vs. )
) Case No. 99-1206 INTEGRATED HEALTH SERVICES AT )
BRANDON (Central Park Lodges, ) Inc., d/b/a Integrated Health ) Services at Brandon), )
Respondent. )
A hearing was held in this case in Tampa, Florida on May 12, 1999, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Thomas W. Caufman, Esquire
For Respondent: Karen L. Goldsmith, Esquire
Goldsmith & Grout, P.A.
The issue for consideration in this case is whether Respondent's license to operate a nursing home at 702 South Kings Avenue in Brandon, Florida, should be disciplined because of the
deficiencies alleged in the Administrative Complaint filed herein.
By Administrative Complaint dated February 16, 1999, the Agency for Health Care Administration (Agency) indicated its intent to impose three separate administrative fines in the amount of $10,000 each for alleged deficiencies in the facility's operation, in violation of Rule 59A-4.1288, Florida Administrative Code, and Sections 400.102, .121, and .23, Florida Statutes. Respondent requested formal hearing, and this hearing ensued.
J. Perrone, a nurse surveyor for the Agency; Judy Ann Vargas, daughter of a resident at the facility at the time in issue; and Joanne Stewart, a social worker and health facilities evaluator for the Agency. The Agency also introduced Petitioner's Exhibits
1 through 5. Respondent presented the testimony of Bernardo J. Carotenudo, administrator of the facility in question; Marilyn R. Wampler, director of nursing (DON) at the facility in question; and Dr. Blake T. Andersen, a psychologist and expert in long-term care geropsychology. Respondent also introduced Respondent's Exhibits A and B. Respondent's Exhibit C was not received into evidence.
A transcript of the proceedings was furnished. After receipt thereof by the undersigned, counsel for both parties
submitted matters in writing which were carefully considered in the preparation of this Recommended Order.
At all times pertinent to the issues herein, the Agency was the state agency in Florida responsible for the licensing and regulation of nursing homes, and Respondent was licensed to operate a nursing home at 702 South Kings Avenue in Brandon, Florida. This nursing home was certified as qualified to accept Medicare and Medicaid patients as residents, and to accept reimbursement for services rendered to those types of residents. Medicare payments are made from totally federal funds. Medicaid payments are made from a mix of federal and state funds.
Medicare payments to nursing homes are usually of shorter duration than Medicaid payments, and Medicare usually reimburses at a higher rate than does Medicaid. Not all beds in a nursing home are Medicaid beds. The facility participating in providing care to eligible recipients has the option of deciding how many certified beds to have for Medicaid and/or Medicare. Some beds can be designated as dual beds. That means the particular bed can be used either for a Medicare or a Medicaid patient, and the facility bills the appropriate source.
Medicare and Medicaid rates are not the same. If the bed is occupied by a Medicare patient, the facility will bill Medicare, and conversely, if the bed is occupied by a Medicaid patient, the facility bills Medicaid for the service.
On February 1, 1999, Respondent's facility was surveyed by the Agency. Ms. Perrone participated in that survey. The survey was conducted as a complaint investigation which focused on the issue of discharge. It was done through a random focused sample which involved review of the discharge of patients from Respondent's facility. The term "discharge" has several meanings within health care services. It may mean either a discharge from the Medicare payer source to either a Medicaid or private payer source within the same facility, or it may mean an actual discharge from the facility to another facility or a hospital.
The Health Care Financing Agency (HCFA) of the federal government lists six legitimate bases for discharges, which apply only when the discharge is initiated by the facility, not if the resident or family initiates it. These discharge bases are:
The transfer must be for the resident's welfare and the resident's needs cannot be met by the facility.
The transfer is appropriate because the resident's health has improved.
The safety of the individuals is being endangered by the presence of the resident.
The health of the individuals in the facility is being endangered by the resident.
The resident has failed, after reasonable efforts, to pay the bill.
The facility is no longer in business.
Those criteria are made known to the facilities by HCFA'S Transmittal 9292, a copy of which is sent to every facility which served Medicare or Medicaid residents.
Florida law requires that residents of nursing homes who are to be discharged must be given notification of the impending discharge and of their right to appeal the discharge. If the resident appeals the discharge decision, he or she may remain in the facility pending resolution of the appeal.
