STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
OAK TERRACE SPECIALTY CARE CENTER,
Respondent.
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) Case No. 01-1607
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AGENCY FOR HEALTH CARE ADMINISTRATION
Petitioner,
vs.
BEVERLY ENTERPRISES-FLORIDA, INC. d/b/a OAK TERRACE SPECIALTY CARE CENTER,
Respondent.
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) Case No. 01-1985
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RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held on November 19, 2001, in Green Cove Springs, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Michael Michael O. Mathis, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403
For Respondent: R. David Thomas
Qualified Representative Broad & Cassel
Post Office Box 11300 Tallahassee, Florida 32308-5403
STATEMENT OF THE ISSUES
For Case No. 01-1607: Whether the Agency for Health Care Administration (AHCA) is entitled to change Oak Terrace Specialty Care Center's (Oak Terrace's) license from a Standard to a Conditional license from February to May 2001 pursuant to various deficiencies alleged in its letter of February 22, 2001.
For Case No. 01-1985: Whether AHCA is entitled to fine Oak Terrace $1,000 for a violation of Section 483.25(1)(a)- (m), Florida Statutes, and Rule 59A-4.107(5), Florida Administrative Code, upon proof of a Class III (Tag F309) deficiency as set forth in its April 23, 2001, Administrative
Complaint.
PRELIMINARY STATEMENT
By a rating change letter dated February 22, 2001, AHCA notified Oak Terrace of the Agency's intent to change the facility's license from standard to conditional. Oak Terrace timely requested a disputed-fact hearing, and in its Petition
alleged an unpromulgated non-rule policy was also being challenged. The case was referred to the Division of Administrative Hearings on or about April 27, 2001, and designated DOAH Case No. 01-1607.
By an Administrative Complaint dated April 23, 2001, AHCA sought to levy a $1,000 fine against Oak Terrace for alleged quality control violations. Oak Terrace timely requested a disputed-fact hearing. The case was referred to the Division on or about May 12, 2001, and designated DOAH Case No. 01-1985.
The cases were consolidated by an Order dated May 31, 2001, and scheduled for hearing on July 9, 2001. The matter was abated at the request of the parties by an Order dated July 13, 2001, to allow the parties an opportunity to complete a proposed settlement of the case. When the parties were unable to complete their settlement, the case was rescheduled for hearing on November 19, 2001.
Originally, the style of the Petition in the Conditional license challenge denoted AHCA as the Respondent and Oak Terrace as the Petitioner. That style is reversed in the Administrative Complaint that imposes the $1,000 fine. AHCA has the burden of proof to substantiate both the proposed final agency actions and properly should appear as the Petitioner in the style of both cases. The style of these causes is amended by this Recommended Order to reflect that burden of proof.
At the rescheduled hearing, Oak Terrace withdrew its allegations of unpromulgated non-rule policy, and moved to dismiss a portion of AHCA's reasons for the rating change charged as to DOAH Case No. 01-1607. This motion was denied, subject to revisitation in this Recommended Order.
AHCA presented the testimony of Nancy Smith, Cindy Adams, and Bettianne Stankus and had eleven exhibits (some with suffixes) admitted in evidence. Only P-8 was not admitted. Oak Terrace presented the testimony of Alice Woods and had Exhibits R-1 and R-3 admitted in evidence. The parties' Joint Pre- hearing Stipulation and oral stipulations have been utilized as appropriate.
Upon the agreement of the parties, it was announced at hearing that the parties must file their respective proposed recommended orders within thirty days of the filing of the Transcript. The deadline would have been February 6, 2002, based upon the January 7, 2002, filing of that Transcript.
However, on January 14, 2002, the parties submitted a Joint Stipulation that, due to business conflicts, proposed recommended orders would be submitted on or before March 1, 2002. An Order dated January 15, 2002, adopted that Joint Stipulation and granted an extension of time until March 1, 2002, for the parties to file their Proposed Recommended Orders,
each of which has been filed and considered in the preparation of this Recommended Order.
FINDINGS OF FACT
AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes.
Oak Terrace is a licensed nursing home located in Green Cove Springs, Florida.
These cases arise out of surveys conducted on the facility in December 2000, January 2001, February 2001, and March 2001. A focal point of this case is to determine which alleged deficiencies constitute "new" as opposed to "uncorrected" deficiencies in sequence.
AHCA conducted a complaint survey of Oak Terrace on December 19, 2000. A complaint survey is in response to a complaint. The subsequent December survey report, commonly referred to as a "2567 Report," is, by the agreement of the parties, one of the charging documents in this case.
The December 2567 Report charges that Oak Terrace failed to provide care and services to one resident to allow her to attain or maintain her highest practicable well-being. The 2567 Report also charges that this deficiency violates 42 CFR Section 483.25, which is made applicable to Florida nursing homes by Rule 59A-4.1288, Florida Administrative Code. The
December 2567 Report identifies the standard of care at issue as Tag F309.
