STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 98-4632

)

HEALTH CARE & RETIREMENT ) CORPORATION OF AMERICA, d/b/a ) HEARTLAND OF ZEPHYRHILLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 11, 1999, in Port Charlotte, Florida, before Lawrence P. Stevenson, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Karel Baarslag, Esquire

Agency for Health Care Administration 2295 Victoria Avenue

Fort Myers, Florida 33901 For Respondent: (No appearance)

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether a civil penalty in the amount of $1,400.00 should be imposed on the Respondent for the repeated deficiencies cited in the Administrative Complaint dated September 14, 1998.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 14, 1998, Respondent was notified by Petitioner that its licensed facility had been found to have violated minimum licensure standards during a survey conducted on August 17-20, 1998, and that these violations had not been corrected within the time prescribed, resulting in the proposed levy of a $1,400.00 civil penalty.

Respondent challenged the Administrative Complaint on the basis that it had complied with all federal and state regulations, and timely filed a request for formal hearing.

Despite receipt of the notice of hearing and participating in the exchange of exhibits with counsel for Petitioner, counsel for Respondent failed to appear at the final hearing. The undersigned allowed Petitioner to make its case in chief, then directed counsel for Petitioner to notify Respondent as to the status of the proceeding, so that counsel for Respondent would have an opportunity to take such action as she deemed appropriate to supplement the record. Counsel for Petitioner served the Notice of Status on January 15, 1999. As of the date of this Recommended Order, counsel for Respondent has remained silent.

At the formal hearing, Petitioner presented the testimony of Katherine Robbins, an employee of the Agency for Health Care Administration ("AHCA") who participates in surveying long-term care facilities; and Peter Cranfield, an AHCA fire protection specialist who surveys health care facilities for compliance with applicable fire codes. Petitioner offered one exhibit, which was

admitted into evidence. Respondent presented no testimony and no exhibits.

A transcript of the proceeding was filed at the Division of Administrative Hearings on February 1, 1999. Petitioner filed a proposed recommended order on February 25, 1999. Respondent made no post-hearing submissions.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:

1. Respondent, Heartland of Zephyrhills ("Heartland"), is a nursing home licensed by and subject to regulation by AHCA, pursuant to Chapter 400, Florida Statutes.

2. Section 400.23(8), Florida Statutes, requires AHCA to evaluate all nursing home facilities and make a determination as to their degree of compliance with the established rules at least every 15 months.

3. The inspection and evaluation is to ensure compliance with applicable state and federal standards. The standards relevant to this case are 42 Code of Federal Regulations (C.F.R.) Section 483.25(c), Florida Statutes, and Rule 59A-4.128, Florida Administrative Code.

4. On August 17-20, 1998, AHCA surveyed Heartland and allegedly found violations of 42 C.F.R. Section 483.25(c), Florida Statutes, which states that a facility must ensure that a

   resident who enters the facility without pressure sores does not develop pressure sores unless the resident’s clinical condition demonstrates that they were unavoidable, and that a resident having pressure sores receives necessary treatment to promote healing, prevent infection, and prevent new sores from developing. In the parlance of the Federal Health Care Financing Administration Form 2567 ("Form 2567") employed by AHCA to report its findings, this requirement is referenced as "F 314" or "Tag 314."

5. Katherine Robbins is a Registered Nurse with over 20 years experience, including working as a director of nursing in an 86-bed nursing home. She is a federally certified surveyor, and now works for AHCA as a surveyor of long-term care facilities such as nursing homes. Ms. Robbins performed a portion of the survey of Heartland and wrote the deficiency notes under Tag 314 for Resident No. 1.

6. Resident No. 1 was admitted to Heartland on January 29, 1998, with a diagnosis of dementia, osteoarthritis, anxiety, and depression. Ms. Robbins testified that diagnoses of dementia and osteoarthritis indicate a predisposition to the development of pressure sores. She testified that a diagnosis of anxiety could indicate a predisposition to pressure sores, if the patient is receiving psychoactive medications.

7. The initial skin assessment on Resident No. 1 indicated there was no skin breakdown at the time she was admitted. Review

   of the patient records indicated that skin breakdown was evident on July 26, 1998, when a stage II pressure sore on the coccyx was reported. Pressure sores are graded on a scale from stage I for the least severe to stage IV for the most severe.

8. On August 5, 1998, the facility developed a care plan to deal with the skin breakdown and prevent further breakdown caused by Resident No. 1’s decreased mobility, medications, and lack of awareness of her own needs. The resident was completely unable to care for herself, and was unable to get in and out of a chair or the bed on her own.

9. The approaches set forth in the plan included changing the resident after each incontinent episode, increasing her intake of protein foods, and naps in the afternoon to relieve sitting pressure on the coccyx. Ms. Robbins testified that this plan was not adequate in all respects, but would have been workable had it been properly implemented.

10. On August 17, 1998, the first day of the survey, Resident No. 1 was observed at 9:20 a.m. sitting in a wheelchair in her room. She was observed sitting in the activity room from 11:35 a.m. until 12:50 p.m., at which time she was taken to the dining room for lunch. Following lunch, she was observed sitting in her wheelchair without a change in position until 3:20 p.m., when she was taken to the shower room for a shower.

11. Ms. Robbins testified that allowing the resident to sit in the same position would create pressure on the coccyx, where

    the resident already had a pressure sore. It is routine preventive care to reposition a resident who has a pressure sore or is at risk of developing pressure sores.

