STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 98-1580

)

GLEN OAKS HEALTH CARE )

RHA/FL OPERATIONS, INC., )

d/b/a GLEN OAKS HEALTH CARE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted before the Division of Administrative Hearings, by its duly designated Administrative Law Judge Carolyn S. Holifield, on September 22, 1998, in Largo, Florida.

APPEARANCES

For Petitioner: Karel Baarslag, Esquire

Agency for Health Care Administration

State Regional Service Center 2295 Victoria Avenue

Fort Myers, Florida 33901

For Respondent: Rebekah N. Plowman, Esquire

Long, Aldridge & Norman, LLP

303 Peachtree Street, Suite 5300 Atlanta, Georgia 30308

STATEMENT OF THE ISSUE

The issue for determination is whether the Agency for Health Care Administration found deficiencies at Petitioner's nursing

home sufficient to support the change in its licensure status to a conditional rating.

PRELIMINARY STATEMENT

By letter dated February 17, 1998, the Agency for Health Care Administration (Agency) advised RHA/FL Operations, Inc., d/b/a Glen Oaks Health Care (Glen Oaks) that its licensure rating was changed to "conditional" effective February 3, 1998, based on a complaint investigation. Glen Oaks challenged the conditional licensure rating and filed a Petition for Formal Hearing with the Agency. On April 1, 1998, the Agency referred the matter to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the final hearing.

At the hearing, the Agency presented the testimony of one witness and had four exhibits admitted into evidence. Glen Oaks presented the testimony of four witnesses and had seventeen exhibits admitted into evidence.

A transcript of the hearing was filed on October 6, 1998.

On October 19, 1998, Glen Oaks filed an Unopposed Motion for Extension of Time to File Findings of Fact and Conclusion of Law (Motion). The Motion was granted and thereafter, both parties filed Proposed Recommended Orders.

FINDINGS OF FACT

1. Petitioner, Glen Oaks, is a licensed nursing facility located in Clearwater Florida, licensed by and subject to

   regulation by the Agency pursuant to Chapter 400, Florida Statutes.

2. The Agency is the licensing agency in the State of Florida responsible for regulating nursing facilities under Part II of Chapter 400, Florida Statutes.

3. On February 2 and 3, 1998, the Agency conducted a complaint investigation at Glen Oaks in a matter unrelated to the issue that is the subject of this proceeding. As a result of that investigation, the Agency determined that the allegations in the underlying complaint were unfounded.

4. While the Agency surveyor was at Glen Oaks investigating the complaint, she also performed a focused review at the facility. The focused review involved a matter unrelated to the complaint and came to the Agency surveyor's attention while she was touring the facility. During a tour of the facility, Claire R. Hoagland, R.N., the Agency surveyor, accompanied by Marlice Nix, R.N., an employee of Glen Oaks, entered the room of Resident No. 8. Once they were in the room, the resident complained to her primary care charge nurse, Marlice Nix, of soreness in the buttocks area. The charge nurse and the Agency surveyor, with the permission of the residence, looked at and noted redness on the resident's buttocks. This redness appeared to be excoriation associated with incontinence, rather than with any stages of pressure sores. In addition to the redness on the resident's buttocks, the surveyor and Ms. Nix

   identified an 0.5 centimeter linear shaped open area, equivalent in size to a pinpoint, measuring 0.1 centimeter in width with a zero depth located in the Resident No. 8's gluteal fold.

5. Surveyor Hoagland believed that the red pinpoint size area on Resident No. 8 was a Stage II pressure sore.

6. Upon review of the clinical record of Resident No. 8, Ms. Hoagland found no documentation that the facility had assessed the skin integrity of Resident No. 8 since December 20, 1997.

7. Ms. Hoagland then spoke to the facility's administrator and its Director of Nursing. According to the administrator and Director of Nursing, the facility performed skin assessments on Resident No. 8, but had not documented all of the assessments. However, at the time of the Agency's visit to Glen Oaks, Resident No. 8's most recent annual "Minimum Data Set" (MDS), dated June 1997, documented the absence of any pressure sores. An MDS is a comprehensive assessment tool.

