STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) NURSING HOME ADMINISTRATORS, )
)
Petitioner, )
)
vs. ) Case No. 00-2084
) JANICE CAROL REEPING, N.H.A., )
)
Respondent. )
________________________________)
RECOMMENDED ORDER
On July 18 and August 27, 2001, a formal administrative hearing in this case was held before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings. The July 18 hearing session was held in New Port Richey, Florida. The August 27 hearing session was held by videoconference in Tallahassee and Tampa, Florida.
APPEARANCES
For Petitioner: Mary Denise O'Brien, Esquire
Department of Health
2727 Mahan Drive, Mail Stop 39
Tallahassee, Florida 32308
For Respondent: Karen L. Goldsmith, Esquire
Goldsmith & Grout, P.A.
2180 North Park Avenue, Suite 100 Post Office Box 2011
Winter Park, Florida 32790-2011
STATEMENT OF THE ISSUE
The issue in the case is whether the allegations in the Administrative Complaint, as amended, are correct and if so what penalty is appropriate.
PRELIMINARY STATEMENT
By Administrative Complaint dated August 10, 1999, the Department of Health, Board of Nursing Home Administrators, (Department) alleged that Janice Carol Reeping (Respondent) was in violation of Florida law related to the practice of nursing home administration. The Respondent requested a formal administrative hearing. The Petitioner forwarded the request to the Division of Administrative Hearings.
At the hearing, the Petitioner presented the testimony of six witnesses and had exhibits numbered 1-5 admitted into evidence. The Respondent testified on her own behalf and presented the testimony of two witnesses.
A Transcript of the hearing was filed on September 20, 2001. Both parties filed Proposed Recommended Orders that were considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Petitioner is the state agency charged with responsibility for regulation of licensed nursing home administrators in Florida.
At all times material to this case, the Respondent was a licensed nursing home administrator.
On or about April 13, 1998, the Respondent was hired as the administrator of the “Colonial Oaks” nursing facility (the facility) located in Ft. Myers, Florida.
The facility was owned by Vencor and had been operating for about four years by the time the Respondent became the administrator.
Prior to her move to Colonial Oaks, the Respondent had 20 years of experience as a nursing home administrator. The Respondent’s previous nursing home employment had been at facilities with superior ratings. She agreed to transfer to this facility because she believed that she could improve the situation and secure a superior rating for it as well. She has never been the subject of a disciplinary proceeding prior to this case.
Colonial Oaks had been through 12 administrators and
15 directors of nursing before the Respondent assumed the administrator’s position.
There were considerable staff problems at the facility. Continuing management difficulties made if difficult to motivate staff members who apparently assumed that the managers would soon be gone and that new managers with new expectations would arrive.
Further staffing problems were related to the type of patients who resided at Colonial Oaks. The facility drew a large population of private pay residents who expected high levels of service from the staff, which the staff was apparently unable or unwilling to provide.
At the time of the Respondent’s employment at the facility, there was no director of social services and no director of activities. Additionally, resignations had been submitted by the medical records coordinator, the care plan coordinator, the staff development coordinator, the therapy director, the case manager, and the central supply clerk, all of whom were completing their resignation notice periods.
Immediately upon beginning her tenure at the facility, the Respondent began to advertise the job openings in an attempt to fill the positions. She filled a number of open positions and began training new employees. She met with the staff frequently and made daily rounds to review the operation of the facility. Employees seeking to become Certified Nursing Assistants were offered classes to encourage them to complete their training.
The Respondent also changed the resident care plan records program from a computerized system, which was allegedly disliked by survey teams from the Agency for Health Care Administration (AHCA) responsible for inspecting the
facility, to a paper-based system which provided for easier review by survey teams.
There is no evidence that the Respondent failed to make an appropriate effort to address the problems existing at the facility when she assumed control.
AHCA inspectors surveyed the facility on August 6 through 8, 1998.
