vs. ) Case No. 98-5580
Respondent. )
An administrative hearing was conducted on March 19, 1999, in Orlando, Florida, by Daniel Manry, Administrative Law Judge ("ALJ"), of the Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The ALJ participated by videoconference from Tallahassee, Florida.
Agency for Health Care Administration Division of Health Quality Assurances Suite 220
The issue in this case is whether, pursuant to Section 400.23(8), Florida Statutes (1997), Petitioner should have changed Respondent's license rating from "standard" to "conditional" for the alleged failure to correct two post-survey
deficiencies or whether Petitioner should reinstate Respondent's pre-survey "standard" rating. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
By letter dated November 16, 1998, Petitioner notified Respondent that Respondent's license rating had been changed from standard to conditional. Respondent timely requested an administrative hearing.
At the hearing, Petitioner presented the testimony of three witnesses and submitted four exhibits for admission in evidence. Respondent presented the testimony of two witnesses and submitted no exhibits for admission in evidence.
The identity of the witnesses and exhibits, and any attendant rulings, are set forth in the Transcript of the hearing filed on April 2, 1999. The parties filed a stipulated motion for extension of time to file their proposed recommended orders ("PROs") on April 26, 1999. Respondent timely filed its PRO on April 26, 1999. Petitioner filed its PRO on May 3, 1999. On
May 11, 1999, Respondent filed a Motion to Strike Agency's Proposed Recommended Order. Respondent's motion is denied.
Petitioner is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(8). Respondent is a licensed nursing home located in Mount Dora, Florida (the "facility").
In August 1998, Petitioner conducted a survey of the facility and found several deficiencies. Petitioner conducted a follow-up survey on November 9 and 10, 1998, and determined that Respondent had failed to correct two deficiencies cited in the initial survey which the parties refer to as the "uncorrected deficiencies." The two uncorrected deficiencies are identified by Tags numbered F272 and F311.
Petitioner assigned a state classification rating of "III" and a scope and severity rating of "D" to each of the uncorrected deficiencies. A Class III rating is one which presents "an indirect or potential relationship to the health, safety or security of the residents." It is also defined under federal scope and severity guidelines as "equal in severity" to those . . . deficiencies which ". . . constitute a widespread potential for more than minimal harm. "
Petitioner changed Respondent's license rating to conditional because Petitioner rated both deficiencies as Class III deficiencies. Section 400.23(8)(g) requires Respondent to post the conditional license in a conspicuous place near the entrance of the facility. The conditional rating of Respondent's license has an adverse affect on Respondent's business reputation, staff morale, and Respondent's ability to recruit staff.
Petitioner alleges under Tag F272 that the comprehensive assessments of residents by Respondent were incomplete. Applicable law requires a facility to perform a comprehensive
assessment of residents' needs based on a uniform data set. The facility must use a document specified by the state to describe each resident's ability to perform daily functions and any impairments of a resident's functional capacity. A facility must assess each resident's medical status, physical and mental functional status, and any sensory or physical impairments.
Applicable law requires Respondent to use a standardized resident assessment instrument ("RAI") to perform resident assessments in the facility. The RAI consists of a minimum data set ("MDS"), resident assessment protocols ("RAPs"), and summary sheets.
The MDS is a tool for gathering data by facility staff.
The MDS is intended to identify problem areas which are then more thoroughly addressed in each resident's RAP.
The facility first completes the MDS in accordance with the definitions and coding prescribed in a state-approved manual. The information contained in a completed MDS is based on observations of the resident, staff interviews, resident interviews, medical records, and interviews with family members.
An MDS is completed for each resident upon admission and then updated quarterly. Complete assessments are performed annually or earlier if there is any significant change in a resident's condition. Documents prescribed by the state for use by the facility specify the items to be included in the quarterly updates and those items that are to be included in the annual assessments.
Respondent uses care plan teams to perform complete assessments. A care plan team consists of the care plan coordinator, dietary manager, dietitian, social service worker, and activities worker.
Caregivers, including nurses and certified nursing assistants ("CNAs"), also provide information for complete assessments. Caregivers know the residents, and their knowledge of the resident is an important part of a complete assessment.
Tag F272 finds deficiencies in the assessments Respondent performed for six residents. The parties identify the residents as resident 12-19, resident 6-3, resident 13, resident 7, resident 9, and resident 4.
