vs. ) Case No. 00-0547
Respondent. )
Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing of this case on May 11 and 12, 2000, in Titusville, Florida.
For Petitioner: R. Davis Thomas, Jr.,
For Respondent: Mark S. Thomas, Esquire
The issue in this case is whether Petitioner's license should be classified as conditional, pursuant to Section 400.23(8)(b), Florida Statutes (1999), and Florida Administrative Code Rule 59A-4.1288. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated. Unless otherwise stated, all references to rules are to the Florida
Administrative Code in effect on the date of this Recommended Order).
On November 19, 1999, Respondent changed Petitioner's license rating from standard to conditional. Petitioner timely requested an administrative hearing.
At the hearing, Petitioner presented the testimony of three witnesses and submitted three exhibits for admission in evidence. Respondent presented the testimony of one witness and submitted six 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 June 19, 2000. On July 17, 2000, the parties filed a stipulated motion for extension of time to file their proposed recommended orders ("PROs"). Petitioner and Respondent timely filed their respective PROs on July 25 and 24, 2000.
Respondent's Exhibit 1 is the charging document used by Respondent and is referred to in the record as the 2567 Report. Petitioner objected to the admissibility of hearsay contained in the 2567 Report. Petitioner's objection is overruled for the reasons stated in Respondent's PRO. In particular, Respondent did not submit the 2567 Report for the truth of the matters asserted in the Report but only as the charging document and the notice provided by that document.
Petitioner moved to dismiss the 2567 Report on the grounds that it provides inadequate notice of the charges against
Petitioner. The motion to dismiss is addressed in the Conclusions of Law.
Respondent is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(8). Petitioner is a licensed nursing home located in Titusville, Florida (the "facility").
Chapter 400 originally required Respondent to conduct a survey of each nursing home in Florida every 12 months. Each survey was commonly referred to as an annual survey. The legislature subsequently changed the survey interval to every 15 months, but each survey is still referred to as an annual survey.
Respondent conducted an annual survey of the facility on November 17 through 19, 1999. The survey report is identified in the record as the "2567 Report." The parties agree that the 2567 Report is the charging document.
The 2567 Report expressly determined that Petitioner failed to ensure that resident number four (the "resident") did not develop pressure sores on September 16, 1999, and that Petitioner failed to ensure that the resident received the necessary treatment and services to prevent pressure sores from developing. The parties stipulated that no other deficiency is at issue in this proceeding. The resident had developed pressure sores on June 18, 1999, but those sores had healed before September 16, 1999, and are not at issue in this proceeding.
The 2567 Report determined that the alleged deficiency violates 42 Code of Federal Regulations ("CFR") Section
483.25(c). Rule 59A-4.1288 applies relevant federal regulations to Florida nursing homes. The 2567 Report identifies the standard of care at issue as Tag F314.
Based on the Tag 314, Respondent issued Petitioner a nursing home operating license rated as "Conditional" for the period November 19, 1999, through December 23, 1999. The conditional license decreased the license rating for Petitioner from "Standard" to "Conditional" within the meaning of Section 400.23(8).
On December 23, 1999, Respondent conducted a follow-up survey. Respondent determined that Petitioner had corrected the deficiencies in Tag F314 and issued a "Standard" license pursuant to Section 400.23(8)(a).
Respondent rated the severity of alleged deficiency between November 19 and December 23, 1999, with a rating of "II". A severity rating of "II" means the deficiency presented an immediate threat to the health, safety, or security of residents in the facility.
Respondent is also required to rate the deficiency under a federal classification system. Respondent assigned a scope and severity rating of "G" to the alleged deficiency between November
19 and December 23, 1999. A "G" rating means an isolated incident creates actual harm to a resident, but the resident is not in immediate jeopardy.
Applicable law requires that Petitioner post the conditional license in a conspicuous place near the entrance of the facility. Petitioner did so and filed a Petition for Formal
Administrative Hearing with Respondent. The Petition challenged the finding of the November survey that Petitioner committed a Class II deficiency and also challenged Respondent's decision to issue a conditional license to Petitioner. Respondent referred the Petition to DOAH and this proceeding ensued.
Open Areas
A threshold issue is whether the resident developed pressure sores or whether the open areas were reddened areas or friction blisters that did not satisfy the definition of pressure sores. A pressure sore is defined in 42 CFR Section 483.25(c) as:
. . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or shear.
