vs. ) CASE NO. 96-3779
Respondent. )
Pursuant to notice, a formal hearing was held in this case on February 20, 1997, in Sarasota, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Donna H. Stinson, Esquire
R. Davis Thomas, Jr. Qualified Representative Broad and Cassel
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 deficiencies at Petitioner's nursing home sufficient to support
By letter dated June 4, 1996, Beverly Enterprises-Florida, d/b/a Emerald Oaks Care Center (Emerald Oaks), was notified by the Agency for Health Care Administration (AHCA) that its standard licensure rating was being changed to conditional, effective April 25, 1996. According to the letter, the rating change was based on a follow-up survey conducted on April 25, 1996. Emerald Oaks 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 four witnesses and had three exhibits admitted into evidence. Emerald Oaks presented the testimony of two witnesses and had two exhibits admitted into evidence. A transcript of the proceeding was filed on March 5, 1997. Both parties filed proposed findings of fact and conclusions of law. Petitioner, Emerald Oaks, subsequently filed a Motion to Strike a portion of the AHCA's posthearing proposal. The motion was denied.
Petitioner, Emerald Oaks, is a nursing home in Sarasota, Florida, licensed by and subject to regulation by the AHCA pursuant to Chapter 400, Florida Statutes.
The AHCA conducted a relicensure survey of Emerald Oaks on February 29, 1996, and a follow-up survey on April 25, 1996. Both of these visits by the AHCA were unannounced.
During the February survey, the AHCA reviewed seven randomly selected resident records. Eleven randomly selected resident records were reviewed by AHCA during the April 1996 follow-up survey. The sample of resident records reviewed in April was a totally different sample from those reviewed in February.
Each alleged deficiency found by the AHCA during a survey is assigned a "tag" number, which relates to requirements imposed on nursing home facilities. As a result of the February survey, Emerald Oaks was cited for its failure to: (1) adequately assess residents for the potential development of pressure sores (Tag F272); (2) revise assessments as appropriate (Tag F276); (3) address pressure sores on care plans (Tag F279); (4) give appropriate care to residents to prevent pressure sores (Tag F314); (5) provide sufficient staff to meet needs of residents (Tag F353); and (6) comply with the minimum certified nursing assistant staffing requirement (N 062).
The areas cited as deficiencies by the AHCA in the February 1996 survey of Emerald Oaks were not corrected at the time of the follow-up survey on the April 25, 1996.
One area reviewed by the AHCA during the February survey and the April follow-up survey was staffing. With regard to staffing, applicable regulations require nursing homes to provide 1.7 hours of certified nursing assistant (CNA) hours per resident per day.
To determine whether the CNA minimum staffing requirements are met, it is necessary to first obtain the total number of hours required. This is done by first multiplying the number of residents in the facility by 1.7. Next the total number of hours worked by all CNAs on the days in question must be determined. A nursing home is in compliance with the CNA minimum staffing requirements if the latter number is equal to or higher than the former number.
In ascertaining whether the minimum CNA staffing requirement was met by Emerald Oaks, the AHCA relied on census data and time records of CNAs for the appropriate days that were supplied by the facility. Applying the appropriate formula to the relevant data, Emerald Oaks failed to meet the minimum CNA staffing requirements at the time of the February 1996 survey and the April 1996 follow-up survey.
During the February 29, 1996 survey, the AHCA reviewed the CNA staffing requirements for January and February 1996. On nineteen days out of thirty-one days in January, Emerald Oaks failed to meet the minimum CNA staffing requirements. A review
of the staffing for February 1996, revealed that Emerald Oaks failed to meet the CNA minimum staffing requirement on nineteen out of twenty-eight days. As a result of its review, the AHCA properly cited Emerald Oaks for having insufficient staff to meet the residents' needs.
During the April 25, 1996 follow-up survey, again using records provided by Emerald Oaks, the AHCA properly found that the facility did not meet the minimum CNA staffing requirements. During the period from March 14, 1996 through April 27, 1996, there were twelve days that Emerald Oaks did not meet the minimum CNA staffing requirements.