The survey in question lasted about 10 hours. As a surveyor, Ms. Perrone was to classify any deficiencies discovered in the facility operation as Class I, II, or III. In conducting the survey, the team did not survey every resident of the facility, but, instead, did a sampling of approximately six residents. Of the residents surveyed, Ms. Perrone did the surveys on two or three. For each of those, she interviewed the resident, if possible; conducted family interviews; interviewed the staff; reviewed facility records regarding the resident; and made her personal observations.
One of the residents surveyed on February 1, 1999 by Ms. Perrone was Resident 2. This resident was admitted to the facility on or about December 9, 1998. She was diabetic, had a pulmonary disorder and respiratory distress, and polyneuropathy, a side effect of the diabetes. She also had spinal stenosis, high cholesterol, and degenerative osteoarthritis, and was
morbidly obese. She occupied a dually-certified bed, available to both Medicare and Medicaid patients.
The resident's records which Ms. Perrone examined reflected that the resident had been identified for discharge to another facility, but there was no evidence in her clinical record that she was given notice of the pending discharge. The notice and resident's response thereto should have been in the file.
When interviewed by Ms. Perrone, the resident was tearful, anxious, distraught and upset, Perrone believed, over the transfer, and though she remained in the facility through the survey, she was transferred to another facility after the survey process was completed.
The facility administrator, Mr. Carotenudo, indicated that the resident was transferred because she wanted to go home. His review of the records disclosed there was a physician's discharge order included therein, but she had not been discharged, and at the time of the survey, was occupying a Medicare bed. According to Mr. Carotenudo, the resident's daughter was hostile toward the facility and the staff and had indicated she would decide what would be done. Dr. Andersen, the psychologist retained by the facility to help implement the directed plan of correction after the survey, concluded this resident's depression was the result of her relationship with her
daughter rather than the potential for move from the facility. His testimony is discussed at length later in this order.
Resident 2 was taken to the facility in November 1998 on release from the hospital when the family decided they could not care for her at home. The resident was eligible for both Medicare and Medicaid. According to the daughter, at one point in December 1998, the resident was not doing well. The resident called her daughter and told her she was to be transferred to another facility. The daughter then called the facility's social worker to inquire and was advised that because there were no more Medicaid beds at the facility, the resident was being transferred to another facility, and the family would have to pay the transfer fee. The daughter objected to the move and payment. When the daughter visited her mother after the call, the mother was very emotional because she had been told she was to be transferred the next morning. Neither the resident nor the daughter was advised of any appeal rights.
The next afternoon, the daughter was called by the facility social worker who advised her that due to a moratorium on admissions at the new facility, the resident would not be moved. The resident was returned to her bed. As a result of this incident, the daughter called the Agency's ombudsman, but because she believed the situation had been satisfactorily resolved, took no further action. However, thereafter she was again notified of an impending move of her mother. When she
tried to reach someone in charge, she was referred to administration where she spoke with a man she did not know, but who was later determined to be the facility administrator.
The daughter explained to the administrator that she didn't want her mother moved. In response, she claims, the administrator advised her that she had been advised upon admission that the initial placement was short-term only, and that the bed would soon be needed. According to the administrator, this information was included in the admissions packet, but the daughter contends the admissions packet was not given to her until two weeks after the resident was admitted.
The daughter and the administrator talked for a while and she claims he finally advised her that she had until the following Tuesday (the conversation was on Friday), to find another nursing home for the resident or to be prepared to take her home. Consistent with those instructions, the daughter looked into several other facilities in the area but found either that there were no vacancies or the facilities were, for some reason, unacceptable. Further, she was concerned about the costs of transfer of the resident to and from the doctor's office. The daughter was not aware at that time that the cost of doctor visit transfers would be paid by the Medicare or Medicaid program.
Mr. Carotenudo categorically denies having given Ms. Vargas any ultimatum about her mother. He claims he had a long discussion with her about the Medicare rules and it was she who
was hostile. He admits he finally told her she had to make a decision about what she wanted to do, but he denies telling her she would have to pay any transfer fee. If a transfer is made, the facility actually makes the transfer in its vehicle.
The Director of Nursing described Resident 2 as a cheerful, social resident. When, in early January 1999, this resident was advised of a potential transfer, she seemed excited and pleased over the prospect. According to Ms. Wampler, the resident was capable of making her own decisions, and Ms. Wampler claims her review of the resident's chart showed no indication of a second transfer effort prior to February 1, 1999.