Neither of the open areas over the resident's left and right hips satisfied the definition of a pressure sore. Neither open area was located over a bony area. Both wounds were located over a fatty area of the resident's hips.
The medical records describe the area over the right hip as having peeled-back skin, being small in size, and having yellow slough. That description is consistent with chafing and is not descriptive of a pressure sore.
Unlike the two open areas over the resident's hips, the open area over the resident's coccyx was located over a bony area of the tailbone. However, the small size and rapid healing time of two weeks are consistent with contact dermatitis caused by diarrhea rather than a pressure sore. The open area did not have the deep tissue damage associated with a pressure sore.
Pressure sores start deep in the muscle and work their way to the surface. They are caused by prolonged pressure to skin over a bony area and typically require a prolonged healing time.
The open area over the resident's right hip had healed by December 23, 1999, when Respondent conducted the follow-up survey. However, the open area over the resident's left hip had not healed as of the date of administrative hearing on May 12, 2000.
The long healing time for the open area over the resident's left hip is consistent with a pressure sore even though the area is not located over a bony area. Petitioner performed an MRI bone scan to determine why the open area over the resident's left hip was not healing. The scan revealed that the resident had a prosthetic hip and that the prosthesis had loosened.
The MRI scan noted that the "skin wound shows no associated bone activity." The failure of the wound to heal, more likely than not, was caused by stress on the resident's skin from the interaction between the loose prosthesis and the contraction and relaxation of the resident's muscles.
The resident's clinical condition demonstrates that the occurrence of the open area over the resident's left hip and its failure to heal were unavoidable. Petitioner did not fail to provide the treatment and services necessary to prevent the open area over the left hip from developing.
The treatment measures used by Petitioner for the open area over the resident's left hip included debridement, or surgical cleaning. Surgical cleaning of the open area is appropriate for a friction blister as well as a pressure sore.
Unlike Respondent's witness, both of the witnesses for Petitioner actually observed the resident. The Director of Nursing and the nurse that testified for Petitioner both concluded that the three open areas on the resident were not pressure sores. Their testimony was credible and persuasive.
Petitioner listed the three open areas at issue on the Pressure Ulcer Report in the medical records because that is the only form available to document open wound and treatment areas. The medical records contain six references that describe the three open areas on the resident as ulcers or decubitis wounds. Hundreds of other references in the medical records describe each of the three open areas as a wound, blistered area, or red area. Notice
Assuming arguendo that the three open areas on one resident were pressure sores, a second threshold issue is whether the 2567 Report provides adequate notice of the charges against Petitioner. The parties agree that the 2567 Report charged Petitioner with allowing a pressure sore to develop and with failing to ensure that the resident received the care and services needed to prevent pressure sores from developing. However, the parties dispute whether the 2567 Report charged that Petitioner failed to provide the services necessary to promote healing.
Tag F314 in the charging document provides notice to Petitioner in the following manner. Tag F314 first states the "Requirement" for the quality of care of each resident, then states the basis for the conclusion that the "Requirement" was not met for the resident, and finally states the "Findings" that allegedly support the conclusion. In relevant part, Tag F314 states:
F314 483(25(c) Requirement
SS=G Quality of Care (emphasis supplied)
Based on the comprehensive assessment of a resident, the facility must ensure that 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 a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. (emphasis supplied)
This requirement is not met as evidenced by:
The facility did not ensure that [the resident] received the care and services to prevent pressure sores from developing. (emphasis supplied)
Findings:
Resident #4 was admitted 1/27/98 with diagnoses of dementia, bronchitis, thrombosis and embolism. Her MDS (Minimum Data Set) dated 6/18/99 indicated she had three (3) stage II pressure sores. These apparently healed because documentation in the nurses notes dated 9/10/99, noted "no open areas".
Her care plan dated 9/20/99 noted open areas to the left hip, stage II, measuring 4 x 1.5 cm and right hip, unstageable, measuring 3 cm, and sacral area, stage II, measuring 2 cm. Documentation on 10/5/99 noted the coccyx was healed and on 10/12/99, left and right hips reddened stage I.
On 9/16/99 at 10:55PM, documentation in the nurses notes indicated "3 x 3 red area left hip with 2 intact blisters below". The next note on 9/17/99 at 10:30 PM indicated "preventative skin care".
The pressure ulcer reports noted that the pressure sore on left and right hips was first observed on 9/16/99 as stage I. On 9/20/99, four (4) days later, both pressure sores were noted as stage II, measuring 1 cm round with the left hip having serous drainage and the right hip having scant drainage.
