STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CROSS CREEK NURSING AND CONVALESCENT CENTER,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
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) Case No. 01-1608
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RECOMMENDED ORDER
Notice was provided, and a formal hearing was held on November 6 and 7, 2001, in Pensacola, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Donna H. Stinson, Esquire
Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
For Respondent: Christine T. Messana, Esquire
Agency for Health Care Administration
2727 Mahan Drive Mail Stop No. 3
Tallahassee, Florida 32308-5403 STATEMENT OF THE ISSUE
Was Petitioner's license rating lawfully changed from Standard to Conditional.
PRELIMINARY STATEMENT
In a letter dated March 22, 2001, the Agency for Health Care Administration (AHCA) notified Cross Creek Nursing & Convalescent Center (Cross Creek), of its intent to change Cross Creek's license status from Standard to Conditional effective March 8, 2001. Giving effect to its intent, and without providing Petitioner a timely hearing, AHCA issued a Conditional license to the facility effective March 8, 2001. In a Petition served
April 5, 2001, Cross Creek demanded an administrative hearing. AHCA forwarded the Petition to the Division and it was filed on April 27, 2001.
Pursuant to a Notice of Hearing, the matter was set for a formal hearing on June 14, 2001. Subsequent to Respondent's Motion to Reschedule Final Hearing, the case was rescheduled for July 12, 2001. Pursuant to an Agreed Motion for Continuance, the case was rescheduled for August 7, 2001. Pursuant to Petitioner's Motion for Continuance, the case was rescheduled for September 18, 2001. Pursuant to an Agreed Motion To Reschedule Hearing, the case was rescheduled for November 6 and 7, 2001.
On October 25, 2001, AHCA filed a Motion to Consolidate and Motion for Continuation of Final Hearing. Petitioner opposed this motion. On November 1, 2001, an order entered by Administrative Law Judge Barbara J. Staros, after oral argument, denied a motion to consolidate this case with another involving
AHCA and Cross Creek. The final hearing on the matter occurred on November 6 and 7, 2001, in Pensacola, Florida.
AHCA presented the testimony of five witnesses and offered
18 exhibits which were received into evidence. Cross Creek presented the testimony of three witnesses and offered 13 exhibits which were received into evidence. The transcript was filed November 26, 2001. On November 29, 2001, the parties jointly requested an extension of time for submission of recommended orders. Pursuant to an order of December 3, 2001, the parties were permitted an enlargement of time and proposed recommended orders became due on December 13, 2001. Both parties timely filed Proposed Recommended Orders which were considered in the preparation of this Recommended Order.
For the purposes of the hearing the Notice of Intent to assign Conditional Licensure Status constitutes the charging document which sets forth the matters at issue, which allegedly constitute Class II deficiencies. These correlate to "tags" identified in the survey report. At the hearing, AHCA identified those tags which it asserted constituted the basis for the Conditional license, and these correlated generally to the statements in the notice of intent. The "tags" were never offered into evidence and their meaning, if any, was not revealed to the Administrative Law Judge. Only matters placed in issue by the Notice of Intent to Assign Conditional Licensure Status were
considered during the hearing, and in the preparation of this Recommended Order.
FINDINGS OF FACT
Cross Creek is a nursing home located in Pensacola, Florida, which is duly licensed under Chapter 400, Part II, Florida Statutes.
AHCA is the state agency which licenses and regulates nursing homes in the state. As such, it is required to evaluate nursing homes in Florida, pursuant to Section 400.23(7), Florida Statutes. AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of Standard or Conditional to each licensee.
In addition to its regulatory duties under Florida law, AHCA is the state "survey agency" which, on behalf of the federal government, monitors nursing homes which receive Medicaid or Medicare funds.
On March 8, 2001, an AHCA team completed a survey of the facility. The surveyors included Jackie Klug, Paula Faulkner, Norma Endress, and Sandra Corcoran. All of the surveyors are trained in the business of surveying nursing homes. Ms. Klug is a registered and licensed dietician. Ms. Faulkner is trained in social work. Norma Endress and Sandra Corcoran are registered nurse specialists. Nurse Corcoran was the team leader.
