STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HORIZON HEALTHCARE & SPECIALTY ) CENTER, )

)

Petitioner, )

)

vs. )

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

Case No. 00-4710

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on April 16, 2001, in Daytona Beach, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jonathan S. Grout, Esquire

Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A.

2180 North Park Avenue, Suite 100 Post Office Box 2011

Winter Park, Florida 32790-2011

For Respondent: Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUE

Was Petitioner properly cited for a Class III deficiency.

PRELIMINARY STATEMENT

By a letter dated October 12, 2000, Respondent notified Petitioner that its license was being changed to Conditional because Petitioner's facility was found to have a Class II deficiency in that it did not maintain a resident's freedom from the development of avoidable pressure sores. Petitioner, in a response filed with Respondent on November 13, 2000, petitioned for an administrative hearing to determine if the deficiencies identified on the "2567L" were unfounded, or, in the alternative, if the classification should be changed to Class III.

The pleadings addressed claimed deficiencies with regard to pressure sores and addressed the effect a finding of a Class II deficiency would have on Petitioner's ability to be designated a "Gold Seal" facility. However, at the hearing, the parties agreed that the only issue to be resolved was whether or not Residents 7 and 8 were allowed to become dehydrated. This was alleged as a TAG 327 Class III deficiency.

The hearing was set for February 1, 2001. It was continued until March 19, 2001. By order dated March 9, 2001, the case was rescheduled for April 16, 2001, and was held as rescheduled.

Respondent presented the testimony of two witnesses.

Medical records were admitted into evidence as Respondent's Exhibits 1-4. A Form 2567-L in the case of Petitioner was

admitted into evidence but was considered only as the charging document and no matters contained therein were accepted as proven facts. Petitioner presented the testimony of two witnesses. A transcript was prepared and both parties timely submitted Proposed Recommended Orders which were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Horizon Healthcare & Specialty Center (Horizon), is an 84-bed nursing home located at 1350 South Nova Road, Daytona Beach, Florida. It is licensed under Chapter 400, Part II, Florida Statutes.

2. The Agency for Health Care Administration (AHCA) is the state agency charged with licensing and regulating nursing homes in Florida.

3. On August 14, 2000, AHCA conducted a survey of Horizon.

   
   

   This was accomplished in part by Rose Dalton, a nurse. At the hearing Ms. Dalton was determined to be an expert in nursing care.

4. A report on a nursing home survey is made on a Form 2567-L which is approved by the U.S. Department of Health and Human Services, Health Care Financing Administration. A Form 2567-L was generated as a result of Ms. Dalton's survey. It was reported under the category Tag 327.

   Resident 7.

   
   

5. Ms. Dalton, in conjunction with the survey team accompanying her, determined on August 17, 2000, that Resident 7 was dehydrated. This conclusion was reached because facility records indicated that Patient 7 had a blood urea nitrogen (BUN) of 57 on August 7, 2000, with normal being 6-26, and a high normal creatinine of 1.6.

6. Another factor used in concluding that Resident 7 was dehydrated was a report dated August 8, 2000, which revealed a BUN of 34. On August 12, 2000, a report indicated a BUN of 43 and a creatinine of 1.9. The survey team was also aware that Resident 7 was ingesting Levaquin, a powerful antibiotic which requires that a patient remain well-hydrated.

7. Ms. Dalton and the survey team cited the facility with a Class III deficiency, for state purposes, and a "G" on the federal scale. The federal scale goes from "A", which is a deficiency which causes no harm, to "J", which is harm which may cause death. The "G" level meant that it was the team's opinion that there was great potential for actual harm.

8. Resident 7 was admitted on August 3, 2000. Among other ailments, Resident 7 was suffering from a femoral neck fracture and renal insufficiency when admitted. The resident contracted a urinary tract infection (UTI), and was being administered Levaquin, an antibiotic appropriate for UTI treatment. On

   August 8, 2000, a physician's order requested that the patient be encouraged to consume fluids.