However, nurses notes documented on 9/20/99 that the pressure sore on right hip measured
cm red with brown center, left hip measured
cm red with 1.5 cm soft, open white/brown center, and sacral area 2 cm red open. By 9/24/99 documentation in the pressure ulcer report noted the left hip increased in size to 2.2 x 4 cm. Documentation noted right hip increased to 1.6 x 1.4 cm 10/21/99.
Nurses notes dated 9/22/99 at 7:00 PM noted, "treatment orders received from doctor", six
(6) days after the pressure sore was first observed and two days after the order was faxed to the physician.
Interview with charge nurses on both units on 11/16/99, at 3:30 PM and 11/17/99 at 2:00 PM revealed they did not know why the resident had developed pressure sores.
Observation of the pressure sore on 11/17/99 at 1:00 PM revealed the left hip measuring
1.5 x 2.5 cm with yellow slough and the right hip measuring 1.1 x 0.7 cm with a necrotic area on top. There was no way to determine what stage the pressure sore on the left hip was at this time since it was covered with slough. The charge nurse indicated that the pressure sores had become worse over the weekend.
The resident was observed on 11/18/99 from 9:35 AM in bed, lying on her back and head of bed elevated 45 degrees, 10:20 AM, lying flat on her back in bed, 11:48 AM and 12:20 PM lying on her back flat in bed. The resident's position was changed at 1:30 PM when she was turned to her left side. During
the course of the survey, the resident was never observed out of bed.
Additionally, the resident had a 36 pound weight loss for one year and a 13 pound weight loss for six months.
There was no documentation that the facility provided services necessary to ensure that this resident did not develop pressure sores and no documentation that the physician was notified promptly after the pressure sores were first observed. Documentation revealed that the facility notified the physician when the pressure sores on both hips were stage II and six days after they were first observed. (emphasis supplied)
The express terms of Tag F314 do not charge that Petitioner failed to provide the resident with the necessary treatment and services to promote healing and prevent infection. Evidence of any alleged deficiency not contained in the express terms of the charging document are not relevant and material to the allegations in the charging document.
Open Areas Were Unavoidable
Assuming arguendo that one or more of the three open areas on the resident were pressure sores and that the 2567 support provided adequate notice of the charge that Petitioner's services failed to promote healing and prevent infection, two issues must be determined. One issue is whether the resident's clinical condition made the occurrence of the pressure sores unavoidable. The other issue is whether Petitioner failed to provide the treatment and services necessary to prevent the pressure sores.
Respondent's witness did not evaluate whether the resident's open areas were avoidable. The witness did not offer an opinion on this issue.
The resident was originally admitted to the facility in 1991. She has resided there since that time except for a number of brief trips to the hospital. She is a long-term resident of the facility whose needs are well known to facility staff.
By 1999, the resident was a very sick woman. Her diagnoses included: Alzheimer's disease/dementia; low thyroid; psychosis; colostomy; artrial fibrillation; mitral valve prolapse; embolism; deep vein thrombosis; dysphagia; anorexia; bronchitis; urinary track infection; electrolyte and fluid imbalance; contractures; depression; intermittent edema; periodic diarrhea; chronic incontinence of bowel and bladder; and decreased tissue tolerance.
The resident was routinely evaluated by Petitioner using a Minimum Data Set ("MDS") evaluation tool. The MDS assessment of April 14, 1999, identified the resident as being at risk for, among other things, the development of pressure sores and for weight loss. Petitioner developed a care plan to address these risks. The care plan for pressure sores included prompt cleaning and drying after each incidence of incontinence; regular monitoring of skin condition; a weekly skin assessment; encouraging the resident to maintain her nutrition and hydration; turning and repositioning the resident at least every two hours; and encouraging the resident to participate in movement oriented activities to relieve pressure points.
When the resident's skin became compromised and reduced the turning surfaces, Petitioner brought in an air bed. In an effort to provide the resident with the best care possible, Petitioner upgraded the air bed several times without reimbursement.
The parties agree that the resident's medical condition was highly compromised and that her condition deteriorated during 1999. She had numerous clinical comorbidities and became bedfast due to the development of contractures. The major problems that required constant monitoring and adjustment to the resident care plan included chronic incontinence of the bladder that resulted in excoriation and breakdown of the resident skin. Petitioner routinely used a Foley catheter for the resident to allow her skin to heal. Once the skin healed, the catheter was removed. Once the catheter was removed, the resident would suffer from renewed excoriation and breakdown of her skin. This cycle repeated itself throughout 1999.
