STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAVERHILL CARE CENTER and BEVERLY ) HEALTH CARE WEST PALM BEACH ) (BEVERLY ENTERPRISES-FLORIDA, ) INC., d/b/a BEVERLY GULF )

COAST-FLORIDA), )

)

Petitioner, )

)

vs. ) Case Nos. 99-0516

) 00-0546

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these cases on July 17-20, 2000, at West Palm Beach, Florida, before

Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: R. Davis Thomas, Jr.

Qualified Representative Donna H. Stinson, Esquire

215 South Monroe Street Suite 400

Post Office Drawer 11300 Tallahassee, Florida 32302

For Respondent: Tracy S. Cottle, Esquire

Agency for Health Care Administration Regional Service Center

Fort Knox Building 3, Suite 3231

2727 Mahan Drive

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

Whether Respondent, Agency for Health Care Administration (Agency) should have issued Petitioner, Haverhill Care Center and Beverly Health Care West Palm Beach, Beverly Enterprises-Florida, Inc., d/b/a Beverly Gulf-Coast Florida (Haverhill), a conditional license for the periods October 14, 1998, through January 3, 1999, and December 8, 1999, through February 9, 2000.

PRELIMINARY STATEMENT

On October 14 1998, the Agency surveyed Haverhill Care Center, Petitioner's facility premised on a complaint investigation. A follow-up survey was conducted on

January 4, 1999. The Agency cited the facility for three Class II deficiencies. By letter dated October 26, 1998, the Agency advised Haverhill that its license rating was changed to conditional effective October 14, 1998.

On December 21, 1998, Haverhill requested an administrative hearing concerning the conditional rating. The case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge on February 3, 1999 and assigned Case No. 99-0516.

On March 3, 1999, the Agency surveyed Haverhill's facility. A follow-up survey was conducted on April 14, 1999. As a result of the deficiencies cited in the survey, the Agency issued Haverhill a conditional license for the period March 3 through April 14, 1999. Haverhill requested an administrative hearing,

and the case was forwarded to the Division of Administrative Hearings. The case was assigned Case No. 99-2023.

On December 8, 1999, the Agency surveyed Beverly West Palm Beach, f/k/a Haverhill Care Center, Petitioner's facility. A follow-up survey was conducted on February 10, 2000. The Agency cited the facility for one Class II deficiency. The Agency advised Haverhill that its license rating was changed to conditional effective December 8, 1999.

On December 22, 1999, Haverhill filed a request for an administrative hearing. The case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge on February 2, 2000 and assigned Case No. 00-0546.

The cases were consolidated for final hearing by order dated February 23, 2000. On May 30, 2000, Respondent requested leave to serve an administrative complaint, which request was granted by order dated July 3, 2000. The Administrative Complaint consisted of nine counts. The final hearing was bifurcated.

Counts I-VII were to be heard at the final hearing scheduled for July 17, 2000, and Counts VIII and IX were to be heard at a final hearing on August 21, 2000. On July 5, 2000, Petitioner filed a Voluntary Dismissal of Division of Administrative Hearings Case No. 99-2023, leaving the counts relating to Case Nos. 99-0516 and 00-0546 to be heard.

On July 25, 2000, Petitioner filed a Motion for Summary Recommended Order regarding Counts VIII and IX, including a

request for attorneys' fees and costs. The motion was heard by telephone conference call on August 7, 2000. The Motion for Summary Recommended Order was orally granted and was to be entered as part of the written recommended order on the remaining counts.

At the final hearing, Petitioner called the following witnesses: Susan McGorry, Mary Lucero, S. B., Patricia Hall, Victoria Fierro, Judy Spirito, Donna Rutheva Foster, Linda Huffman, and Susan Acker. Petitioner's Exhibits 1-16 were admitted in evidence. Respondent called the following witnesses: Rob Eason, Brian Tenney, Michelle Mongillo, Theresa Vogelpohl, Irene Warchelak, Kathleen Nelson, and Patricia Hall.

Respondent's Exhibits 1-13, 15-29, 31-33, 35, and 38-71 were

admitted in evidence. Respondent's Exhibits 14, 34, 36, and 37 were rejected. Respondent withdrew Respondent's Exhibit 30.

On August 31, 2000, Respondent filed Agency's Motion to Reopen or Supplement the Record, Agency's Motion to Strike Petitioner's Ex Parte Submission of Evidence, and Agency's Motion to Stay Filing of Proposed Recommended Orders. By order dated September 1, 2000, the motion to stay filing of proposed recommended orders was granted. On October 3, 2000, an order was entered denying Respondent's motions to reopen the record and to strike.

The eight-volume Transcript of the proceeding was filed on August 15, 2000. The parties filed their proposed recommended

orders on October 12, 2000. The proposed recommended orders have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, the Agency was the enforcing agency with regard to nursing home licensure law pursuant to Chapter 400, Part II, Florida Statutes.

2. Haverhill is a nursing home located in West Palm Beach, Florida.

3. On October 14, 1998, the Agency surveyed Haverhill and determined that the facility violated 42 CFR Sections 483.13(c), 483.25(h)(2), and 483.75 in its care of B. B., a resident at the facility who had eloped from Haverhill on September 24, 1998. The deficiencies were described by tag numbers F224, F324, and F514. The Agency determined that these deficiencies were Class

   II deficiencies under the state rating scheme and the Agency also assigned them a severity rating of "G", which is a determination under the federal rating scheme that the deficiency was isolated but caused actual harm to the resident.

