HERITAGE HEALTHCARE CENTER ) (BEVERLY ENTERPRISES, ) FLORIDA, INC., d/b/a BEVERLY ) GULF COAST), )
vs. ) Case No. 97-5847
Respondent. )
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Sarasota, Florida, on April 2, 1998.
For Petitioner: Donna H. Stinson
The issue is whether Respondent properly changed Petitioner's licensure status to conditional on June 23, 1997.
By undated Petition for Formal Administrative Hearing, Petitioner alleged that Petitioner holds a license for the operation of a nursing home and that, by letter dated June 23, 1997, Respondent changed Petitioner's licensing status to conditional. The petition alleges that the change in status was due to a survey dated June 12, 1997.
At the hearing, Petitioner called five witnesses and offered into evidence 11 exhibits, including the transcript of a deposition taken after the hearing. Respondent called four witnesses and offered into evidence one exhibit. All exhibits were admitted.
The court reporter filed the transcript on April 20, 1998.
Petitioner owns and operates a nursing home in Venice, Florida.
Respondent conducted a relicensure survey of Petitioner's nursing home on June 12, 1997. On June 23, 1997, Respondent issued Petitioner a new license, effective June 12, 1997, through October 31, 1997, for a skilled nursing facility. However, as a result of the deficiencies found in this survey, Respondent rated the renewal license as conditional.
A resurvey on August 6, 1997, revealed that Petitioner had corrected all of the cited deficiencies, so Respondent issued a standard license, effective August 6.
There are three ratings for a license: superior, standard, and conditional. Prior to the June 12 renewal, Petitioner's license was rated superior.
The issuance of a conditional license adversely affects a licensee in one and possibly two ways. First, the conditional license hinders marketing and employee recruiting and retention. Second, the conditional license may affect Medicaid reimbursement levels.
Even though Respondent rerated the nursing home as standard, the earlier conditional rating remains meaningful because it means that Petitioner cannot gain a superior rating for the next licensing period. Another factor militating against a determination that the present proceeding is moot is Respondent's procedure by which it does not provide licensees with an opportunity for a hearing prior to changing the rating of their nursing home licenses. As an incidental complaint to the issuance of a conditional license, Petitioner also complains of the procedure by which this Respondent issues this conditional license. Without having given Petitioner an opportunity for a hearing based on a proposed or tentative decision to change Petitioner's rating, Respondent simply issued the conditional license and gave Petitioner an
opportunity to challenge this action, after the fact, in a formal administrative hearing. A mootness determination on these facts would insulate Respondent's initial action from effective challenge, despite the obvious economic impacts of the initial action.
The June 12 survey reports cites three sets of Class II deficiencies, which were identified as Tags F 225, F 309, and F 314. These three tags were the sole bases for the issuance of a Conditional license.
Tag F 225 concerns the investigation and documentation of an alleged incident of abuse of a resident by one of Petitioner's employees. The survey report asserts that Petitioner did not satisfy applicable legal requirements by failing, in violation of its own policies, to document in the resident's file the results of an abuse investigation report.
Tag F 225 and the testimony of Respondent's witnesses at the hearing are vague as to whether the issue under Tag
F 225 is that Petitioner failed to conduct an appropriate investigation or failed to document adequately that it had conducted an investigation. When pressed, Respondent's witnesses chose failure to document, perhaps in deference to the fact that Petitioner's employees clearly conducted an investigation.
The alleged incident underlying this issue did not constitute abuse. A staffperson grabbed a resident's arm for
an appropriate purpose and did not injure or harm the resident. Petitioner's investigation properly concluded that there was no abuse.
As discussed under the conclusions of law, the subsubsubparagraph of the federal regulation allegedly violated under this tag requires only that Petitioner report to appropriate authorities any knowledge of actions by a "court of law" against an employee suggestive of unfitness to serve as facility staff. There is no proof of action by a court of law; this missing fact alone ends the inquiry under this tag. Additionally, Petitioner nonetheless reported the unfounded allegations to the state agency charged with investigating allegations of abuse, and the state agency concluded that the charge was unfounded.