Another area addressed in the February survey and the April follow-up survey concerned the extent to which residents developed pressure sores. A pressure sore is a wound on the skin caused by pressure. These wounds are staged I through IV, with IV being the most severe. At Stage I the wound is usually a red area; at Stage II it is an open area; at Stage III the wound is deeper and involves muscle; and a Stage IV pressure sore involves bone, muscle, tissue and nerves.
Federal Rule, 42 C.F.R. 483.25(c), requires that a nursing home resident not develop pressure sores unless the individual's clinical condition demonstrates that the sores were unavoidable. If a resident has pressure sores, nursing homes
must provide treatment and services necessary to promote healing and prevent new sores from developing.
Most pressure sores are avoidable and can be prevented, by diligent turning of residents, at least every two hours, to relieve pressure on a given area of skin. Ordinarily, if these procedures are followed, residents should not develop pressure sores unless the resident is debilitated, that is suffering from a serious disease such as cancer.
The February 1996 survey and the April 1996 follow-up survey revealed a high incidence of pressure sores among the residents of Emerald Oaks. At the time of the February 1996 survey, twenty-two percent (22%), or nineteen Emerald Oaks residents, had pressure sores. Of these residents fourteen had pressure sores which were in-house acquired and for which there is no clinical explanation. This percentage was high when compared to the industry average of five percent (5%). At the time of the April 1996 follow-up survey, the percentage of Emerald Oaks residents who had pressure sores remained high, at twenty-one percent (21%).
Among the records reviewed as a part of the February 1996 survey were those of Resident 1, Resident 3, and Resident 7. With regard to Resident 1, the records indicate that on January 1, 1996, when first admitted to Emerald Oaks, this resident had an open area on the left outer ankle. However, by February 29,
1996, Resident 1 had developed two more pressure sores while residing in Emerald Oaks. Based on the condition of Resident 1, these in-house acquired pressure sores were avoidable and could have been prevented with proper turning and repositioning of the resident.
The February 1996 review of Resident 3's records indicate that this resident was admitted to Emerald Oaks on February 9, 1996 with a Stage II pressure sore on her right buttock. By February 22, 1996, the pressure sore had increased to a Stage IV. Given Resident 3's condition, the worsening of the pressure sore was avoidable with proper care of the resident. It should not have increased in severity in less than two weeks.
According to records reviewed during the February 1996 survey, Resident 7 had no pressure sores when admitted to Emerald Oaks in November or December 1995. However, on January 13, 1996, a Stage III pressure sore was first observed on this resident and noted by Emerald Oaks staff. Although Resident 7 was at risk for pressure sores due to his decreased mobility and incontinence, with proper turning and repositioning of resident, the in-house acquired pressure sore was avoidable.
The April 1996 follow-up survey also revealed that residents who had no pressure sores when admitted to Emerald Oaks, developed avoidable pressure sores while at the facility. Furthermore, at least one resident had one Stage I pressure area
and one Stage II pressure sore at the time of admission to Emerald Oaks, but shortly after coming to the facility developed two more pressure sores. These two in-house acquired pressure sores, staged as a II and a III, were avoidable.
In both the February and April surveys, the in-house acquired pressure sores were avoidable, notwithstanding the fact that many of the residents were a high risk for developing them. The high risk was related to conditions such as the residents' decreased mobility or immobility. Residents with these conditions required a great deal, if not total assistance, from the Emerald Oaks staff in moving from one position to another. Consequently, with proper turning and repositioning, these pressure sores were avoidable.
While conducting the February 1996 and April 1996 surveys, the AHCA surveyors also reviewed the records of residents to determine the sufficiency of resident assessments and their care plans.
The assessment process includes the following distinct components:
the minimum data set (MDS), which is essentially a checklist of approximately 18 areas of potential concern.
the RAPS (Resident Assessment Process) keys, which are cues found in the assessment instrument to make further inquiry into certain triggered areas to look for any problems for the resident.
the RAPS, which is the process of using the RAPS key cues to assess whether there are problems for the resident.
Care Plan, which is an individualized document which describes how the agency will care for the resident.
In determining whether Emerald Oaks was in compliance with the prescribed assessment process, AHCA surveyors properly relied on information available in the residents' charts and documentation provided by staff of Emerald Oaks at the time of the surveys.
