken as a whole, they supported a conclusion that the Petitioner was not providing minimum nursing care. This evidence was credible and sufficient to meet the Department's burden of proof and to shift the burden to the
Petitioner to provide proof of any explanations for the deficiencies.
35 9.
38, 40, 49-51,
53, 82-83,
86-87 Irrelevant and/or argument.
43-44 1.
46-47, 51, 56,
66-67, 71-71 These proposed findings of fact are
true. They are not relevant to this proceeding, however, because they involve situations at the Petitioner's facility which may explain the deficiencies. The Petitioner failed to prove that they actually were the cause of any of the deficiencies.
70, 78-80,
84-85 Conclusions of law.
The Respondent's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 2-3.
2 11-12.
3 4 and 6.
4 4.
5-7 Irrelevant, summary of testimony, conclusion of law.
8 9.
9 8.
10 Irrelevant.
11 8.
12 Summary of testimony and facts relating to the weight of Ms. Mayo's testimony.
13-14 Hereby accepted.
15 Argument.
16-17 Conclusions of law.
18 4.
19-20 Conclusions of law, argument and irrelevant.
COPIES FURNISHED:
Jonathan S. Grout, Esquire Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32302
Michael O. Mathis Staff Attorney
Office of Licensure and Certification
Department of Health and Rehabilitative Services 2727 Mahan Drive
Tallahassee, Florida 32308
Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE MAGNOLIAS NURSING AND ) CONVALESCENT CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4182
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondent. )
)
CORRECTIVE ORDER
On October 10, 1988, a Recommended Order was issued in this case and was mailed to the parties. In the Appendix of the Order appearing at page 15 the following errors were made: (1) the second reference to paragraph "51" should have been a reference to paragraph "52"; and (2) the reference to paragraphs "67, 71-71" should have been a reference to paragraphs "67-69, 72." Attached to this Order is a corrected page 15 of the Recommended Order.
DONE and ORDERED this 12th day of December, 1988, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1988.
COPIES FURNISHED:
Jonathan S. Grout, Esquire Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32302
Michael O. Mathis Staff Attorney
Office of Licensure and Certification
Department of Health and Rehabilitative Services 2727 Mahan Drive
Tallahassee, Florida 32308
Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Docket for Case No: 86-004182
Orders for Case No: 86-004182
| Issue Date |
Document |
Summary |
|
Nov. 28, 1988 |
Agency Final Order
|
|
|
Oct. 19, 1988 |
Recommended Order
|
Petitioner failed to prove nursing home license should be rated superior instead of standard.
|