9. It is Ms. Dalton's opinion that Resident 7 was not provided proper fluid intake by the facility which could have caused serious health consequences for Resident 7.

10. When Resident 7 was in the hospital, prior to being admitted to Horizon, his BUN was 41 and his creatinine was 2.3, which is consistent with Resident 7's chronic renal insufficiency. The BUN of 43 and creatinine of 1.9 observed in the facility on August 12, 2000, did not indicate Resident 7's condition was worsening, and in fact, it was improving marginally.

11. The values for a normal BUN might vary from laboratory to laboratory but generally a normal BUN would be around 25 or less. Because of Resident 7's underlying renal disease and ischemic cardiomyopathy, it was unlikely that Resident 7 would ever manifest a BUN which would be considered normal.

12. Dr. Elizabeth Ann Eads, D.O., an expert in the field of geriatric medicine, reviewed the laboratory values and the nursing notes in the case of Resident 7. It is her opinion, based on that review, that the facility provided appropriate care, that the patient improved during the stay at the facility, and that there was nothing in the record which suggested any actual harm to Resident 7. This opinion was accepted.

    Resident 8.

    
    

13. Ms. Dalton opined that, based on her personal observation and a review of Resident 8's medical records, that the facility failed to respond to the hydration needs of Resident 8 and did not follow the care plan which was developed for Resident 8.

14. Ms. Kala Fuhrmann was determined to be an expert in the field of long-term care nursing. She noted that Resident 8 was admitted to the facility on August 1, 2000. Resident 8's hospital records indicated that Resident 8 might be developing a UTI based on a urinalysis performed on July 31, 2000, which revealed blood and protein in the urine.

15. On August 3, 2000, Resident 8's doctor started an antibiotic, Levaquin, and ordered another urinalysis. On August 4, 2000, a culture determined that Resident 8 was positive for a UTI, so the antibiotic treatment was continued.

16. On August 15, 2000, it was determined the UTI had been cured.

17. During the course of the UTI, Resident 8 was incontinent, which is often the case when elderly patients are afflicted with UTI. By August 18, 2000, Resident 8 was continent.

18. It is Ms. Fuhrmann's opinion that the care provided to Resident 8 was appropriate and that there is nothing in the

    record which demonstrates that anything less than adequate hydration was provided to this resident. This opinion was accepted.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this cause, pursuant to Sections 120.569(1) and 120.57(1), Florida Statutes.

20. AHCA, the party seeking to prove the affirmative of the issue, has the burden of proof. Florida Department of Transportation v. J.W.C Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981) and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

21. AHCA must prove its case by a preponderance of the evidence. Section 120.57(1)(j), Florida Statutes.

22. Petitioner is licensed with AHCA pursuant to Chapter 400, Part II, Florida Statutes, and governed by Chapter 59A-4, Florida Administrative Code, which incorporates by reference the federal regulations found at 42 CFR 483, et seq.

23. The TAG 327 in this case alleges a Class III deficiency with regard to Residents 7 and 8. Rule

    59A-4.128(3)(b), Florida Administrative Code, provides that, "Class III deficiencies are those which present an indirect or potential relationship to the health, safety, or security of the

    nursing home facility residents, other than Class I or Class II deficiencies."

24. Title 42, Section 483.25, Federal Regulations Code, is entitled "Quality of care." Subsection (j) provides, "The facility must provide each resident with sufficient fluid intake to maintain proper hydration and health."

25. Respondent failed to proved by a preponderance of the evidence that Horizon failed to provide Residents 7 and 8 with sufficient fluid intake to maintain proper hydration and health. Therefore, AHCA failed to prove that any Class III deficiency existed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED: That the Agency for Health Care

Administration enter a final order dismissing the allegations set forth in relation to the TAG 327.

DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

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 12th day of June, 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

Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403

Sam Power, Agency Clerk

Agency for Health Care Administration 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: 00-004710

Orders for Case No: 00-004710