12. On August 18, 1998, Resident No. 1 was observed in her room, sitting in a wheelchair and eating breakfast at 8:15 a.m. She was observed at 12:40 p.m. in the dining room, sitting in a chair without a pressure relieving air flotation jell cushion. Ms. Robbins testified that use of such a cushion would be good practice to help heal a pressure sore. Ms. Robbins testified that she asked the director of nursing about this situation, and that the director of nursing told her that Resident No. 1 was sitting in the wrong chair.

13. The clinical record showed that wheelchair modifications had been included in Resident No. 1’s physical therapy plan, but the resident was not placed in the correct chair. Therapy notes indicated that the goal for the resident was to have a chair that would prevent posterior pelvic pressure and lower the seat so that the resident could maneuver the wheelchair safely. The resident would be able to tolerate sitting up in the wheelchair for three or four hours with repositioning being provided every two hours for bathroom needs and pressure relief.

14. The care plan for Resident No. 1 also called for her to be assisted to bed for a nap in the afternoon. Ms. Robbins observed that the resident was not taken for a nap on either

    August 17 or August 18, 1998.

    
    

15. The survey team made a collective decision to cite the Tag 314 deficiency as a class II deficiency, because the stated care plan for the resident was not followed and this was a repeat licensure deficiency. A class II deficiency is subject to a civil penalty of not less than $1,000. However, the Administrative Complaint erroneously cited this as a class III deficiency and recommended a civil penalty of only $700.

16. The August 17-20, 1998, survey also found alleged violations of Life Safety Code ("LSC") standards set forth by the National Fire Protection Association ("NFPA"), in particular NFPA 90A LSC 12-5.2.1 and 13-5.2.1 air conditioning and ventilation standards. In the parlance of Form 2567, this requirement is referenced as "K 067."

17. Peter Cranfield is a fire protection specialist employed by AHCA. He has over 35 years experience in the design, installation, and sales of fire protection systems, mostly in the private sector, including fire protection systems for nursing homes.

18. Mr. Cranfield participated in the survey of Heartland and cited the facility for the K 067 deficiency. Mr. Cranfield found that the following areas of the facility did not have an operable exhaust ventilation system: the main dietary and dishwasher independent units; the No. 300 wing nurse station toilet room; and the No. 400 wing and No. 100 wing janitor

    closets.

    
    

19. Mr. Cranfield brought these deficiencies to the attention of Heartland’s maintenance director, who agreed upon examination that the exhaust units did not appear to be operational. Mr. Cranfield testified that the maintenance director later told him an electrical malfunction was causing the problem. The K 067 deficiency was noted as a repeat class III citation.

    CONCLUSIONS OF LAW

    
    

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

21. Chapter 400, Part II, Florida Statutes, is the statutory scheme under which AHCA licenses, evaluates, and rates nursing home facilities.

22. Section 400.23(8), Florida Statutes, provides in pertinent part:

    The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a rating to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections.

    . . .

    
    

23. Section 400.23(9), Florida Statutes, provides in pertinent part:

    The agency shall adopt rules to provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature of the deficiency. The agency shall indicate the classification on the face of the notice of deficiencies as follows:

    1. 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. . . .

    2. Class II deficiencies are those which the agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than class I deficiencies.

       A class II deficiency is subject to a civil penalty in an amount not less than $1,000 and not exceeding $5,000 for each and every deficiency. A citation for a class II deficiency shall specify the time within

       which the deficiency is required to be corrected. If a class II deficiency is corrected within the time specified, no civil

       penalty shall be imposed, unless it is a repeated offense.

    3. 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. A class III deficiency shall be subject to a civil penalty of not less than $500 and not exceeding $1,000 for each and every deficiency. A citation for a class III deficiency shall specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed, unless it is a repeated offense.

24. AHCA demonstrated by a preponderance of the evidence that Heartland committed a class II deficiency in relation to

    F 314 regarding the treatment of residents with pressure sores. AHCA demonstrated by a preponderance of the evidence that this was a repeated offense.

25. The Administrative Complaint erroneously classified the F 314 violation as a class III deficiency and proposed the imposition of a $700 fine. While AHCA corrected this error at hearing, AHCA did not demonstrate that Respondent was given prior notice that AHCA would make this correction at the hearing. Respondent was not present to contest the I`ssue. The undersigned concludes that under the circumstances AHCA should be held to the terms of the Administrative Complaint, and that Heartland should be fined $700 for a class III deficiency regarding F 314.

26. AHCA demonstrated by a preponderance of the evidence

that Heartland committed a class III deficiency in relation to K 067 regarding the ventilation air flow in the facility. AHCA demonstrated by a preponderance of the evidence that this was a repeated offense. The Administrative Complaint proposed the imposition of a $700 fine for this deficiency, which is within the range prescribed by Section 400.23(9)(c), Florida Statutes.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Agency for Health Care Administration enter a final order requiring Heartland of Zephyrhills to pay a civil penalty in the amount of $1,400 for the two cited class III deficiencies.

DONE AND ENTERED this 25th day of March, 1999, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 25th day of March, 1999.

COPIES FURNISHED:

Karel Baarslag, Esquire

Agency for Health Care Administration 2295 Victoria Avenue

Fort Myers, Florida 33906

Terrie Restivo-Mock, Esquire Heartland of Zephyrhills 38220 Henry Drive

Zephyrhills, Florida 33540

Sam Power, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building, Suite 3431 Tallahassee, Florida 32308

Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building, Suite 3431 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: 98-004632

Orders for Case No: 98-004632