Tag F 309 concerns the quality of care received by six residents.
As to Resident Number 6, who was in the final stages of a terminal illness, the survey report asserts that Petitioner kept him in isolation and did not offer him opportunities for socialization. Testimony at the hearing revealed that the resident was dying and did not want to socialize, but Respondent's witness opined that this was not an appropriate option. No evidence suggested that the dying resident suffered any diminution of ability to eat or use language.
Respondent's witness labored under the misconception that the cited federal regulation addresses socialization (as opposed perhaps to the role of socialization in facilitating the more specific activities actually mentioned by the regulation, which is discussed in the conclusions of law). Even if the federal regulation were so broad, which it is not, the evidence certainly suggests that any diminution in socialization was unavoidable due to the resident's terminal clinical condition. The evidence reveals that Resident Number 6, who had had a gangrenous foot, suffered a staph infection of his gangrenous right foot. He was depressed, fatigued, and in pain; however, he was freely visited by staff and family.
As to Resident Number 8, who had had a stroke, the survey report asserts that Petitioner failed to provide him his restorative therapy of walking and failed to document this therapy. At the time of the survey, Petitioner was short of restorative staff due to a scheduled vacation and an unscheduled bereavement absence due to the suicide of an employee's brother. When a restorative aide, who was on vacation, appeared at the nursing home and attempted to provide Respondent's surveyor with documentation concerning the therapy administered to Resident Number 8, the surveyor rejected the documentation on the grounds that it did not sufficiently identify the resident or therapist.
Resident Number 8 suffered some loss of functioning--i.e., the ability to walk 400 feet--but the record does not link this loss of functioning to any brief interruption in his restorative therapy.
As to Resident Number 9, the survey report states that, during the two days that surveyors were at the facility, she did not ambulate, even though her restorative nursing plan called for daily ambulation. However, she suffered no harm during this insignificant interruption in her program, from which she was successfully discharged a couple of weeks after the survey.
As to Resident Number 13, who was 102 years old, the survey report notes that he was supposed to ambulate in a wheelchair. One of Respondent's surveyors noticed that a staffperson was pushing this resident's wheelchair. However, staff had assumed the responsibility of pushing this resident's wheelchair for him after he had developed pressure sores on his heels. The evidence fails to show that Petitioner's care for the treatment of Resident Number 13 had anything to do with his loss of function.
As to Resident Number 26, the survey report asserts that his physician had ordered an increase in dosage of Prilosec, which aids digestion by treating the acidity associated with peptic ulcers. Three weeks passed before Petitioner's staff noticed that the change, which was on the
resident's chart, had not yet been implemented. They implemented the change prior to the survey, and notified the resident's physician of the error in medication administration a couple of days later.
The survey report states that Petitioner's staff documented, on May 30, 1997, that Resident Number 26 had lost
4.8 pounds, or 5.7 percent of his body weight, in one week. This weight loss occurred during the latter part of the period during which Resident Number 26 was receiving less than his prescribed amount of medication.
Two of Petitioner's witnesses testified, without elaboration, that the medication error did not cause the weight loss. The survey report implies otherwise, although Respondent's witnesses were not as pronounced as Petitioner's witnesses in dealing with any link between the medication error and the weight loss.
Absent the weight loss, the medication error-- consisting of a failure to raise a digestive medication--would have been insignificant and insufficient grounds for a Class II deficiency on the cited basis. However, there was a serious weight loss while the resident was undermedicated.
The lack of evidence in the record proving that there was or was not a causal link between the weight loss and undermedication means that the party bearing the risk of nonpersuasion loses on this issue. As discussed in the
conclusions of law, Respondent has the burden of proof; thus, for this reason alone, Petitioner prevails on this issue.
As to the last resident under Tag F 309, who was not identified, the survey asserts that a restorative aide commented that he used to walk 440 feet, but does not anymore because he thinks that he does not have to. This scanty allegation provides no basis for citing Petitioner with a deficiency, even if it applies to Resident Number 8, as appears probable.
Tag F 314 also concerns a quality-of-care issue-- specifically, the development and treatment of pressure sores in three residents.