Resident 1
Ms. Corcoran observed that Resident 1 had experienced weight loss. This resident was admitted to the facility on July 7, 2000. On October 9, 2000, the resident weighed 115 pounds. In a care planning meeting it was noted that the resident was combative and was refusing to eat. A care plan was not formulated but it was decided that the resident was to be provided a dietary supplement.
On January 4, 2001, the resident's weight was 97 pounds.
Eventually a care plan was devised which provided for dietary supplements in the form of "shakes." The resident was to consume shakes with meals. On multiple occasions during the survey the facility failed to provide dietary supplements to the resident.
This resident could not feed himself and could only consume food which was pureed. The resident could only minimally engage in activities of daily living.
Resident 1 had a lung lesion and was expected to lose weight. Despite this expectation, during January, records revealed the resident weighed 103 pounds, in February he weighed
102.3 pounds, and in March he weighed 107.2 pounds.
Resident 1 was terminally ill and was being provided what was essentially hospice care. Upon considering all of the circumstances, the resident's weight was satisfactory.
Resident 2
Ms. Faulkner observed Resident 2 on two occasions.
This resident was totally dependent on the facility staff for feeding. On one occasion during the survey, the resident was provided potatoes which were cold and too hard for her to masticate. On two occasions during the survey, the resident's dentures were not put in her mouth. Ms. Faulkner was concerned with the resident's weight. Interventions which were on the care plan were not consistently provided. For instance, the resident's preferences for various types of food were not considered.
Resident 2 was a dialysis patient. Dialysis affects a patient's weight. Patients are typically weighed prior to the administration of dialysis and then are weighed subsequently. In the usual case a weight loss is expected subsequent to dialysis.
With regard to this resident, no credible evidence was adduced as to what the resident weighed at any given time. No credible evidence was adduced which would indicate that the resident experienced a weight loss, despite Ms. Faulkner's concerns.
Resident 3
Resident 3 was receiving a pureed diet when observed by Ms. Faulkner. The resident ate between 75 and 100 percent of this food. The resident weighed only 87 pounds at this time.
The resident was supposed to be fed two "206 shakes" which are supplements designed to promote weight gain. On at least two occasions during the survey, the resident was not provided with these supplements.
On March 6, 2001, at 6:35 p.m., Ms. Faulkner observed the resident eating and the resident had not been provided the supplements. Ms. Faulkner informed LPN Pat Nelson, of the facility staff, of the absence of supplements. Nurse Nelson commented that the supplements should have been on the resident's tray.
Resident 3 had dirty fingernails and generally was not clean. Moreover, she had multiple bruises and skin tears to the outer ankles. The resident's upper arm had a four centimeter bruise that was reddish brown. This resident was totally dependent on the staff for care. Consequently, Ms. Faulkner concluded that facility staff had caused or permitted the acquisition of these wounds and bruises.
Nurse Corcoran observed a wound on the resident's right ankle. She also observed multiple skin tears and bruises on both legs. She also observed an open area on the resident's coccyx. She did not, however, believe that these were pressure sores.
Patricia Powell is the assistant nursing director of the facility. She reviewed the medical records of the resident and determined that the resident had been evaluated three
different times and that she suffered no skin breakdown. She noted that the resident, at the time of the survey, had been readmitted to the facility subsequent to a hospital stay and that upon readmission, the resident was afflicted with three stasis ulcers including one on her lower left extremity and one on her right lower extremity.
Nurse Powell also noted that the resident had bruises on her upper and lower extremities. She stated that the hospital records reflected information from her granddaughter stating that the resident repeatedly bumped herself into the walls in the nursing home and bled from the wounds she received as a result.
Nurse Powell stated that hospital records demonstrated that the resident gained weight in 2000. Records at the time of the visit noted that the resident's weight was stable.
Linda Gunn is a staff member of the facility and is a LPN. She was a treatment nurse and she was responsible for the care of Resident 3 during times pertinent. She observed that the resident had abrasions and skin tears. She stated that the resident was a fragile patient who required total care. The resident had sores which were caused by vascular problems. Pressure sores were not present. Nurse Gunn checked the resident daily and each time she left the resident she made sure the resident was clean and dry and in a comfortable position.
Resident 4
Ms. Faulkner observed Resident 4 during the survey and suspected that the resident might have pressure sores because the resident was not consistently found to have positioning devices which had been determined to be necessary.