Petitioner alleges that Respondent did not complete a dental assessment of resident 12-19 because the resident's dentures were broken, and the broken dentures were not noted in the resident's assessment form. However, Petitioner reviewed only the quarterly assessment for this resident. Quarterly assessments do not require full assessments and RAPs.
The MDS form required by the state does not provide an area to indicate broken dentures. The MDS asks questions concerning swallowing and chewing. Resident 12-19 did not have either of those problems. Results from therapy and speech- screening examination revealed no problems either swallowing or communicating his needs.
The MDS was accurately completed. Negative responses to the questions asked on the MDS were appropriate. The resident received appropriate assessments.
The clinical record shows that resident 12-19 had 100 percent food intake, fed himself, had good appetite, and stable weight. In fact, resident 12-19 took sweets from other residents.
Even if a violation occurred, the violation did not rise to a Class III violation or a scope of severity rating of D. The broken dentures did not create a potential for more than minimal harm. It did not present an indirect or potential relationship to the health, safety, or security of resident 12- 19.
Petitioner alleged that the assessment for resident 6-3
was incomplete and that the RAPs were not used to gather additional information. The MDS allegedly did not accurately monitor mood and behavior for resident 6-3.
The RAP relied on by the inspector for Petitioner was not the most recent assessment. A quarterly update had been performed after the assessment reviewed by the inspector.
Notes on behavior monitoring are kept in resident charts. Codes are used to reflect behavior. For example, code 1 indicates kicking. Code 4 indicates hitting, and code 14 indicates crying. Zeroes or slashes indicate no behavior observed. The monitoring log for resident 6-3 indicated the resident engaged in kicking, hitting, and crying.
Nothing in the MDS for resident 6-3 was inconsistent with the resident's behavior monitoring log. The MDS addressed entirely different matters than the specific behaviors noted in the monitoring log. The surveyor who reviewed the assessment form for resident 6-3 is not a nurse or psychologist and had not worked in a long-term care facility. The MDS and assessment for resident 6-3 were complete and accurate.
Petitioner alleges that three areas in the assessment for resident 13 were incomplete. The three areas concern use of restraints, incontinence, and urinary tract infection.
Petitioner alleges that the information concerning restraints in the RAP for this resident violated RAP guidelines. The information allegedly failed to address the resident's response to the use of restraints and how the use of restraints affected the resident's functional ability.
The goal of any nursing home is to use the least possible restriction for a resident. Applicable rules require the minimum restraint. The intent is to keep residents at their highest level of functioning and to have an active life.
When applying restraints, relevant concerns are to avoid depriving residents of independent ambulation if a resident was walking beforehand, to avoid skin breakdown, and to prevent incontinence. It is clear that RAP guidelines require an assessment of how "use" of a restraint might negatively affect a resident. The purpose is not to document how the "failure to use" restraints affects the resident.
At the time of the survey, resident 13 was actually using a lap buddy. The lap buddy was used as a position device. It was appropriate to remove the lap buddy at meals or any other time when resident 13 was being supervised. This matter was fully addressed in the assessment.
Petitioner alleges that the RAP key reviewed by the surveyor for resident 13 did not contain an assessment of the resident's most recent fall. However, the most recent fall occurred before resident 13 was admitted to the facility. General considerations addressing the reason for the fall were addressed in the RAP and care plan.
The assessment of falls by resident 13 was appropriate. The care plan in place for resident 13 adequately addressed the concerns regarding the resident's predisposition to fall.
Petitioner alleges that RAP key information indicated that Respondent had not fully assessed the resident's incontinence in the RAP. The assessment allegedly failed to consider the effect of a urinary tract infection on incontinence.
Resident 13 was incontinent prior to admission and had no memory recall. A full incontinence assessment was completed on resident 13 upon admission.
The subsequent urinary tract infection had no impact on the resident's incontinence. The resident was incontinent before the infection. The presence of the urinary tract infection did not require the facility to change its methods of dealing with
the incontinence. A resident with no memory recall cannot be trained to prevent incontinence.
Petitioner alleges that the RAPs of mood and psycho- well-being was incomplete for resident 7. The RAP concluded there was no expectation of improvement for this resident.
In addition to the RAPs for psycho-social well being and mood state, those for related issues of delirium and cognitive loss were also performed. The latter assessments included information not reviewed by the surveyors.
The resident had a significant change in condition. The resident was terminal and not expected to recover.