AHCA is required to rate the severity of any deficiency identified in a survey with a federal scope and severity rating and a "class" rating. It assigned the F309 deficiency from the December 2567 Report a federal scope and severity rating of "G," which is an allegation that the deficiency caused actual harm to the resident but was an isolated incident. AHCA also assigned the deficiency a Class III rating, which is an allegation that the deficiency presents "an indirect or potential relationship (threat) to the health, safety, or security of the nursing home residents." See Rule 59A-4.128(3)(b), Florida Administrative Code.1
AHCA conducted an annual survey of Oak Terrace from January 9-12, 2001. AHCA prepared a January 2567 Report after that survey was completed, which is also a charging document in this case. The January 2567 Report does not identify that there was any violation of Tag F309. However, it charges that Respondent failed to have a systematic methodology to provide low-functioning residents with a program of activities designed to meet their interests and well-being. The 2567 Report also charges that this deficiency violates 42 CFR Section 483.15(f)(1), and identifies the standard of care at issue as Tag F248. AHCA assigned this deficiency a Class III rating.
On February 2, 2001, AHCA conducted a follow-up survey to both the December 2000 and January 2001 surveys to determine if the deficiencies identified in both of those surveys had been corrected.
AHCA prepared two separate 2567 reports after the February 2002 survey was completed. These reports are also charging documents in this case.
The February 2567 Report charges that Respondent again violated Tags F248 and F309, and that each of these new violations was a Class III deficiency.
Because it found new violations of Tag F248 and F309 on February 2, 2002, AHCA determined that the deficiencies that had been identified in December 2000 and January 2001 were uncorrected and changed Respondent's licensure rating from "Standard" to "Conditional."
AHCA conducted a follow-up survey to the February survey on March 22, 2001. The purpose of this survey was to determine if the deficiencies cited in February had been corrected. AHCA prepared a 2567 report after the March survey was completed. The March 2567 Survey Report is yet another charging document in this case.
The March 2567 Report did not find any continuing violations of Tag F248, but alleged that there was a violation of Tag F309. The F309 deficiency was assigned a Class III
rating. Based upon its belief that the F309 deficiency from February remained uncorrected, AHCA proposes to continue the Conditional rating that it had imposed in February and to impose a $1,000 fine against Oak Terrace for this "repeat" deficiency.2
On May 29, 2001, AHCA conducted a follow-up survey to the March survey to determine if the F309 deficiency had been corrected. AHCA determined that Oak Terrace was in substantial compliance with all applicable regulatory requirements and changed Oak Terrace's licensure rating back to Standard.
The December 2000 Survey Tag F309
Tag F309 requires a facility to "provide [to residents] the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well- being, in accordance with the comprehensive assessment and plan of care." See 42 CFR Section 483.25. The December 2567 Report charges that Oak Terrace violated Tag F309 in its care and treatment of Resident 2.
The allegations of inadequate care under Tag F309 of the December 2567 Report are set forth in an introductory paragraph followed by four separate numbered paragraphs. Respondent stipulated at hearing that it did not contest AHCA's ultimate determination that there was an F309, Class III deficiency in December 2000. However, Respondent does dispute
the allegation of inadequate care contained in the introductory paragraph and the first numbered paragraph of that Tag, and AHCA's resultant claim, via the "G" scope and severity rating, that the inadequate care described in the first paragraph of the Tag caused "actual harm" to Resident 2.
Resident 2 tragically had been placed in a trash bag as an infant. As a result, she suffered hypoxia (oxygen deprivation), resulting in a number of health problems, including cerebral palsy, blindness, inability to speak, lack of muscle control, and a seizure disorder. Despite three prescribed seizure medications, Resident 2 often had "breakthrough" seizures. Breakthrough seizures seem to be seizures occurring despite proper administration of correctly ordered medication.
On the morning of November 29, 2000, Respondent sent Resident 2 to the hospital after she was noted to simultaneously manifest an elevated temperature of 103.6 degrees, seizure activity, and difficulty breathing.
AHCA charged that Oak Terrace could have prevented Resident 2's decline and her hospitalization if Oak Terrace's staff had recognized earlier manifestations that Resident 2 was declining and, at that time, had notified Resident 2's physician. Because Resident 2 was noted to have a temperature of 102.4 degrees at 9:02 p.m., November 26, 2000, AHCA charged
that Resident 2's physician should have been notified at
9:30 p.m., November 26, 2000 (roughly two and a half days before the facility actually notified him.)
AHCA's expert nurse surveyor acknowledged that there is no nursing standard that requires a facility to notify a resident's physician when the resident has a temperature of
102.4 degrees. Instead, standard nursing practice provides that a physician should not be notified about an elevated temperature unless there are other symptoms present that indicate that the resident has experienced a change of condition. On November 26, 2000, Resident 2 had no other symptoms besides the elevated temperature. Staff provided her with Tylenol for her fever. Tylenol is an appropriate intervention. Resident 2's fever was reduced to 99.7, within two hours.
AHCA also charged that Resident 2's physician should have been notified November 27, 2000, at 11:18 p.m., due to increased temperature. Nursing notes state that Resident 2 had a mild temperature of 100.8 degrees at that time. Those notes do not reflect that the temperature had been on-going from the previous night, nor do they indicate that Resident 2 had any other signs or symptoms that would indicate a change in her condition that required staff to notify her physician. The Resident was given fluids for her temperature, which is an appropriate intervention, and there was no further indication in
the nursing notes that Resident 2 then experienced any further distress or sign of illness that night.