A record review revealed that the resident had two stage II pressure sores in January of 2001, but that they had healed by the time of the survey. Ms. Faulkner stated that at the time of the survey she observed the resident to have a stage III pressure sore on the right ankle, but she relied on Nurse Corcoran's expertise to make that determination. Ms. Faulkner observed that positioning devices were not used on the resident's legs, as they should have been, on March 1, 5, and 6, 2001.
Ms. Faulkner noted that, according to the resident's medical record, the resident often kicked off protective devices and padding.
Nurse Powell stated that the resident's medical record reflected that the resident had excoriations on the coccyx and between her leg folds. Excoriation is a break or redness in the skin that is caused by urine or feces. It is not a pressure sore. She also noted that the resident had constant involuntary movements of the left leg against the right leg, and that she was provided padded side rails but the resident removed them.
Nurse Powell stated that the resident moved her legs in a scissor-like action all day long and that she removed the side rails, pillows, and foot pads which facility staff used to attempt to ameliorate the damage caused by the leg movement.
Ms. Gunn, a staff nurse, also observed the resident frequently. She noted that the resident was diabetic, incontinent of her bowel and bladder, was immobile and needed total assistance to be turned and positioned. She had to be fed and otherwise required total care for all of activities of daily living.
Ms. Faulkner additionally observed the resident on March 7, 2001, and noted that during the four times she observed the resident there was no splint or other device or treatment being used to address the resident's contracted right hand. There was no care plan to address this condition.
Willa Gilliam is a certified nursing assistant employed at Cross Creek. Specifically she was a restorative aide. It was her duty to provide Resident 4 with range of motion exercises. She accomplished this. After the exercises a towel roll was to be placed inside the resident's hands. Ms. Gilliam placed the towel roll inside of the resident's hands but noted that the resident often removed the towels.
Resident 8
Norma Endress is a nurse specialist. She observed Resident 8. The resident was assessed on September 5, 2000, to be at high risk for skin breakdown because he was incontinent of bowel and bladder. The resident was also dependent on staff for turning. The resident had a care plan which required that the resident be removed from bed and placed in a geri chair for positioning.
Nurse Endress observed on March 6, 2001, on ten different occasions during the day, that the resident was lying on the resident's left side and was not being turned or placed in the geri chair as the care plan required.
On March 7, 2001, the resident was observed to have a stage I pressure area on his right foot, ankle and heel. The resident had no positioning devices or heel protectors in place, as he should. When Nurse Endress inquired as to why the resident was not being put in a geri chair, a staff nurse informed her that the facility had a shortage of geri chairs.
Nurse Endress did not see this resident move during the entire four days that she was present at the facility.
Nurse Gunn confirmed that the resident required total care and that he was receiving wound care to his heel. She stated that the resident was supposed to be supplied with pillows
and a wedge or wedges and that his feet were required to be elevated on pillows.
Resident 9
Nurse Endress observed Resident 9 for four days during the survey. This resident had a history of heart problems. The resident was capable of walking when he reached the facility and he did walk. The resident's physician ordered continued ambulation. However, during the four day survey, the resident was not ambulated.
The resident reported to Nurse Endress that he had not been walked for the prior three months and stated that he wanted to walk, if facility staff would help him.
Nurse Powell stated the patient had diabetes and that the sore on his right foot was a decubitus ulcer caused by vascular insufficiency. The ulcer generated pain when the resident attempted to walk. Accordingly, the staff of the facility did not provide assistance in ambulation to this resident because it would be too painful for the resident.
The resident was also required to wear a splint on his right hand to deter contraction. During the survey Nurse Endress visited the resident and observed the splint resting on the foot of the resident's bed. The splint was soiled. On March 5, 2001, Nurse Endress observed the resident five times during the day and at no time was he wearing a splint.
Ms. Gilliam was the staff member charged with placing the splint on the resident. She claimed that she was to install the splint at 10:00 a.m. and to remove it at 2:00 p.m. and that she had in fact accomplished this every day. Her testimony, with regard to this, upon consideration of all of the other testimony, is determined not to be credible.
Nurse Endress believed that the resident had a stage I pressure sore on his right foot but she was not allowed to touch the resident to actually make a determination that the observed redness was a pressure sore or was present due to some other cause.