As to Resident Number 1, who had been in the nursing home for three years, the survey report states that, on
May 12, 1997, he had developed a Stage II pressure sore on his right outer ankle. The survey report asserts that Petitioner failed to provide sufficient care to prevent the development of this pressure sore, that Resident Number 1 had suffered pressure sores in 1995, and that Petitioner should have known and treated Resident Number 1 on the basis of his being at risk for developing pressure sores.
Despite a failure to document, Petitioner's staff adequately treated Resident Number 1 once the pressure sore developed. Nursing assistants required that he wear silicone
pressure booties and that lotion be rubbed on the irritated skin.
In addition, Petitioner has shown that the clinical condition of Resident Number 1 made pressure sores unavoidable. One of Petitioner's Assistant Directors of Nursing testified that Resident Number 1 had poor pedal pulses, indicative of poor circulation, and a history of peripheral neuropathy. The resulting decreased sensation in his feet would prevent him from feeling increased pressure and thus the need to move his feet. Despite preventative measures, Resident Number 1 developed pressure sores due to these clinical conditions.
As to Resident Number 7, who had been in the nursing home for six years, the survey report asserts that she had a Stage II pressure sore--meaning that the skin was broken--but was allowed to remained seated in the same position for two hours in a position in which the pressure on the sore on her buttock was not relieved. The survey report does not allege that this pressure sore developed while Resident Number 7 resided in the nursing home.
Resident Number 7 had severe dementia and was a total-care patient. She could not move independently. In fact, she sat, unmoved, in a chair for at least 4 and 3/4 hours on one of the days of the survey. The failure to move
Resident Number 7 raises serious questions about the adequacy of Petitioner's treatment.
However, Petitioner's Assistant Director of Nursing answered these questions when she testified that the one- centimeter pressure sore healed five days after the survey. Thus, Petitioner provided Resident Number 7 with the necessary treatment and services to promote healing.
As to Resident Number 13, who had been in the nursing home for less than three months, the survey report alleges that he had developed pressure sores while in the nursing home. Resident Number 13 was the 102-year-old resident who is also discussed in Tag F 309.
The survey report alleges that, on April 24, 1997, Resident Number 13 had a red left heel, red right foot, and pink right heel; on May 1, 1997, he had soft and red heels; on May 7 and 14, 1997, his pressure sores could not be staged due to dead tissue surrounding the sores; on May 20, 1997, his left heel was documented as a Stage II pressure sore, but the right heel could not be staged due to dead tissue; and Petitioner's staff did not implement any treatment until
May 12, 1997.
Respondent proved the allegations cited in the preceding paragraph except for the last concerning a failure to implement any treatment until May 12.
Petitioner's Assistant Director of Nursing testified that Patient Number 13 was frail and debilitated. If this is a clinical condition, it is the only statement of Patient Number 13's clinical condition contained in the record. The Assistant Director of Nursing testified that the pressure sore on the left heel healed by June 3 after the usual treatment measures of turning and repositioning and heel protectors.
She testified that the pressure sore on the right heel improved somewhat, but had not healed by the time of his death in January 1998 of presumably unrelated causes.
The testimony of the Assistant Director of Nursing rebuts any evidence concerning inadequate treatment of Resident Number 13, but does not establish that the development of his pressure sores was clinically unavoidable. Her testimony as to Resident Number 1 identified clinical conditions that, when coupled with the early implementation of preventative measures, established that Resident Number 1's pressure sore was unavoidable. As to Resident Number 13, the Assistant Director of Nursing also testified of early implementation of preventative measures, but, in contrast to her testimony concerning Resident Number 1, she described little, if anything, of any clinical condition making the pressure sores unavoidable.
If the intent of the Assistant Director of Nursing was to imply that old age coupled with frailty and
debilitation provide the necessary clinical justification, she failed to establish the necessary causal relationships among pressure sores, advanced age, and frailty and debilitation-- even if the frailty and debilitation were relative to other 102-year-olds, which the record does not reveal, as opposed to the frailty and debilitation, relative to the general population, that one might expect in a 102-year-old. Without more detailed evidence concerning Resident Number 13's clinical condition, Petitioner effectively invites the creation of a safe harbor from liability for the development of pressure sores in 102-year-olds or even 102-year-olds who are frail and debilitated for their age, and the administrative law judge declines either invitation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes, except for references to Section 483, which is to 42 Code of Federal Regulations (CFR), Part 483. All references to Rules are to the Florida Administrative Code.)
