STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYPRESS MANOR, )

)

Petitioner, )

)

vs. ) Case Nos. 97-1325

) 97-4371

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 23, 1997, a formal administrative hearing was held in this case by videoconference between Fort Myers and Tallahassee, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Donna H. Stinson, Esquire

R. Davis Thomas, Jr., Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400 Tallahassee, Florida 32302

For Respondent: Karel Baarslag, Esquire

Agency for Health Care Administration Regional Service Center

2295 Victoria Avenue, Room 309 Fort Myers, Florida 33901

STATEMENT OF THE ISSUE

Whether the Agency for Health Care Administration found deficiencies at Cypress Manor sufficient to support issuance of a conditional license.

PRELIMINARY STATEMENT

On or about January 22, 1997, Petitioner, Cypress Manor, filed a Petition for Formal Administrative Hearing challenging the decision of Respondent, Agency for Health Care Administration, to change the licensure rating of Cypress Manor from standard to conditional. On August 22, 1997, the Agency for Health Care Administration (AHCA) notified Cypress Manor that it also intended to impose a $500 civil penalty for alleged violations of minimum standards, rules, and regulations for the operation of the facility. Cypress Manor again challenged the intended agency actions and underlying allegations and, on September 5, 1997, filed a Petition for Administrative Hearing.

The petitions were separately forwarded to the Division of Administrative Hearings (Division/DOAH) for assignment of an administrative law judge to conduct formal hearings. The first petition was filed with the Division on March 12, 1997, and assigned DOAH Case No. 97-1325. Cypress Manor’s second petition was filed with the Division on September 19, 1997, and assigned DOAH Case No. 97-4371. On September 11, 1997, prior to the second petition being forwarded to the Division, Cypress Manor moved to consolidate the two cases.

At the commencement of the formal hearing the unopposed Motion to Consolidate was granted. A Motion to Appear as Petitioner's Qualified Representative, filed by R. Davis Thomas, Jr., on September 18, 1997, was also granted. At hearing, AHCA

presented the testimony of two witnesses and had two exhibits admitted into evidence. Cypress Manor presented the testimony of two witnesses and offered no exhibits. AHCA also moved to offer three depositions, which were to be late-filed, into evidence.

However, upon review of the three depositions, they were rejected and not admitted into evidence. Pursuant to Rule 1.330(3), Florida Rules of Civil Procedure, a deposition, other than that of a party, may be used in lieu of live testimony when the witness is dead, more than 100 miles away, or qualifies as an expert. Counsel for AHCA indicated that the three individuals, all of whom are AHCA employees, were in Ft. Myers on the day of the hearing, but were involved in work-related assignments.

Given the availability of these three persons, AHCA contended that the depositions should be admitted because the individuals qualified as experts. A review of the depositions indicated that these persons were not experts. Thus, in light of Cypress Manor's objection to their admission, there is no legal basis for admitting the depositions into evidence.

A transcript of the proceeding was filed on October 20, 1997. By agreement of the parties, at the conclusion of the hearing, the time set for filing proposed recommended orders was more than ten days after the transcript was filed. Prior to the date set for filing posthearing submittals, Cypress Manor requested and was granted an extension beyond the time originally scheduled for filing proposed recommended orders. Thereafter,

both parties timely filed proposed findings of fact and conclusions of law under the extended time frame.

FINDINGS OF FACT

1. Petitioner, Cypress Manor, is a nursing home in Fort Myers, Florida, licensed by and subject to regulation by AHCA pursuant to Part II, Chapter 400, Florida Statutes.

2. 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 ensure that they are in compliance with federal Medicare and Medicaid requirements.

3. The surveys are usually conducted by a team consisting of nurses, dieticians, and social workers from the AHCA. Each survey lasts approximately three days, during which time the AHCA team tours the facility; reviews records; interviews staff, families and residents; and observes care of residents and medication administration.

4. After surveying the facility, AHCA prepares a survey report which lists the deficiencies found at the facility. The survey report is then sent to the nursing home.

5. Each alleged deficiency found by AHCA during a survey is identified by a “tag” number, which corresponds to the regulation AHCA claims to have violated. A federal scope and severity rating is assigned to each deficiency.

6. AHCA conducted a relicensure survey of Cypress Manor in

   September 1996, and a follow-up survey in November 1996. At both surveys, AHCA tagged the deficiency denominated as Tag F241, and gave this tag a “Class III” designation.

7. The regulation described under Tag F241 states that:

   
   

   The facility must promote care for residents in a manner and in an environment that maintains or enhances each resident’s dignity and respect in full recognition of his or her individuality.