Ms. Perrone also examined the record of Resident 3 who was admitted to the facility on or about December 15, 1998. This resident, in her early to mid 90's, was admitted after having suffered a series of mini-strokes, and evidenced weakness, ulcers, appetite loss, and peripheral vascular disease. The resident was being fed orally and by a stomach tube, and she had been assessed by the facility as requiring total care in all activities of daily living. She was mentally impaired in her decision-making, and her son had to make all decisions for her. The son, himself in his mid-60's to mid 70's, though fully aware of his mother's condition, was unable to care for her.
Resident 3 also was occupying a dually-certified bed in the Medicare section of the facility. Review of her record during the survey indicated that she had been identified for
discharge to another facility to continue the long-term care she required, but during the time of the survey she was still there. Her clinical record contained no documentation as to whether the resident, or her son, were given any choices about her placement. There was a note in the record dated "1/7" that the son was unable to take her home and preferred a long-term care placement, but he indicated he would care for her at home if she were not placed in a facility where she would receive proper care.
Ms. Perrone interviewed the resident and determined she was not mentally capable of understanding what was happening. She had become accustomed to her surroundings and the staff and, to her, the facility was home. In Perrone's opinion as an experienced registered nurse, removal of the resident from the facility could have resulted in a potential decline in her condition.
In this case, according to Mr. Carotenudo, the resident had several sons, each of whom had a different idea as to what should be done with their mother. This was confirmed by Ms. Wampler, the Director of Nursing (DON). In any case, no steps were taken to discharge this resident prior to the survey. Carotenudo contends his people are trained and qualified to do the proper thing regarding the residents, and he presumed they did.
Notwithstanding the contention of Mr. Carotenudo that a doctor's discharge order was in the records of Resident 2, review
of the records of both residents revealed that in neither case was there anything therein relating to discharge of the resident. Each resident must be evaluated for discharge by a physician who must comment on the propriety of the pending discharge utilizing HCFA criteria. The records of Resident 2 showed a physician had suggested several months previously that she might go home, but in the interim, her condition deteriorated to the point that that was not an option. Ms. Perrone classified the cases of both Resident 2 and 3 as Class I deficiencies. A Class I deficiency is one which poses an actual or potential harm to the resident.
In Ms. Perrone's opinion, both residents would suffer harm, either emotional or physical, if discharged.
Another of the Agency personnel who participated in this survey was Joanne Stewart. Ms. Stewart reviewed the case of Resident 6, a two-year resident of the facility who was re- admitted from a hospital stay. The resident was diabetic and hypertensive, and suffered from pulmonary disease, degenerative joint disease, coronary artery disease, bronchitis, depression, and anxiety.
Ms. Stewart's interview with the facility's social service director indicated that facility practice was to discharge residents coming off Medicare or, as in the case of this resident, move them to the Medicaid area. Ms. Stewart's investigation revealed that the resident was happy where she was. She did not receive any notice of her right to stay there, and
the social service director had indicated that for the six months prior to the survey, it was facility practice not to do so. The social services director was not called as a witness for the Agency, however, and the statement given by her to Ms. Stewart is inadmissible hearsay testimony to the extent it is not corroborated by other admissible evidence.
Mr. Carotenudo contends, with regard to this resident, that she had been moved from bed-to-bed before this without any problem or complaint. The resident was not scheduled for discharge. She had resisted this move to another room because she wanted to keep her electric bed. According to the administrator, it is facility policy to accommodate resident desires and her wishes could have been met. In fact, when, after the survey, the resident was moved, the electric bed went with her. Nothing in the records reviewed by the DON indicated an imminent change of room for this resident. If one were anticipated, some reference to that should be in the resident's records.
Ms. Stewart also evaluated the case of Resident 5 who was admitted to the facility on December 8, 1998, after a massive stroke. This resident needed skilled care, but on December 28, 1998, was discharged to another facility. The resident's spouse, with whom Ms. Stewart spoke, related she was told nothing regarding a pending transfer of her husband. Had she been asked for permission, she would not have objected because the new
facility was closer to her, but the decision to move the resident was initiated and made by the facility without notice of the move or of the appeal rights. The spouse was not called to testify, however. Ms. Stewart's recounting of what the spouse told her is hearsay. The administrator, however, contends the resident was moved with the concurrence of his wife who wanted him closer to home. The only record regarding this resident introduced into evidence was a progress note of the social worker, dated
December 24, 1998, which indicated the spouse's expressed desire that the resident return home or be transferred to a facility closer to her home.
