Pursuant to notice, a formal hearing was held in this case before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings, on November 22, 1996, by videoconference between Tampa and Tallahassee, Florida.
For Petitioner: Donna H. Stinson, Esquire
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
For Respondent: Thomas W. Caufman, Esquire
Whether the Agency for Health Care Administration found deficiences at Petitioner's nursing home sufficient to support issuance of a conditional license.
By letter dated July 11, 1996, the Beverly Health and Rehabilitation Services, d/b/a Tampa Health Care Center (Tampa Health Care Center), was notified by the Agency for Health Care Administration (AHCA) that its rating was being changed from superior to conditional, effective May 29, 1996. According to the letter, the rating change was based on a survey conducted in March 1996, and a follow-up survey conducted on May 29, 1996. The Tampa Health Care Center filed a Petition for Formal Hearing with the AHCA contending that it was entitled to a standard rating. The matter was referred to the Division of Administrative Hearings and this proceeding followed.
At the hearing the AHCA presented the testimony of three witnesses and had six exhibits admitted into evidence. The Tampa Health Care Center presented the testimony of three witnesses and had two exhibits admitted into evidence. A transcript of the proceeding was filed on December 6, 1996. Both parties timely filed posthearing proposals. Petitioner, Tampa Health Care Center, subsequently filed a motion to strike the AHCA's post hearing argument. The motion was denied and the post hearing argument has been considered in light of the record evidence.
Petitioner, Tampa Health Care Center, is a nursing home in Tampa, Florida, licensed by and subject to regulation by the AHCA pursuant to Chapter 400, Florida Statutes.
The AHCA conducted a relicensure survey of the Tampa Health Care Center on March 25-28, 1996. During the survey, the agency reviewed twenty-four randomly selected care plans maintained at the Tampa Health Care Center.
A care plan is an individualized document which describes how the facility will provide for the needs of a resident. The care plan is the result of a cooperative effort of various health care professionals who may work with the resident. Those providing input for the care plan include the following: nurse, dietician, physical therapist, and mental health and social service professionals. A care plan, along with doctor's orders and treatment sheets, serve as a workable tool in delivering services to a resident.
As a result of the March 1996 survey, the AHCA determined that nine of the twenty-four care plans reviewed were deficient. Despite the problems cited in the March 1996 survey, the AHCA made no finding that the well-being of any of the residents was in jeoparady because of the cited deficiencies.
Consistent with its practice and policy, the AHCA gave Tampa Health Care Center until April 28, 1996, to correct the care plan deficiencies found in March 1996. The AHCA returned to the facility on May 29, 1996, and conducted a follow-up survey to determine whether previously cited care plan deficiencies had been corrected.
During the follow-up survey, the AHCA reviewed fourteen randomly selected care plans. Of the fourteen care plans reviewed, one was found to be deficient. The care plans reviewed during the follow-up survey on May 29, 1996, were not the same care plans reviewed during the March 1996 survey.
Based on the May 29, 1996 follow-up survey, the AHCA concluded that the care plan of Resident 5-A had not been reviewed, revised, and updated to address current problems. Furthermore, the AHCA had determined that the care plan included an "unrealistic goal." As a result of its perceived deficiencies with the care plan, the AHCA concluded that Resident 5-A, the resident for whom the care was prepared, did not receive the necessary care and services to attain or maintain her highest practical level of physical functioning.
The AHCA initially designated the care plan deficiency as a Class II deficiency. However, pursuant to an informal dispute process, the AHCA changed its classification of the care plan deficiency to a Class III deficiency.
The care plan deficiency found by the AHCA involved four areas of concerns relative to Resident 5-A: (1) pressure ulcers,
(2) weight, (3) mobility, and (4) perceived eating and swallowing difficulties.
Resident 5-A developed a pressure ulcer on or about April 15, 1996. By May 2, 1996, the resident had developed three more pressure ulcers. An evaluation of the pressure ulcers,
conducted on May 2, 1996, determined that the ulcers were "unavoidable" due to the medical condition and medical history of the resident. Treatment of the pressure ulcers was addressed and carried out pursuant to doctor's orders, nurse's notes, treatment sheets, and the complete pressure ulcer records of Resident 5-A. Moreover, the care plan of the resident, revised on May 16, 1996, adequately addressed treatment of the resident's pressure ulcers.
The AHCA requires that care plans be revised every three months, unless there is a significant change in the resident's condition in the interim. The care plan for Resident 5-A was revised within the three month interval as required by the AHCA. In light of this resident's medical condition and medical history, the occurrence of the pressure ulcers did not represent a significant change requiring a revision of the care plan prior to the scheduled revision date.
The AHCA also found that there was a deficiency in the rendering of treatment and care for the resident's pressure ulcers by failing to use a pressure relieving mattress. The undisputed evidence is that the Tampa Health Care Center provided the resident with this device. However, the special mattress was absent during part of the follow-up survey because the resident's bed was being repaired. Apparently the AHCA surveyor was unaware, and facility staff did not notify her, that the bed with the pressure relieving mattress had been replaced the afternoon of May 29, 1996, and prior to the conclusion of the survey.
A second concern of the AHCA involved the surveyor's assumption that because the resident was receiving her food in the form of thickened liquids, the resident had difficulty swallowing. Based on this assumption, the AHCA determined that the care plan approach, to have plain water at the resident's bedside, because of her risk for urinary tract infections, was inappropriate and put the resident at risk of choking. Notwithstanding the AHCA's assumption to the contrary, it was undisputed that a speech evaluation of the resident performed on April 23, 1996, concluded that the resident had no difficulty in swallowing. Moreover, the undisputed evidence was that the resident received thickened liquids at her own request.