   
   

8. AHCA contends that this regulation was violated by the actions of the facility as described in the survey reports. Because these alleged deficiencies were found in both surveys, AHCA contends that the facility should be given a conditional license.

9. A conditional license has a significant adverse effect on a nursing home. It must be posted in a public place and AHCA publicizes this information, in part through issuance of press releases. A conditional rating affects the ability of the facility to attract residents, and causes morale problems among staff and existing residents. The rating makes staff recruiting difficult.

10. The September 1996 survey report has two numbered findings. However, no evidence was presented as to the first finding. Therefore, the only pertinent and remaining allegations with respect to this survey are those listed under the second finding.

11. The September 1996 survey cited the following findings

    under the Tag 241: (1)three residents at Cypress Manor, Residents 11, 12, and 13, were observed wearing slipper socks with the names of deceased residents written on them;

    1. Resident 11’s shoes were too small; and (3) the slipper socks of Resident 12, were twisted so that the bottom of each slipper was on the top of her foot.

12. The policy at Cypress Manor was, and had been for many years, to label clothing of residents upon admission, and to write residents' names on slipper socks in approximately 1/4 inch letters. However, when residents died their family members would often donate the clothing of those individuals to Cypress Manor to be used for other residents who had insufficient clothing of their own. For example, Cypress Manor used these donated clothes for incontinent residents who would needed changes of clothing, including slipper socks, several times a day. This practice had been in place during surveys conducted by the AHCA in prior years, but had never been cited by AHCA surveyors as a deficient practice.

13. There is no indication that either the subject residents or their families objected to this practice. Moreover, with regard to the slipper socks with names written on them, the writing on the socks had faded to the point that they could not easily be read.

14. Nothing in the regulation specifically addresses the standards for footwear and no evidence was provided by the AHCA

    with respect to generally accepted standards for footwear. Moreover, no evidence or testimony was presented that the practice of allowing residents to wear donated clothing or slippers constituted a failure to treat such residents with dignity and respect.

15. With regard to the finding that Resident 11’s shoes were too small, there was no evidence to support this claim. Rather, Resident 11 had shoes brought in by her husband, but she regularly took them off and left them in various places throughout the facility.

16. The third alleged violation involved Resident 12, the resident whose slipper socks were turned around. According to Cypress Manor staff who know this resident, she was capable of and did, in fact, propel herself in a wheelchair. As a result of Resident 12’s propelling herself in the wheelchair, the slipper socks often turned.

17. The November 1996 survey report contains eight numbered findings, none of which relate to the footwear issues described in the September survey. No evidence was presented by the agency at hearing with respect to findings 1, 2, 3, 4, or 7.

18. In finding number five, AHCA noted that a resident was seen on two consecutive days wearing the same pink flowered gown and pink sweater. Although this was cited as violating the resident's dignity and respect, the AHCA surveyor acknowledged that the resident's clothing was clean and appropriate.

    Furthermore, the AHCA surveyor never asked the resident if she liked the clothes that she was wearing. Nor did the surveyor attempt to determine the resident's clothing preference.

19. Cypress Manor staff members familiar with this resident were aware that she had favorite clothes and often insisted on wearing the same items of clothing. The pink sweater worn by the resident on the two days she was observed by the surveyor was one of the resident's favorite garments.

20. In finding number six, AHCA indicated that during a tour of the facility with the facility administrator, the surveyor and administrator entered the room of a resident. The finding further noted that while in the resident’s room, the administrator asked the resident to describe her medical condition to the surveyor. In the surveyor's opinion, the resident seemed "surprised” when asked by the administrator to describe her condition to the surveyor.

21. The issue of requesting that residents describe or discuss their conditions with surveyors is not covered in the regulations. However, it is standard practice as part of surveys to ask residents to describe their condition to surveyors, and it is becoming more common for residents to speak directly to surveyors.

22. The resident referred to in finding number six was a relatively young and assertive resident who had lived at Cypress Manor for several years and served as president of the facility's

    Residents' Council. Also, as a former employee of the Department of Health and Rehabilitative Services, this resident was very familiar with the survey process. In fact, she would often comment to staff to "let those surveyors at me [sic]; I want to talk to them." This resident often spoke openly about her physical condition and, in the opinion of those who knew her well, would not have been offended by a request to describe her medical condition with AHCA surveyors.

23. It was acknowledged by AHCA that dignity can vary depending on the individual, and that what might be considered undignified to one resident might not be undignified to another. While there are some areas that might be considered to violate the standard regarding the dignity of the patient, no general standards as to what constitutes such a violation was presented by AHCA.