The resident also suffered from edema throughout 1999. This resulted in her being hospitalized on June 9, 1999. Whenever the resident experienced worsening of her edema, she would be put on Lasix. When her edema abated, Petitioner discontinued its Lasix.
The resident experienced weight loss as her medical condition deteriorated. She weighed 162 pounds on January 15, 1999, and 121 pounds by August 15, 1999. Her weight stabilized in August, however, and never dropped below her ideal body weight.
Petitioner tried numerous interventions to stabilize and increase the resident's weight. One intervention included dietary supplements. However, dietary supplements had to be discontinued because they caused diarrhea.
The resident suffered from dysphagia that created difficulty in eating and swallowing. In an attempt to overcome this condition, Petitioner gave the resident speech therapy and put her on a pureed diet.
Throughout 1999, Petitioner continued to evaluate the resident's condition and to provide her with the best possible care. Petitioner gave the resident MDS evaluations seven times between March and September, 1999. All of the resident's body functions, including skin integrity, were constantly on the verge of becoming dysfunctional.
On September 12 and 13, 1999, the East Coast of Florida was threatened by Hurricane Floyd. Hurricane Floyd appeared to be heading straight for Titusville. The facility administrator monitored the national disaster center, the hurricane center, and the local weather information. The facility administrator decided that Petitioner should evacuate the facility to provide for the safety of the residents.
The evacuation of a nursing home is a demanding task. All residents must be fed and have liquids during the transfer. The facility has to make sure that the residents' medications and medical devices and clothes will travel with the residents. Although Petitioner doesn't usually use adult diapers on its residents, it was necessary during transport from and back to the
facility because there is no ability to change resident clothing during the trip. These tasks were made all the harder because Petitioner did not have its full complement of staff due to the hurricane. All in all, it took over five hours to load the residents onto the busses for evacuation.
Petitioner evacuated the residents to three central Florida nursing homes that were also short-handed due to the hurricane. Petitioner sent the resident to Plantation Bay in Kissimmee, Florida. While she was there, it was impossible to implement every element of her care plan. Care focused primarily on feeding residents, seeing that they received their medications, and keeping them clean and dry. Petitioner transported the resident's air mattress to Plantation Bay.
By September 15, 1999, Hurricane Floyd had passed, and the residents returned to the facility. This again necessitated packing the residents up, placing them in adult diapers, and transporting them back to the facility. When the staff and residents returned to the facility, they found that the electric power was out temporarily. The residents' clothes could not be washed immediately and the residents had to wear adult diapers until the power was restored.
On September 16, 1999, the resident underwent a complete evaluation. At that time, it was noted that she had a 3 cm. X 3 cm. red area on her left hip with two small intact blisters below the reddened area. She did not have any open areas at that time. This area was examined again the next day.
At that time, the facility was providing preventive skin care and was putting barrier cream on the left hip area.
On September 19, 1999, the treating physician examined the resident, and did not note anything concerning her skin integrity. On September 20, 1999, the resident had open areas on her skin for the first time. The nurse's notes on that day describe three open areas as follows:
On the right hip there is a 3 cm. open area with peeled skin and a 2 cm. brown center; on the left hip there is a 4 cm. red area with a
1.5 cm. open area with a white/brown center; and on the sacral area there is a 2 cm. open area. Facility staff notified the treating physician of this development and recommended that Allevyn bandages be prescribed for all three open areas.
On September 22, 1999, the treating physician notified staff that he concurred with their recommendation.
Within two weeks, the area of the coccyx/sacral area had healed completely. The right hip area was completely healed within two months. The left area still had not completely healed at the time of the Final Hearing and continues to be an area of concern and a focus of treatment.
On November 15, 1999, before the state survey inspection started, Petitioner had a culture done on the resident's left hip to determine if that area was infected. The results of that laboratory test showed that the area was not infected.
On November 23, 1999, Petitioner debrided, or surgically cleaned, the open area on the resident's left hip in an effort to promote healing. On December 23, 1999, Petitioner
had a bone scan done to the area of the resident's left hip. The scan noted that there was a possible loosening of the resident's prosthesis and that the "skin wound shows no associated bone activity".