Resident 10
Resident 10 was observed by Dietician Klug during the survey. During various times the resident was observed sitting in a geri chair which sported duct tape on both armrests.
Resident 10 was cognitively impaired and required extensive to total assistance in activities of daily living. The resident could not move from bed to chair, or chair to bed. Consequently this movement was necessarily accomplished by staff. The care plan determined that a minimum of two people be employed to properly transfer the resident.
The resident had very fragile skin and was prone to skin tears, bruises and abrasions. On January 22, 2001, the resident experienced a skin tear to the left lateral leg. On
February 4, 2001, the resident acquired a skin tear to the right arm. On February 19, 2001, the resident manifested a blood blister to the lower back. On March 5, 2001, a large skin tear to the right lower leg was observed.
Ms. Klug said there was no evidence of competency check lists or records of training of staff in the area of transfers. However, there is no evidence in this record that Ms. Klug checked to see what, if any, evidence was available in the facility which might demonstrate that such training had occurred or that there was a deficiency in the training. Despite her belief that the injuries experienced by the resident were the result of rough or inexpert handling by staff, a causal connection was not demonstrated by the evidence.
Cleanliness and grooming
Ms. Klug observed resident 11 during the survey. At the time of observation the resident had long dirty fingernails and was emitting an unpleasant odor. This caused Ms. Klug to conclude that the resident needed a bath. This resident needed total assistance with the activities of daily living and this assistance was not being adequately provided.
Residents F, G, M, and 14 were observed by Nurse Corcoran during the survey. Resident F was sitting in the day room in the morning with dried food smeared upon his mouth. Resident G was sitting in a wheelchair while wearing soiled pants
and a soiled shirt. Resident M was seen in the main dining room during one afternoon of the survey and on that occasion the resident's fingernails were long and jagged, and a dark substance was present under the resident's nails. The resident's false teeth were caked with food. Resident 14's hair was greasy and disheveled.
Ms. Faulkner observed residents number 3, 4, 21, and 22 to have dirty fingernails and noted that they were, "not clean, in general."
Resident 19
Ms. Klug observed Resident 19. This resident was diagnosed with rheumatoid arthritis. Both of her hands were severely contracted. She had received physical therapy from September 26 to October 25, 2000, for the purpose of promoting comfort and preventing further contraction or deformity of her hands. Splints were applied to her hands at that time and the resident could tolerate them for four hours a day.
In December 2000, the resident complained that the splints were causing more pain than she could bear. As a result, the use of splints was discontinued. Instead, the resident was to have a washcloth placed in the hands to prevent further deformity. Some members of the therapy staff informed Ms. Klug that the real reason the splints were not being used was because they had gone missing. On March 8, 2001, Ms. Klug interviewed a
restorative aid who stated that the resident had not been treated for the prior month. The increase in contraction of the resident's hand resulted in the resident being unable to feed herself.
The resident's record reflects that the splints were discontinued due to severe pain secondary to arthritis. A "Restorative Progress Note-Splinting" dated December 2, 2000, states that splints should be discontinued. It further states, that range of motion exercises should continue but, "We'll use washcloth for hand."
Based on all of the available evidence of record, it is determined that the resident was receiving the best possible care for her hand contractions.
Resident 19 was observed on March 6, 7, and 8, 2001, being fed pureed food. This was contrary to her then current diet order which called for a mechanical soft diet. The resident informed Ms. Klug that she did not like the taste of the pureed diet and claimed that she could masticate sufficiently well to subsist on a mechanically soft diet.
Inquiry to the dietary manager revealed that a unit nurse had changed the diet order on December 18, 2000, because the resident had a sore mouth and missing teeth. Between January and March the resident suffered an 11-pound weight loss. The resident weighed 118 pounds in January of 2000. The resident was
programmed to maintain a weight of between 113 and 118 pounds but only weighed 104 pounds at the time of the survey.
Ms. Klug reviewed documentation in the resident's record which, as recently as March 2, 2001, reflected that the resident had a physician's order for a mechanically soft diet. Through observations and interviews she determined that facility staff were unaware of the discrepancy in the texture of the resident's diet. A change in a diet order, with regard to consistency, may come only from a physician.
