vs. ) CASE NO. 89-4346
Respondent. )
This matter was heard by William R. Dorsey, Jr., the assigned Hearing Officer of the Division of Administrative Hearings, on November 7, 1989, in Miami, Florida.
For Petitioner: David G. Winfred, pro se
For Respondent: Leonard T. Helfand, Esquire
The issue is whether Norwood Pines' annual licensure to operate an adult congregate living facility should be renewed. The Department denied renewal because of repeated failures to correct deficiencies at the facility, and due to the necessity to impose a moratorium on admissions on March 31, 1989, due to conditions at the home which threatened the health, safety, and welfare of residents.
Norwood Pines had been licensed as an Adult Congregate Living Facility (ACLF) under the "Adulte Congregate Living Facilities Act", Part II, Chapter 400, Florida Statutes. It had a licensed capacity of four beds.
A survey of Norwood Pines was conducted by Lorraine Grissom, a registered nurse who serves as a senior community health nursing consultant for the Department. She regularly conducts ACLF licensure surveys. An ACLF is a home which provides housing, food service, and personal services for adults,
which may include limited nursing services when the home is specifically licensed to do so. Section 400.402(2), Florida Statutes. An ACLF license is good for only one year. Section 400.417(1), Florida Statutes.
At the time of the survey on March 31, 1989, four elderly women resided at the Norwood Pines ACLF: J.M., R.R., B.A.; and a fourth resident whose condition is not at issue in this proceeding.
The home had been established by David Winfrey, and his wife, Barbara Winfrey, who is a registered nurse. Barbara Winfrey had been involved in the operation of the facility but had turned over responsibility for the ACLF to Mr. Winfrey. At the time of the survey on March 31, 1989, she was but of town, out of touch, and unavailable to consult with the aide at the home about problems with any of the residents.
On her first visit Ms. Grissom observed one of the aides at the home was under the influence of come substance (whether alcohol or drugs could not be readily determined). The aide's gait was unsteady (she stumbled several times), her speech was slurred, and the content of her conversation was disorganized. The aides had never been given written job descriptions outlining their duties and responsibilities in providing personal care to the residents.
Two residents at the ACLF were inappropriate for ACLF care. J.M. was incontinent, confused, and needed care beyond that which Norwood Pines was able to provide. Rule 10A- 5.0181(3)(a)1.e., Florida Administrative Code. B.A. was confused and disoriented; would wander outside in the rain, needed to be watched constantly; and needed to have drugs administered, because she was too disoriented to medicate herself. Rule 10A- 5.018(2)(a)4.c., Florida Administrative Code. B.A. was so disoriented that in case of fire she could not preserve herself or follow directions. Rule 10A-5.0181(2)(a)4.f., Florida Administrative Code.
Food service at the home was inappropriate in that menus had not been dated and planned one week in advance, and menus were not followed in the preparation and service of food. Mr. Winfrey did not contest this survey finding, although he did maintain that residents got enough to eat.
The administration of medications to residents was a severe problem at the home. There were problems with the supervision of administration of medications, the maintenance of proper medication records, and proper storage and labeling of medications.
If a resident is fully capable of taking her own medication, she may purchase and maintain in her own room over- the-counter drugs such as aspirin or rolaids without a prescription, and without the necessity of a label showing the name of the resident, the name of the prescribing M.D. and instructions for the use of the medication. If the facility undertakes the responsibility for supervision of self- administered medications, staff must read the medication label to the resident when it is taken, check self-administered dosages against the label of the container, and assure that resident obtains and takes the dosage prescribed. Rules 10A-5.013(2)(jj) and 10A-5.024(1)(c), Florida Administrative Code.
Medicines may be centrally stored but medicines so stored must be kept locked. Rule 10A-5.0182(3)(a)4.a., Florida Administrative Code. Resident R.R. was seen removing Excedrin from an unsecured cabinet in violation of the rule.
The centrally stored medicines were not labeled with the name of the resident, the dose, the M.D. who prescribed it, and the directions for use, in violation of Rule 10A-5.0182(3)(a)5., Florida Administrative Code.
A medication sheet was not kept for the medication administered to residents, contrary to Rule 10-5.024(1)(c), Florida Administrative Code. For example, resident R.R. had a prescription for 30 Tylenol #3 tablets filled on March 25, 1984. Although 5 tablets were left in the bottle on March 31, 1989, there is no indication on her medication sheet that she had been provided those tablets. This violates Rule 10A-5.0182(3)(b)2.h. and (c)1., Florida Administrative Code.
