STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIANNA CONVALESCENT CENTER,

Petitioner,

vs.

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

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) Case No. 02-0037

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AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

CITY OF MARIANNA, d/b/a MARIANNA CONVALESCENT CENTER,

Respondent.

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) Case No. 02-1289

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RECOMMENDED ORDER

This cause came on for formal hearing before P. Michael Ruff, Administrative Law Judge of the Division of Administrative Hearings, in accordance with duly promulgated notice, in Marianna, Florida, on August 26, 2002. The appearances were as follows:

APPEARANCES

For Petitioner: Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North Sebring Building Suite 310H St. Petersburg, Florida 33701

For Respondent: Jonathan S. Grout, Esquire

Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011

Winter Park, Florida 32790-2011 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner Marianna Convalescent Center's licensure rating should be changed from "Standard" to "Conditional" and whether an administrative fine in the proposed amount of

$2500.00 should be imposed upon the Petitioner and its facility, based upon an alleged failure to timely consult with a resident's attending or treating physician when there was an alleged significant change in that resident's physical, mental or psycho-social status, etc.

PRELIMINARY STATEMENT

This cause arose upon an Administrative Complaint filed by the Respondent Agency (AHCA) notifying the above-named Petitioner of its intent to change the Petitioner's licensure status from Standard to Conditional and its intent to impose an administrative fine in the amount of $2,500.00. The Agency has charged that the Petitioner (Marianna) violated Rule 59A-4.1288,

Florida Administrative Code (which incorporates Title 42 C.F.R. Section 483 concerning "Requirements for Long Term Care Facilities") by its purported failure to immediately notify a resident's physician following a significant change in that resident's health status. A survey was conducted of the degree of Marianna's compliance with relevant state rules, which was completed on August 15, 2001. The Agency thus seeks to impose the conditional licensure status pursuant to Section 400.23(7), Florida Statutes (2001), and to impose an administrative fine pursuant to Section 400.23(8), Florida Statutes (2001).

The cause came on for hearing as noticed. At the Final Hearing, the Agency presented the testimony of one witness, an agency employee: Catherine Ann Cone, accepted as an expert in surveying and nursing. Marianna presented the testimony of three witnesses: Michael Laurie, a staff nurse of Marianna; Pamela Jane Moss, the Nursing Director of Marianna; and

Dr. Nikorn Arunakul, Resident No. 3's physician (by deposition). The Agency presented three exhibits and Marianna offered two exhibits, all of which were admitted into evidence. Upon concluding the proceeding the Transcript thereof was ordered and the parties submitted timely Proposed Recommended Orders which have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The AHCA is the state Agency charged with licensure of nursing homes in Florida, pursuant to Section 400.021(2), Florida Statutes (2001), and the assignment of licensure status, pursuant to Section 400.102, Florida Statutes (2001). The Agency is also responsible for conducting federally-mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal, statutory and rule requirements.

2. Marianna is a licensed nursing facility located in Marianna, Florida. On August 4, 2001, the Agency conducted an annual Medicare and Medicaid re-certification survey and a state licensure survey, noting its findings on a standard form titled "Statement Deficiencies and Plan of Correction" which is commonly referred to as a "2567" form. A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation and sets forth specific factual allegations that the surveyors believe support a violation. It also indicates the federal scope and severity of the non-compliance.

3. The Agency alleged that Marianna was not in compliance with certain federal compliance requirements, one of which is significant in this proceeding: 42 C.F.R. Subsection 483.10(b)(11)(F-157)("Tag F-157"), for allegedly failing to

   immediately consult with a resident's physician when there was a significant change in the resident's physical, mental or psycho- social status. The Agency contends that this failure resulted in the potential for harm to Resident No. 3.

4. Section 400.23(7) and (8), Florida Statutes, contain the state licensure requirements at issue and Rule 59A-4.1288, Florida Administrative Code, serves as the legal basis by which the AHCA made the initial determination that Marianna, in its view, had failed to comply with the Agency rules. In accordance with the Florida Classification System, the Agency classified the F-157 Non-compliance as a "Class II deficiency" because it compromised the resident's ability to maintain her highest practicable physical, mental and psycho-social well-being

   " . . . as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Based upon the presence of the alleged Class II deficiency, according to the result of the survey, the Agency elected to assign a conditional licensure status to Marianna and impose the disputed administrative fine.

5. The survey team believed it found a violation of

   
   

   42 C.F.R. Subsections 483.10(b)(11)(i), which states that "a facility must immediately . . . consult with a resident's physician . . . when there is . . . a significant change in the resident's physical, mental or psycho-social status "

6. On July 2, 2001, at approximately 12:45 a.m., a Certified Nursing Assistant (CNA) summoned Michael Laurie, a Licensed Practical Nurse (LPN) to observe Resident No. 3, a resident of the subject facility. Resident No. 3 had complained of some pain in the pubic area and her urine was dark in color and had a strong odor. Resident No. 3's temperature at that time was 104.5 degrees. In response to his observance of that condition, Nurse Laurie, accepted as an expert in the field of nursing, and a long-term care nurse of many years experience, administered Tylenol, pursuant to a pre-existing doctor's order for that patient. He also applied cool compresses to the groin area and to the armpits and continued to observe her.

7. Resident No. 3's temperature was again taken at 3:00 a.m. and registered 101.2 degrees. The temperature registered 104 at 4:00 a.m. Mr. Laurie again applied cool compresses and at 4:30 a.m. administered Tylenol. Resident

   No. 3 was alert and did not complain of any discomfort after the occasion at 12:45 a.m.

8. The resident's temperature at 6:00 a.m., was 100.4 degrees. Mr. Laurie continued with the cool compresses placed in the armpits and in the groin area.

9. On the night of July 2, 2001, Resident No. 3 slept well exhibiting no signs or symptoms of pain or discomfort, other than the occasion at 12:45 a.m. The resident did not appear in

   any distress. In fact, Resident No. 3 affirmatively stated at 3:00 a.m. that she did not have any complaints. The nursing interventions referenced above appeared to be reducing the temperature and alleviating discomfort.

10. The attending physician for Resident No. 3 was called by Sonja Sellers, an LPN, at 9:00 a.m., the next morning,

    July 2, 2001. Repeated attempts were made to contact the physician during that day to no avail, until Dr. Chin was finally contacted, or returned a call, at 2:00 p.m., on July 2, 2001, after being called several times by the nursing home staff. Dr. Chin was responsible for this resident since

    Dr. Arunakul, her attending physician, was on vacation. Dr. Chin agreed to send Resident No. 3 to the hospital.

11. The nursing expert who was the only witness able to directly observe the presenting symptoms of Resident No. 3, during the early morning hours of July 2, 2001, opined that the patient or resident was not in any particular distress during that night and made the nursing judgment, related in his testimony, that it was appropriate to call the doctor the following morning, which was done by 9:00 a.m. The nursing home staff made repeated attempts to contact the doctor during the morning after 9:00 a.m., and was unable to do so until

    2:00 p.m. that day. Nurse Laurie's testimony is accepted at the most credible and as the best evidence, since Nurse Laurie is an

    expert in the field of long-term care nursing and actually observed the resident and rendered treatment or nursing intervention.

12. The fact that Resident No. 3's urine was dark in color and odiferous does not necessarily mean that one observing that condition should opine or conclude that the resident was suffering from an infection such as urosepsis. There are medications or vitamins or other situations that can cause that color in the urine and make it smell differently. The resident did not appear in any particular distress after the complaint of 12:45 a.m., and indeed ate all of her breakfast the following morning, July 2, 2001. The doctor was called so the nursing home staff could inform the doctor that Resident No. 3 had run a fever during the night. It is the regular policy of Marianna to contact the attending physician if a resident exhibits elevated temperature during the night. It is significant also that Resident No. 3's temperature did not increase during the day on July 2, 2001, before she was transported to the hospital for examination, evaluation and diagnosis by the physician.

13. "Tag F-157" states as a requirement that an attending physician of a resident should be contacted if the resident experiences a significant change in physical, mental or psycho- social status or well-being. Resident No. 3, although ill, did not experience a significant change in her physical, mental or

    psycho-social status during that night, such that an attending physician should have been called during the night.

    Dr. Arunakul, based on the resident's condition, opined that it would not be expected that a nurse call him or another physician during the night of July 2, 2001. In other words, his testimony reveals that calling the physician on an "immediate" basis as a requirement was satisfied by the nursing home making the call to the physician by 9:00 a.m. the following morning.

14. A Class II deficiency is one where the resident's ability to maintain or reach the resident's highest practicable physical, mental, and psycho-social well being is compromised. Resident No. 3's ability to maintain her highest practicable physical well-being was not compromised by the nursing home staff's failure to contact the attending physician during the eleven to seven shift on July 1 and 2, 2001, but instead contacting the physician, or attempting to, by 9:00 a.m. on the morning of July 2, 2001 (the following shift).

15. F-157 was classified by the agency in the case with a scope and severity of "G." According to the agency's policy and rules, a Level "G" identifies an isolated incident which involved actual harm. It was not demonstrated by the agency's evidence that Resident No. 3 was actually harmed by any action or inaction of Marianna. Indeed, the nursing interventions tried during the early morning hours from 12:45 a.m. through

    9:00 a.m., actually reduced the temperature and discomfort of the patient. Beyond that, it was not shown that any permanent harm of any kind resulted to the patient and, in due course, albeit with delays caused by the doctor failing to contact the nursing home staff, after receiving the calls at his office, the patient was diagnosed and rendered appropriate treatment. No harm occasioned by an action or inaction of Marianna was shown to have occurred merely by the fact that the physician was not called (or the attempt made to reach the physician) until

    9:00 a.m. on the morning of July 2, 2001.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes, and Section 120.569, Florida Statutes.

17. Section 400.23(7)(b), Florida Statutes, provides that the agency may issue a conditional license to a nursing home that has any Class I or II deficiencies at the time of an inspection or any Class II deficiencies that are uncorrected at the time of a follow-up survey.

18. Section 400.23(8)(b), Florida Statutes, defines Class II and III deficiencies in relevant part, as follows:

    1. A Class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach

       his or her highest practicable physical, mental, and psycho-social well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. . . .

       
       

    2. A Class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental, or psycho-social 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 psycho-social well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. . . .

       
       

19. The Class II deficiency cited by the agency was F-157, Title 42, C.F.R. Section 483.10(b)(11), which is adopted pursuant to Section 400.23(2)(f), Florida Statutes, and Rule 59A-4.1288(1), Florida Administrative Code, which provides as follows:

    A facility must immediately inform the resident, consult with the resident's physician; and if known, notify the resident's legal representative or an interested family member when there is an accident involving the resident which results in injury or has the potential for requiring physician intervention; a significant change in the resident's physical, mental or psycho-social status (i.e., a deterioration in health, mental, or psycho-social status in either life threatening conditions or clinical complications); . . . .

    
    

20. The agency bears the burden of proving the deficiencies to warrant the imposition of a conditional license

    rating. Beverly Enterprises - Florida v. Agency for Health Care Administration, 755 So. 2d 1133 (Fla. 1st DCA 1999).

21. Section 400.23(8)(b), Florida Statutes, authorizes the agency to impose an administrative fine against a facility for a Class II deficiency. The amount of the fine depends on the scope of the deficiency. The administrative fine in this case was set by the agency at $2,500.00, as F-157 was determined to be an isolated deficiency.

22. Since the agency has failed to meet its burden of proof with respect to a change in licensure status, it follows that the agency has not met the burden of proof necessary to impose an administrative fine. The agency has not proven the existence of a Class II deficiency, for purposes of F-157, based upon the weight of the credible and credited testimony and evidence, therefore, there is not basis for imposition of an administrative fine pursuant to the above-cited statute. There was no proof that Resident No. 3 suffered actual harm based upon the actions or in-actions of the staff on July 1 and July 2, 2001.

23. The agency did not prove that this was a Class II deficiency since the evidence did not establish that the resident's ability to maintain or reach her highest practicable physical (in this case) well-being was compromised. The agency has not demonstrated a violation of F-157 at the "G" level. A

    "G" level violation requires a finding of actual harm which was not proven.

24. A determination of whether to contact the attending physician is based on nursing judgment. Obviously elderly residents in nursing homes become ill and experience temperature rises, discomforts and bruises. Even Ms. Cone, a witness for the agency, conceded that residents in nursing homes become ill and that nursing judgments must be made as to when to contact an attending physician.

25. The incident in this case involved an elevated temperature, some pain in the pubic area and discolored urine at approximately 12:45 a.m., on July 2, 2001. The attending nurse, Nurse Laurie, made a nursing judgment to try nursing interventions and to have the attending physician Dr. Arunakul called the following morning. Mr. Laurie has been a nurse since 1968, and has worked in nursing homes since 1985. He was accepted as an LPN expert in long-term care. He was also the nursing witness most able to observe and evaluate the status of the resident during the time period in question.

26. The policy of the nursing home is to contact a physician if a resident's temperature is elevated during the night and Ms. Sellers made that attempt, beginning at 9:00 a.m., on July 2, 2001. After contact was made with Dr. Chin at

    2:00 p.m., the resident was soon hospitalized and her treatment was successfully accomplished.

27. Dr. Arunakul, the attending physician for Resident No. 3, testified that he would not have expected Nurse Laurie to call him at 12:45 a.m., based upon the above-referenced symptoms and that the nursing interventions undertaken by Nurse Laurie were appropriate under the circumstances. He agreed that it would have not been necessary, in a medical or nursing judgment sense, to have called the physician before 9:00 a.m. the following morning.

28. A nursing judgment was made by Nurse Laurie based on the resident's condition throughout the night of July 2, 2001, which Nurse Laurie, alone of the testifying witnesses, actually observed. Pamela Moss, Director of Nursing at Marianna who has been a nurse since 1972, and a Registered Nurse since 1986, was also accepted as an expert in nursing as a Registered Nurse including long-term care nursing. She agreed that the nursing interventions were appropriate and that it would not be necessary to contact Dr. Arunakul until the following morning.

29. Nurse Laurie established that Resident No. 3 was not in distress and that there was no need to contact Dr. Arunakul on the night of July 2, 2001, in his nursing judgment. Both Nurse Laurie and Nurse Moss, the Director of Nursing, opined that Resident No. 3's ability to maintain or reach her highest

practicable physical, mental and psycho-social well being was not compromised by not contacting Dr. Arunakul during the 11:00 p.m. to 7:00 a.m. shift on July 1 and July 2, 2001.

Further, both of these nurses testified that in their opinion the condition of the resident did not constitute a significant change in the resident's physical, mental and psycho-social well-being. This is significant since, pursuant to F-157, an attending physician must be contacted when there is a significant change in the resident's physical, mental and psycho-social well-being. The only witness for the agency,

Ms. Cone, had not worked in a nursing home and rendered her opinion based only on a review of the resident's records. She, of course, did not have the benefit of direct observation of the resident on the night and morning in question. She acknowledged that the decision to contact a doctor is based on nursing judgment. Although there is a dispute as to whether the attending physician was contacted "immediately enough" during the night, it would appear that the most credible and creditable testimony would be that made by the attending nurse and the director of nursing, as well as the attending physician

Dr. Arunakul, all of whom had personal knowledge of the resident and who have experience in making decisions in nursing homes.

Accordingly, the testimony of Dr. Arunakul, Nurse Moss and Nurse Laurie is accepted over that of Ms. Cone and it is determined

that the violation, as charged, did not occur for the above- found and concluded reasons.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that a final order be issued by the agency for Health Care Administration restoring the standard rating to the Marianna Convalescent Center and that the Administrative Complaint seeking to impose the administrative fine be dismissed.

DONE AND ENTERED this 9th day of December, 2002, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 Clerk of the

Division of Administrative Hearings this 9th day of December, 2002.

COPIES FURNISHED:

Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011

Winter Park, Florida 32790-2011

Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701

Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, 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.

Docket for Case No: 02-000037

Orders for Case No: 02-000037