Nancy Smith, R.N., AHCA's surveyor, stated for the first time at hearing that Respondent's staff also should have notified Resident 2's physician on the evening of November 27, 2000, because, since Resident 2 was fed through a gastrointestinal tube (g-tube), she felt the nurse should not have given the resident "extra" fluids without a physician's order for those fluids.
Survey reports must be reasonably specific so that a Plan of Correction can be devised and accomplished by the facility and so that they can be checked up on by the Agency at the end of the time specified for correction. The December 2000, survey report does not charge that the facility had an obligation to obtain a physician's order prior to the administration of "extra" fluids or that the failure to notify Resident 2's physician caused Resident 2 to decline. Accordingly, it is inappropriate to use this charge to support a finding of a deficiency under Tag F309 in December.3
AHCA failed to provide any evidence that Resident 2 received fluids in excess of her assessed or ordered requirements. It is possible that the fluids she was given were early administration of flushes that were scheduled to be
administered two hours later. There is no clarity on this issue.
AHCA also asserted that Resident 2's physician should have been notified at 9:51 p.m., on November 28, 2000, when Resident 2 was noted to have a mild temperature of 100.2 degrees and also was noted to have "mild seizure activity," characterized by "rapid eye movement and upper extremity tremors," although the observed eye and body movements were consistent either with the resident's history of breakthrough seizures or her lack of muscle control. However, AHCA provided no evidence that the resident's fever and the seizure were related to each other or that they otherwise reflected a change in her condition which required notifying her physician.
The appropriate nursing intervention for any resident who experiences a mild seizure is to allow the seizure to run its course, while monitoring the resident and protecting the resident from injury. In any case, nothing would have been done for Resident 2 with regard to evaluating whether her seizure medication needed to be changed without first doing lab work. Lab work would not have been done in the normal course of affairs until the following morning.
Staff monitored Resident 2 throughout the evening of November 28, 2000, and no further seizure activity or any other
type of distress was noted that would have required notification of the physician.
It was also asserted that Oak Terrace should have notified Resident 2's physician at 6:00 a.m., on November 29, 2000, when staff noted that Resident 2's temperature was 100.8 degrees and the resident was noted to have "extra-ocular" movements. The noted eye movements were not consistent with seizures, but were consistent with the resident's on-going physical problems, and did not indicate a significant change of condition which would have required notification of her physician.
However, at approximately 6:00 a.m., on November 29, 2000, staff noted for the first time that Resident 2 had airway congestion. The nursing staff gave Resident 2 Tylenol, continued to monitor her, and notified the oncoming nursing shift of Resident 2's condition. This is appropriate nursing practice.
Around 7:00 a.m., Resident 2's temperature was read at
101 degrees. At 7:50 a.m., it was read at 103.6 degrees. At that time, Resident 2's oxygen saturation was tested and noted to be poor. Resident 2 also had labored breathing and seizure activity. She was given her scheduled administration of anti- seizure medication.
At 8:05 a.m., staff notified Resident 2's physician of the three concurrent symptoms, and he ordered that Resident 2 be sent to the hospital. It would seem that Resident 2 was not ordered to the hospital due to her seizure activity, which was not remarkable, given her medical history. Apparently, her breathing difficulties and congestion, with the morning's elevated and now quickly increasing temperature, were the combined reasons staff phoned the physician and the physician ordered her to the hospital.
AHCA contended that Resident 2 would not have experienced a decline from November 26, 2000, to November 29, 2000, that caused her to go to the hospital on November 29, 2000, if Resident 2's physician had been notified earlier and given an opportunity to order treatments for her. However, the only evidence offered in support of this conclusion was the testimony of surveyor Ms. Smith. She was accepted as an expert in nursing principles, practices, and procedures. However, she is not a physician, and her testimony in the disputed-fact hearing was only that there was a "possibility" that Resident 2's symptoms on the morning of November 29, 2000, could have been prevented by earlier notification of the physician, presumably between 7:00 a.m. and 8:05 a.m. (see Findings of Fact 17-31). She did not identify any intervention the physician might have initiated during that period of time. She did not
identify a treatment that the doctor could have ordered that would have prevented Resident 2 from having to go to the hospital.
When Nurse Smith interviewed Resident 2's physician as part of her survey investigation, she did not ask him if he could have done something for Resident 2 if the facility had notified him earlier.4
The evidence in this record does not support a finding that Resident 2 experienced "actual harm" as a result of any failure by Respondent to notify the physician earlier. At most, any failure to notify the physician presented a potential that Resident 2 could have been harmed.
If a deficiency only presents a potential for harm to a resident, the Agency's assigned scope and severity rating of "G," is inappropriate. A severity rating of "D," which is defined as a deficiency which presents only the potential for causing more than minimal harm to a resident would be appropriate.
The December 19, 2000, survey specifies January 19, 2001, as the date for correction.
January 2001 Survey Tag F248
Tag F248 requires a facility to "provide for an ongoing program of activities designed to meet, in accordance
with the comprehensive assessment, the interests and physical, mental, and psychosocial well-being of each resident." See 42
C.F.R. Section 483.15(f)(1). The January 2567 Report charges that Oak Terrace violated this regulation because it did not have a "systematic methodology" to provide an on-going program of activities for five residents (Residents 1, 4, 7, 11, and 15), who were deemed to be lower-functioning due to cognitive impairment and limited bed mobility. Cindy Adams, who testified about the January F248 deficiency, testified that records review, staff interviews, and observation did not reveal any resident care plans being implemented by staff.