8. During the April 1998, complaint investigation, the Agency surveyor learned that there were times when Resident No. 8 refused to be changed. For example, occasionally, when Resident No. 8 was watching her favorite television show, she asked not

   to be disturbed. The surveyor viewed this as "non-compliance" by Resident No. 8 and cited the facility because the resident's care plan did not specifically provide that staff would turn,

   re-position, or change the resident when her favorite television program was not on.

9. Following the complaint investigation, the Agency cited Glen Oaks with an alleged failure to comply with the Omnibus Budget Reconciliation Act of 1987 (OBRA) regulatory requirements set forth at 42 C.F.R., Section 483.25 (c)(1). This requirement is also referred to on the Form 2567 as Federal Tag F-314 (the deficiency). According to that OBRA provision, the facility must ensure: (1) that a resident who enters the facility without pressure sores does not develop pressure sores unless they were unavoidable; and (2) that a resident with pressure sores receives the necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing.

10. The Agency alleged that Glen Oaks failed to comply with the above-cited OBRA provision in that (1) the facility did not document and/or perform weekly skin assessments on Resident No. 8, and that (2) Resident No. 8's care plan did not address her non-compliant behavior. Based on the facility's alleged deficiencies, it was the Agency's position that Resident No. 8 had developed a pressure sore that was avoidable.

11. During the exit interview, the Agency Surveyor informed Glen Oaks that the deficiency would be classified as a Class III deficiency and would not affect Glen Oaks' superior licensure status. However, the Agency notified Glen Oaks on February 13, 1998, through the telephone call of its employee, Pat Silar, that

    its deficiency classification would be changed from a Class III to a Class II, resulting in a conditional rating for its nursing home license.

12. By letter dated February 16, 1998, the Agency issued a Form 2567 setting forth the alleged deficiency; the findings supporting the deficiency; assessing the scope and severity of the deficiency at G; and classifying the deficiency as a Class II deficiency.

13. In making her determination, Surveyor Hoagland used the surveyors' guidelines contained in the State Operating Manual (SOM). Appendix P of the SOM, entitled "Guidance to Surveyors," is the federal interpretative guideline to state surveyors regarding the OBRA regulations. Moreover, Surveyor Hoagland relied on the interpretive guidelines of F-314, including the booklet, Pressure Ulcers in Adults: Prediction and Prevention.

14. There are two components to determining whether the development of an open area constitutes non-compliance with the OBRA requirement. First, the open area must, in fact, be a pressure sore. Second, if a pressure sore exists, the Agency must next determine if the development of the pressure sore was unavoidable.

15. The SOM guideline corresponding to the OBRA Requirement governing pressure sores defines a pressure sore as an "ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer." The SOM

    defines a Stage II pressure ulcer or sore as "a partial thickness loss of skin layers either dermis or epidermis that presents clinically as an abrasion, blister, or shallow crater."

16. Based on the definition in the SOM, a pressure sore is located over a bony prominence where the area would be subject to pressure. The pinpoint-size open area on Resident No. 8 was not located over a bony prominence, but rather in the gluteal fold. Also, the area was not the deep, dark, dusty red, with a purple center, that is associated with a Stage I or II pressure sore. Moreover, a Stage II pressure sore does not typically resolve in ten days as was the case with the area in Resident No. 8's gluteal fold.

17. Due to the factors noted in paragraph 16 above, it is found that the pinpoint-size open area in Resident No. 8's gluteal fold was not a pressure sore.

18. Even if it is assumed that the mark was a pressure sore, the Agency must next determine whether the pressure sore was unavoidable. In assessing whether a pressure sore was unavoidable, surveyors are to apply the "probes" set forth in the SOM. These probes are:

    1. Did the facility identify the resident as being at risk for pressure sores?

       
       

    2. Did the facility provide aggressive/appropriate preventative measures and care specific to addressing the resident's unique factors (e.g., if serum albumin is below 3.4 mg per dl, provide additional protein in daily snacks)?

    3. Was the preventative care plan implemented consistently?

       
       

19. In the instant case, the answer to the first "probe" is yes. Resident No. 8 was admitted to Glen Oaks on March 4, 1994. At the time of admission, the resident had a Stage IV pressure sore which had healed by January, 1995, without surgical intervention. However, due to her medical history, Resident No.

    8 was identified on the Resident Assessment Protocol as being at risk for the development of pressure sores.

