A hearing was held in this case in Tampa, Florida on January 15, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Thomas W. Caufman, Esquire
For Respondent: Donna H. Stinson, Esquire
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
The issue for consideration in this case is whether Respondent’s license to operate a nursing home should be disciplined because of the matters alleged in the Administrative
Complaint filed herein, and whether the license issued to Respondent on October 1, 1995 should be conditional or standard.
By Administrative Complaint dated July 23, 1996, the Agency for Health Care Administration’s Division of Health Quality Assurance seeks to discipline Respondent’s license to operate a nursing home because, it is alleged, Respondent repeated or failed within the mandated time frame to correct a deficiency relating to alleged staffing shortages initially cited during a survey of the facility conducted on August 1, 1995. Thereafter, Respondent requested a formal hearing on the allegations in the Administrative Complaint and also contested the issuance by the Agency of a conditional license to the facility, and this hearing ensued.
At the hearing, Petitioner presented the testimony of Elke Johnson, for seven years a registered nurse specialist surveyor; Susanne M. Emond, a registered dietitian employed by the Agency; Katherine Robbins, a registered nurse specialist for the Agency and Gary M. Janovsky, also a registered nurse specialist employed by the Agency. Petitioner also introduced Petitioner’s Exhibits One through Seven, and Nine. Exhibit Eight was marked but not offered. Respondent presented the testimony of Jerry Alfieri, director of nursing at Manhattan Convalescent Center; Robin Grab, nurse manager for station 1 at Manhattan; Theresa Bromley, nursing secretary at Manhattan and William M. Scheller,
Manhattan’s administrator. Respondent also introduced Respondent’s Exhibits A through G.
A transcript of the proceedings was furnished, and subsequent to the receipt thereof, counsel for both parties submitted Proposed Findings of Fact which have been carefully considered in the preparation of this Recommended order.
At all times pertinent to the issues herein, the Agency for Health Care Administration, (Agency), was the governmental agency responsible for licensing and regulating the operation of nursing homes in Florida. Respondent operated a licensed nursing home known as Manhattan Convalescent Center, in Tampa.
Consistent with its responsibility to conduct surveys (inspections) of nursing homes in this state, on June 16, 1995, the Agency conducted a complaint survey of the Respondent’s facility during which it noted a deficiency in staffing. This related to the surveyor’s determination that on May 22, 27, and 28, and on June 2, 3 and 6, 1995, there was “an underage of the state minimum CNA staffing requirements”. No citation was given for any violation of a state rule in this regard, nor was there any reference to a violation of state regulation. In addition, the matter was not noted as a “class” deficiency for state purposes under the provisions of Section 400.23, Florida Statutes.
CNA’s, Certified Nursing Assistants, are answerable to
nurses. Registered nurses, (RN’s), licensed practical nurses, (LPNs), and CNAs together constitute the nursing staff, which is responsible for direct resident care in a facility such as operated here by Respondent. All members of the nursing staff, regardless of classification, are responsible for hands-on resident care, such as bathing and feeding, and these duties are a part of the job description of not only CNAs but LPNs and RNs as well. The difference is that LPNs and RNs, depending on certification, are trained and authorized to provide additional, skilled care which a CNA is neither trained nor authorized to do. In other words, though a CNA can perform those functions which she or he is trained and licensed to do, a nurse, LPN or RN, can do and does those things within her or his training and certification which includes those things done by nurses lower on the scale.
Nurses, either RNs or LPNs, employed at Manhattan are advised and understand that they are to perform CNA duties and cover for CNAs if a CNA does not come to work. If a nurse refuses or resists doing CNA work for any reason, the nurse is asked to leave the building.
The Agency by rule has set a minimum level of CNAs per patient in nursing homes. The total number of CNAs required is figured by using a formula which multiplies the patient census for the day times 1.7 and divides the result by 7.5, the number of hours per shift worked by a CNA at Manhattan. The result is
the number of CNAs required to be on duty on any given day.
On July 31 and August 1, 1995, Elke Johnson, an RN specialist surveyor for the Agency, visited Manhattan for the purpose of following up on the complaint survey conducted in June, 1995. One of the allegations in the complaint was that patients were not being cared for. Ms. Johnson found this allegation to be unconfirmed.
Nevertheless, as a part of the inspection, Ms. Johnson looked at the personnel records regarding CNA staffing for the two week period from June 16 through June 29, 1995 and did the calculation according to the cited formula for four days out of the 14. On all four days, she noted a shortage of CNAs. On July 15, 1995, there were 32 CNAs versus 38 required by patient census; 35 versus 38 on July 17, 1995; 35 versus 37 on July 22, 1995; and 25 versus 36 on July 23, 1995.