Resident 7 had been at the facility for approximately
15 years. The staff was familiar with the resident and her condition. The staff's knowledge of the resident is an important part of the assessment process.
A full and comprehensive assessment of resident 7 was completed by Respondent. It included an assessment of the mood state and psycho-social well being of the resident. The assessment was accurate. Resident 7 was terminal and not expected to recover.
Petitioner alleges that resident 9 had bipolar disorder and depression and was treated for both. However, Petitioner alleges that the bipolar disorder was not appropriately assessed.
The problem is a result of a transcription error on the RAP sheet. Resident 9 did not have bipolar disorder. The MDS does not indicate a bipolar illness. The resident's cognitive
loss and psychotropic drug-use were assessed. The resident received an anti-depressant which was accurately reflected in the MDS.
Petitioner alleges that the assessment for resident 4 was not complete and was inaccurate. The assessment allegedly did not address the resident's most recent fall.
The most recent fall occurred in the resident's home. There was no way to accurately address the circumstances surrounding the fall in the resident's RAP. The assessment did include a care plan for falls for this resident, including an assessment of relevant environmental factors.
Under Tag F311, Petitioner alleges that Respondent failed to provide treatment and services to maintain and improve the abilities in activities of daily living for two residents. They are resident 10-6 and resident 11-16.
A surveyor observed that resident 10-6 was not given pudding-consistency liquid at one of two meals. The facility implemented other recommendations by the occupational therapist. Respondent provided the resident with adaptive equipment including a scoop plate, small glass cup, and rubber gripper.
The resident care plan included a handwritten note that required pudding consistency fluids. In addition, the requirement for pudding consistency fluids was entered on the care card for this resident and was available to the CNAs.
At one of two meals observed by the surveyor, the surveyor observed that the nurse used only half of the thickener
packet in the resident's drink. The surveyor observed that the drink was thickened only to honey consistency and not pudding consistency.
The surveyor did not see exactly how much thickener the nurse placed into the drink. The surveyor did not know the name of the nurse and did not bring the alleged omission to the attention of a supervisor.
The appropriate amount of powder needed for each glass of liquid depends in part on the size of the glass. In addition, the longer the thickener stays in each glass, the thicker the liquid becomes.
The evidence submitted by Petitioner on this issue was not persuasive. Even if Petitioner had proven this allegation, it would not rise to the level of a Class III or D deficiency.
Petitioner alleges that a transitional aide gave a milkshake to resident 11-16 contrary to dietary recommendations. Resident 11-16 has dysphasia, i.e., swallowing difficulty.
The care plan information was available to CNAs. On September 25, 1998, the speech therapist met with 10 CNAs and taught them the swallowing strategies for this resident.
Petitioner relies on hearsay for this allegation. The surveyor did not observe the resident being fed. The surveyor interviewed a CNA and a transitional aide but did not recall the names of either person and did not recall the specific responses given during the interview.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1). The parties were duly noticed for the hearing.
The burden of proof is on Respondent. The party seeking to prove the affirmative of an issue has the burden of proof. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner must prove by a preponderance of the evidence the deficiencies alleged in Tags F272 and F311.
In relevant part, Section 400.23(8)(b) defines a conditional rating to mean:
. . . a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected with the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part, with rule adopted by the agency. . . .
Section 400.23(8).
Petitioner failed to show by a preponderance of the evidence the presence of one or more Class I-III deficiencies that were not corrected at the time of the follow-up survey. Petitioner failed to show that Respondent was not in substantial compliance at the time of the survey with applicable criteria.
Petitioner did not charge Respondent with any Class I or II deficiencies. Petitioner failed to show that any of the allegations, if true, would meet the regulatory definition of a
Class III deficiency. Only Class I-III deficiencies can form the basis for a license rating change.
A standard rating is defined in Section 400.23(8)(a), in relevant part, to mean:
. . . a facility has no class I or II deficiencies, has corrected all class III deficiencies . . . and is in substantial compliance at the time of the survey with criteria established under this part. . . .
Section 400.23(8)(b).
At the time of the survey, Respondent had corrected all Class III deficiencies. Respondent was in substantial compliance with applicable criteria.
RECOMMENDED that Respondent enter a final order finding Respondent not guilty of the alleged deficiencies and reinstating Respondent's license rating to standard.
Agency for Health Care Administration Division of Health Quality Assurances Suite 220
Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3
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.