Resident 21
Ms. Faulkner observed Resident 21 in the resident's bed. She observed the head nurse attempt to do a range of motion on the resident's left hand. This resulted in the resident crying out in pain. The resident's left hand was moist and emitted an odor. Her care plan required interventions to keep her nails cleaned and trimmed and to decrease irritation through her palms. During the survey there were at least two times when the resident had no supportive devices in her hands.
Ms. Faulkner discussed this with the facility occupational therapist on March 8, 2001, and the therapist stated that he was unable to splint the resident's hand.
Ms. Gilliam was assigned to provide restorative assistance to Resident 21. She noted that after the motion exercises a towel roll was required to be placed in her hand.
However, she stated that range of motion was impossible to conduct because of the pain and that the insertion of a towel roll into her hand might result in breaking the resident's fingers. During the time Ms. Gilliam was assigned to resident 21, she observed that her condition had worsened.
Resident 22
Resident 22 also had range of motion issues. This resident had contracting of the arm, hand, leg, and foot.
Ms. Faulkner sought from the facility a plan of care addressing the contracting of the resident's left hand. Facility staff informed her that none existed.
The resident was admitted to the facility with contractures. No evidence was adduced as to whether or not the resident's contractures had become worse because the facility presented no documentation which would permit that determination. Staffing
Staffing at the facility was in substantial compliance with AHCA requirements in terms of quantity and training.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes.
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).
AHCA must prove its case by a preponderance of the evidence. Section 120.57(1)(j), Florida Statutes.
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 Title 42, Code of Federal Regulations, Section 483, et seq.
The Notice of Intent to Assign Conditional Licensure Status alleged Class II deficiencies which will be addressed as follows:
"The facility failed to provide necessary care for two residents with acute medical conditions." The pleadings do not cite to which two residents are addressed. All of the residents addressed in the Findings of Fact had acute medical conditions. Title 42, Code of Federal Regulations, Section 483.25, addresses quality of care. However, this allegation is so vague that the Administrative Law Judge cannot with any degree of certainty, address this issue. Accordingly, the attempt by AHCA to allege a violation fails and, no violation is found.
"The facility failed to ensure a resident did not have decline in the activities of daily living." This allegation
corresponds to Title 42, Code of Federal Regulations, Section 483.25(a)(1)(ii), which provides that,
Activities of daily living. Based on the comprehensive assessment of a resident, the facility must ensure that--
A resident's abilities in activities of daily living do not diminish unless circumstances of the individual's clinical condition demonstrate that diminution was unavoidable. This includes the resident's ability to--
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(ii) Transfer and ambulate;
Resident 9 was a heart patient and needed to be ambulated. He was not ambulated during the survey. This was because of a decubitus ulcer located on the resident's right foot which precluded ambulation because of the pain which would have been experienced by the resident if the resident put weight on the foot. The facility's decision not to provide ambulation was reasonable.
"The facility failed to ensure residents did not develop pressure sores." This allegation corresponds to Title 42, Code of Federal Regulations, Section 483.25(c), which provides that,
Pressure sores. 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.
Resident 8 had a pressure sore on his heel which was avoidable. Despite orders to turn the resident and to provide pillows and other positioning devices for the resident, the staff utterly failed to follow these orders. In particular, the resident was not turned and therefore, rested in the same position for long periods of time. This allegation was proven.
"The facility failed to ensure a resident with limited range of motion received the appropriate treatment and services to increase range of motion and/or prevent further decrease in range of motion." This allegation corresponds to Title 42, Code of Federal Regulations, Section 483.25(e)(2), which provides that,
(e) Range of motion. Based on the comprehensive assessment of a resident, the facility must ensure that--
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(2) A resident with a limited range of motion receives appropriate treatment and services to increase range of motion and/or to prevent further decrease in range of motion.
In the case of Resident 4, treatment was required in order to combat contraction of the hand. There was no care plan for this.
A restorative aide recognized that a towel roll was necessary and often installed one. The resident frequently removed it. It was incumbent on facility to reinstall the towel roll when it was removed and this was not regularly accomplished during the survey. Resident 9 was required to wear a splint in order to combat contraction. The facility failed to accomplish this and when a staff member was questioned in this regard, was less than forthcoming in claiming that she had installed the splint when in fact she had not. In the cases of Residents 4 and 9, the allegations were proven.