Section 400.23(8) provides that Respondent shall evaluate all nursing homes at least every 15 months and assign a rating to each facility. Respondent bases the rating on, among other things, deficiencies found during its periodic surveys of nursing homes.
Section 400.23(9) directs Respondent to classify deficiencies in nursing homes. Class I deficiencies are the most serious deficiencies. Section 400.23(9)(b) defines Class II deficiencies as "those which [Respondent] determines have a direct or immediate relationship to the health, safety, or security of nursing home facility residents, other than Class I deficiencies."
Section 400.23(8) describes the ratings 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 [Respondent], and is in substantial compliance at the time of the survey with criteria established under this part, with rules adopted by [Respondent], and, if applicable, with rules adopted under the Omnibus Budget Reconciliation Act of 1987
. . ..
A conditional rating means that a facility has one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by [Respondent], is not in substantial compliance at the time of the survey with criteria established under this part, with rules adopted by [Respondent], or, if applicable, with rules adopted under the Omnibus Budget Reconciliation Act of 1987
. . ..
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 [Respondent] and is in substantial compliance with the criteria established under this part and the rules adopted by [Respondent] and, if applicable, with rules adopted pursuant to the Omnibus Budget Reconciliation Act of
1987 . . .; and the facility exceeds the criteria for a standard rating through enhanced programs and services in the [seven named] areas "
The survey report is the charging document in this case. Respondent never filed an administrative complaint or similar document. Petitioner commenced this case by filing a petition challenging Respondent's action reducing Petitioner's license to conditional.
Tag F 225 cites "483.13(c)(1)(iii)," which evidently refers to the CFR. This regulation states that a nursing home must "[r]eport any knowledge it has of actions by a court of law against any employee, which could indicate unfitness for service as a nurse aide or other facility staff to the State nursing aide registry or licensing authorities."
Tag F 225 also cites Rule "59A-4.1288," which may be to "59A-4.128." Rule 59A-4.128 restates the above-quoted provisions of the statutes.
Tag F 309 cites "483.25," which evidently refers to the CFR. This regulation states that "[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care."
Section 483.25(a)(1) provides that the "facility must ensure that--
A resident's abilities in activities of daily living do not diminish unless circumstances of the individual's clinical condition demonstrate that diminution was unavoidable. This includes the resident's ability to--
Bathe, dress, and groom;
Transfer and ambulate;
Toilet;
Eat; and
Use speech, language, or other functional communication system.
Section 483.25(a)(2) provides that the facility must "ensure" that a resident "is given the appropriate treatment and services to maintain or improve his or her abilities specified in paragraph (a)(1) of this section "
Section 483.25(a)(3) provides that the facility must "ensure" that a resident "who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene."
Section 483.25(f) states that, "[b]ased on the comprehensive assessment of a resident, the facility must ensure that--"
A resident who displays mental or psychosocial adjustment difficulty, receives appropriate treatment and services to correct the assessed problem, and
A resident whose assessment did not reveal a mental or psychosocial adjustment difficult does not display a pattern of decreased social interaction and/or increased withdrawn, angry, or depressive behaviors, unless the resident's clinical
condition demonstrates that such a pattern was unavoidable.
Section 483.25(i) states that, "[b]ased on a resident's comprehensive assessment, the facility must ensure that a resident--"
Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible; and
Receives a therapeutic diet when there is a nutritional problem.
Section 483.25(m) states that the "facility must ensure that--"
It is free of medication error rates of five percent or greater; and
Residents are free of any significant medication errors.
Tag F 314 cites Section 425.25(c), which evidently refers to the CFR.
Section 483.25(c) states that, "[b]ased on the comprehensive assessment of a resident, the facility must ensure that--"
A resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and
A resident having pressure sores receive necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.