Petitioner did everything reasonably possible to prevent the resident from developing pressure sores and to treat the open areas. Petitioner performed seven MDS assessments between March and September, 1999, four Braden assessments during that period, and a weekly head-to-toe skin assessment. Petitioner inspected for skin integrity during the resident's twice-weekly showers. Petitioner turned the resident and repositioned her at least every two hours. In addition, Petitioner turned and repositioned the resident every time she was treated for incontinence and after each meal. Petitioner
made every effort to keep the resident dry and clean, even though she had chronic incontinence.
Petitioner routinely placed the resident on a catheter to allow her skin to heal. Once her skin was intact, the catheter was removed. However, incontinence led to further skin breakdown that, in turn, led to the catheter being put back in place.
Petitioner used a barrier cream in an effort to keep the resident skin dry and clean. When indicated, Petitioner put heel-protecting booties on the resident. When the resident turning surfaces became weakened, Petitioner obtained a pressure- relieving air mattress without reimbursement and upgraded the mattress several times.
Proper Care
Respondent contends that Petitioner failed to provide the resident with the necessary treatment and services to promote the healing of her pressure sores and that the result of this failure was the development of infections. The particular treatment and services that Respondent alleges Petitioner did not provide are turning and repositioning the resident; notifying the resident doctor in a timely manner after the development of the open areas; and failure to address weight loss.
Turning and repositioning a resident who is at risk for the development of pressure sores, or who has developed pressure sores, is a standard intervention. It keeps a resident from having prolonged pressure over any one bony prominence. The standard protocol in the industry calls for a resident to be turned and repositioned at least every two hours.
Respondent asserts two grounds for finding that the resident was not turned and repositioned every two hours. First, the nurse's notes do not always state that the resident was turned and repositioned. Of 720 possible opportunities to note turning and repositioning between March 24 and November 19, 1999, the nurses' notes contain 105 entries that refer to turning and repositioning. According to Respondent's expert witness, if turning and repositioning isn't in the chart, it didn't occur.
The resident was extremely compromised and was at great risk for the development of pressure sores. If the resident had been turned and repositioned only 105 times of 720 opportunities, she would have developed serious pressure ulcers on all of her
weight-bearing surfaces including her heels, knees, and ankles. She would have developed Stage IV ulcers on her heels and sacrum had she not been regularly turned and repositioned. The absence of pressure sores on the resident is persuasive evidence that Petitioner regularly turned and repositioned the resident.
There is no requirement or nursing standard that routine care such as turning and repositioning must be charted. Routine care is sometimes charted by nurses out of habit, but charting turnings and repositionings is not mandatory.
The resident's records show that charting of certain routine items was irregular. For example, the air mattress for the resident remained in place once it was put in place. The resident's chart notes the presence of an air mattress on June 6, 8, 11, and 17. There is no mention of the air mattress in the nurses' notes of June 9, 10, 13, 14, 15, 18, 19, or 20. There are multiple nurses' notes on June 12, 21, 24, 26 and 30, wherein one of the notes mentions the air bed and others do not. Similarly, the charts note that the resident had open areas to her skin for September 16, 20, 30, and October 4 and 5, 1999.
The nurses' notes for September 17, 22, 24, 29, and October 7 and 8, 1999, do not mention the resident's skin condition.
The surveyor noted in relevant part:
The resident was observed on 11/18/99, from 9:30 AM in bed, lying on her back and the head of bed elevated 45 degrees, 10:20 AM, lying on her back flat in bed, 11:48 AM and 12:20 PM lying on her back flat in bed. The resident's position was changed at 1:30 PM when she was turned to her left side.
From this recitation, Respondent infers that the resident was not turned and repositioned for a four-hour period on November 18, 1999, and was not, therefore, regularly turned and repositioned.
The resident had severe contractures that resulted in her left leg being pulled way up and across her body. Due to this condition, the resident could appear to be lying flat on her back when she was either on her back or when she was actually on her right side. The surveyor did not enter the resident's room when the surveyor made the observations contained in the survey report. The surveyor merely observed the resident briefly from the hallway. The surveyor mistakenly believed the resident was on her back when she was actually on her right side.
The Director of Nursing was aware that the resident was a focus of the survey. The Director directed her CNA's, her wing managers, and her Assistant Director of Nursing to be sure that the resident was regularly turned and repositioned. The Director personally checked to confirm that the resident was regularly repositioned. She knew of her own knowledge that the resident was turned and repositioned at least every two hours and identified the person who physically did the turning.
