STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE PARK OF MADISON,

Petitioner,

vs.

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

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) Case No. 02-0671

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RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Diane Cleavinger, held a formal hearing in this matter on May 1, 2002, in Madison, Florida.

APPEARANCES

For Petitioner: Jonathan S. Grout, Esquire

Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 Park Avenue, North

Suite 100

Winter Park, Florida 32790-2011

For Respondent: Gerald L. Pickett, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUES

Whether Petitioner's nursing home licensure status should be changed from standard to conditional.

PRELIMINARY STATEMENT

On November 19, 2001, the Agency for Health Care Administration (Respondent) conducted a survey of the skilled nursing home facility owned by Lake Park of Madison (Petitioner). As a result of that survey, Respondent cited Petitioner for one deficiency under Tag F157. The deficiency was rated as a Class II deficiency with a scope and severity of "G". By Notice dated December 10, 2001, Respondent informed the Petitioner that its license rating was changed from standard to conditional based on the Class II deficiency cited in the survey. Petitioner disputed Respondent's action and requested an administrative hearing. The matter was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner called three witnesses and offered one exhibit into evidence. Respondent called two witnesses and offered five exhibits into evidence.

After the hearing, Petitioner and Respondent filed Proposed Recommended Orders on June 7, 2002.

FINDINGS OF FACT

1. Respondent is the agency responsible for enforcing federal and state regulations of nursing homes. In order to

   effectuate its responsibility, Respondent investigates complaints, conducts surveys of nursing homes, and reviews resident records to ensure compliance with various established care regulations.

2. "F" tags are the Center for Medicare and Medicaid Services (CMS) [formally Health Care Financing Administration (HCFA)] data tags assigned to each of the federal regulatory requirements for long-term care facilities contained in 42

   C.F.R. Section 483.

   
   

3. Interpretive guidelines of the federal regulatory care requirements are contained in the State Operations Manual (SOM) required of the states in conducting surveys for Medicare and Medicaid certification. In conducting a survey, Respondent's surveyors rely on these guidelines in determining whether a facility has violated 42 C.F.R. Section 483.

4. Resident No. 1 was a 24-year-old male. On September 9, 2001, Resident No. 1 was struck by an automobile. The accident resulted in the hospitalization of Resident No. 1 with a severe closed head injury. The resident's prognosis was poor and his condition was most likely irreversible with early death a likely outcome. Prolonged raised temperature and temperature fluctuations were common symptoms for Resident No. 1.

5. On October 31, 2001, Resident No. 1 was discharged from the hospital to Petitioner's facility.

6. On November 2, 2001, at 6:45 a.m., Resident No. 1 had a temperature of 105.7 degrees. Resident No. 1 had already been placed on a course of antibiotics. Nurse Wanda Moore administered Tylenol to Resident No. 1 and contacted

   Dr. Sampson, the resident's attending physician. Dr. Sampson ordered Nurse Moore to administer Tylenol, as needed, Rocephin, an additional antibiotic, and to continue to monitor the resident. Dr. Sampson also instructed Nurse Moore to contact him if the resident's condition worsened.

7. Tylenol was ordered to address the temperature.

   
   

   Rocephin was ordered in addition to an antibiotic already being taken by the resident to expand the antibiotic spectrum to attack any infection that was not being addressed by the other antibiotic. However, the administration of Rocephin would not have an immediate effect on the resident's temperature. Because of Resident No. 1's temperature history, a temperature of 105 degrees was not an indication that the resident was medically unstable or undergoing a significant change in condition.

8. Nurse Moore administered Rocephin as ordered. She did not administer Tylenol because it had been given prior to the phone call to the doctor and did not need to be given again. Since she was going off-duty at approximately 7:15 a.m., she informed the oncoming nurse, Pam McFarland, of the orders of Dr. Sampson.

9. Throughout the day, Resident No. 1 was monitored by the staff of the nursing home. Monitoring included routine checks of Resident No. 1's vital signs. The resident's temperature on November 2, 2001, was 105.1 degrees at 10:28 a.m., 105.2 degrees at 12:30 p.m., and 105.1 degrees at 3:00 p.m. At 11:40 a.m., Resident No. 1 was again given Tylenol. At 11:55 a.m., the nurse paged Dr. Sampson in order to report Resident No. 1's condition. Dr. Sampson did not return the page. Resident No. 1 did not have labored breathing or an unusual heart rate. He was sweating and did not appear to be in distress.