Respondent proposes that it has the burden of proof, and Respondent contends that the standard of proof is by a preponderance of the evidence. However, as to the burden of proof, Respondent contends that Petitioner has the burden of proof, under Section 483.25(c), to show that pressure sores unavoidably developed following admission.
Respondent unnecessarily concedes that it has the burden of proof. Under Florida law, the allocation of the burden of proof in license-renewal cases requires a determination whether the agency's license renewal is ministerial or discretionary. For instance, in Vocelle v. Riddell, 119 So. 2d 809 (Fla. 2d DCA 1960), the court construed a statute that provided for renewal of a license on the presentation of a written request and payment of the required fee. Holding that the reissuance of a license under this statutory scheme amounted to no more than a ministerial act, the court refused to allow the agency to withhold the license unless the agency proved that the license should be revoked. The purpose of this requirement is to prevent the agency from avoiding the burden of proof imposed upon it in a license-revocation proceeding by waiting until the license term expires and then denying the application for renewal.
However, if the agency's decision is discretionary, then the burden of proof, if the agency denies the application for renewal, is on the licensee/applicant. A renewal decision
is discretionary, not ministerial, if it requires the agency to consider substantive matters, such as the fitness of the licensee/applicant for a license.
The Legislature clearly has imposed upon Respondent discretionary duties in determining whether to renew the license of a owner or operator of a nursing home. Thus, but for Respondent's concession, the burden of proof would be on Petitioner.
Normally, Respondent's contention that Petitioner nevertheless has the burden of proof concerning the pressure sores would raise concerns under well-established case law that state agencies, and presumably federal agencies, may not establish presumptions; Florida courts have routinely held that this authority rests exclusively with the Legislature and the courts. See, e.g., McDonald v. Department of Business and Professional Regulation, 582 So. 2d 660 (Fla. 1st DCA 1991). However, in this case, the Legislature adopted the relevant provision of the CFR that effectively shifts the burden of going forward with the evidence, on post-admission pressure sores, to Petitioner.
The standard of proof should be a preponderance of the evidence, if the burden were on Petitioner. Because Respondent has voluntarily assumed the burden of proof, it has raised the prospect that the proper standard of proof should be clear and convincing evidence because of Respondent's
implicit characterization of this proceeding as a license- revocation proceeding. In the absence of a demand to revoke or suspend Petitioner's license, the standard of proof should be a preponderance of the evidence but the findings would remain the same under either standard of proof.
Respondent failed to prove the allegations under Tag F 225. The result would be no different if Petitioner had the burden of proof.
Respondent failed to prove the allegations under Tag F 309. The result would be different in only one case if Petitioner had the burden of proof; Petitioner would not have prevailed as to Resident Number 26.
Respondent proved only one of the allegations under Tag F 314. As to Resident Number 1, Respondent failed to prove the allegations concerning the development and treatment of the pressure sore. As to Resident Number 7, Respondent failed to allege that the pressure sore developed after the admission of the resident and failed to proved the allegation concerning its treatment.
As to Resident Number 13, Respondent failed to prove the allegations concerning the treatment of the pressure sores. However, Respondent proved that the allegations that the pressure sores developed after the resident was admitted to the nursing home, and Petitioner failed to show that the development of the pressure sores was clinically unavoidable.
In the case of Resident Number 13, if the burden of showing avoidability were imposed upon Respondent, it would have failed to meet its burden as to the development of the pressure sores. However, as already noted, the Legislature has lawfully placed the burden of going forward with this evidence on Petitioner.
Section 120.57(1) provides that Respondent should give licensees notice of intended agency action to reduce their licenses to standard or condition and an opportunity for a hearing prior to the finalization of this proposed agency action.
RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the petition filed by Petitioner and rating Petitioner's license as conditional for the relevant period.
DONE AND ENTERED this 7th day of July, 1998, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998.
Donna H. Stinson Broad and Cassell
Paul J. Martin, General Counsel Agency for Health Care Administration Post Office Box 14229
Douglas M. Cook, Director
15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