While the survey team inspected the facility, the Respondent spent much of the time in her office preparing a package she expected to submit to the survey team which she believed would lead to a superior rating. She also responded to requests for information from the survey team.
According to the survey report, the survey team identified numerous deficiencies. The facility received a conditional rating.
Among the cited deficiencies were instances where residents were allegedly left in soiled clothing for extended periods of time. Some of the allegations involved residents with skin irritation or sores which could be exacerbated by unsanitary clothing.
The facility’s policy and procedure require that residents be “repositioned” every two hours and that incontinent residents should be changed every two hours.
Based on the testimony of William Sullivan, the evidence establishes that in at least one case of an incontinent resident sitting in a wheelchair, the facility did not comply with the policy and procedure requirement that he be moved and changed every two hours.
Based on the testimony of Joan Cagley-Knight, the evidence establishes that in at least one case of an incontinent resident with a “full diaper,” the facility did not comply with the policy and procedure requirement that the resident be changed every two hours.
There is no evidence that the Respondent was aware that some employees of the facility failed to comply with the policy and procedure requirement that the resident be changed every two hours.
According to the survey report, other alleged deficiencies included weight loss by some residents. There is no evidence that prior to the August survey, the Respondent was aware that some residents were losing weight. The weight of the evidence fails to establish that the Respondent should have known that some residents were losing weight.
According to the survey report, other alleged deficiencies included random complaints voiced by some relatives of facility residents. The Respondent maintained an “open door” policy so that any person could meet with her and
address matters of concern. There is no evidence that prior to the survey, the Respondent was aware of any unresolved relative complaints that had not been addressed.
Colonial Oaks had been rated “conditional” previously and was described by the Vencor employee who followed the Respondent as a “yo-yo facility” which would sometimes improve and then falter.
The Respondent prepared a plan of correction to address the deficiencies. The plan of correction was apparently approved by AHCA and was implemented by the Respondent.
The corporate owner of the facility did not challenge any of the cited deficiencies through a procedure known as Informal Dispute Resolution (IDR). The Respondent was not involved in the decision not to utilize the IDR process.
Subsequent to the August survey, the facility’s director of nursing resigned. The Respondent made attempts to hire a new director of nursing. She requested that the corporate owner assist in the search, which extended outside the State of Florida. Apparently the troubled reputation of the facility made it difficult to convince prospective nursing directors to accept the position. Regional nurses assigned by Vencor to assist in the situation resigned rather than work in
the facility. Eventually, the Respondent’s immediate supervisor came in to assist with the problems. The supervisor brought in some additional corporate employees including nutritionists, but most refused to become involved in the turmoil.
On October 6, 1998, an AHCA team resurveyed the facility. At the time of the October survey, the nursing director was still serving out her resignation notice period.
Although as of the October 6 survey a number of deficiencies had been corrected, several deficiencies were again cited.
The cited deficiencies included instances where residents were allegedly left in soiled clothing for extended periods of time.
In at least one case, based on the testimony of Joan Cagley-Knight, an incontinent resident sat in urine- soaked sweatpants for more than two hours without being assisted by an employee of the facility, in violation of the applicable policy and procedure requirement.
The weight of the evidence fails to establish that the Respondent knew or should have known that some employees of the facility failed to comply with the policy and procedure requirement that the resident be changed every two hours.
Based on the testimony of William Sullivan, the evidence establishes that some residents continued to lose weight and that nutritional recommendations were not being implemented. There is no evidence that the Respondent was aware that the nutritional issues had not been addressed, after corporate nutritional specialists were brought in following the August survey.
There was also an issue related to an injury suffered by a resident who fell while unrestrained. The issue related specifically to an apparently incorrect report made by the facility’s director of nursing to AHCA officials regarding the site where the accident occurred. There is no evidence that the Respondent attempted to mislead the AHCA employees about the incident in any manner.
