STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEVERLY ENTERPRISES-FLORIDA, ) d/b/a MOUNT DORA HEALTHCARE CENTER, )

)

Petitioner, )

)

vs. ) Case No. 96-5645

)

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in Tavares, Florida, on April 17, 1997, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Donna H. Stinson, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400 Tallahassee, Florida 32302

For Respondent: Thomas W. Caufman, Esquire

Agency for Health Care Administration 7827 North Dale Mabry Highway

Tampa, Florida 33641 STATEMENT OF THE ISSUE

Whether the deficiencies found at Petitioner's nursing home by the Agency for Health Care Administration were sufficient to support issuance of a conditional license.

PRELIMINARY STATEMENT

Beverly Enterprises-Florida, d/b/a Mount Dora Healthcare Center (Mt. Dora), was notified by the Agency for Health Care Administration (AHCA) that its licensure rating was being changed from standard to conditional based upon two surveys of Mt. Dora conducted in May and August of 1996. Mt. Dora filed a Petition for Formal Hearing with AHCA asserting that Mt. Dora was entitled to a standard rating. AHCA referred the case to the Division of Administrative Hearings which noticed the hearing for April 17, 1997, when the case was heard as noticed.

At the hearing, AHCA presented the testimony of its two inspectors and introduced two documentary exhibits into evidence. Mt. Dora presented the testimony of the facility administrator, its consulting pharmacist, and one of its nurses. Mt. Dora introduced four documentary exhibits into the record. The transcript of the proceedings was filed on May 8, 1997, and both parties filed proposed findings on or about June 10, 1997. The proposed findings of the parties were read and considered.

FINDINGS OF FACT

1. AHCA is the state agency charged with conducting licensure surveys of nursing home facilities in Florida to ensure that nursing homes are in compliance with state regulations.

   AHCA also surveys nursing homes to insure that they are in compliance with federal Medicare and Medicaid requirements.

2. AHCA issues survey reports listing the deficiencies found at facilities that it has surveyed.

3. Each deficiency is identified by a tag number corresponding to the regulation AHCA claims to have been violated. A federal "scope and severity" letter rating is assigned to each deficiency. These letter ratings run from A to L.

4. At the end each deficiency, the survey report lists the State licensure regulation claimed to have been violated and the State's classification of the deficiency. The State's classification of deficiencies are Class I, Class II, and

   Class III.

   
   

5. Changes in a facility's licensure rating are based upon the violations of applicable State regulations.

6. The Petitioner, Mt. Dora, is a nursing home in Mt. Dora, Florida, licensed by AHCA pursuant to Chapter 400, Florida Statutes.

7. AHCA conducted a relicensure survey of Mt. Dora in May of 1996, and a follow-up survey in August of 1996. See AHCA Exhibits 1 and 2.

8. Richard Fuller and Kathy Johnson are Registered Nurses employed by AHCA. Fuller and Johnson inspected Mt. Dora on May 20, 1996, and August 6, 1996.

9. As part of their inspections, Fuller and Johnson observed a "medication pass" in which Mt. Dora's staff

   administered medications to its residence. Fuller and Johnson compared the medications administered with the physicians' orders for the home's residents. The inspectors considered as a medication error any medication administered, but not ordered; or ordered, but not administered.

10. Each medication ordered to be administered or administered to a patient presented an opportunity for error upon which the home's performance was rated.

11 On May 20, 1996, Johnson observed the administration of medications by the home's staff. A staff nurse administered two doses of Ventolin from an inhaler to a resident, G.L., without waiting at least one minute between doses. The physician's order for G.L. provided that two doses were to be given, but did not indicate a waiting period between the administration of the doses. Johnson wrote this up as a violation because the nurse did not wait one minute between the administration of the two doses as recommended in the manufacturer's instructions.

1. Fuller observed the administration of Mylanta, an over- the-counter antacid, to a resident, M.R., pursuant to a doctor's order for a 30 cc dose of said medication. Fuller observed that the level of liquid in the medicine cup did not reach the 30 cc line; however, he did observe that it was above the 25 cc line. Fuller could not state exactly how much was administered. There were no index marks between the 25 cc and 30 cc lines.