4. B. B. was a 78-year-old male who had dementia, congestive heart failure, hypertension, and a history of a pulmonary embolism. He was independent with his daily activities and ambulatory.

5. From the end of 1997 through September 1998, B. B. underwent a series of admissions and discharges from different short-term and long-term care facilities. In late 1997, he went

   to the hospital with congestive heart failure, and while he was there, his doctor recommended that he be placed in a long-term care setting. After his discharge from the hospital, B. B. went to a nursing home known as IHS Lake Worth, where he remained until May of 1998.

6. In May 1998, B. B. experienced a pulmonary embolism and was sent to the hospital. Staff from IHS Lake Worth sent a transfer form to the hospital that noted that B. B. was a "wanderer" and would "go outside if not monitored."

7. When B. B. was discharged from the hospital in late May 1998, he could not go back to IHS Lake Worth because the Agency had placed a moratorium on admissions to IHS Lake Worth. B. B. was sent to a sister facility, IHS of West Palm Beach, where he remained until July 6, 1998. During his stay at IHS of West Palm Beach, staff at the facility noted that B. B. "wanders at times, needs direction."

8. On July 6, 1998, B. B. was discharged to his home, where he remained until August 5, 1998, when his daughter S. B. determined that she was unable to care for him and readmitted him to IHS Lake Worth. While at IHS Lake Worth, B. B. was given Haldol, an anti-psychotic drug. He was also assessed by the staff on August 6, 1998, as being appropriate for a locked unit due to "wandering and confusion and past history of agitation and combativeness."

9. During the next few days, B. B. exhibited episodes of angry outbursts and agitation, which caused staff to be fearful for others. On August 12, 1998, B. B. was transferred to Four Seasons, an assisted living facility. The record review on August 12, 1998, recorded, "Four Seasons came and evaluated and took resident upon assessment. Daughter agreeable. Doctor agreeable. Locked unit most appropriate place for this resident."

10. Four Seasons was closed by the Agency. While the facility was being closed, B. B. got on a bus. The Delray Beach police found him and returned him to the facility

11. After Four Seasons closed, B. B. returned home. While at home, B. B.'s behavior became erratic. He would get up at 4:00 a.m. and take a shower. B. B. was being given Ativan to calm him down.

12. On September 16, 1998, B. B. was readmitted to IHS West Palm Beach, which had a Wanderguard alarm system designed to notify staff if a patient attempted to leave the facility. However, the Wanderguard system at IHS West Palm was not fully functional.

13. While at IHS West Palm Beach, B. B. wandered around the facility and attempted to get out of the facility. The administrator at IHS West Palm Beach determined that B. B. needed to be transferred to another facility. At approximately two o'clock on Friday afternoon, September 18, 1998, Kit Johnson, the

    Social Services Director at IHS West Palm Beach, spoke with S. B. and advised her that B. B. needed to be transferred to a more secure facility.

14. Ms. Johnson contacted several facilities in an effort to find a facility which would accept B. B. She spoke to

    Robb Eason, Haverhill's Admissions Director, concerning placement for B. B. She advised Mr. Eason that IHS West Palm Beach could not keep B. B. because he was a wanderer and could not be maintained safely at IHS West Palm Beach. Mr. Eason agreed to have B. B. transferred to Haverhill.

15. Ms. Johnson called S. B. and advised her that Haverhill was willing to take B. B. S. B. indicated that she could not be there because her mother was ill.

16. At four o'clock, nursing staff at IHS West Palm Beach were notified that B. B. would not be transferred until the next day because S. B. could not come to the facility until the next day. B. B. became very upset because his daughter was not coming and walked off the unit. A security guard had to be called to return B. B. to his room. A decision was made that B. B. would be transferred to Haverhill on September 18, 1998. At 5:00 p.m., the nursing staff at IHS West Palm Beach was notified that B. B. would be transferred. B. B.'s doctor's service was called for a discharge order. At 5:45 p.m. B. B was transferred to Haverhill by a transport service. The documents that were sent to

    Haverhill to IHS West Palm Beach did not indicate that B. B. was a wanderer or that he could be a candidate for elopement.

17. Between five and six o'clock on the afternoon of September 18, 1998, S. B. telephoned Mr. Eason and advised him that she could not come to Haverhill that Friday because her mother was ill. Mr. Eason told her that he would not be back in the facility until the following Monday and suggested that she come the next day to complete the paperwork with the charge nurse. S. B. did not feel comfortable doing the paperwork with the charge nurse and told Mr. Eason that she would come on Monday. S. B. also asked Mr. Eason if he had spoken to Kit Johnson and whether he was aware that Ms. Johnson had told her that Haverhill was a locked-down facility. S. B. also asked Mr. Eason whether Haverhill could deal with her father's dementia. Eason told her that Haverhill could handle B. B.

18. On B. B.'s first day of admission at Haverhill, September 18, 1998, he was agitated at being placed in a nursing facility. S. B. received a call from one of the nurses at Haverhill during the evening, telling her that B. B. did not know why he was at the nursing home, but that they would take care of him.