24. In finding number eight of the November 1996 survey report, AHCA stated that a resident in the dining room was given his meal, but did not receive eating utensils until approximately ten minutes later. The surveyor acknowledged that the resident did not attempt to eat the meal with his hands, but waited until the utensils were brought to him. At the time this occurred, there was a large number of residents in the dining room, all of whom were being served their meals. This incident appears to be an isolated and inadvertent oversight, and one that was immediately corrected.

25. At the time of the relicensure survey of Cypress Manor, the facility had no Class I or Class II deficiencies; no Class III deficiencies not corrected within the time established by the agency; and was in substantial compliance with established criteria.

26. It is the policy of the AHCA to classify all deficiencies as at least a Class III deficiency, even when, according to the federal evaluation, the facility would be in substantial compliance with the regulation at issue.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of his proceeding. Section 120.57(1), Florida Statutes.

28. The AHCA is authorized to license nursing home facilities in the State of Florida, and pursuant to Section 400.23(8), Florida Statutes, is required to evaluate nursing home facilities and assigned ratings.

29. Section 400.23(8), Florida Statutes, requires the AHCA to “at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance. . . .” That section further provides that 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.

30. 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.

31. 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 deficiencies 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 then Class I or Class II deficiencies. Section 400.23(9), Florida Statutes.

32. Based on its findings and conclusions of deficiencies, AHCA is required to assign one of the following ratings to the facility: standard, conditional, or superior. These three categories of ratings for facilities are defined in 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 by the agency and is in substantial compliance with the criteria established under this part. . . .

       
       

33. AHCA alleges and claims that Cypress Manor violated minimum standards which are Class III deficiencies. Accordingly, AHCA has the burden of proof in this proceeding. In order to prevail, AHCA must establish a preponderance of evidence the existence of the alleged deficiencies and that such deficiencies justify changing Cypress Manor’s 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).

34. A conditional rating is issued when, due to the presence of one or more Class I or II deficiencies, or Class III deficiencies not corrected within the time established by the agency, the facility is not in substantial compliance at the time of the survey with established criteria.

35. In the instant case, the conditional license was imposed because AHCA determined that there was a Class III

    deficiency found in the September 1996 survey which had not been corrected when the follow-up survey was conducted in November 1996. AHCA, therefore, has the burden of proving that there was a Class III deficiency identified in the September survey which was not corrected in November 1996.

36. AHCA alleges that the findings noted in the September and November 1996 survey reports constitute the basis for determining that Cypress Manor failed to promote care for residents in a manner and in an environment that maintains or enhances each resident’s dignity and respect in full recognition of his or her individuality.

37. The evidence failed to prove the existence of the alleged Class III deficiency at either the September 1996 survey or at the time of the follow-up survey in November 1996. Apparently, the footwear issue was resolved to the AHCA’s satisfaction, as this was not mentioned in the November report. Furthermore, there was no evidence that the Class III deficiency constituted a “widespread potential for more than minimal harm” to residents.

38. Rule 59A-4.128, which sets forth the nursing home rating system, states that:

    1. . . . For rating purposes, the following deficiencies are considered equal in severity: . .

    . Class III deficiencies; and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety. . . .

39. No evidence was presented to show that the practices described “constitute a widespread potential for more than minimal harm” or constituted any potential for any harm to residents. In the instant case, there was no evidence that the allegations constituted, even under the AHCA’s view, anything more than minor infractions. Nevertheless, under AHCA practice and policy, all deficiencies must be assigned a designation. Accordingly, any minimal violation at a nursing home must be given at least a Class III designation. This is the case even if, at the time of the deficiency, the nursing home is in substantial compliance with the rules for federal purposes.

40. Although dignity is certainly not a trivial issue, particularly with respect to nursing home residents, the practices described in the survey report and by the testimony presented are not specifically prescribed by rule, do not violate any commonly accepted view of dignity, and are matters about which different people could hold different perceptions. More significantly, there was no showing of any potential for “more than minimal” harm.

41. In light of the foregoing, the AHCA failed to meet its burden of proof.

RECOMMENDATION

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

Cypress Manor, and rescinding the conditional rating and imposition of the $500 penalty.

DONE AND ENTERED this 6th day of January, 1998, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998.

COPIES FURNISHED:

Donna H. Stinson, Esquire

R. Davis Thomas, Jr., Qualified Representative

Broad and Cassel

215 South Monroe Street Suite 400

Tallahassee, Florida 32302

Karel Baarslag

Agency for Health Care Administration Regional Service Center

2295 Victoria Avenue

Room 309

Fort Myers, Florida 33901

Jerome Hoffman General Counsel

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

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: 97-001325

Orders for Case No: 97-001325