In addition, there was no indication that Peri- Colace, which had been ordered by a physician for resident J.M., had been given. Staff advised Ms. Grissom that J.M. had not been given the medicine during the month of March because J.M. could not swallow it. This information was not given to J.M.'s physician. As a result, J.M. became impacted with feces. Staff was then instructed to administer Ex-lax to J.M. without a physician's order, and not to document its use on the medication sheet for J.M. Staff also gave J.M. a Fleet enema, without a physician's order. This was not proper treatment for the impaction. As a result of the impaction, JAM. had refused to eat for 2-3 days, was lethargic and was aspirating mucus. She also had difficulty breathing. The aide did not notify J.M.'s physician of this, even though her condition was a significant deviation from J.M.'s normal state of health, in violation of Rule 10A-5.0182 (1)(d), Florida Administrative Code.
Resident B.A. needed to have her medication actually administered to her, rather than having supervision in taking her own medication. Staff at an ACLF may administer medication to a resident if there is a licensed RN or LPN on staff. There was no nurse at Norwood Pines to administer medication; it was done by an untrained, unlicensed aide, in violation of Rule 10A-5.0182(3)(b) and (c), Florida Administrative Code. This is especially significant because the medications involved were psychotropic drugs such as Mellaril, which the doctor ordered to be administered on an "as needed" basis for depression. This medication was given daily, because the aide did not know how to recognize behaviors which show that it was needed, something which a LPN or RN could be trained to recognize. Daily administration of Mellaril is dangerous, and contrary to the physician's instructions. The side effects of Mellaril can be severe shaking and involuntary movements, which is a particularly high risk for elderly persons, and can be irreversible.
Other drugs which did appear on the medication sheets for patients on March 31, 1989, such as Lanoxin, and Haldol were not in the ACLF and therefore could not be administered as required.
These violations found on March 31, 1989, had been brought to the attention of the Administrator before. Unlabeled medications, use of unlicensed staff to give medication and the lack of health assessments had been cited as deficiencies on the October 22, 1988, survey.
Ms. Grissom returned on May 31, 1989, for a follow- up survey to see whether the deficiencies identified on March 31, 1989, had been corrected. All of the deficiencies remained uncorrected, including those related to proper storage, labeling, recording and supervision of the administration of medication; to the criteria for retaining residents at the home; to staff awareness of health and well-being of residents; and to provision of appropriate staff and food service. The Administrator, Mr. Winfrey, did not contest that
these deficiencies had not been corrected on May 31, 1989. On May 31, 1989, Mellaril was still being given to R.R. by an untrained, unlicensed aide when the physician required that it be given on an "as needed" basis. Five hundred milligrams of calcium was being given to R.R., although the medication was unlabeled, and there was no doctor's order to provide it. A doctor had ordered that potassium be given to B.A. with plenty of water and with food, but she was given only a small amount of orange juice in a four ounce cup with the potassium. Ms. Grissom explained that it is dangerous to give potassium in a manner other than as ordered to patients with heart problems such as B.A. The medication records did not show that two other medications given for heart disease, Lanoxin and Lasix were being given daily as prescribed.
B.A. was still a resident at the home on May 31, 1989, though she was still so disoriented that it was inappropriate for her to be in an ACLF. B.A. was only transferred to a facility appropriate for her care after Ms. Grissom made another visit on October 30, 1989. On May 31, 1989, staff was still unable to perform duties and ensure proper care of residents because the untrained aide was still responsible for administering psychotropic medications to residents.
A final appraisal of the home was done on October 30, 1989, by Ms. Grissom. At that time, untrained, unlicensed staff was still administering medications and admitted doing so. As noted above, B.A. who was an inappropriate client, still resided at the facility. Medication records were still as inaccurate as they had been on March 31 and May 31, 1989. The daily records were not being kept as medications were given. When Ms. Grissom asked the aide for the resident's files, the aide brought menus. In short, the aide was unprepared to do those things expected of her. Health assessments for the residents were not available, although the facility had been cited for this deficiency in the October 28, 1988, survey.
By the October visit, Haldol had been ordered for B.A. by her physician, to be administered "as needed," but was given as a regular dose. Mellaril, another dangerous drug, had been ordered to be given up to three times a day as needed for depression to R.R., but it was given three times a day as a regular dose, even though R.R. showed no signs of depression.
None of the findings about the October 30, 1989, were controverted by Mr. Winfrey.