A third area of concern regarding the care plan involved Resident 5-A's mobility and the goals and approach related thereto. From observing Resident 5-A sleeping, the AHCA surveyor concluded that the resident had contractures of the upper extremities which would prevent the resident from moving herself any distance in a wheelchair. Thus, the AHCA determined the care plan had an unrealistic goal in that it stated that the resident would be able to move herself in wheelchair to dayroom for socialization by next review date.
The AHCA misread and improperly characterized the statement. First, the statement was not a goal, but an approach to be utilized to assist the Resident 5-A in achieving established goals. The two goals were that: (1) the resident
would be able to tolerate being out of bed and in the wheel chair by the next review and (2) the resident would be able to move herself a short distance in the wheelchair. The approach was that staff, not the resident, would wheel the resident to the day room for socialization. Second, contrary to the AHCA conclusion regarding the resident's mobility, unrebutted evidence established that the resident did not have contractures of the hands. Thus, the established goal was realistic in that it was possible for Resident 5-A to manipulate the wheelchair a short distance, although not the distance required to get to the dayroom.
Finally, the AHCA noted as a deficiency that the care plan for Resident 5-A failed to include the dietitian's recommendation of May 10, 1996, that the resident be weighed weekly. Tampa Health Care Center's policy in this regard is to weigh residents once a month unless more frequent weights are ordered by the resident's doctor. Weekly weights had not been ordered by Resident 5-A's physician. Also, there appeared to be no need to perform weekly weights since the resident's weight was stable according to federal guidelines recognized by the AHCA and applicable to nursing homes.
Furthermore, the AHCA was concerned that the goal on the care plan, that the resident will have no significant weight loss by next review, was not measurable. This concern is unfounded because federal guidelines, applicable to nursing
homes, including Tampa Health Care Center, define what constitutes a significant weight loss by a specified percentage. By applying this percentage to Resident 5-A's consecutive monthly weights, a determination can be made as to whether the resident has experienced any significant weight loss. Therefore, the goal, that there will be no significant weight loss, is measurable.
The AHCA failed to establish that Resident 5-A did not have a care plan which was reviewed, revised, and updated as appropriate to describe the necessary care and services to attain or maintain her highest practicable level of physical function.
No evidence was presented by the AHCA of any alleged violation related to staffing.
CONCLUSIONS OF LAW
The Division of Administrative Hearing has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57 (1), Florida Statutes.
The AHCA is authorized to license nursing homes in the State of Florida, and pursuant to Section 400.23(8), Florida Statutes, is required to evaluate nursing home facilities and assign ratings.
Section 400.23, Florida Statutes, requires the AHCA to "at least every fifteen months, evaluate all nursing home facilities and make a determination as to the degree of compliance. . ." The AHCA's evaluation must be based on the most
recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. Section 400.23(8), Florida Statutes.
Section 400.23(9), Florida Statutes, provides that when minimum standards are not met, then such deficiencies shall be classified according to the nature of the deficiency. That section delineates and defines the various categories of deficiencies, with a Class III deficiency being the least severe.
Class I deficiencies "are those which the agency determines present an imminent danger to the residents or guests of the nursing home facility or a substantial probability that death or serious physical harm would result therefrom." Class II deficiencies "are those which the agency determines have a direct or immediate relationship to the health, safety, or security of nursing home facility residents, other than Class I deficiencies. Class III deficiences are those which "the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than Class I or Class II deficiencies. Section 400.23(9)(a)(b) and (c), Florida Statutes.
Based on its findings and the classification of deficiencies, the AHCA is required to assign one of the following ratings to the nursing home: standard, conditional, or superior. These three categories of rating for nursing homes are defined in Section 400.23(8), Florida Statutes, as follows:
A standard rating means that a facility has no class I or class II deficiencies, has corrected all class III deficiencies within the time established by the agency and is in substantial compliance at the time of the survey with criteria established in this part. . . .
A conditional rating means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part. . . .
A superior rating means that a facility has no class I or class II deficiencies and has corrected all class IIII deficiencies within the time established by the agency and is in substantial compliance with the criteria established under this part. . . .
The alleged violation of the minimum standards by the Tampa Health Care Center is claimed by the AHCA to be a Class III deficiency. If that classification is correct and the Tampa Health Care Center was not in substantial compliance on May 29, 1996, with the AHCA's established criteria, the nursing home is not entitled to the standard rating which it seeks.
The AHCA has the burden of proof to affirmatively establish the existence of the alleged deficiencies to justify changing the rating of the Tampa Health Care Center's nursing home license from a superior to conditional rating. Department of Transportation v. J. W. C., Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA 1977).
A conditional rating is issued when the facility has one or more Class I or II deficiencies, or Class III deficiencies not corrected within the time established by the agency and is not in substantial compliance at the time of the survey.
In the instant case, the AHCA failed to prove the existence of any of the alleged Class III deficiencies at the time of the follow-up review on May 29, 1996. Likewise, no evidence was presented to establish that the Tampa Health Care Center was not in substantial compliance with criteria established by the AHCA.
With regard to the alleged care plan deficiencies, the unrebutted evidence established that the care plan of Resident 5- A had been reviewed, revised, and updated as appropriate to describe the necessary care and services to attain or maintain the resident's highest practicable level of physical functions.
Because the AHCA failed to establish the existence of any of the alleged care plan deficiencies, the Tampa Health Care Center meets the statutory requirements for a standard rating.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order issuing a standard rating to the Tampa Health Care Center and rescinding the conditional rating.
Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1997.
Donna H. Stinson, Esquire Broad and Cassel
Thomas W. Caufman, Esquire Agency for Health Care
Jerome W. Hoffman, General Counsel Agency for Health Care
Douglas M. Cook, Director Agency for Health Care
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