20. Because Resident No. 8 was identified as being at risk for developing pressure sores, the second "probe" requires that the Agency determine whether the facility provided aggressive appropriate preventative measures and care to the resident. Routine preventative care is defined by the SOM as turning and proper positioning; application of pressure reduction or relief devices; providing good skin care (i.e., keeping the skin clean, instituting measures to reduce excessive moisture); providing clean and dry bed linens; and maintaining adequate nutrition and hydration if possible.

21. Resident No. 8's care plans dated June 1997, September 1997, and December 1997, were based on a comprehensive assessment of the resident; addressed the potential for alterations in skin integrity; and, provided for appropriate aggressive preventative measures and care. These preventative measures and care included turning and re-positioning at least every two hours; providing pressure relief mattress in both the Resident's bed and

    wheelchair; application of good skin care, including application of Vaseline care cream as a moisture barrier; and maintaining adequate nutrition and hydration, including the addition of the protein supplement Promod, and daily supplemental protein snacks and vitamins.

22. These preventative skin care measures were also consistently implemented and effected the expedient healing of Resident No. 8's Stage IV pressure sore, present upon her admission to Glen Oaks in 1994. Furthermore, the consistent implementation of the prescribed preventative skin care measures prevented the development of any pressure sores for the period between January 1995 and February 1998, inclusive.

23. The third probe requires a determination of whether the preventative care plan was implemented consistently. Here, Glen Oaks consistently implemented the preventative care plan measures listed in Resident No. 8's care plan. Thus, the third probe is answered in the affirmative.

24. In the instant case, each of the inquiries or probes listed in paragraph 18 above is answered in the affirmative.

    Glen Oaks identified Resident No. 8 as being at risk for pressure sores; provided aggressive/appropriate preventative measures and care specific to address the residents unique risk factors; and, implemented the preventative care plan consistently.

    Accordingly, the development of the pinpoint-size open area in Resident No. 8's gluteal fold was unavoidable.

25. Neither the applicable OBRA regulations governing pressure sores nor the SOM interpretative guidelines require weekly skin assessments for residents at risk for developing pressure sores. Thus, the failure to document all skin assessments does not constitute non-compliance with the OBRA requirements.

26. Notwithstanding the Agency's findings to the contrary, Glen Oaks consistently implemented the care plan developed for Resident No. 8. However, Resident No. 8's care plan did not require a weekly skin assessment. Rather, the care plan required only that the Resident's skin be assessed for changes and that any changes be reported to the charge nurse/physician.

27. Skin assessments were performed on Resident No. 8 more frequently than weekly. They were performed on Resident No. 8 several times a day during brief changes and twice a week during whirlpool baths performed by Charge Nurse Nix. However, because Resident No. 8's care plan did not so require, the benign assessments were not routinely documented. Typically, only changes or abnormal findings in a Resident's skin condition were documented in the resident's clinical records.

28. Although the benign findings relative to skin assessments were not routinely recorded, the January 1998 Monthly Nursing Assessment for Resident No. 8 documented that the skin was intact; however, that report also noted the red area on the buttocks referred to in paragraph 4 above. On the other hand,

    two health care providers, charged with caring for Resident No. 8, observed no abnormal findings with regard to the resident's skin on January 30 and February 1, 1998. In the

    latter instances, the nursing staff did not record their findings that Resident No. 8's skin was intact.

29. The Agency acknowledged that if skin assessments were performed on Resident No. 8 every day, there was no problem with the care provided.

30. A care plan should address compliance only when a resident's non-compliance is frequent and becomes a habitual problem.

31. Resident No. 8's non-compliance was not a habitual problem, and did not occur on a daily basis. Rather, Resident No. 8 was only "occasionally" non-compliant with regard to brief changes, turning and repositioning. In most cases, Resident No. 8's non-compliance required only that the charge nurse or Director of Nursing speak with the patient before the resident would comply. Occasionally, when Resident No. 8 was watching television, she refused to comply with the turning and

    re-positioning schedule and requested that the nursing staff come back when the television program was over. In these situations, the nurse complied with the resident's request, but would return soon thereafter to turn and re-position the resident.

32. Resident No. 8's conduct cannot be deemed to be non- compliant and, therefore, there was no need to have the issue of non-compliance addressed in Resident 8's care plan.