In the February 1996 survey and the April 1996 follow- up survey, the AHCA found that Emerald Oaks completed the MDS function for most residents. However, Emerald Oaks failed to complete the RAPS process, by looking for the triggered cues from the MDS and pursuing appropriate follow-up questions as mandated by applicable federal forms.
In the February 1996 survey and the April 1996 follow- up survey of Emerald Oaks, a review of the assessment process revealed that the required forms were generally incomplete, inaccurate, and not current or comprehensive. There were problems related to the assessment process in all seven of the files reviewed by the AHCA during the February 1996 survey. When the April 1996 follow-up survey was conducted, these problems had not yet been corrected by Emerald Oaks. Of the eleven files
reviewed during the April 1996, follow-up survey, seven were deficient in the assessment process areas.
During the February 1996 survey, the following deficiencies were revealed: (1) the RAPS for Resident 1 was incomplete and the Care Plan failed to address an identified medical condition; (2) the Care Plans for Residents 2 and 5 were unavailable; (3) the RAPS for Resident 3 was unavailable; (4) the Care Plan for Resident 4 was not updated to reflect significant changes; (5) the Care Plan of Resident 6 failed to identify goals and approaches which addressed an identified problem; and (6) the MDS and Care Plan of Resident 7 was not updated to address significant changes in the resident's condition.
Deficiencies which existed at the time of April 1996 survey included the following: (1) Resident 1's assessment was not updated to reflect a Stage IV pressure sore; (2) the Care Plan of Resident 2 lacked measurable goals; (3) the Care Plan of Resident 3 was not updated to reflect significant changes; (4) Resident 6's Care Plan did not address pressure sores although the condition was addressed on MDS; (5) the RAPS for Resident 7 was incomplete and there was no documentation that weekly skin assessment were performed; (6) Resident 11's assessment was not updated to reflect the development of seven pressure sores, where none previously were present; and (7) the Care Plan goals for Resident 5 were global, not individualized.
All of the violations for which Emerald Oaks was cited in the February 1996 and April 1996 surveys were Class III deficiencies with the exception of the F314 deficiency, which was a Class II deficiency. Tag 314 was deemed to be a Class II deficiency because of the number of residents who had developed pressure sores and the harm that they could cause residents. An additional consideration was that the in-house acquired pressure sores were avoidable.
The AHCA surveyors conducting the February 1996 survey and the April 1996 follow-up survey properly considered all records that were available and provided on the dates the surveys were performed. Based on information made available by Emerald Oaks, the AHCA correctly found that the percentage of residents with pressure sores was higher than the industry average; the assessment process was deficient; and the required staffing ratio was inadequate and did not comply with applicable rules and regulations.
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.
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 ratings 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 III deficiencies within the time established by the agency and is in substantial compliance with the criteria established under this part. . . .
The alleged violations of the minimum standards by the Emerald Oaks are claimed by the AHCA to be Class II and Class III deficiencies. If those classifications are correct and Emerald Oaks was not in substantial compliance on April 25, 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 Emerald Oaks' nursing home license from a standard 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 has met its burden of proof in this case. The evidence at hearing established that each of the alleged deficiencies that existed at the time of the February 29, 1996 survey were not corrected at the time of the April 25, 1996 follow-up survey. Hence, Emerald Oaks was not in compliance with applicable criteria established by the AHCA. Having failed to timely correct the Class II and Class III deficiencies, Emerald Oaks was not in substantial compliance with AHCA criteria at the time of the follow-up survey. Thus, the appropriate rating for the nursing home license of Emerald Oaks, effective April 25, 1996, is conditional.
RECOMMENDED that the Agency for Health Care Administration enter a final order issuing a conditional rating to the Emerald Oaks Care Center.
DONE and ENTERED this 8th day of May, 1997, in Tallahassee, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1997.
Thomas W. Caufman, Esquire
Donna H. Stinson, Esquire
R. Davis Thomas, Jr. Qualified Representative Broad and Cassel
Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive
Douglas M. Cook, Director
All parties have the right to submit written exceptions within fifteen (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.