Respondent's witness, Alice Woods, an L.P.N. at Oak Terrace, and exhibits demonstrated that the facility had a systematic methodology for determining each resident's activities needs and for providing a program of activities to meet those needs as follows: Each Oak Terrace resident is assessed using the Minimum Data Set (MDS Assessment). This assessment is conducted at least quarterly for every resident. Based upon needs or problems that are triggered through that assessment, the facility's Activities Director determines whether or not a care plan is appropriate for a resident. If a care plan is needed, the Activities Director develops individualized activities calendars which are posted in each
resident's room. Not all activities are provided by the Activities Director. Some are provided by other staff members.
Appropriate activities for lower functioning residents can include reading to them, playing them audio tapes, employing sensory stimulation such as touching, or even playing games with them. AHCA offered no evidence to indicate that the facility failed to design care plans that included those types of activities for any of the five cited residents. AHCA did not provide any examples of a failure by Oak Terrace to provide a calendared activity to one of these residents.
The activities calendars contain appropriate daily activities that staff are supposed to provide to the respective residents. After an activity is provided to the resident, the staff member who has provided the activity is supposed to mark the activity on the calendar with a highlighter.
The surveyor was not aware of Respondent's use of the calendars. Staff did not point them out to her, and she did not see them during the survey. Therefore, she did not factor them into her allegation of a deficiency under Tag F248.
The activities calendar system may be a record-keeping problem for AHCA surveyors and further notation in the care plans of the activities prescribed may be a good idea, but the evidence does not support any degree of a Tag F248 violation.
Tag F309
Oak Terrace had been directed by AHCA to correct the December F309 deficiency within thirty days of December 19, 2000.
The January 9-12, 2001, survey was an annual recertification of Oak Terrace. During that survey, the surveyors reviewed the files of 21 sampled residents to determine if the facility was substantially complying with all regulatory standards applicable to nursing homes, including those under Tag F309. The survey team found no violation of Tag
F309.
February 2001 Survey Tag F248
The February 2567 Report charged that Respondent violated Tag F248 by failing to provide adequate activities to Residents 2, 7, and 8, all of whom were deemed to be low- functioning residents due to cognitive impairment.
AHCA abandoned its allegations relating to Resident 7 at hearing.
The allegations related to Resident 2 assert that Oak Terrace failed to assess the resident's activities needs or provide her with any care plan for activities. However, Resident 2's activities calendars for January and February note one-on-one visitations, book club, and relaxation and
stimulation. Resident 2 also had cognition and communication care plans that contained interventions relating to Spanish talking books and music because she spoke Spanish. This suggests that Resident 2's activities needs had been assessed and that a program had been developed for her. AHCA admitted that these activities are appropriate for low functioning residents.
At hearing, AHCA's surveyor, Bettianne Stankus, stated she had observed Resident 2 banging on the table of her wheelchair during the survey (once while out of her room and shortly afterwards in her room) and that the facility had violated Tag F309 because it had failed to provide Resident 2 with an activity that caused her to stop the banging. Whether this testimony was directed to showing that a pre-assigned activity would have prevented this behavior, which could evidence the resident's frustration with inactivity when no activities were assessed or provided, or was intended to show that a distracting activity should have been provided, as an intervention, is not entirely clear. The witness conceded that a toy had been given to Resident 2 when she returned to her room. The banging was not demonstrated to be an ongoing problem that required a care plan, and the surveyor acknowledged that there was no activity which would have altered the behavior. In any case, this charge was not recorded in the February 2567
Report, so it should not be considered as part of the deficiency in February.5
AHCA asserted that Respondent failed to provide adequate activities for Resident 8 because the surveyor could not find evidence in the "one-on-one books" provided by staff that staff had conducted one-on-one visits with Resident 8, four times a week, as required by the Resident's activities care plan. Nurse Adams testified that she had been told by staff that only a single one-on-one visit was occurring per week, due to lack of staff.6 AHCA's surveyor was not aware of, and did not consider, Resident 8's activities calendar before making her allegation of a deficiency. See, supra. However, Resident 8's activities' calendar for January and February, produced by Nurse Woods, specified a goal of four, one-on-one visits per week. They also indicated one-on-one visits up to six times a week had occurred during that time period. Nurse Woods' testimony confirmed this, and the hearsay allegation of insufficient staff is therefore not credible or proven.
After the survey, Oak Terrace's personnel reassessed Resident 8 and determined that four, one-on-one visits per week were not needed to meet the resident's activity needs.
Ms. Adams acknowledged that there was no potential for harm to Resident 8 if, after the survey, the facility re-assessed the resident and determined that fewer one-on-one visits per week
were necessary and the resident was, in fact, getting those visits. Although the undersigned interprets this testimony to refer to a lesser number of necessary visits after such a reassessment, it also suggests that those visits made in January and February were sufficient. Therefore, the F248 charge as to Resident 8 was not proven.
Tag F309
The February 2567 Report charges that Respondent violated Tag F309 in its care and treatment of Residents 1, 4, 6, and 10. It does not name Resident 2 in this Tag. See Findings of Fact 45-50.