19. A care plan was developed for B. B. on September 18, 1998, to deal with his agitation at being placed in a nursing facility. The care plan included the following approaches:

    1. Introduce yourself and knock on door prior to entering room.

    2. Orient to room and new environment.

    3. Encourage to express his feelings about nursing home placement.

    4. S/S to visit to promote conversation weekly.

    5. Activity to visit & (illegible) to activity of choice daily.

    6. Call bell within reach when in room.

       The care plan did not include measures to deal with B. B.'s wandering of which Mr. Eason had knowledge.

20. On the morning of September 19, 1998, B. B. was alert and oriented to his surroundings. He told the nurse, "I really like this place, you should have seen the hell hole I came from."

    B. B. called his daughter on September 19, 1998, and told her that he was waiting for her and that he was ready. She explained that her mother was sick and she could not be left at that time.

    B. B. seemed to accept that explanation.

    
    

21. On September 20, 1998, B. B. awoke about 4 a.m. and walked in the hall. He was angry and belligerent when his doctor visited him. He had yelled at other residents and kept asking for a sleeping pill all day.

22. At the beginning of the 7 a.m. to 3 p.m. shift on September 21, 2000, B. B. was standing at the nurses' station and yelling at staff. He said, "I'm getting the hell out of here, they just can’t put me here and leave." He called his daughter and after hanging up, he became more agitated.

23. Later in the morning, S. B. came to Haverhill to complete the admissions paperwork and to see her father. When she arrived B. B. was sitting on a bench outside the facility

    unsupervised. She took her father back inside the facility and went to find the admissions director so that she could complete the necessary paperwork. While she was completing the paperwork, she did not advise anyone that her father wandered or that he had eloped from Four Seasons. However, given the information that Kit Johnson had told Mr. Eason, he should have asked S. B. about any previous attempts by B. B. to leave home or other facilities and should have requested additional information from IHS West Palm Beach.

24. According to the testimony at final hearing, by Monday, September 21, 1998, Mr. Eason claimed not to know that B. B. had been admitted on September 18 from IHS West Palm Beach. It can only be concluded that between Friday afternoon and Monday morning Mr. Eason had forgotten about B. B.

25. After finishing the necessary admissions paperwork,

    
    

    S. B. went to her father's room to visit with him. When she was leaving the facility, her father thought that he was going to go with her and attempted to follow S. B. Haverhill staff had to intervene. B. B. became verbally and physically abusive, and the Administrator of Haverhill had to be called to assist. B. B. took a swing at the administrator. B. B. was taken back to his room, where he stayed. He told staff that they could not do anything for him and to leave his room. No one at staff notified

    S. B. of her father's episode.

26. B. B.'s doctor was notified of B. B.'s behavior. The doctor prescribed anti-psychotic and anti-anxiety medications and ordered a psychological evaluation. Staff placed a call to the psychological services provider, requesting an evaluation.

27. Both the Agency's and Haverhill's expert witnesses agreed that B. B.'s attempt to leave with his daughter was a catastrophic event, which is a clinical term used to describe a level of agitation of such sustained duration that it requires intervention by the caregiver. Haverhill did provide intervention by directing B. B. back to his room and informing the doctor.

28. Haverhill had a policy and procedure to deal with residents who displayed mental difficulty. The policy and procedure provided:

    POLICY

    To protect the resident and other residents of the facility from harming themselves or others. To ensure that the resident receives appropriate treatment and services to correct the assessed problem.

    
    

    PROCEDURE

    When a resident exhibits behavior such as trying to elope, aggressive behavior, speaking of suicide or other behaviors relating to signs of distress or depression, nursing is to:

    • calm resident

    • close monitoring of resident

    • call physician

    • call family

    • psychological services

    • complete documentation of incident, and interventions and responses

    • notify social services

    • notify Director of Nursing

29. Haverhill did not notify S. B. of the catastrophic event and did not closely monitor as called for in its policy and procedure.

30. On September 22, 1998, Haverhill developed a care plan to deal with B. B.'s verbal and physical abuse to staff and residents. The care plan included the following:

    1. Redirect him when he becomes aggressive.

    2. Psy consult per MD order.

    3. Medicate per doctor order.

    4. Provide quiet area to promote conversations regarding his concerns.

       
       

31. On September 22, 1998, B. B. continued to be noticeably anxious and angry and paced the floor. He made a telephone call, and after the call, he slammed his fist on the nurses' desk and expressed anger. He was redirected to his room. His new medication was begun at 9 a.m. By 1 p.m., B. B. was calmer, walking in the hallway to the nurses station and saying, "Hi" to staff when approached. Later in the day, B. B. became drowsy and slightly unsteady on his feet. He was redirected to his room. A care plan was developed to deal with the side effects of his new medications.

32. No one arrived to do a psychological evaluation on

    
    

    B. B. on September 22, 1998. The provider was again called and asked to send someone.

33. S. B. visited B. B. on September 23, 1998. B. B. told her that he was ready to go home. She left the facility around

    3 or 4 o'clock in the afternoon. According to B. B.'s roommate,

    B. B. went to bed around 4 p.m. Around 5 p.m., B. B. was up and his gait was unsteady. The doctor was notified of the side effects of the new medications on September 23, 1998. The doctor ordered Haverhill to withhold B. B.'s scheduled dose of Ativan.