On October 9, 1998, the Respondent transferred to the “Windsor Woods” facility, a superior-rated facility also owned by Vencor, where she continued to achieve a superior rating until the rating program was discontinued.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Petitioner has the burden of establishing the truthfulness of the allegations set forth in the Amended
Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In this case, the burden has not been met.
The Amended Administrative Complaint alleges as follows: that the Respondent did not develop and implement policies and procedures to prohibit mistreatment, neglect and abuse of residents; that the Respondent did not ensure that all alleged violations involving mistreatment, neglect or abuse were thoroughly investigated; that the Respondent did not protect the right of resident(s) to make choices about aspects of his or her life in the facility that are significant to the resident; that the Respondent did not ensure that resident(s) maintain acceptable parameters of nutritional status, such as body weight and protein levels; and that the Respondent did not administer the facility in a manner that allows effective, efficient use of resources to attain or maintain the highest practicable physical, mental, and psychological well being of each resident. The Petitioner asserts that failure to timely correct cited deficiencies is a breach of the standard of care to residents.
The evidence fails to establish that the Respondent
ignored problems existing in the facility at the time she assumed the position as administrator. The greater weight of the evidence establishes that the facility’s condition
somewhat improved under the Respondent’s tenure. Many of the deficiencies cited in the August survey were addressed prior to the October survey. As to the continuing deficiencies, the evidence establishes that the issues were directly related to the staffing problems that continued to affect the operation of the facility. There is no evidence that the Respondent failed to act to the extent she could to address the staffing problems.
The Petitioner asserts that failure to timely correct cited deficiencies is a breach of the standard of care to residents. There is no evidence that the Respondent did not make every effort to address the cited deficiencies using the resources available to her.
Section 468.1755, Florida Statutes (Supp. 1998), sets forth the grounds for disciplinary proceedings against licensed nursing home administrators. The Department alleges that the Respondent violated section 468.1755(1)(g), Florida Statutes (Supp. 1998), and is subject to discipline for negligence, incompetence, or misconduct in the practice of nursing home administration. There is no evidence that the Respondent was negligent or incompetent in the performance of her responsibilities at the facility. There is no evidence of misconduct on the part of the Respondent.
The Department alleges that the Respondent violated section 468.1755(1)(k), Florida Statutes (Supp. 1998), and is subject to discipline for repeatedly acting in a manner inconsistent with the health, safety, or welfare of the patients of the facility in which she was the administrator. There is no credible evidence that the Respondent repeatedly acted in a manner inconsistent with the health, safety, or welfare of the patients of the facility in which she was the administrator.
The Department alleges that the Respondent has violated section 468.1755(1)(m), Florida Statutes (Supp. 1998), and is subject to discipline for willfully or repeatedly violating any of the provisions of the law, code, or rules of the licensing or supervising authority or agency of the state or political subdivision thereof having jurisdiction of the operation and licensing of nursing homes. There is no evidence that the Respondent willfully or repeatedly violated any statute or rules related to the operation and licensure of nursing homes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Nursing Home Administrators, enter a final order dismissing the
Administrative Complaint, as amended, filed against Janice Carol Reeping.
DONE AND ENTERED this 30th day of October, 2001, in Tallahassee, Leon County, Florida.
___________________________________ WILLIAM F. QUATTLEBAUM
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 30th day of October, 2001.
COPIES FURNISHED:
Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A.
2180 North Park Avenue, Suite 100 Post Office Box 2011
Winter Park, Florida 32790-2011
Mary Denise O'Brien, Esquire Department of Health
2727 Mahan Drive, Mail Stop 39
Tallahassee, Florida 32308
John Taylor, R.Ph., Executive Director Board of Nursing Home Administrators Department of Health
4052 Bald Cypress Way, Bin C04 Tallahassee, Florida 32399-1701
Theodore M. Henderson, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 22, 2002 | Agency Final Order | |
| Oct. 30, 2001 | Recommended Order | Nursing home administrator not responsible for facility deficiencies. |