When Ms. Johnson spoke about this finding with Manhattan’s director of nursing or assistant director of nursing, she was told that Manhattan was using licensed nurses, RNs or LPNs, to fill in for CNAs. The Agency claims that the director of nursing, Ms. Buble, stated that if licensed nurses were scheduled to do CNA work, that individual would be listed on the daily assignment sheet as a CNA so that the licensed nurse could receive assignments as a CNA. According to Ms. Johnson, however, even with the substitutions, there was still a shortage which Ms. Johnson classified as a deficiency.
The Agency’s rule does not specifically provide for the use of RNs or LPNs in place of CNAs, but Ms. Johnson considered such a substitution to be appropriate. Accepting that, however, as was noted previously, Ms. Johnson still noted a deficiency in numbers. Though Ms. Johnson did not participate in the December 1995 follow-up inspection, on her visit to the facility in April 1996, she found the staffing deficiency had been cleared and no violations existed at that time.
Two complaints involving staffing in September and November 1995 caused a reinspection of the facility by Susanne Emond of the Agency on December 5, 1995. Ms. Emond worked with the director of nursing, Ms. Buble, the entire day and went over the patient census sheets with her as well as the assignment sheets. At that time the documents provided by Manhattan reflected that it was required to have 37 CNAs on duty each day between September 12 through September 16, 1995, but in reality had only 32.5 CNAs on duty on September 12; 32 on September 13;
32 on September 14; 34 on September 15 and 32 on September 16, 1995.
In addition, Manhattan was required to have more than
35 CNAs on duty each day between November 9 through 12, 1995 but had only 27.5, 28, 30 and 32.5 on November 9, 10, 11 and 12, 1995, respectively.
As was previously stated, the determination of a CNA shortage was based upon a consideration of numbers generated by
the surveyor in consultation with the then director of nursing, Ms. Buble. The compilation by Ms. Buble was made utilizing only the assignment sheets, and did not consider any extra hours which were worked by on-duty personnel which was reflected on the sign- in sheets, rather than the assignment sheets. Respondent claims, therefore, that the documentation provided to the surveyor by Ms. Buble was not accurate.
Gary Janovsky is a RN specialist with the Agency who inspected Manhattan on June 16, 1995. During the course of his visit he checked the staffing levels relating to CNAs for May 22,27 and 28, and June 2,3 and 6, 1995, and using the appropriate formula as applied to the sign-in sheets provided by the Respondent, concluded there was a shortage on all six days whether one considered an 8 hour shift or a 7.5 hours shift.
Jerry Alfieri has been the director of nursing at Manhattan since March 23, 1996 and was in place there during the follow-up inspections. He has worked as a director of nursing in a nursing home for 4 years. Before he got to Manhattan it was Respondent’s policy to heavily overstaff with licensed nurses to make up for shortages of CNAs, of which there is a shortage in the area. When he took over as director of nursing, he reviewed all staffing records from January 1995 up to date and found an adequate number of CNAs were hired and assigned, but from time to time, there was an attendance problem with that category of employee. It got so bad that at times, up to 10 CNAs per day
would call in to be absent, and when this would happen, he would assign LPNs or RNs to CNA duties. He contends this was not made clear to the surveyors. Mr. Alfieri believes this is now clear to the Agency and his office is following the same procedure now, without problem, and was being followed at the time of the surveys which resulted in the filing of deficiencies.
Mr. Alfieri reviews his staffing figures on a daily basis looking at hours worked, not bodies. When that procedure is followed, one sees that on May 22, 1995, Manhattan was 139.1 hours over requirement and, he believes, a review of every day in issue but one, July 23, 1995, will show an overage of hours for the facility. On that day, Manhattan was 21 hours low, a shortage of 3%.
Mr. Alfieri takes the position not that the number of CNAs on duty was up to the Agency’s standard, but that adequate nursing hours were provided to meet the requirement, and there was no complaint sustained regarding a lack of patient care. In September 1995, for example a listing by date of nursing hours over standard shows:
9/12 103
9/13 36
9/14 77
9/15 15
11/9 93
11/10 201
11/11 4.7
11/12 27.92
It should be noted that on November 11, 1996, though 6 CNAs called in absent, Manhattan still had 4.7 hours of nursing care over standard.
According to Mr. Alfieri, licensed nurses at Manhattan are assigned a certain set of patients and they are to insure that those patients get whatever care is necessary. If a CNA can do a procedure, its done by a CNA, or by a licensed nurse if a CNA is not available.
That statement is confirmed by Robin Grab, nurse manager of station 1 (the Medicare unit of 42 beds) at Manhattan for 6 years. She has been an LPN for more than 19 years. According to Ms. Grab, from time to time CNAs call in absent, and when this happens, the licensed nurses do rounds and assist in doing whatever is needed to provide patient care. It is a part of their job duties and if a licensed nurse refuses to do anything asked, that individual is asked to leave. As a result, RNs and LPNs regularly assist and are involved in activities of daily living, (ADL), and answering call lights. If a licensed nurse has to do CNA work, the nurse is so told. When a shortage of CNAs appears imminent, an attempt is made to call in more CNAs, but, if necessary, RNs and LPNs are called in to fill vacancies of CNAs.