34. As of 6:15 p.m. on September 23, no one had shown up to perform a psychological evaluation. No nurses' notes or social service progress notes indicate that anyone came on September 23 to perform a mental evaluation of B. B. The social services progress notes indicate that on September 23, B. B. was calm and had no behaviors during the day.

35. B. B. asked for snacks around 8 p.m. The charge nurse who admitted him, stated that at 11 p.m., he was lying on his bed fully dressed. D. D., another resident in the building, stated that he saw B. B. up around 1:30 or 2:30 a.m. on September 24, wrapped in a blanket and asking if his daughter had been by to see him. B. B. went back to bed and got up between 3:00 and

    3:30 a.m. to get coffee. He walked to the nurses station and was told by staff that it was too early and that he should go back to his room. B. B went back to bed. D. D. saw B. B. get up around 4:45 a.m. and get dressed. At 5:10 a.m., while doing bed checks, the nursing staff noted that B. B. was missing and began a search for him. He could not be found, leading to the conclusion that he had eloped.

36. On November 2, 1998, B. B.'s body was found in a drainage ditch a quarter of a mile from the facility.

37. On October 27, 1998, Haverhill received a report on

    
    

    B. B.'s mental status examination from the psychological services provider. The report was typed except for the signatures and the day on the date. The date of the interview was listed as 09/23/98 with the "23" handwritten.

38. The Agency contends that Haverhill did not provide adequate supervision to B. B. because it did not have sufficient staff on hand when B. B. eloped from the facility on

    September 24, 1999. The Agency bases this contention on its interpretation of a staffing summary which was prepared by Haverhill that indicated that Haverhill did not have sufficient certified nursing assistant hours to meet minimum state standards on September 24.

39. The summary indicates the number of certified nursing assistant and licensed nursing hours hired at Haverhill for each day between September 20 and 28, 1998. Each 24-hour period represented on the summary begins with the 7:00 a.m. shift on the designated day and runs until the 7:00 a.m. shift on the following day. Accordingly, the staffing levels reflected for September 24, 1998, would be those which began at 7:00 a.m. on that day and ran until 7:00 a.m. on September 25, 1998.

40. B. B. eloped from Haverhill around 5:00 a.m. on September 24, 1998. Since his elopement occurred prior to

    7:00 a.m. on September 24, the staffing levels reflected in the summary on September 23, 1998, would cover the time period during

    which B. B. eloped. On September 23, Haverhill exceeded minimum state requirements for certified nursing assistants by 46.8 hours and for licensed nurses by 40.1 hours.

41. Although Haverhill identified a care plan for B. B. upon admission, Haverhill failed to implement the care plan. Specifically no one assisted in diverting B. B.'s focus on wanting to leave the facility. No evidence was provided that organized activities oriented to meet B. B.'s needs were provided. According to the Agency's expert, B. B.'s frequent ambulating in the halls, as documented in the nurses' notes, demonstrated his lack of participation in organized activities.

42. The Agency charges Haverhill with a violation of

    
    

    42 CFR Sections 483.35(c)(1) and (2) for failure to treat pressure sores on Residents 1 and 16. The deficiency was identified as Tag F314, determined to be a Class II deficiency, and determined to have a severity rating of "G."

43. Resident 1 was a 75-year-old female admitted to Haverhill's facility on October 6, 1999. She was diagnosed with end-stage Alzheimer's disease. Prior to admission, she had a feeding tube inserted.

44. Upon admission Resident 1 was self-ambulating, and the nurses' notes reflect that Resident was a wanderer and walked on a regular basis. She had no skin breakdown when admitted, but she was assessed at a high risk for pressure sores, due to bowel incontinence.

45. A pressure sore is a lesion that is caused by unrelieved pressure to an area and results in damage to underlying tissue.

46. A care plan was developed on October 6, 1999, to address Resident 1's risk for pressure sores. The care plan included the use of pressure relieving chairs and beds; turning and repositioning with no specific times listed; ulcer care; use of cleansing agent and water to clean skin whenever soiled, and treatment of dry skin with moisturizer.

47. According to the physician's orders on October 6, 1999, Resident 1 was to have a skin assessment with showers weekly, and a skin barrier with lantiseptic ointment applied to her buttocks every shift or three times a day, and intermittently as needed.

48. Another care plan was developed on October 26, 1999, after a comprehensive assessment had been completed. The October

    26 care plan did not include turning and repositioning.

    
    

49. The standard of care to prevent pressure sores from developing includes regular turning and repositioning every two hours, keeping the skin clean and dry, and adequate nutrition and hydration. When a resident is ambulatory and can move herself in bed, turning and repositioning is less of a factor.

50. According to the nurses' notes for Resident 1, she slept most of the day on October 25, 1999, and continued to be drowsy on October 26. The doctor reduced her dosage of Haldol. Resident 1 was terminally ill and was placed on hospice service

    on October 27, 1999. On October 29, 1999, she was drowsy but alert and ambulatory. She was walking on October 31, 1999, with a slow, steady gait.