According to the DON, when the resident was admitted plans were made to move him to an assisted living facility or nursing home when he was able to be moved because the family could not care for him at home. However, the resident needed more care than could be provided at an assisted living facility. Review of the resident's clinical records showed a physician's note reflecting the comment "stable for transfer," but no reasons for the transfer were given even though they are required to be there.
According to Ms. Stewart, the facility's social services staff are required to act as advocates for the residents and to act in their behalf. Her review of the records of Respondent's facility indicated to her that the social services staff were not advising residents or their families of their
resident rights regarding transfer. Ms. Stewart classified this as a Class I deficiency due to the potential for harm to the residents as a result of the failure of the social services staff to intervene on their behalf. This is a generic comment, however, and no specific cases were cited, nor were any resident records submitted in support of this contention.
At the close of the survey, the facility was issued a directed plan of correction (DPC) which itemized the corrections which had to be made immediately. Mr. Carotenudo contends the noted deficiencies were corrected in the time allowed. One item in the DPC called for an outside independent individual to brief the staff and residents' families on discharge/transfer requirements. An individual approved by the Agency, Dr. Andersen, was retained and the requirement complied with.
Mr. Carotenudo claims that no residents were moved against their will, "that he knows about." Residents were advised of their transfer and discharge rights. The administrator admits that the survey showed the facility was not using the proper forms nor were the forms used being used correctly. However, on admission, residents were advised of basic resident rights which included transfer rights, and there were posters at each nursing station regarding the residents' rights to fair hearings on transfer rights and related subjects, which gave the name and address of the appeal authority. In addition, the facility had a residents' council, and Mr.
Carotenudo can remember no complaints from either the council or the families of the residents.
Though Ms. Wampler has heard of transfer trauma and recognizes it as a valid potential, whether it happens or not depends on the resident and the situation. In her opinion, none of the residents were in imminent danger due to their pending removal. None of the planned moves, in her opinion, would have a direct or immediate relationship to the health safety or security of the resident, and, she opines, none of the Respondent's actions had any impact so as to place a resident in immediate jeopardy.
Dr. Blake T. Andersen, a psychologist with expertise in long-term care and geropsychology, was selected to help the Respondent comply with the DPC. A part of his job was to evaluate all discharge records, to instruct family and staff on resident discharge rights, and to evaluate residents traumatized by potential discharge.
The first resident he evaluated was Resident 2. He spent about one-half hour speaking with the resident, the resident's family, and the staff. In his evaluation he looked at the resident's cognitive abilities and evidence of mental illness. He found this resident to have a history of depression. She was tearful and had feelings of helplessness. Dr. Andersen determined, however, that this stemmed from a history of family discord and disagreement with her daughter. It was clear to the
doctor that a big problem here was that the resident wanted more independence or control over where she stayed. It was not clear to her where she was going. When Dr. Andersen told her it was up to her, she said she didn’t want to upset her daughter. Andersen spoke with the daughter and encouraged her to take her mother's wishes into account.
Dr. Andersen found the resident had a history of many medical problems and was very dependent upon her daughter. The resident felt she could not make an independent decision. Her location was an issue in her depression, but Dr. Andersen felt the depression was more the result of the familial relationship and not the pending transfer. He could see no potential for trauma as a result of the pending transfer, nor did he believe the potential transfer would put the resident in a situation where she would likely suffer harm or impairment. He did not believe that anything the facility did made it likely the resident would be in imminent danger of mental or physical harm.
Resident 3 was more difficult for Dr. Andersen to evaluate due to a diminished cognitive function. This resident could not make independent judgements. Dr. Andersen observed the resident talking with her son and saw no signs of mental disorder, except memory deficits. Andersen asked her about a discharge and she was not aware of any pending discharge.
Dr. Andersen does not feel this patient was placed at harm by any action of the facility.