AHCA presented no evidence at hearing to support its charge of inadequate care of Resident 1.
Resident 4 had a scalp condition that had been a problem since her admission to the facility ten years earlier when her hair reached her knees. For some time, the facility had treated the condition with Nizoral, a medicated shampoo, with some success, but the condition would periodically re- appear on Resident 4's head.
In February 2001, the surveyor observed that an area of Resident 4's scalp near her left ear was yellowish, crusty, and flaky. In testimony, the surveyor acknowledged that Respondent was treating the area with a medicated shampoo, but she concluded that the treatment was ineffective because of the
condition of the area she observed. In her opinion, the facility should have notified the Resident's physician about the ineffectiveness of the shampoo it was using to treat the area, presumably so that he could prescribe another treatment. The cited F309 deficiency was based on this alleged "failure to notify the physician."
Medical records maintained by Oak Terrace to monitor Resident 4's scalp condition reflected that, during the months of December 2000, and January 2001, her scalp condition was chronic because it would periodically appear and disappear, every few days, even with treatment. A weekly skin assessment sheet also noted that, on January 27, 2001, staff had identified the area that was observed by the surveyor. The physician was notified about the area and saw the resident the following day. In his progress note, the physician directed the facility to continue use of the Nizoral shampoo.
AHCA's surveyor did not identify another treatment that could, or should, have been used in place of the medicated shampoo. It is not the surveyor's duty or that of the facility to second-guess the attending physician. In fairness, however, the surveyor was not aware, before deciding on February 2, 2001, that the physician should have been notified of the alleged ineffectiveness of the Nizoral, that, in fact, Resident 4 had been so recently examined by her physician, on January 28, 2001,
or that the physician had ordered continued use of Nizoral in his progress note.
The evidence failed to establish that Resident 4 was deprived of any necessary care or service to maintain her highest practicable well-being, so as to warrant an F309 Tag.
Resident 6 could not take foods or fluids orally and was fed through a g-tube. However, two orders on her medication administration sheet indicated that she was to receive Zinc and Vitamin C orally (by mouth). The resident also had two orders for provision of fluids through her g-tube (900 cc. and 1000 cc. respectively, and totaling 1900 cc.) The surveyor believed these two orders could result in Resident 6 receiving more fluids than her assessed needs. AHCA cited the facility for a deficiency under Tag F309 because if staff followed the orders they might give the resident medications and fluids that could cause her harm. However, AHCA's surveyor acknowledged that she could not describe any harm that could have occurred to Resident
6 by virtue of the fluid orders. The surveyor's concerns with the oral medications included possible aspiration.
The AHCA surveyor acknowledged that any nurse who reviewed the resident's medical chart would see that the resident took food and fluids through a g-tube, and that she did not see any staff member offer oral medication to the resident.
The surveyor's concern was that contradictory records, while not necessarily dangerous in the hands of a facility nurse on a standard shift, still might create a hazard where an agency (temporary) nurse filled-in for regular staff, but she failed to provide any information regarding the resident's assessed fluid needs that would justify her concern that combining the two fluid orders for 900 cc. and 1000 cc. might provide the resident with excessive fluids. She conceded that because the resident had no medical conditions that would indicate that her fluids should be restricted, probably no harm could come to the resident even if 1900 cc. were administered.
Moreover, Oak Terrace established that Resident 6 did not have the orders for fluid administration that the surveyor contended she had in the February 2001 survey. Prior to that survey, the facility evaluated Resident 6's fluid needs and obtained a physician's order indicating that the resident was to receive 2250 cc. of fluid per day. That order also provided that Resident 6 was to receive 100 cc. of water before and after her medications, 10 cc. of fluid with each medication she received, and 100 cc. of fluid during each tubing change. These were the orders for fluid administration in effect for the resident at the time of the survey, not the ones cited by the surveyor.
The undersigned has to wonder if Resident 6 was supposed to be receiving 2250 cc. of fluid daily, at the time of the February 2001 survey, if the two orders cited by the surveyor could have misled facility personnel into giving less fluid than Resident 6 was supposed to get, but no evidence to that effect was presented.
Assuming arguendo that AHCA established any type of deficient practice under Tag F309 with regard to Resident 6, it only involved a failure by Respondent to maintain correct documentation of physician's orders for Resident 6, and the Tag for improper records had not been cited in the December 2000 survey.
Resident 10 was re-admitted to Respondent facility in December 2000, after spending time in the hospital. On her re- admission, she weighed seventy-nine pounds and had one pressure sore on her coccyx and one on her heel. Respondent's dietician evaluated her and, among other dietary recommendations, recommended lab tests and consideration of the use of Procalamine, a dietary supplement, to promote weight gain and assist in the healing of Resident 10's pressure sores.
On December 11, 2000, a medical physician issued an order to implement the dietician's recommendations. During the February 2001 survey, AHCA's surveyor could not find any evidence that the facility had followed through with the
physician's order in either December 2000 or January 2001, or any evidence that the order had been discontinued. She contended that the facility's failure to follow the physician's order had placed Resident 10 at risk for continued weight loss and inadequate protein stores necessary to promote healing of the pressure sores. She cited the facility for a deficiency under Tag F309.
However, the surveyor acknowledged at hearing that the alleged deficiency involved an issue of dietary care which was more appropriately covered by the dietary standards of Tag F325.
Oak Terrace provided other interventions to Resident
10 to promote weight gain and healing of her pressure sores.
Between December 11, 2000, when the physician wrote the order, and December 25, 2000, Resident 10 gained seven pounds. That weight gain put her at her usual body weight as of December 25, 2000, and she maintained her usual body weight as of the February 2001 survey.
Resident 10's pressure sores began to progressively heal so that the area on her coccyx was completely healed by December 28, 2000, and the area on her heel was completely healed by January 3, 2001.
Oak Terrace advanced the defense that due to the weight gain and the complete healing of Resident 10's pressure sores, and because implementation of the Procalamine treatment
would have involved use of an invasive intravenous feeding line, the December 11, 2000, physician's order was not carried forward to the Resident's January or February 2001, physician's order sheets.
Technically, the physician's order should have been fulfilled or carried forward on the charts until discontinued. Still, failure to do this was not demonstrated to be either actual or potential harm to Resident 10, under the circumstances.
The evidence as a whole failed to establish that Resident 10 was deprived of any necessary care or service that prevented her from achieving her highest practicable well-being. Rather, the evidence demonstrated that Resident 10 experienced steady and desired weight gain and pressure sore healing after her return from the hospital, on or about December 11, 2000, that she was restored to normal weight as of December 28, 2000, and that her pressure sores were completely healed by January 3, 2001.
March 2001 Survey
Respondent did not dispute AHCA's allegation that there was a Class III deficiency in March 2001.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
AHCA must assign a Conditional license to a nursing home in Florida if the Agency identifies a Class I or II deficiency, or if it identifies a Class III deficiency that has not been corrected within the time for correction set by AHCA. See Section 400.23(7)(b), Florida Statutes.
In summary, Oak Terrace was charged, through a series
of | surveys as | follows: | |||
SURVEY | TAGS | RESIDENTS | RATINGS | ||
December | 19, 2000: | F309 | 2 | G/III | |
(complaint) | |||||
January 12, 2001 | F248 | 1,4,7,11,15 | E/III | ||
(annual) | |||||
February 2, 2001 | F248 | 2,7,8 | E/III | ||
(re-survey) | F309 | 1,4,6,10 | E/III | ||
March 22, 2001 (re-survey) | F309 | 2,3,5,6,8,11 | E/III | ||
May 31, 2001 | None | ||||
Section 400.23(8)(c), Florida Statutes, defines a Class III deficiency as:
A class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the
resident's ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class III deficiency is subject to a civil penalty of $1,000 for an isolated deficiency, $2,000 for a patterned deficiency, and $3,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed.
In the instant case, AHCA contends that it was appropriate to issue Respondent Oak Terrace a Conditional rating from February 2, 2001 until May 29, 2001, in part, because surveyors had identified a Class III deficiency under Tag F309 in December 2000, which was not corrected when Oak Terrace was re-surveyed on February 2, 2001, and March 23, 2001. AHCA also contends that the imposition of the Conditional rating on February 2, 2001, was appropriate, because it identified a Class III deficiency under Tag F248 in January 2001 which was not corrected when the facility was re-surveyed on February 2, 2001.
A Standard rating must be issued to a facility if there are no Class I or Class II deficiencies, no Class III deficiencies that have not been corrected within the time set by
AHCA, or the facility is in "substantial compliance" with all applicable regulatory standards. A facility is in "substantial compliance" with regulations even if deficiencies are identified, provided these deficiencies identified present "no greater risk to resident health or safety than the potential for causing minimal harm." (emphasis supplied). 42 C.F.R. Section 488.301; See also Tampa Health Care Center v. Agency for Health Care Administration, DOAH Case No. 01-0704 (Recommended Order 8/22/01, not yet adopted by Final Order).
AHCA concedes that it must establish the time frame for correction, and if AHCA surveys before the correction date, no citation should be imposed. If the deficiency is corrected within the time established, neither penalty nor reduction of the facility's rating is authorized.
AHCA has the duty to go forward and establish each element of the surveys. The ultimate burden of persuasion as to the licensure rating case is by a preponderance of the evidence. The ultimate burden as to the fine case is by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
Oak Terrace did not dispute that there were Class III, F309 deficiencies on December 19, 2000, or March 23, 2001. In its Proposed Recommended Order, the Agency submits this alone is sufficient to justify the $1,000 fine, and further asserts that
"the lack of staff to provide services under Tag F248 . . . on the February 2, 2001 survey" and the hospitalization of Resident
2 (presumably in November 2000, as assessed in the December 2000, survey) support the proposed final agency actions.
To the contrary, the undersigned concludes, instead, that the real issues presented by this case are
Whether there was an uncorrected F248 deficiency on February 2, 2001;
Whether there was an uncorrected F309 deficiency on February 2, 2001; and
If there was either an uncorrected F248 or F309 deficiency on February 2, 2001, whether either deficiency reflected that the facility was not in "substantial compliance" with the regulatory standards of those Tags.
The Allegations of Inadequate Care of Resident 2 in December
The December 2000, survey did not charge F248. it charged only F309, and contended that Resident 2 did not receive necessary care and services to promote her well being between November 26 and November 29, 2000, because staff ignored symptoms manifested by the resident and failed to timely notify her physician of those symptoms. However, the evidence herein failed to demonstrate that the resident manifested any change of condition prior to approximately 8:00 a.m., of November 29, 2000, that, under applicable nursing standards, required that her physician be notified.
Assuming arguendo that the evidence supports a conclusion that Resident 2's physician should have been notified earlier than he was, the evidence in this record does not support a conclusion that the facility's failure to notify the physician sooner caused the resident to experience actual harm. AHCA offered no evidence other than mere speculation that the resident's physician would have done something different than what the facility did for Resident 2, or that the physician, if notified earlier, would have ordered Resident 2 to the hospital earlier.
The evidence failed to demonstrate there was an F248 deficiency in January 2001. AHCA contended there was no systematic methodology for assessing low-functioning residents' activities needs or for implementing an activities program for five low-functioning residents. Oak Terrace established there was a systematic methodology in place in January which involved activities care plans and individual activities calendars. While the agency cannot be faulted for not looking in each resident's room for proof of activities being provided when facility personnel failed to point these out, there is no evidence this system failed to comply with the standards of Tag F248 or that the system was not being implemented.
AHCA also failed to prove that there was a deficiency under Tag F248 in February. It charged that the facility failed
to provide required assessment through an activities care plan and one-on-one visits for Resident 8, but the evidence demonstrated that the facility was providing Resident 8 with even more one-on-one visits than the care plan required.
With regard to AHCA's allegation that the facility was not doing enough to prevent Resident 2 banging on her wheelchair table, the surveyor acknowledged that there was no activity that Oak Terrace could have provided to prevent Resident 2 from banging on her table. Other evidence showed that this was essentially periodic normative behavior for that resident and that interventions were provided as each occasion occurred. Perhaps the intervention on the survey occasion could have been faster or different, but the facility should not be penalized under these circumstances, whether formally charged with F248 or only orally accused of F309 at hearing.
Charges in February as to Resident 7 and Tag F248 were withdrawn.
To the extent that any deficiency in care was proven with regard to Residents 2 and 8 in February 2001, those deficiencies presented no risk that either resident would be harmed. Where the identified deficiency presents a minimal risk of harm to the residents, the facility is in substantial compliance with the standards of the Tag. 42 C.F.R. Section 488.301.
For the foregoing reasons, AHCA failed to demonstrate that there was any F248 deficiency at Oak Terrace in either January or February of 2001 or, alternatively, that Oak Terrace was not in substantial compliance with the standards of the Tag on February 2, 2001. It was thus inappropriate for AHCA to use Tag F248 to support the issuance and/or continuation of the Conditional license that Oak Terrace received.
The evidence also failed to demonstrate that there was any violation of a Tag F309 deficiency in February. The regulation at issue in Tag F309 is a general quality of care standard that precedes many specific quality of care regulations under the federal regulatory scheme. The 2567 Report specifically directs surveyors to cite a facility for a violation of Tag F309 only if none of the specific quality of care regulations in the Code of Federal Regulations apply to that deficiency. This directive is contained in the 2567 Report and provides "Use F309 for quality of care deficiencies not covered by Sections 483.25(a)-(m)." AHCA's surveyor acknowledged that the allegations involving Resident 10 were more properly allegations of inadequate dietary care covered under the standard of dietary care addressed in 42 C.F.R. Section 483.25(m), or Tag F325. Accordingly, the allegations of inadequate care relating to Resident 10 should have been cited
under Tag F325, and should not have been considered as part of an F309 deficiency.
Moreover, there was no actual harm here, and it is hard to imagine what fault could attach to care of a patient whose bed sores heal and whose weight loss in the hospital is regained at the charged facility within so short a time span.
Likewise, it was improper for AHCA to use the allegations relating to Resident 6 as evidence that the December 2000, F309 deficiency had not been corrected. New allegations of inadequate care only demonstrate that a previously cited deficiency is uncorrected if the allegations are similar to those which had previously been cited. See AHCA v. Oak Terrace Specialty Care Center, DOAH Case No. 98-2554 (Recommended Order 1/22/99, adopted by Final Order dated 5/10/99). The deficiency alleged with regard to Resident 6 in February had not been asserted in connection with Resident 2 from the December 2000, survey under Tag F309. Thus, even if true, the February 2001, allegations relating to Resident 6 constitute evidence of a new deficiency, not an uncorrected one.
Regardless of whether Tag F309 should include Residents 4, 6, and 10 or only Resident 4, AHCA failed to demonstrate that there was any violation of Tag F309 in February 2001.
Assuming arguendo that AHCA proved any violations of Tag F309 in February 2001, it failed to demonstrate that the proven deficiencies were "uncorrected" from the December survey. A deficiency is deemed to be "uncorrected" for purposes of imposing a Conditional rating if a facility fails to come into substantial compliance with the identified regulatory standard "within the time established by the Agency." Section 400.23(7)(b), Florida Statutes, (emphasis supplied.) AHCA provided notice to Oak Terrace that the deficient practice identified on December 19, 2000, had to be corrected within 30 days of that survey. AHCA conducted another survey of Oak Terrace on January 12, 2001. This was an annual survey. It occurred prior to the deadline of January 19, 2001, established in the December 2000 survey. There was no annual, complaint, or
re-survey on or about January 19, 2001. At the January 12, 2001, survey, in which resident files were reviewed for compliance with Tag F309, no violation of Tag F309 was identified. Accordingly, the evidence established that Oak Terrace was in substantial compliance with the requirements of Tag F309 within the 30-day time period set by AHCA. Any allegation of inadequate care identified in a subsequent survey cannot be evidence that the December 2000 deficiency was not corrected, but instead must be considered as new allegations of a deficiency.
AHCA did not dispute that it reviewed resident files for compliance with Tag F309 in January 2001 or that no violation of Tag F309 was found. Instead, it argued, in essence, that no determination of whether a facility has corrected its deficiency can occur until after the corrective time period has expired. There is nothing in Florida law that supports this contention. The governing statute only requires that the facility achieve compliance within the corrective window, and Oak Terrace did that in this case. Given the cyclical nature of surveys, if AHCA's theory were put into practice, surveyors might never meet their federal re-inspection guidelines, and facilities might never fulfill their plans of correction.
For the foregoing reasons, AHCA failed to demonstrate that there was any F309 deficiency at Oak Terrace in February 2001, or, alternatively, that any F309 deficiency that was proven for that date demonstrated that Oak Terrace failed to substantially correct the December F309 deficiency. It was thus inappropriate for AHCA to use Tag F309 to support the issuance and/or continuation of the Conditional license that Oak Terrace received.
There was no F309 deficiency proven in February 2001.
Accordingly, the March F309 deficiency that was not disputed was not an "uncorrected" deficiency, but instead, was a new
allegation of a deficiency. Since there was no deficiency to correct, there is no basis upon which a fine could be assessed against Oak Terrace. See Chapter 400.23(8)(c), Florida Statutes.
In light of the foregoing Findings of Fact and Conclusions of Law on the merits, it is unnecessary to revisit Oak Terrace's Motion to Dismiss. (See Preliminary Statement.)
Based upon the foregoing Findings of Fact and Conclusions of Law, it is,
RECOMMENDED that the Agency for Health Care Administration enter a Final Order revising the December 19, 2000, 2567 Report by deleting the findings of paragraph 1 of Tag F309; revising the January and February 2001, 2567 Reports by deleting any deficiencies described under Tags F248 and F309; issuing a Standard rating to Oak Terrace to replace the previously issued Conditional rating that ran from February 2, 2001 until May 29, 2001; and dismissing the Administrative Complaint which seeks to impose a $1000 fine against Oak Terrace.
DONE AND ENTERED this 6th day of May, 2002, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
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 6th day of May, 2002.
ENDNOTES
1/ After the surveys in this case, the Florida Legislature changed the definition of a Class III rating that AHCA may assign to deficiencies, but this legislation did not become effective until May 15, 2001.
2/ Although mis-numbering of the paragraphs in the parties' Joint Stipulation are ambiguous, the foregoing finding expresses what the undersigned understands to have been the parties' intended stipulation.
3/ 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 documents. See Vista Manor v. AHCA, 21 FALR 3164; see also, Tampa Health Care Center v. AHCA, DOAH Case No. 01-0734 (Recommended Order 8/22/2001) and Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).
4/ The surveyor testified that the physician volunteered that "they had been able to save the resident." The surveyor took this to mean that there had been actual harm to Resident 2. She committed this conversation to paper (P-1B). The ruling at hearing (TR 67-70) was that the oral hearsay and the exhibit could only be used for findings of fact if they explained or supplemented direct evidence, as provided for in Section
120.57(1)(c), Florida Statutes. I now find that they do not explain or supplement direct evidence. However, in light of the ruling in Barfield v. Department of Health, Board of Dentistry,
27 Fla.L.Weekly, D24a (Fla. 1st DCA Dec. 19, 2001), the following analysis is made: The physician's gratuitous comment, which by the way, includes observing that "[the resident] would probably be going back to the facility . . . [and] . . . had received good personal care [there] as evidenced by no pressure sores," does not draw any nexus between the time the facility called the physician and what was done, or could have been done, if the physician had been called earlier. It also does not clarify whether (a) serious conditions (the same or different from those noted by facility staff) occurred only after Resident
2 was transported to the hospital. The physician's overall commentary, if anything, is complimentary of the facility, but it sheds no light on AHCA's charges herein. Cf. Exhibit R-1 tracks diagnosis and care in the hospital for staph and congestion.
5/ See n.3 above.
6/ Unlike the outside physician's statement, a statement by a facility staff member is admissible, dependent upon the witness's authority within the facility, as either a party admission or an admission against interest by a third party.
This admissibility, however, does not, determine credibility of the statement.
COPIES FURNISHED:
Michael O. Mathis, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403
R. Davis Thomas, Jr. Broad & Cassel
Post Office Box 11300 Tallahassee, Florida 32302
Virginia A. Daire, 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 |
|---|---|---|
| Mar. 03, 2003 | Agency Final Order | |
| May 06, 2002 | Recommended Order | Correction of deficiency by nursing home within time allotted means home cannot be found out of compliance at subsequent survey; subsequent deficiency citation is new citation. Proof of deficiencies inadequate. |