51. On November 2, 1999, Resident 1 had no open sores. On November 8, 1999, the treatment notes indicate no open sores on Resident 1, but there was some redness in the perianal area, which was treated with a cream. On November 8, 1999, the nurses' notes indicate that Resident 1 was ambulating with some difficulty. She was kept clean and dry, and her skin was intact. On November 10, 1999, it was noted that she was alert and turning aimlessly in bed. On November 10, 1999, she showered, and the nurses notes indicated no areas of skin breakdown. On

    November 14, 1999, Resident 1 was ambulating and was able to turn self. On November 16, 1999, there were no open areas on

    Resident 1, but she developed hives all over her body. She was given Benedryl for the rash. On November 17, 1999, Resident slept most of the day. On November 23, 1999, there were no open areas on Resident 1. She was lethargic and was turned and repositioned. On November 24 and 25, 1999, Resident 1 remained lethargic and was turned and repositioned. On November 26, 1999, she was lethargic all day. She continued to be lethargic on November 27, 1999. She was kept clean and dry and was turned and repositioned. The nurses' notes indicate that on November 30 and December 3, 1999, Resident 1 continued to be lethargic. The

    nurses' notes indicate that she was turned and repositioned on December 3, 1999.

52. On December 3, 1999, a nurse noted a pressure sore on Resident 1's coccyx, measuring .5 x .25 centimeters. The initial information regarding the treatment and identification of the pressure sore was documented on the treatment sheet of another patient with a similar name. The error was corrected on

    December 6, 1999. No evidence showed that the incorrect charting resulted in a failure to treat the pressure sore.

53. The pressure sore was a stage II pressure sore, which means either a blister or a shallow open area in which only the epidermis is affected. The area was cleansed and duoderm was applied.

54. Pressure sores are staged to standardize descriptions. Staging is not a means to describe a progression from one stage to the next. Sores can appear at any stage from a I to a IV.

55. On December 5, 1999, the pressure sore was assessed. The skin was broken, and the area was red and dry. The area was cleaned, and duoderm was applied. Resident 1 was lethargic and unresponsive to verbal stimulus. She was turned and repositioned.

56. During a survey on December 6, 1999, a surveyor from the Agency observed the pressure sore, and described it as a shallow crater over a bony prominence.

57. The nurses' notes on December 6, 1999, at 6:00 a.m., 12:00 p.m., and 7 p.m. indicate that Resident 1 was turned and repositioned. On December 6, 1999, two surveyors from the agency were at Haverhill. According to one surveyor numerous staff went into Resident 1's room from 6:00 a.m. to 9:00 a.m., but when she went into the room Resident 1 did not appear to have been repositioned. However, the other surveyor said that no staff went into Resident 1's room during the same time period. Between 6:00 a.m. and 9:00 a.m. on December 6, 1999, Resident 1 was turned and repositioned.

58. On December 7, 1999, cream was applied to Resident 1's buttock area, and she was turned and repositioned. She was repositioned on December 8 and 9, 1999. By December 10, 1999, the pressure sore had closed and was healing well. On December 17, 1999, it was noted that the pressure sore was healing well and was pink in color.

59. The Agency had cited Haverhill for not adding zinc or vitamin C to Resident 1's nutrition after the pressure sore was noted on December 3, 1999. Haverhill's dietician evaluated Resident 1 on December 5, 1999, to determine whether additional nutrition was necessary. After a thorough review of the resident's condition and history, including Resident 1's husband's concerns, the dietician specifically considered the addition of supplements and concluded that Vitamin C and zinc might be added "if wound not responding to [treatment] x 2 wks."

    Standard guidelines suggest adding these supplements only for more serious wound concerns. Zinc and Vitamin C did not have to be added to Resident 1's nutrition.

60. The agency alleged that Haverhill should have done a significant change assessment based on Resident 1's decreased physical capabilities that began in October 25, 1999, her bedfast condition since November 22, 1999, and her nutritional deficits since November 22, 2000.

61. The federal guidelines concerning significant change in status assessments are contained in HCFA's RAI Version 2.0 Manual. The guidelines provide:

    A 'significant change' is defined as a major change in the resident's status that

    1. Is not self-limiting;

    2. Impacts on more than one area of the resident's health status; and

    3. Requires interdisciplinary review or revision of the care plan.

    A condition is defined as 'self- limiting' when the condition will normally resolve itself without further intervention or by staff implementing standard disease related clinical interventions.

    * * *

    The amount of time that would be appropriate for a facility to monitor a resident depends on the clinical situation and severity of symptoms experienced by the resident.

    Generally, if the condition has not resolved itself within approximately 2 weeks, staff should begin a comprehensive RAI assessment. This time frame is not meant to be prescriptive, but rather should be driven by clinical judgment and the resident's needs.

    * * *

    In an end stage disease status, a full reassessment is optional, depending on a clinical determination of whether the resident would benefit from it. The facility

    is still responsible for providing necessary care and services to assist the resident to achieve his or her highest practicable well- being. However, provided that the facility identifies and responds to problems and needs associated with the terminal condition, a comprehensive reassessment is not necessarily indicated.

62. A significant change assessment was not done. Based on the federal guidelines, it was discretionary for Haverhill to do a significant change assessment because of Resident 1's terminal illness. There was no evidence to link the failure to complete a significant change assessment and the actual care given to Resident 1. Nurses' notes reflect that staff was very aware of Resident 1's condition and took measures to address it. There are frequent notes, which established discussions with the concerned husband, being turned and repositioned, being kept clean and dry, being fed, obtaining lab tests, and changing medications.