2. Fuller checked the records of a resident, H.T., for whom a physician had prescribed Megace prior to meals. Fuller observed that Megace was offered with the patient's breakfast rather than prior to the meal. The patient's medication administration record revealed that the patient was offered Megace two times, but refused the medication.

3. Fuller observed that a staff nurse administered one drop of Artificial Tears, an over-the-counter medication for the relief of dry eyes, in each eye of R.P., a resident of the home. Fuller checked the physician's order sheet for R.P. and found that the orders did not indicate a number of drops to be given. The physician's order dated May 8, 1996, prescribed one drop to each eye to the patient R.P.1 Further, the manufacturer's recommended dosage for Artificial Tears is one drop in each eye. By administering one drop to each eye of the patient, R.P., the staff nurse was following the manufacturer's instructions.

4. On August 6, 1996, Fuller and Johnson inspected the facility. Fuller observed a staff nurse administer a multivitamin to a resident, J.P.; however, Fuller did not find this vitamin listed on the physician's order sheet. A subsequent review of the physician's records by the facility's consulting pharmacist revealed an ongoing order dated October 8, 1993, for the administration of a multivitamin to this resident. The resident had been at the facility since 1989 and was 112 years old at the time of the inspection.

5. Fuller also observed the staff nurse had failed to give Klonopin to a resident, J.H., during the morning medication pass. When Fuller brought this to the attention of the nurse, the nurse administered the medication. The medication was given within the time frame required by the doctor's orders.

6. During the same period, it was observed that a staff nurse did not administer insulin to a resident, H.Y., until after breakfast when the doctor's order provided that the insulin was to be administered one-half an hour prior to breakfast. The blood sugar test for the patient revealed that the patient was not endangered by the delay in administering the insulin.

7. On the morning of August 6, 1996, the staff nurse responsible for administering morning medications to J.H. and

   H.Y. suffered a medical emergency which required other staff nurses to intervene and render assistance to the stricken nurse. After the nurse was removed by ambulance to the hospital, a nurse from another wing of the facility finished administering medication on the stricken nurse's wing.

8. On May 21, 1996, the inspectors reported four errors in

   
   

   41 opportunities to administer medication. This would constitute a 9.75 percent medication error rate for that date. On August 6, the inspectors reported three errors in 42 opportunities to administer medication. This would constitute a 7.1 percent error rate.

9. During both the May 21, 1996, and August 6, 1996, surveys, the inspectors found insulin bottles which were still in use more than three months after having been opened. In addition, the inspectors found some bottles of insulin which had not been dated when opened. This deficiency was assigned a federal scope and severity rating of "B."

10. Mt. Dora had a policy to date bottles when opened, and to discard bottles of insulin three months after opening period.

11. Each insulin bottle bore the date upon which it was dispensed from the pharmacy and the manufacturer's expiration date.

12. Mt. Dora's policy to discard bottles of insulin after three months was put into place to satisfy the comments made in an earlier AHCA survey period. The policy at other nursing homes, according to the home's consulting pharmacist, is to discard insulin bottles within six months after opening.

1. The consulting pharmacist inspects the home's medicines monthly and discards all bottles which are more than three months beyond the date they were dispensed.

2. The record does not support the finding that any of the bottles were used beyond the manufacturer's expiration date.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.

2. AHCA is authorized to license nursing homes in the State of Florida, pursuant to Section 400.23(8), Florida Statutes. Section 400.23, Florida Statutes, requires AHCA to evaluate all nursing home facilities and to determine their degree of compliance at least every 15 months. Section 400.23(9), Florida Statutes, provides that when minimal standards are not met, this section defines three classes of deficiency from Class I to Class III with Class III being the least severe.

3. Class I deficiencies are defined as those which the agency determines an imminent danger to the residents or guests to the nursing home facility or a substantial possibility that death or serious physical harm will result therefrom. Class II deficiencies are those which the agency determines have a direct immediate relationship to the health, safety, or security of nursing home facility residents, other than Class I deficiencies. Class III deficiencies are those which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing facility residents, other than Class I or Class II deficiencies. See Section 400.23(9)(a),(b), and (c), Florida Statutes.

