br BOO STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION 5 - Bue STATE OF FLORIDA, AGENCY FOR CASENO.: 99-2745, 99-2" HEALTH CARE ADMINISTRATION, 00-0049 ns Fore Petitioner, AHCANO.: 10-99-102-NH.. = 10-99-204-NEE> v. 02-99-009- RENDITION NO.: AHCA-oo- 27A-E PINEHURST CONVALESCENT CENTER : (BEVERLY ENTERPRISES-FLA. INC. d/b/a me BEVERLY GULF COAST-FLORIDA), a cm Respondent. / FINAL ORDER This cause was referred to the Division of Administrative Hearings for a formal administrative hearing. The assigned Administrative Law Judge (“ALJ”) has submitted a Recommended Order to the Agency for Health Care Administration (“Agency”). The Recommended Order of June 30, 2000, entered herein is incorporated by reference. RULING ON EXCEPTIONS AGENCY FOR HEALTH CARE ADMINISTRATION Counsel for the Agency excepts to the finding in paragraph 67 that “[p]ressure sores in a terminally ill patient are unavoidable.” Counsel for Pinehurst Convalescent Center (“Pinehurst”) concurs that the record does not support this finding. The finding is rejected and the exception is granted. Counsel excepts to the finding in paragraph 68 that “{njo clinical measurements were available to indicate whether the reduction in the tube feeding negatively affected Resident number 3.” The unchallenged findings of the ALJ are that Resident 3 was terminal, dying from end-stage cardiovascular disease and congestive heart failure, totally dependent, and receiving hospice care. She was being fed and medicated through a tub inserted into her abdomen. The medication included continuous administration of morphine for pain. To reduce congestion and make her more comfortable, Resident 3’s physician was willing to reduce the level of feeding. The family concurred. The challenged finding is supported by the record and is an appropriate comment on the weight of the evidence on whether Resident 3’s pressure sores were unavoidable because of her clinical condition. The exception is denied. PINEHURST Pinehurst excepts to the ALJ’s conclusion that the evidence established a violation of the regulatory requirement that a nursing home provide each resident with the care necessary for the resident to attain and maintain the highest praczicable level of physical, mental, and psychosocial well-being in accordance with the nursing home’s comprehensive assessment and plan of care for the resident. The citation for this violation is designated as Tag F309. Pinehurst alleges that there is a fatal variance between the facts alleged in the administrative complaint and the facts found by the ALJ as the basis for the violation regarding Resident 5, a patient with a history of accidental falls at Pinehurst. As the factual basis for the violation, the administrative complaint recited a detailed history of falls, measures taken per the care plan, a failure to sufficiently implement the care plan, and a failure to update the care plan after the resident continued to fall. There is no substantial variance between the ALJ’s findings regarding Resident 5 and the facts as alleged in the administrative complaint (paragraphs 21, 22, 24, 25, 26, and 27). As the court found in Bracey, Busby, and Herkal v. Dept. of Children and Families, 25 Fla. L. Weekly D18go0b (Fla. 5'* DCA, ” August 11, 2000), “[t]he allegations were broad enough to include the findings . . . Therefore, the exception is denied. -2- Pinehurst excepts to the ALJ’s recommendation that a fine of $2,500 be imposed for the violation designated as Tag F309. The violation was cited as a Class II deficiency in the administrative complaint and this classification was sustained by the ALJ. See paragraph 112. Pinehurst points out that the ALJ found that the deficiency was timely corrected. See paragraph 112. The Agency may impose a fine for a Class II deficiency only if the licensee fails to timely correct or if the deficiency is a repeat violation. See § 400.23(8)(b), Fla. Stat. (1999). The deficiency having been timely corrected and there being neither allegation nor record to support that the deficiency is a repeat violation, the exception is granted and no fine is imposed. Pinehurst excepts to the ALJ’s finding that Pinehurst violated the regulatory requirement that a nursing home implement written policies and procedures to prevent abuse, mistreatment, and neglect of its residents. The citation for this violation is designated as Tag F224. Pinehurst maintains that the ALJ’s finding is not supported by competent, substantial evidence. The factual basis arises out of the hospice care provided to Resident 3. The ALJ found that the care given Resident 3 was in several respects deficient to the extent that the deficient care constituted neglect. From the deficient care, it was reasonable for the ALJ to conclude by inference that Pinehurst failed to impleraent its policies and procedures. The Agency has no authority to reweigh the evidence at this level of review. See Beverly d/b/a Emerald Oaks v. Agency for Health Care Admin., 745 So.2d 1133, 1136 (Fla. 1st DCA 1999). The challenged finding is supported by competent, substantial evidence; therefore, the exception is denied. Pinehurst excepts to the ALJ's finding that Pinehurst violated the regulatory requirement that a comprehensive care plan be developed and updated for each resident. The citation for this violation is designated as Tag F280. Pinehurst again -3- alleges a variance between the alleged facts and the ALJ's findings. Basect on a careful review of the allegations, findings, and Pinehurst’s argument, it is concluced that there is no substantial variance; therefore, the exception is denied. Pinehurst excepts to the ALJ’s finding that Pinehurst violated tne regulatory requirement that a nursing home maintain acceptable parameters of nutritional status, such as body weight and protein level, for each resident unless foreclosed by a resident’s clinical condition. This violation is designated as Tag F325. Pinehurst suggests that the lack of periodic review of the decision to reduce the feeding level of Resiclent 3 and the failure to fully inform the resident’s son of the effects of the reduced feeding do not constitute a violation of the regulatory requirement. Pinehurst implies that a violation can only be established by a showing that a resident failed to maintain