63. Resident 1 did develop a pressure sore while at Haverhill, but the treatment and care that she was provided prior to the development of the pressure sore indicate that Haverhill did what it could to prevent the development of the pressure

    sore and that the development was unavoidable. After the pressure sore developed, Haverhill provided the necessary treatment to promote healing and prevent infection.

64. Resident 16 was a 66-year-old, non-ambulatory female, who was admitted to Haverhill on August 4, 1999, from the hospital where she had undergone surgeries for both a pacemaker

    and a gastrostomy tube. She had an indwelling catheter and bowel incontinence. Resident 16 was totally dependent on staff for all activities of daily living.

65. When she was admitted to Haverhill, Resident 16 had a stage II pressure sore on her left buttock. She was assessed as being a high risk for pressure sores. Her preliminary care plan developed on August 4, 1999, included turning and repositioning every two hours, weekly skin assessments, cleaning for incontinence, using barrier cream, and dressing the pressure sore as ordered. She was placed on a maxi-float mattress rather than a standard mattress. By August 11, the pressure sore was only pink and had completely healed by August 30, 1999.

66. At 9:00 p.m. on August 20, 1999, it was noted that Resident 16 had a stage II, one centimeter-sized open area at her coccyx. The area was cleaned and dressed. The doctor was notified on August 21, 1999, about the pressure sore to the coccyx. He prescribed duoderm. It was also noted on August 21, 1999, that Resident 16's shoulder blades were red and scraped and needed to be monitored. Cream was applied to the shoulder blades.

67. Resident 16 was kept in bed rather than a geri chair on August 22, 1999, so that she could be turned from side to side every two hours. Cream was applied to the shoulder blades, and the duoderm was intact to the coccyx. Haverhill's dietician described the pressure sore on the coccyx as a stage III,

    measuring 4.5 cm x 4.7 cm with 35 percent necrosis and 65 percent slough.

68. On August 23, 1999, Resident 16 was sent to physical therapy for wound care, because the physical therapist had special training in this area. The physical therapist described the pressure sore area as having a hematoma and part of the wound being yellow and brown with inherent necrotic tissue. The pressure sore had no depth, the drainage was scant, and there was some breakthrough granulation. This description indicates that the wound was covered with possible necrotic tissue underneath. When the necrotic tissue was removed, such as the physical therapist did with mechanical debridement, an opening was revealed. After the wound was cleaned and debrided, it increased in size.

69. On August 25 and 26, 1999, wound treatment was performed on the pressure sore area at the coccyx. The dietician notes indicate that the pressure sore continued to be a stage III on August 31, 1999, and measured 4.5 cm x 5 cm with 70 percent necrosis, 20 percent slough, and 10 percent granulation. Vitamin C and zinc support was ordered for Resident 16.

70. On September 1, 1999, Resident 16 was placed on a different pressure reduction mattress. A wound culture was sent to the laboratory. By September 2, 1999, the wound had become infected. Antibiotics were administered beginning on

    September 3, 1999. Wound care treatment was also performed on September 3, 1999.

71. On September 4, 1999, the dressing was changed to the pressure sore. The nurse noted that there was a dark circle on the inner side of the right heel. Heel protectors were put on Resident 16. Resident 16's care plan was revised on

    September 7, 1999, to change the turning and repositioning time to once every hour.

72. On September 9, 1999, the nurse called the doctor regarding the pressure sore and requested that the wound care center be contacted for evaluation and treatment. A call was placed to the wound care center. On September 10, 1999, the wound care center called and stated they could not treat Resident 16 because of insurance coverage. The same day a call

    was placed to the hospital to see if Resident 16 could be treated there for wound care. On September 13, 1999, the hospital called and advised that Resident 16 could not be treated there because of insurance coverage.

73. On September 14, 1999, Resident 16 was placed on an air mattress to help relieve the pressure. By September 16, 1999, according to the nurses' notes, the wound consisted of "much unhealthy and necrotic tissue with very foul odor and much purulent discharge." The dietician noted that the wound was still at a stage III.

74. On September 17, 1999, the doctor ordered that Resident

    
    

    16 be sent to the hospital emergency room for wound treatment and evaluation. At 1:00 p.m. on September 17, 1999, the nurses' notes indicate that complete care was given, including cleaning after an incontinent episode, dressing change, and turning. Resident 16 left for the emergency room by stretcher at 1:30 p.m. When she seen by the doctor at the hospital, he noted that the wound was contaminated with feces. Given the resident's incontinence, this is not an unexpected condition despite her having been cleaned just prior to leaving for the hospital. She could have had an incontinent episode on the way to the hospital or while waiting in the emergency room. No evidence was provided to establish that she was dirty when she left Haverhill.

75. The doctors at the hospital described the pressure sore as a stage IV decubitus ulcer with a 12 to 14 centimeter diameter. The ulcer was grossly contaminated and would require cleaning over the next three to four days. Her laboratory tests showed that she also had a pseudomonas urinary tract infection. It was recommended that a diverting colostomy be considered for Resident 16 to keep "the fecal stream from continually bathing this area and giving rise to a chronic septic condition for the patient."

76. Pseudomonas in the urine is indicative of contamination in the bladder. Such contamination could come from lying in the bed in stool or from improper cleaning related to Resident 16's

    indwelling catheter. In Resident 16's case, the stool was brought up around the catheter, which carried the bacteria to the bladder.