"The facility failed to ensure residents maintained acceptable parameters of nutritional status such as body weight." This allegation corresponds to Title 42, Code of Federal Regulations, Section 483.25(i)(1), which provides that,
Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident--
Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible . . . .
Resident 3 was determined by the facility to require supplements in the form of nutritional "shakes." The staff was aware of this requirement and failed to ensure that the resident received them. The resident weighed only 83 pounds at the time of the survey.
Resident 19 suffered an 11-pound weight loss and failed to
achieve the resident's established weight goal as a result of staff inattention to the resident's diet. In the cases of Residents 3 and 19, the allegations were proven.
"The facility failed to provide sufficient qualified nursing staff to ensure residents maintained acceptable parameters of nutritional status." Neither Proposed Recommended Order directed the Administrative Law Judge to a section of the Code of Federal Regulations which addressed this allegation, and no such section could be found. In any event, the facility did not fail to provide sufficient qualified nursing staff. The qualified staff was present. Whether the staff was motivated to provide care is another matter altogether.
"The residents failed to receive prescribed nutritional supplements and snacks as well as appropriate diets resulted [sic] in weight loss." This allegation is essentially a repetition of the matters set forth in paragraph E, above.
"The facility failed to provide sufficient qualified nursing staff to ensure appropriate treatment and services for a resident receiving parenteral feeding." Parenteral feeding means feeding by means other than the mouth. No evidence was adduced that any resident was provided parenteral feeding.
"The facility was not administered in a manor [sic] conducive to resource utilization, allowing residents to attain and maintain their highest practicable level of well being."
This allegation corresponds to Title 42, Code of Federal Regulations, Section 483.75, which provides that,
A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, psychosocial well-being of each resident.
It is AHCA's position that this section condemns specific instances of poor care. However, the subsequent subparagraphs of the section address the quality, quantity, and training of staff, among other issues. The leap from the provisions of this section to a finding of specific failures to provide care to residents, while tempting, is a leap that cannot be made. This section does not address the failure of leadership which is the apparent cause of the poor care many residents received from the facility staff. Accordingly, no violation contained in this allegation is found.
"The facility failed to ensure the Certified Nursing Assistant's demonstrated competency for residents while providing personal care, turning, and positioning, transfers to and from chairs, and while pushing residents in wheelchairs." This allegation also corresponds to Title 42, Code of Federal Regulations, Section 483.75, and for the reasons discussed in subparagraph H, above, does not amount to a violation.
Rule 59A-4.1288, Florida Administrative Code, provides
that,
Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference.
Section 400.23(7)(a), Florida Statutes, provides that, "A standard licensure status means that a facility has no class I or class II deficiencies and has corrected all class III deficiencies within the time established by the agency."
Section 400.23(7)(b), Florida Statutes, provides that, "A conditional licensure status means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part or with rules adopted by the agency."
In this case, the agency proved violations of Title 42, Code of Federal Regulations, Sections 483.25(a), 483.25(e)(2), and 483.25(i)(1). The ultimate question is the determination as to which class these violations should fall.
Rule 59A-128(3)(a), Florida Administrative Code, provides, in part, that, "Class II deficiencies are those deficiencies that present an immediate threat to the health, safety, or security of the residents of the facility and the AHCA establishes a fixed period of time for the elimination and correction of the deficiency."
Section 400.23(8)(b), Florida Statutes, provides that, "Class II deficiencies are those which the agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than Class I deficiencies."
The violations cited in paragraph 67, above, represent deficiencies which present an immediate threat to the health and safety of the residents. Accordingly, Class II violations occurred.
Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED:
That a final order be entered assigning a Conditional license to Petitioner.
DONE AND ENTERED this 27th day of December, 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 27th day of December, 2001.
COPIES FURNISHED:
Christine T. Messana, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Mail Stop No. 3
Tallahassee, Florida 32308-5403
Donna H. Stinson, Esquire Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
Diane Grubbs, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, 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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 13, 2002 | Agency Final Order | |
| Dec. 27, 2001 | Recommended Order | Agency proposed to change license status of nursing home from Standard to Conditional. Held: Petitioner`s license was lawfully changed to Conditional. |