4. Based upon its findings and the classification of deficiencies, AHCA is required to assign one of the three following ratings to the nursing home: standard, conditional, or superior. In turn these three categories of rating are defined by Section 400.23(8), Florida Statutes, as follows:

   1. 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. . . [.]

      
      

   2. 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 . . . [.]

      
      

   3. 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 . . . [.]

      
      

5. The Agency has the burden of proof to affirmatively establish the existence of the alleged deficiencies upon which it bases changing the rating of the surveyed home.

6. A conditional rating is issued when a facility has one or more Class I or Class II deficiencies, or Class III deficiencies not substantially corrected within the time established by AHCA. Class III deficiencies are those which present 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.

7. The conditional license was imposed in this case because AHCA determined that there were two Class III deficiencies found in the May survey which were not corrected

   upon a re-survey in August, Tag F332 and Tag 426. With regard to the deficiencies cited under Tag F332 in the May survey, AHCA must prove that the facility did not dispense medicines in accordance with the physician's order in August.

8. In August, the survey cited three medication errors, to wit: administration of multivitamins to a resident without a valid order; a failure to administer Klonopin in accordance with the doctor's orders; and failure to administer insulin prior to breakfast as ordered by the doctor. The record reveals a valid doctor's order for the administration of multivitamins to the first patient. Therefore, administration of the multivitamin was correct. If an error existed, it was the failure to appropriately show multivitamins on the residence medication and administration record. However, this was not cited by the inspectors. In the second and third instances regarding the administration of Klonopin and insulin, the medical emergency involving one of the staff nurses delayed the administration of all medications. This emergency was apparently not considered by the inspectors. In the case of the Klonopin, the nurse administered the medication after the matter was brought to her attention by the inspector. In the case of the insulin, the patient's blood sugar had been checked prior to breakfast and was found to be normal, and the medication was administered after breakfast when the substitute nurse administered medications.

9. Mt. Dora was in substantial compliance at the time of the survey with the criteria established in the statute with regard to Tag F332. Furthermore, with regard to Tag F332, the deficiencies originally noted with regard to Mylanta, Megace, and Artificial Tears, were inconsequential or administered in accordance with doctor's orders. With regard to the administration of Ventolin, the administration was in accordance with the doctor's orders. Although the nursing staff may be criticized for not inquiring of the doctor about the difference between the manufacturer's recommended manner of administration and the doctor's directed manner of administration, when such a disparity exists, the nurse is obligated to follow the doctor's orders. In sum, the deficiencies found under Tag F332, reflected a de minimis potential for harm. Under the standards established by the Department, this tag cannot be a basis for the issuance of conditional license.

10. With respect to Tag F426, AHCA showed that Mt. Dora failed to follow its internal policies regarding the discarding of opened bottles of insulin and failed to follow its internal policies regarding marking bottles when opened. However, the inspector could not state whether any of the bottles on hand were more than three months older than the date they were dispensed, or had been on hand more than three months beyond the date they were dispensed.

11. Mt. Dora presented evidence that it was its policy to dispose of all insulin bottles that were three months older than the date they were opened or more than three months older than the date they were dispensed if undated. Maintenance of insulin for up to six months is not a health hazard. The consulting pharmacist inspected the stocks of insulin on hand monthly and disposed of those bottles of insulin which were three months older than the date they were opened or, if undated, three months older than the date they were dispensed. Although Mt. Dora was violating its own policy by failing to date the bottles, the evidence presented does not show a indirect or potential relationship to the health, safety or security of residents.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Agency take no action regarding the rating of Mt. Dora Nursing Home and that its rating continued to be standard.

DONE AND ENTERED this 25th day of July, 1997, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1997.

ENDNOTE

1/ The physician's order is a different record from the physician's order sheet. The physician's order sheet extracts the material in the various physician's orders.

COPIES FURNISHED:

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308-5403

Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308-5408

Donna H. Stinson, Esquire Broad and Cassel

215 South Monroe Street, Suite 400 Tallahassee, Florida 32302

Thomas W. Caufman, Esquire

Agency for Health Care Administration 7827 North Dale Mabry Highway

Tampa, Florida 33641

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 96-005645

Orders for Case No: 96-005645