77. Resident 16 was kept at the hospital from September 17 to September 25, 1999. Based on the dietician's notes, the pressure sore was a stage IV when Resident 16 returned from the hospital.

78. On October 6, 1999, the resident's care plan was amended. On October 9, 1999, the pressure sore was still a stage IV and measured 4.0 x 5.0 x 2.2 cm with undermining. The nutritional assessment for November 15, 1999, showed that the pressure sore was a stage IV. On November 24, 1999, the pressure sore measured 2.8 x 2.2 x 1.5 cm with undermining. At the time of the Agency's survey on December 8, 1999, Resident 16's pressure sore on her coccyx was still a stage IV, and she had developed a pressure sore on her left heel.

79. Turning and repositioning is important in preventing pressure sores. The standard nursing practice for turning and repositioning is a minimum of every two hours. Haverhill's policy for turning was every two hours. Resident 16's care plan showed that she was to be turned every two hours until September 7, 1999, when the care plan was amended to turning every hour.

80. The standard nursing practice for charting records depends on the condition of the patient. Resident 16 should have been charted on every shift throughout the day, based on her

    high-risk status, her bedfast position, her existing pressure sore, the contractures of her lower extremities, and her medical history.

81. Based on Haverhill's nursing notes, Resident 16 was turned and repositioned 656 times, or less than a third of the total number of times required, 2,320, by Resident 16's care plan between August 4 and December 7, 1999. Based on Haverhill's charting records, Resident 16 was turned and repositioned 356 times, or less than a sixth of the number of times required by the care plan between August 4 and December 7, 1999. Haverhill's records show that the number of times Resident 16 should have been turned and repositioned, consistent with Resident 16's care plan, was significantly higher than the actual number of times that Resident 16 was turned and repositioned.

82. The Agency claims that Haverhill failed to do skin assessments according to physicians orders during the month of September, 1999. The physician ordered a skin assessment once a week with showers. The assessments were done according to the doctor's orders. During part of September, Resident 16 was in the hospital for wound treatment; therefore, Haverhill could not have done a skin assessment at that time. When Resident 16 returned from the hospital there were only five days left in the month; thus, another skin assessment was not due to be conducted in September.

83. Haverhill failed to turn and reposition Resident 16 as required by her care plan. Resident did develop a pressure sore, which was not unavoidable. Haverhill did not provide treatment that would promote healing of the pressure sore due to Haverhill's failure to turn and reposition Resident 16 as required by her care plan.

    CONCLUSIONS OF LAW

    
    

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

85. The Agency cited Haverhill with Tags F224, F324, and F514 regarding B. B. Pursuant to Tag F224, Haverhill was charged with non-compliance under the Resident Behavior and Facility Practices Standard, 42 CFR Section 483.13(c), which provides:

    (c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

    
    

86. In conducting a survey, the Agency's surveyors rely on the Interpretive Guidelines in the State Operations Manual in determining whether a facility has violated 42 CFR Chapter 483. The manual provides the following guideline concerning

    42 CFR Section 483.13(c):

    
    

    The intent of this regulation is to assure that the facility has in place an effective system that regardless of source (staff, other residents, visitors, etc.), prevents mistreatment, neglect and abuse of residents, and misappropriation of resident's property.

    However, such a system cannot guarantee that a resident will not be abused; it can only assure that the facility does whatever is within its control to prevent mistreatment, neglect, abuse of resident, or misappropriation of their property.

    * * *

    'Neglect,' is defined as failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. . . . Neglect occurs on an individual basis when a resident does not receive a lack of care in one or more areas (e.g., absence of frequent monitoring for a resident known to be incontinent, resulting in being left to lie in urine or feces).

    
    

87. Rob Eason was aware on September 18, 1998, that B. B. was being transferred to Haverhill on that date and that B. B. was being transferred because he was a wanderer and IHS West Palm Beach could not safely maintain him at its facility. Although the records which came from IHS West Palm Beach did not state that B. B. was at risk for elopement, the fact was conveyed orally to Mr. Eason, who should have notified the appropriate personnel at Haverhill that B. B. should be closely monitored. The care plan developed for B. B. on September 18, 1998, did not include measures to prevent B. B. from possible elopement.

88. After the catastrophic event on September 21, 1998,

    
    

    B. B.'s care plan was amended to deal with his abusive behavior to staff and residents, but there was still no care plan to deal with the possibility of elopement.

89. Haverhill violated 42 CFR Section 483.13(c) and should have been cited for Tag F224..

90. Pursuant to Tag F324, Haverhill was charged with non- compliance under the Quality of Care Standard, 42 CFR Section 483.25(h)(2), which provides:

    Each resident must receive and the facility must provide the necessary care and services to attain and maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.

    * * *

    (h) Accidents. The facility must ensure that--

    * * *

    (2) Each resident receives adequate supervision and assistance devices to prevent accidents.

    
    

91. With regard to 42 CFR Section 483.25(h)(2), the State Operations Manual provides:

    The intent of this provision is that the facility identifies each resident at risk for accidents and/or falls, and adequately plans care and implements procedures to prevent accidents. An 'accident' is an unexpected, unintended event that can cause a resident bodily injury. It does not include adverse outcomes associated as a direct consequence of treatment or care, (e.g., drug side effects or reactions).