When William Scheller, Manhattan’s administrator, first came to the facility he was made aware of the inadequate number of CNAs. To correct this, he started the practice of using
licensed nurses to make up the shortage. He also hired additional licensed staff to make up for call-outs, paid bonuses and recruited staff from other facilities.
Manhattan pays its nurses and CNAs competitive wages. At no time has it ever intentionally understaffed with CNAs. To do so does not make sense because it costs more for licensed nurses than for CNAs. He insures that licensed personnel perform CNA duties when required by personal checks by him and his staff. Unit managers are responsible to insure that patients get adequate care and if staff is insufficient, they try to bring in additional people.
The documentation used to record nursing staffing was changed in early 1996 to conform to Agency direction as to how it should be done. These documentation changes did not change coverage practices, however, as those practices were, he contends, up to standard all along.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
In its Administrative Complaint, the Agency asserts that Manhattan violated Chapter 400, Florida Statutes, and Rule 59A-4.108, Florida Administrative Code, by failing to have sufficient members of staff to insure that each resident maintained its highest practicable level of well being. In
particular, it alleges, Respondent failed to have an average of
1.7 hours of certified nursing assistant time for each resident during a 24-hour period on at least eight occasions.
Petitioner has the burden of proof in this matter to show, by a preponderance of the evidence, that the allegations contained in the Administrative Complaint are true, and that there exists a basis for issuing a conditional license to the Respondent. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3DCA 1990).
Respondent’s Administrative Complaint alleges a two pronged violation. On the one hand it alleges that Respondent “failed to have sufficient members [sic] of staff to ensure that each resident maintained its [sic] highest practicable level of well being” at the times alleged. It also asserts the Respondent “failed to have an average of 1.7 hours of certified nursing assistants “ No evidence exists to indicate that Respondent failed to have sufficient staff to insure each resident maintained their highest practicable level of well being.
Rule 59A-4.108. Florida Administrative Code provides:
(4) The nursing home facility shall have sufficient nursing staff, on a 24-hour basis to provide nursing and related services to residents in order to maintain the highest practicable physical, mental and psychosocial
well-being of each resident. The facility will staff, at a minimum, an average of 1.7 hours
of certified nursing assistant and .6 hours of licensed nursing staff for each resident during a 24-hour period.
Section 400.211, Florida Statutes, specifically allows licensed nurses to act as certified nursing assistants. The statute provides that a person must be certified pursuant to that section, except a registered or licensed practical nurse, to serve as a nursing assistant in a nursing home. It can be seen, therefore, that the use of licensed nurses to perform the duties of CNAs is permissible.
However, a preponderance of the evidence of record establishes that on the dates in question, Manhattan had a shortage in CNAs as alleged. The evidence also shows, however, that with the exception of two occasions, and in each of those cases the shortfall was minimal, Manhattan was staffed to provide in excess of the required number of total nursing hours if one accepts, as is appropriate, the substitution of licensed nursing staff hours for certified nursing assistant hours. It is not clear, however, that even using LPNs or RNs to do CNA duties, sufficient LPNs or RNs were assigned to those CNA duties to meet the test. The Agency’s surveyors, relying on the personnel documentation supplied by Respondent, concluded they were not. A preponderance of the evidence supports this conclusion. While Respondent may claim that the RNs and LPNs on duty are expected to fulfill those duties, it did not present evidence to establish they did, and the Agency rule requires not total hours but an apportionment of care hours between licensed nurses and CNAs in a certain ratio.
Petitioner seeks to impose an administrative fine of
$700.00 and suggests that the conditional rating assigned for the time in issue not be changed. Aside from referring to the deficiency established by the evidence herein, a deficiency which, though continuing, was more one of form than of substance, Petitioner fails to present any rationale for its recommendation. Section 400.121, Florida Statutes, provides for the imposition of a fine of $500.00 per day for a violation of any provision of Section 400.102(1). Since the deficiency established is of a minor nature and not of substance, a fine of $250.00 to recognize the incident is appropriate. Such a technical deficiency as here, which does not raise the potential of a failure of patient care, does not, absent a showing of basis therefor, support award of a conditional license.
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 finding that Respondent did not fail to meet staffing requirements sufficient to ensure each resident maintained his or her highest practicable level of well- being, but that it did fail to have an average of 1.7 hours of certified nursing assistant time for each resident during at least eight 24 hour periods, and assessing an administrative fine of $250.00. It is further recommended that the Agency correct
its records to reflect Respondent’s entitlement to a standard license rating effective October 1, 1995.
Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997.
Thomas W. Caufman, Esquire Agency for Health Care
Donna H. Stinson, Esquire Broad and Cassel
215 S. Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
Jerome W. Hoffman General Counsel
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.