    CONCLUSIONS OF LAW

    
    

33. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. Sections 120.569 and 120.57(1), Florida Statutes.

34. The Agency is authorized to license nursing home facilities in the State of Florida, and pursuant to Chapter 400, Part II, Florida Statutes, is required to evaluate nursing home facilities and assign ratings.

35. Section 400.23(8), Florida Statues, 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.

36. 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.

37. 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 than Class I or Class II deficiencies. Section 400.23(9), Florida Statutes.

38. 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 with rules adopted by the agency, or, if applicable, with rules adopted by the Omnibus Budget Reconciliation Act of 1987 (Pub.L. No. 100-203), as amended.

       
       

    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 with rules adopted by the agency, or, if applicable, with rules adopted by the Omnibus Budget Reconciliation Act of 1987 (Pub.L. No. 100-203) . . . as amended. If the facility comes into substantial compliance at the time of the follow-up survey, a standard rating may be issued. A facility assigned a conditional rating at the time of the relicensure survey may not qualify for consideration for a superior rating until the time of the next subsequent relicensure survey.

       
       

    3. A superior rating means that 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 with rules adopted by the agency, or, if applicable, with rules adopted by the Omnibus Budget Reconciliation Act of 1987 (Pub.L. No. 100-

    203) . . . as amended; and the facility exceeds the criteria for a standard rating through enhanced programs and services in [seven designated areas]. . . .

39. The alleged violation of the minimum standards by Glen Oaks is claimed by the Agency to be a Class II deficiency. If that classification is correct and Glen Oaks was not in substantial compliance on February 3, 1998, with rules adopted by the Agency or by the OBRA, the facility is not entitled to the rating that is seeks.

40. The Agency has the burden of proof in this proceeding. In order to prevail, the Agency must show by a preponderance of the evidence that the alleged Class II deficiency existed on February 2 or 3, 1998, when the complaint investigation was

    conducted and that Glen Oak's licensure rating should be changed to conditional. Florida 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 (Fla. 1st DCA 1977).

41. A conditional rating is issued by the Agency when a facility is not substantial compliance with rules adopted under the Omnibus Budget Reconciliation Act.

42. In the instant case, the Agency failed to prove the existence of the alleged Class II deficiencies at the time of the February 3, 1998, investigation. Likewise, no evidence was presented to establish that Glen Oaks was not in substantial compliance with applicable OBRA rules.

43. With regard to the alleged deficiencies, the evidence failed to establish that the pinpoint size open area or Resident No. 8 was a pressure sore. Even if it is assumed that the area was a pressure sore, the evidence demonstrated, by virtue of the actions taken by the facility, such pressure sore was unavoidable.

44. There is no OBRA regulation that requires that skin assessment be either performed or documented on a weekly basis. Therefore, there can be no deficiency based on the facility's failure to do so. Nonetheless, the unrebutted evidence established that Resident No. 8's skin was assessed on a more

    than weekly basis and that any changes to the resident's skin were reported as required by the care plan.

45. The alleged deficiency related to the facility's failure to address the resident's noncompliance in the care plan is without merit. This allegation is premised on the assumption that Resident No. 8 was non-compliant. In this case, the evidence failed to establish that the resident was non-compliant. Because Resident 8's non-compliant conduct was not habitual and occurred only occasionally, there was no need to address non- compliance in the resident's care plan.

46. The Agency failed to establish the existence of the alleged deficiency. Accordingly, there is no basis for the Agency changing Glen Oak's licensure rating from superior to conditional.

RECOMMENDATION

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

RECOMMENDED that the Agency for Health Care Administration enter a final order rescinding the conditional rating.

DONE AND ENTERED this 14th day of December, 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 14th day of December, 1998.

COPIES FURNISHED:

Karel Baarslag, Esquire

Agency for Health Care Administration State Regional Service Center

2295 Victoria Avenue

Fort Myers, Florida 33901

Rebekah N. Plowman, Esquire Long, Aldridge and Norman, LLP

303 Peachtree Street, Suite 5300 Atlanta, Georgia 30308

Sam Power, Agency Clerk Agency for Health

Care Administration Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Paul J. Martin, General Counsel Agency for Health

Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Douglas M. Cook, Director 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: 98-001580

Orders for Case No: 98-001580