92. B. B.'s elopement and death could be considered an accident. His elopement resulted from a failure of Haverhill to treat B. B. as a risk for elopement. His care plan did not provide measures to deal effectively with possible elopement, and the care plan that was developed was not implemented as it should have been. Haverhill violated 42 CFR Section 483.25(h)(2) and should have been cited for Tag F324.

93. Pursuant to Tag F514, Haverhill was charged with non- compliance under the Administrative Standard, 42 CFR Section 483.75(l)(1), which provides:

    A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, psychosocial well-being of each resident.

    * * *

    (l) Clinical records.

    (1) the facility must maintain clinical records on each resident in accordance with accepted professional standards and practices that are--

    1. Complete;

    2. Accurately documented;

    3. Readily accessible; and

    4. Systematically organized.

    
    

94. The State Operations Manual provides the following guideline on 42 CFR Section 483.75(l)(1):

    A complete clinical record contains an accurate and functional representation of the actual experience of the individual in the facility. It must contain enough information to show that the facility knows the status of the individual, has adequate plans of care, and provides sufficient evidence of the effects of care provided. Documentation should provide a picture of the resident's progress, including response to treatment, change in condition, and changes in treatment.

95. The clinical records for B. B. should have reflected the information Kit Johnson gave Mr. Eason by telephone on September 18, 1998, that B. B. was a wanderer and that IHS West Palm Beach could not safely maintain B. B. at its facility. As a result of that information, Mr. Eason should have made further

    inquiry into B. B.'s background as it related to possible elopement and documented his findings. As a result of this lack of documentation, Haverhill failed to identify B. B. as a risk for elopement and failed to take sufficient measures to prevent his leaving the facility as he ultimately did.

96. Haverhill violated 42 CFR Section 483.75(l)(1), and should have been cited for Tag F514.

97. Pursuant to Tag 314, Haverhill was charged with non- compliance under both prongs of the Quality of Care Standard,

    42 CFR Sections 483.25(c)(1) and (2), which provide:

    
    

    Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychological well- being, in accordance with the comprehensive assessment and plan of care.

    * * *

    (c) Pressure sores. Based on the comprehensive assessment of a resident, the facility must ensure that--

    1. 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

    2. A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing.

98. Haverhill did not violate 42 CFR Sections 483.25(c)(1) and (2), as cited for Resident 1. Haverhill did violate 42 CFR Sections 483.25(c)(1) and (2), as cited for Resident 16, and should have been cited for Tag F314 for failure to turn and reposition Resident 16 in accordance with her care plan.

99. Under Section 400.23(8), Florida Statutes, deficiencies or violations are divided into three classifications. Section 400.23(8), Florida Statutes, provides:

    1. 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 immediate 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.

          * * *

       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 and class II deficiencies. . . .

    
    

100. The deficiencies cited in the October 14, 1998 survey for Tags F324, F224, and F514 were class II deficiencies. The failure of Haverhill to develop a sufficient care plan for B. B., to implement the care plan that was developed, to closely monitor as called for in its policies and procedures, had a direct relationship to the safety, health, and security of B. B.

101. The deficiencies cited in the December 8, 1999, survey as they related to Resident 16 are class II deficiencies. The failure of Haverhill to turn and reposition Resident 16 in

     accordance with her care plan had a direct relationship to the health of Resident 16.

102. Pursuant to Section 400.23(7), Florida Statutes, the Agency is to evaluate all Florida nursing homes at least every 15 months and to assign a rating of either standard, conditional, or superior. Conditional licensure status is automatic if the Agency determines the existence of a single Class I or Class II deficiency. Beverly Enterprises-Florida v. Agency for Health Care Administration, 745 So. 2d 1133, 1136 (Fla. 1st DCA 1999).

103. Section 400.23(7)(b), Florida Statutes, defines a conditional rating as follows:

     A conditional licensure status 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 under the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22, 1987),

     Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended. If the facility comes into substantial compliance at the time of the followup survey, a standard licensure may be assigned.

104. Haverhill should have been given a conditional rating for the period October 14, 1998, to January 3, 1999, Haverhill should have been given a conditional rating for the period December 8, 1999, through February 9, 2000.

105. Haverhill filed a Motion for Summary Recommended Order for Counts VIII and IX of the Administrative Complaint. These counts related to allegations of insufficient staffing. These allegations were not contained in the surveys conducted on October 14, 1998, and December 8, 1999. The first notice that Haverhill received was in the Administrative Complaint. The Agency sought to base a conditional rating on the failure of Haverhill to correct the deficiencies; however, the Agency had not provided Haverhill with an opportunity to correct the deficiencies. Thus, Haverhill could not be cited for failing to correct the deficiencies. Counts VIII and IX of the Administrative Complaint should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Counts VIII and IX of the Administrative Complaint, upholding the conditional license for Petitioner effective October 14, 1998, through January 3, 1999, and December 8, 1999, through February

9, 2000.

DONE AND ENTERED this 8th day of November, 2000, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 8th day of November, 2000.

COPIES FURNISHED:

R. Davis Thomas, Jr. Qualified Representative Donna H. Stinson, Esquire

215 South Monroe Street Suite 400

Tallahassee, Florida 32302

Tracy S. Cottle, Esquire

Agency for Health Care Administration Regional Service Center

Fort Knox Building 3, Suite 3231

2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk 2727 Mahan Drive

Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308

Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building Three, 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: 99-000516

Orders for Case No: 99-000516