As a result of the March 31, 1989, survey a moratorium on admissions was imposed at the Norwood Pines ACLF due to conditions which threatened the residents' health, safety, and welfare. Norwood Pines did not appeal the moratorium.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.
The subject facility repeatedly violated the requirement of Rule 10A- 5.024(1)(c), Florida Administrative Code, that an up-to-date daily medication record be kept for residents who were supervised in the self-administration of medication, or who received the administration of medication. The facility repeatedly violated resident care standards found in Rule 10A-5.0182(3), Florida administrative Code, on medication, in that:
Medications were not centrally stored in a locked place accessible only to staff responsible for distributing the medications. Rule 10A- 5.0182(3)(a)4., Florida Administrative Code.;
Not all containers of medications in central storage were labeled to include the name of she resident for whom prescribed, the name of the drug and instructions for use. Rule 10A-5.0182(3)(a)5., Florida Adminis- trative Code;
Self-administration of medications was supervised by aides who were not trained in the supervision of medications as required by Rule 10A- 5.0182(3)(b)2., Florida Administrative Code. For resident J.M., who had been prescribed Peri-Colace, staff did not help the resident to take the medication, due to difficulty in swallowing, nor bring the problem to the attention of her physician. The observed dosage of the medications was not recorded in the medication record for the residents, for example, the improper administration of Tylenol #3, and of Ex-lax;
Medications, including psychotropic drugs, were administered directly to residents such as B.A. (who could not engage in supervised self- administered medication), by persons who were not trained as a licensed practical nurse, or under the direction of a registered nurse or advanced nurse practitioner This violated Rule 10A-5.0182 (3)(c), Florida Administrative Code; and
In the case of Ex-lax and the Fleet enema, medications or treatments were administered without a physician's order, and in the case of the Ex-lax, the administration was not documented.
A facility must insure that its staff is mentally and physically capable of performing assigned duties. Rule 10A- 5.019(5)(g) Florida Administrative Code. At the first visit, one of the aides was under the influence of alcohol or drugs, as evidenced by her behavior. No written job description was given to staff responsible for providing personal care to residents, in violation of Rule 10A-5.019(5)(d), Florida Administrative Code.
The facility violated the residents Bill of Rights, specifically the right to live free from neglect, Section 400.428(1)(a), Florida Statutes, and the right to have access to adequate and appropriate health care, Section 400.428(1)(j), Florida Statutes.
The health of residents was significantly jeopardized by the failure to properly administer and supervise medication such as:
not giving medication ordered by a doctor as prescribed, (the Peri-Colace and Tylenol #3);
giving medication without a doctor's order (the Fleet enema and the five hundred milligram calcium tablets);
giving psychotropic drugs (Mellaril and Haldol), which were to be given on an as needed basis, by an untrained and unlicensed aide who was not qualified to determine whether the drug was needed; and
giving drugs without following doctor's
instructions, such as giving potassium without plenty of water and food.
The facility persisted in retaining B.A., an individual so confused and disoriented that it was inappropriate for her to remain at the ACLF. An ACLF must determine the appropriateness of a resident for ACLF care before admission, which includes a determination of whether the resident requires the administration of medication and is capable of self preservation in an emergency situation. Rule 10A-5.0181(3)(a)1.b., c., and i.(IV), Florida Administrative Code.
As a related matter, the facility is required to have available health assessments for all residents, pursuant to Rule 10A-5.0181, Florida Administrative Code. There were repeated violations with regard to food service regulations in that menus were not dated and planned one week in advance, and menus were not actually followed in daily preparation. Menus are central to the regulation of food service, because HRS cannot actually observe meals, but can monitor menus to determine whether residents receive adequate nutrition.
Failure to have dated menus and menus planned in advance violate Rule 10A- 5.020(1)(j), Florida Administrative Code.
A denial of relicensure is within the authority of the Department due to the repeated violations of applicable rules, Section 400.417(1), Florida Statutes, and the imposition of the moratorium which was not appealed. Section 400.414(3), Florida Statutes.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the request of Norwood
Pines for a renewal license to operate an Adult Congregate Living Facility.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March, 1990.
WILLIAM R. DORSEY, JR.
Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1990.
APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-4346
The substance of the proposals submitted by the Department have been accepted. No proposed findings of fact were submitted by Norwood Pines.
Leonard T. Helfand, Esquire Department of Health and
David G. Winfrey Norwood Pines
Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard
