STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEVERLY HEALTH & REHABILITATION ) CENTER-STUART (BEVERLY ENTERPRISES- ) FLORIDA, INC., d/b/a BEVERLY GULF ) COAST-FLORIDA, INC.), )

)

Petitioner, )

)

vs. ) Case No. 98-1937

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before William R. Pfeiffer, Administrative Law Judge, Division of Administrative Hearings, on December 1, 1998, in West Palm Beach, Florida via video teleconference.

APPEARANCES

For Petitioner: R. Davis Thomas, Jr.

Qualified Representative Broad and Cassel

Post Office Drawer 11300 Tallahassee, Florida 32302

For Respondent: Jennifer Steward, Esquire

Agency for Health Care Administration 1400 West Commercial Boulevard, Suite 110 Fort Lauderdale, Florida 33309

STATEMENT OF THE ISSUE

Whether AHCA found deficiencies at Stuart sufficient to support the issuance of a Conditional license.

PRELIMINARY STATEMENT

By letter dated January 12, 1998, the Respondent (hereinafter "AHCA") advised Petitioner (hereinafter "Stuart") that the rating assigned to its nursing home license was being changed to "conditional" for the period beginning November 14, 1997. On April 3, 1998, Petitioner requested a formal administrative hearing to challenge the conditional rating. The matter was then referred to the Division of Administrative Hearings (the "Division").

A formal hearing was conducted in this matter on December 1, 1998. Prior to the hearing, the parties submitted a Joint Prehearing Stipulation. In addition, the parties stipulated to the identification of residents and/or their family members by the use of initials and/or numbers. At the hearing AHCA presented the testimony of one witness, Florence Treakle, Registered Nurse Specialist, who was qualified as an expert in skilled nursing. AHCA also admitted Exhibits 1 through 9 into evidence. Stuart presented the testimony of Kathy Nelson, who was qualified as an expert in the area of dietary issues in the elderly and admitted Exhibits 1 and 2 into evidence.

The transcript was filed on October 12, 1998. At the formal hearing, the parties agreed to submit proposed recommended orders on February 12, 1999.

FINDINGS OF FACT

1. Stuart is a licensed nursing home located in Port Salerno, Florida, that participates in Medicare and Medicaid reimbursements. (See Paragraph 5(b) of Joint Stipulation) Every year, Stuart is surveyed by AHCA to determine whether the facility complies with both state and federal standards and whether it should receive a Superior, Standard or Conditional licensure rating. (See Section 400.23(8), Florida Statutes) On November 14, 1997, AHCA conducted an in-depth annual survey of Stuart. (T.pp. 10-11) After the survey was completed, AHCA alleged that the facility failed to maintain adequate nutritional parameters for one resident, and thereby violated the regulatory standard contained in 42 CFR §483.25(i)(1). AHCA issued a survey report in which this deficiency was identified and described under a "Tag," numbered F325.1 (T.pp. 5-6, 16-17; see also, Respondent Exhibit 1)

2. AHCA is required to rate the severity of any deficiency identified during a survey with two types of ratings. The first is a "scope and severity" rating which is defined by federal law, and the other rating is a state classification rating which is defined by state law and AHCA's rule. (See Respondent Exhibit 1, Section 400.23(9), Florida Statutes) After the November survey, AHCA assigned the F325 deficiency a scope and severity rating of "G" which, under federal regulations, is a determination that the deficient practice was "isolated." (T.p. 55; Respondent

   Exhibit 1) The F325 deficiency was also given a state classification rating of II which, under AHCA's rule, is a determination that the deficiency presented "an immediate threat to the health, safety or security of the residents." (See T.p. 24; Respondent Exhibit 1; 59A-4.128(3)(a), Florida Administrative Code.)

3. Because AHCA determined that there was a Class II deficiency at Stuart after the November survey, it changed Stuart's Standard licensure rating to Conditional, effective November 14, 1997. (T.p. 5) By law, Stuart was required to post the Conditional license in a conspicuous place in the facility. (Section 400.23(8)(f), Florida Statutes) Stuart was also required to submit a Plan of Correction to AHCA ("Plan"). (T.p. 57; Section 400.23(8)(f), Florida Statutes) Although the plan submitted by Stuart did not admit the allegations of the survey, it did provide steps that the facility would implement to address the deficiencies cited in the survey report. (Respondent

   Exhibit 1) The Plan also represented that all corrective action would be completed by December 24, 1997. (T.pp. 57-58;

   Respondent Exhibit 1)

   
   

4. AHCA returned to Stuart on January 22, 1998, completed a follow-up survey and determined that the facility had corrected the deficiencies cited in the November 1997 survey report. AHCA reissued Stuart a Standard license effective January 22, 1998. (T.p. 5 and Paragraphs 1 and 2 of Joint Prehearing Stipulation)

5. Stuart filed a Petition for Formal Administrative Hearing with AHCA to challenge the findings of the November survey, as well as AHCA's decision to issue Stuart a Conditional license. That Petition was referred to the Division of Administrative Hearings and a hearing was conducted by Judge Pfeiffer on December 1, 1998. Following the hearing, Judge Pfeiffer ruled that the parties had until February 12, 1999, to file their proposed recommended orders.

6. AHCA alleged under Tag F325 that Stuart failed to provide adequate nutritional care to Resident 26. Resident 26 was an eighty-year-old man who was admitted to Stuart on May 7, 1997, for a "short term basis" after suffering a stroke that left him with partial paralysis on one side of his body. (T.pp. 41, 80-81) In addition to having suffered a stroke, he entered the facility with diagnosed conditions of hypertension, glaucoma, dysphasia and senile dementia, and he had a stage II pressure sore on one buttock. (T.pp. 81-82; see also pp. 1, 30 and 78 of Petitioner's Exhibit 1)

7. After admission, Resident 26 improved some of the functional abilities he lost due to the stroke, but his inability to fully recover resulted in his being changed from a short term resident to a long term resident in August of 1997. (T.pp. 42,

   89) In September, he was diagnosed with depression and was placed on anti-depressant medication. (T.pp. 93-94; p. 145 of Petitioners Exhibit 1) In October, Resident 26 suffered another

   stroke. (T.pp. 42, 87-88) About that same time, Resident 26's wife began to severely decline in health to the point that she died in early December. Consequently, Resident 26 manifested symptoms of severe depression and required psychological counseling to deal with his wife's death. (T.pp. 95-96, 106)

8. Resident 26 began losing weight after his admission to the facility in May and continued losing weight through the November 14th survey date, as demonstrated by the following monthly weights taken from his medical record:

   May	156.8	pounds
   June	151.2	pounds
   July	147.2	pounds
   August	146.8	pounds
   September	143.5	pounds
   October	143.1	pounds
   November	138.7	pounds

   
   

   (See p. 79 of Petitioner's Exhibit 1) AHCA determined that Resident 26's weight loss between May and November was severe because a comparison of the actual weights for those months revealed that he had lost more than 10 percent of his admission weight. (T.p. 25) AHCA apparently cited the facility for a deficiency under Tag F325 because AHCA claimed that there was no adequate explanation by Stuart that his weight loss was unavoidable. (T.pp. 17-18)

9. Although the regulatory standard cited under Tag F325 does not identify what constitutes an unacceptable weight loss for a resident, AHCA's surveyors recognize standard guidelines from the State Operations' Manual ("SOM") to define those losses. (T.p. 107) The SOM guidelines indicate that a severe weight loss occurs if a Resident has a loss of 5 percent of his or her body weight in 30 days, 7.5 percent in 90 days or 10 percent in 180 days. (T.pp. 111; Petitioner Exhibit 2) Under the SOM, a severe weight loss is determined by comparing a resident's usual body weight with the resident's actual weight from a particular month. (T.p. 114; see also formula on p. 106 of Petitioner's Exhibit 2) Although Resident 26 was admitted to the facility weighing 156.8 pounds, the two experts disagreed whether this was a realistic weight for the Resident, and whether his usual body weight range was between 142 and 147 pounds or whether it was 164 pounds. (T.pp. 18, 103-104, 115-116)

10. A weight loss which exceeds the percentages set forth in the SOM is not a de facto deficiency. The regulation, the SOM guidelines and standard dietary practice recognize that any weight loss cannot be properly identified as unacceptable without evaluating the dietary care offered to the resident and the effects of the resident's overall clinical condition on the weight loss. (T.pp. 110; Petitioner Exhibit 2)

11. Florence Treakle, a surveyor who had a nursing background and limited dietary training, was AHCA's sole witness

    at hearing. (T.pp. 8-9, 36-34) She testified that she reviewed Resident 26's medical records but could not find any information in those records which would indicate that the weight loss he experienced between May and November was unavoidable. (T.pp. 11- 14, 18) Therefore, the apparent absence of any clinical documentation to identify the loss as unavoidable in his medical records led her to cite Stuart for failing to prevent Resident 26's weight loss. (T.pp. 17-18, 26, 50-51)

12. At hearing, Ms. Treakle indicated that she did not evaluate Resident 26's consumption records before concluding that the facility caused Resident 26's weight loss, and she admitted that Stuart provided Resident 26 with an appropriate diet.

(T.pp. 46, 50, 59) She failed to explain the effect, if any, Resident 26's clinical conditions may have had on the Resident's weight loss. She further acknowledged that, when a facility provides a resident with an adequate diet and the resident consumes an adequate amount of that diet, the resident's weight loss can be attributed to the resident's clinical conditions. (T.pp. 46-47) She indicated that the facility's nutritional care plan for Resident 26 between May and October was good, despite his weight loss of 13.5 pounds during that time period. (T.p.

43)

1. Stuart demonstrated that the weight loss experienced by Resident 26 between May and November was not due to Stuart's failure to adequately assess him. Resident 26 was assessed by

   Stuart for his dietary needs upon admission to the facility in May. He was reassessed for those needs in August when his swallowing ability had improved enough to merit a change in the texture of his diet. He was assessed again in October after he suffered his second stroke, and then was assessed almost weekly thereafter. (T.pp. 81-84, 87-88; see also pp. 30-38 of

   Petitioner's Exhibit 1)

   
   

2. The dietary assessments also attempted to address Resident 26's ongoing weight loss. However, the Resident stated at that time that he frequently felt full after meals and refused to accept any changes to his diet other than an increase in the amount of a dietary supplement being offered. (T.p. 83; p. 32 of Petitioner's Exhibit 1)

3. Stuart also demonstrated that Resident 26's weight loss was not a product of the facility's failure to have him consume a sufficient portion of the diet that was offered. Stuart maintained consumption records for Resident 26 which show that, although he did not always eat all of the food or supplements offered to him, he consumed enough of his diet so that he should have maintained or even increased his weight.2 In fact, it was shown that Resident 26 consistently consumed between 50 percent and 100 percent of a 3,665 calorie diet. (T.pp. 85-89) Kathy Nelson, Stuart's former employee and admitted expert witness on dietary care of the elderly who had over twenty years experience as a registered dietician, opined that there was nothing more

   that the facility could have done to improve Resident 26's dietary care or prevent his weight loss. (T.p. 93) She opined that the plausible explanation for the weight loss was the effects of his numerous compromising clinical conditions. (T.pp. 90-97, 113)

4. Ms. Nelson identified several conditions that she found while reviewing Resident 26's medical record which contributed to the weight loss he experienced between May and November of 1997. She opined that a resident's inability to adjust to being admitted to a nursing home or an inability to adjust to being designated as a long term resident generally produces weight loss. She also opined that dementia and depression, as well as a resident's refusal to accept new dietary interventions are clinical conditions which produce weight loss.3 Finally, she opined that suffering two strokes and experiencing depression over the loss of a wife would significantly contribute to a resident's weight loss, particularly when they occur over a short time period of six months. (T.pp. 90-97, 113)

5. The conditions identified by Ms. Nelson as causing Resident 26's weight lost were acknowledged by AHCA in the survey report, but there was no evidence that any surveyor considered their relationship to Resident 26's weight loss.

6. Ms. Treakle acknowledged that the only basis for her allegation that there was a deficiency under Tag F325 was her

   belief that Stuart failed to provide Resident 26 with feeding assistance between October and November of 1997. (T.pp. 42-43)

7. Upon his return from the hospital in October, Resident

   
   

   26 had a doctor's order requesting the facility to "Please feed patient." (T.p. 24; p. 45 of Petitioner Exhibit 1) Ms. Treakle concluded that the facility did not follow through with this order because she could not find any written directive to Stuart's staff that identified the level of assistance in feeding needed by Resident 26. Rather, Stuart's staff advised the surveyors that each certified nursing assistant would receive a verbal report identifying the needed level of assistance. (T.pp. 27-29)

8. Ms. Treakle did not review any consumption records in an effort to validate her conclusion that Resident 26 was not being fed after his October stroke. She did not personally observe any meal service that was offered to Resident 26 during the survey. (T.pp. 40-41) Ms. Treakle testified that her belief that Resident 26 was not being adequately fed was confirmed by a hearsay complaint from Resident 26's son indicating that the Resident's meal tray would sometimes remain in his room for one half of an hour before set-up. (T.pp. 39-40)

9. Stuart demonstrated that Resident 26 was fed after he returned from the hospital in October, and that the staff was aware of the level of assistance he needed for feeding. Nurses' notes from October 12th through 15th contained statements that

   Resident 26 needed and was given assistance with his Activities of Daily Living, particularly with regard to his meals. (T.p. 99-101; pp. 93-95 of Petitioners Exhibit 1) In addition, there were consumption records for Resident 26's meals and supplements that indicated that he was consuming adequate amounts of those items. (T.p. 102; pp. 116, 119 of Petitioner Exhibit 1)

10. Stuart also demonstrated that, by October 17th, Resident 26 had improved in his eating skills to the point that he did not need assistance with eating beyond set up.4 This fact was identified not only in the October 17th nursing note, but also in Occupational Therapy Screenings that were done on October 16th and in early December. (T.pp. 99-101, 105-106; see also p.

    72 of Petitioner Exhibit 1) Because Resident 26 was independent in his eating skills by October 17th, it was unnecessary for Resident 26 to have a care plan requiring assistance in feeding. (T.p. 101)5

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

12. Section 120.569(l), Florida Statutes, applies in all proceedings in which the substantial interests of a party are determined by an agency. Section 120.57(l), Florida Statutes, applies in those proceedings involving disputed issues of material fact.

13. A facility is substantially affected by a conditional rating. For example, Section 408.35, Florida Statutes, governing certificates of need, provides that an applicant's ability and record of providing quality of care are among the criteria for competitive review. Additionally, a facility cannot qualify for a superior rating until the next relicensure survey if it is given a conditional rating. (Section 400.23(8)(b), Florida Statutes) Finally, a conditional rating can substantially affect the reputation of a facility in the community and have a negative impact on staff morale and recruiting. See Recommended Order, Spanish Gardens Nursing & Convalescent Center (Beverly Health & Rehab Svcs., Inc.) v. Agency for Health Care Administration, DOAH Case No. 98-2149, entered September 18, 1998, and adopted by Final Order dated October 28, 1998 (the "Spanish Gardens RO" ).

14. AHCA has the burden of proof in this proceeding and must show by a preponderance of evidence that there existed a

    basis for imposing a Conditional rating on Stuart's license. 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); Spanish Gardens RO. AHCA may issue a facility a Conditional license when, after a survey, a facility has one or more Class I or Class II deficiencies, or Class III deficiencies not corrected within the time established by the agency. (Section 400.23(8)(b), Florida Statutes).

15. In the instant case, AHCA alleges that it was proper to issue Stuart a Conditional license from November 14, 1997, to January 22, 1997, because there was one Class II deficiency at Stuart at that time. Accordingly it is AHCA's burden to establish by a preponderance of evidence (1) the existence of the deficiency cited under Tag F325 of the November survey report, and (2) that the deficiency was appropriately classified as a Class II deficiency. If that burden is met, AHCA must then demonstrate that Stuart did not achieve substantial compliance with applicable regulatory standards until January 22, 1998.

    AHCA failed to meet those burdens in this case.

    
    

16. The applicable regulation implicated when a deficiency is cited by AHCA under Tag F325 provides:

    Based 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. 42 CFR 483.25(i)(1)

    
    

17. Although AHCA demonstrated that Resident 26 suffered a severe weight loss, it failed to show that Stuart was the cause of Resident 26 to suffer any inadequate nutritional parameter.

18. To the contrary, Stuart effectively demonstrated that the loss suffered was unavoidable due to Resident 26's compromising conditions. Stuart's expert on dietary care identified several clinical conditions in Resident 26 that made his weight loss unavoidable. Specifically, Stuart proved that he experienced two strokes, changed from short term to a long-term stay, and experienced the death of a wife in a six-month period. AHCA did not rebut this expert opinion, and presented no evidence that it appropriately considered these conditions and their impact on Resident 26's weight.

19. AHCA failed to prove its one specific allegation of improper care made at hearing that the facility failed to provide proper assistance in feeding Resident 26 after he suffered his second stroke in October. Little credible evidence was presented which supported that Resident 26 was not fed adequately during this time.

20. Moreover, AHCA's surveyor apparently believed that Resident 26 needed assistance with feeding from the time he left the hospital in October through the survey date. The evidence submitted by Stuart proved that Resident 26 only needed that assistance for four or five days after he returned from the

    hospital in October, that he was given that assistance during those four or five days, and that he had regained independence with eating thereafter.

21. For the foregoing reasons, the evidence established that Resident 26 suffered some inadequate nutritional parameter while at Stuart which was a product of his clinical conditions and not the result of inadequate nutritional care by Stuart. Accordingly, the alleged deficiency under Tag F325 of the November survey report was not proven.

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 Stuart and rescinding the Conditional rating.

DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1999.

ENDNOTES

1/ The survey report identified other deficiencies besides that described under Tag F325; however, these additional deficiencies were corrected by the facility and were not used by AHCA to justify the conditional license given to Stuart and are not at issue in this case. (T.p. 16)

2/ In addition to these offerings, Resident 26 had a very attentive family that brought him food or took him out to dinner frequently. (See, e.g., back of page 32 and nursing note of 9/16 on page 92 of Petitoners Exhibit 1.)

3/ The SOM guidelines also concur with her on this point. (See pp. 107-108 of Pet. Ex. 2)

4/ Resident 26's care plan clearly indicated that staff was to provide meal tray set up for him. (See T.p. 102; Respondent Exhibit 8)

5/ Resident 26's doctor also agreed with Stuart as he clarified his October 12th order in December to indicate that the facility did not need to feed the Resident if he achieved independence in eating. (T.p. 64; see also p. 150 of Petitioner Exhibit 1)

COPIES FURNISHED:

R. Davis Thomas, Jr. Donna H. Stinson, Esquire Broad and Cassel

Post Office Drawer 11300 Tallahassee, Florida 32302-1300

Jennifer Steward, Esquire

Agency for Health Care Administration 1400 West Commercial Boulevard, Suite 110 Fort Lauderdale, Florida 33309

Paul J. Martin, General Counsel Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Sam Power, Agency Clerk

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

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.

1 The )

2 In .)

3 The 2)

4 Resident)

5 Resident

Docket for Case No: 98-001937

Orders for Case No: 98-001937