In addition to resident evaluations, Dr. Andersen also oversaw the review of the facility's resident records and he conducted in-service training for the staff and family members regarding transfer and discharge rights. To do this, he worked with the administrator to set up a series of meetings during which he could meet with families and brief them. As a result of this, some people were alarmed and upset by the fact that the subject matter was discharge and transfer, fearing the facility was closing down. Once past that, he heard no complaints regarding resident care, even though such complaints are common at most facilities.
Transfer trauma is affected by a number of factors and by the nature of the individual resident. Without full information, it would be pure speculation to try to estimate what would happen in a particular case. Dr. Andersen has found that trauma is greater in a transfer from home to a facility than in a transfer from one facility to another. However, he has found that residents form attachments to caregivers, and a transfer can have some effect.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
In the Administrative Complaint filed herein, the Agency seeks to impose administrative fines in the total amount
of $30,000, for three alleged deficiencies identified in a survey of the facility on February 1, 1999. Tag F 201 of the survey report alleges that Respondent violated the provisions of 42 CFR 483.12(a)(2) and (3), by improperly failing to permit residents to remain in the facility, or by discharging residents for an improper purpose; by failing to include in the clinical residents who were discharged from the facility documentation from a physician indicating the transfer was necessary (Tags F 202 and 203); and by failing to administer the facility and to provide social services to each resident in a manner so as to attain or maintain the highest practicable level of well-being (Tags F 250 and 490).
Since administrative fines are penal in nature, the Agency must establish the violations alleged by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).
The evidence of record does not establish that Respondent failed to ensure the facility met the requirements for appropriate discharge of residents, as alleged in the Administrative Complaint, or that a Class I deficiency exists.
No resident was discharged against his or her will or against the desires of the resident's legal representative or responsible family member. To be sure, there is some indication that consideration was given to moving one or more residents from
one section of the facility to another, or to another facility, but there is no indication any resident who did not want to move was moved, and there is no evidence that any proposed or pending move was based on a change in payor source.
The evidence indicates that Resident 2 wanted to move but was dissuaded from doing so by her daughter. In that case, intra-familial dynamics were in play and it was that, not the proposed move, that caused the resident's discomfort. This conclusion is borne out by the findings of Dr. Andersen. In the case of Resident 3, though the resident's son wanted to take the resident home for care, he could not do so and acquiesced in a long-term care placement. No evidence was presented that a move was planned or initiated by the facility, and in this case, as in the case of Resident 2, Dr. Andersen could find no evidence that the resident was suffering, or was likely to suffer, any harm or stress as a result of a pending move.
The evidence also does not show that a move of Resident
6 was either planned or was imminent. The resident voluntarily had moved from room-to-room several times in the past, but at the time of the survey, no move was contemplated, and the resident remained a Medicare patient in a Medicare bed. As to Resident 5, the evidence shows the move was made not at the behest of the facility but at the request of the resident's wife who wanted him closer to home. Under the circumstances, there is no showing of misconduct on the part of the facility.
With regard to the allegation that Respondent failed to ensure the clinical records of the residents contained documentation by a physician giving a reason for discharge, the evidence of record indicates that no resident was moved involuntarily. That portions of the records as relate to Residents 2, 3, and 5 which were introduced at the hearing fail to show that any of the residents in issue were involuntarily moved. Consequently, there was no requirement to include documentation by a physician regarding the reason for discharge.
Petitioner also alleges that Respondent failed to provide social services to each resident to maintain the highest level of well-being for the resident. Dr. Andersen evaluated several of the residents to determine if they were in any danger of jeopardy or harm as a result of their treatment of the facility. He could find none and, with the exception of Ms. Vargas, who seemed more upset by the possibility of move than did her mother, there was no evidence of any failure to provide a required service.
The Agency based its case on the implication that Respondent was intentionally discharging or moving Medicaid residents to free-up dually-certified beds for more lucrative Medicare residents. No evidence of this practice was forthcoming. At worst there appears to be a failure of communication between the administrator and the families of some
residents. This does not, under the circumstances here, constitute an actionable violation of statute or regulation.
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 rescinding the three administrative fines imposed by the Administrative complaint filed herein.
DONE AND ENTERED this 24th day of June, 1999, in Tallahassee, Leon County, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1999.
Thomas W. Caufman, Esquire Agency for Health Care
Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A.
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.