Respondent asserts that Petitioner was deficient because it did not notify the resident's doctor of her skin condition for a period of six days. Respondent bases this allegation on the fact that the first red area on the resident was observed on September 16, 1999, and the doctor's concurrence of staff's recommended treatment was not received until September 22, 1999.
The resident's treating physician visited her at the facility on September 19, 1999. He did not determine that additional treatment orders were needed at that time.
Facility staff first noted open areas on the resident on September 20, 1999, and notified the treating physician on that day. In the notification, staff requested that the physician approve a treatment plan that called for "cleanse w/ N/S then apply Requesting Allevyn Islands for all three. Change every three days & prn." The physician was out of town, but approved the recommendation when he returned on September 22, 1999.
The resident's physician visited her after the red area was observed on her left hip, but before it became open. Petitioner notified the physician immediately upon noting the open areas. The two-day delay in getting confirmation of the recommended treatment was caused by the physician's absence and not by Petitioner.
Respondent's witness testified that the resident's weight loss "was a factor that influenced the clinical outcome of the pressure ulcer," that it "was a tangible manifestation of some type of physiological symptom failure," and that the weight loss indicated that the resident was at risk for developing pressure sores. However, Petitioner knew that the resident was at risk for developing pressure sores. Petitioner prepared and implemented numerous care plans to deal with this risk. Respondent did not allege that the nutritional services provided to the resident were inadequate. The resident never dropped
below her ideal body weight. The resident stabilized in August 1999, approximately 123 pounds.
Petitioner provided the resident with speech therapy for dysphagia and difficulty with swallowing and digestion. Petitioner provided the resident with dietary supplements to increase her caloric intake. The supplements were discontinued because they caused diarrhea. Petitioner placed the resident on a pureed diet in an effort to make her food easier to eat. A dietitian evaluated the resident 23 times between May 27 and December 8, 1999.
Respondent did not identify any dietary or nutritional intervention that Petitioner should have taken, or any ill- advised nutritional treatment that Petitioner did provide. Petitioner was aware of the resident's weight loss, constantly evaluated and reevaluated her nutritional needs and strategies for meeting them, and successfully halted her weight loss while she was still within her ideal body weight and before she suffered any breakdown of her skin. No nutritional deficiency was shown.
Respondent infers that the resident's wound to her left hip became infected because it was noted at one time in the nurse's notes to have a foul odor and pus. As a part of the treatment of the resident's left hip, Petitioner applied Hydrogel directly on the wound and Polyskin over that. The dressing remained in place for three days. The dressing created a foul odor as it disintegrated over the three days it was in place. As
the serous drainage of the wound mixes with the medication, it creates the appearance of pus.
Petitioner had a culture done to test for infection. The culture test was ordered before the survey inspection. The test demonstrated that the resident did not have an infection. In addition, the resident's physician never prescribed an antibiotic for infection.
At the time of the inspection, the resident census at the facility was 113. Of those, at least 50 percent were identified as being at risk for the development of pressure sores. Based on the national average of a 7-9 percent incidence of pressure sores on nursing home residents, one would expect that the facility would have 8 to 10 residents at any one time with pressure sores. The resident was the only resident Respondent alleged to have pressure sores.
Class II Rating
Assuming arguendo that the resident did actually develop three pressure sores, the greater weight of the evidence suggests that she was turned and repositioned on a regular basis at least every two hours; that her physician was properly kept abreast of changes in her condition; that her nutritional status was regularly evaluated and every effort was made to maintain her weight; and that her wounds did not become infected and were superficial and relatively mild. As such, it was not proven that the alleged deficiencies had more than an indirect or potential relationship to the health, safety, or security of the resident. The alleged deficiencies should have therefore been classified as
no more than Class III deficiencies, and Petitioner should not have been issued a Conditional license.
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). Respondent must prove by a preponderance of the evidence the deficiencies alleged in Tag F314.
Respondent failed to show by a preponderance of the evidence the presence of the alleged Class II deficiency at the time of the survey. 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). Petitioner is entitled to a standard license for the period November 19 and December 23, 1999.
RECOMMENDED that Respondent enter a final order finding Respondent not guilty of the alleged deficiency and reinstating
Respondent's license rating to standard for the period between November 19 and December 23, 2000.
Mark S. Thomas, Esquire Michael Hope, Esquire
R. Davis Thomas, Jr., Qualified Representative Jay Adams, Esquire
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.