10. Dr. Sampson testified he would not have transferred the resident to the hospital if contacted at approximately noon on November 2, 2001, even if the temperature had only decreased to 105.1 degrees or 105.2 degrees since the resident was still sweating and did not appear to be in distress. Dr. Sampson also testified that Petitioner contacted him an appropriate number of times regarding Resident No. 1 because he did not necessarily expect the resident's temperature to come down more rapidly. A sustained temperature of 105 degrees for 12 hours is not, and was not, for this resident a life-threatening situation or a significant change in his condition.

11. Staff continued to monitor Resident No. 1, but did not attempt to re-page the doctor. At 5:10 p.m., Resident No. 1 received his medications. At 6:15 p.m., Resident No. 1 was

    suctioned by the nurse. He had no signs of distress and was still sweating. At 7:30 p.m. a nursing assistant went to take Resident No. 1's vital signs. She noticed that something was wrong with Resident No. 1. His fingers had a bluish tint. He had no pulse and no respiration. The nurse began cardiopulmonary resuscitation. However, it was unsuccessful. At 7:55 p.m., Dr. Sampson returned the earlier 11:55 p.m. page and was informed of Resident No. 1's condition and death.

12. Resident No. 1's death was rapid.

    
    

13. At some time prior to November 19, 2001, Respondent received a complaint regarding the care of Resident No. 1. Pursuant to that complaint, Respondent conducted a survey of the skilled nursing home facility owned by Petitioner located at 1900 Country Club Drive, Madison, Florida, on November 19, 2001.

14. The survey consisted of a review of four residents' records, including the record of Resident No. 1. There was no evidence that the number of records in the survey constituted a statistical representative sampling of the resident records at the nursing home.

15. As a result of that survey, Respondent cited Petitioner for one deficiency under Tag F157 in relation to Resident No. 1's treatment for failing to further contact the doctor after it was apparent that the resident's temperature remained high for several hours. No other deficiencies were

    found in relation to the other records reviewed. The deficiency was rated as a Class II deficiency with a scope and severity of "G". A Class II deficiency is a deficiency that directly relates to the health, safety, or security of a resident and that is not the type of threat that is imminently dangerous to the resident or poses a substantial likelihood that death or serious physical or emotional harm to the resident will occur.

    A Class III deficiency is a deficiency that has an indirect or potential relation to the health, safety, or security of a resident. See Section 400.23(8), Florida Statutes.

16. Tag F157 pertains to 42 C.F.R. Section 483.10(b)(11)(i). Section 483.10(b)(11)(i), is titled Notification of Changes, failure to consult with a resident's physician following a significant change in the resident's status. The section states, in relevant part:

    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--

    
    

    * * *

    
    

    1. A significant change in the resident's physical, mental, or psychosocial status (i.e., a deterioration in health, mental, or psychosocial status in either life- threatening conditions or clinical complications);

       
       

    2. A need to alter treatment significantly (i.e., a need to discontinue an existing

    form of treatment due to adverse consequences, or to commence a new form of treatment) . . . .

    
    

17. However, the evidence did not demonstrate that after 6:45 a.m., on November 2, 2001, until his death Resident No. 1 experienced a significant change in his physical, mental, or psychosocial status that required Dr. Sampson be contacted or that Petitioner compromised the resident's ability to maintain or reach his highest practical physical, mental, and psychosocial well-being or that the resident suffered actual harm while the resident was in Petitioner's facility.

    CONCLUSIONS OF LAW

    
    

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

19. Section 400.23(7)(b), Florida Statutes, provides that Respondent shall assign a standard or conditional licensure status to a nursing home. The assigned status depends on whether a nursing home has any Class I or II deficiencies or any Class III deficiencies that are uncorrected within a time established by the agency and compliance with rules and regulations. Section 400.23(7) states, in pertinent part, as follows:

    1. The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of

       compliance by each licensee with the established rules adopted under this part as a basis for assigning a licensure status to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations and inspections. The agency shall assign a licensure status of standard or conditional to each nursing home.

       
       

       1. 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.

          
          

       2. 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. If the facility has no class I, class II, or class III deficiencies at the time of the follow-up survey, a standard licensure status may be assigned.

          
          

       3. In evaluating the overall quality of care and services and determining whether the facility will receive a conditional or standard license, the agency shall consider the needs and limitations of the residents in the facility and the results of interviews and surveys of a representative sampling of the residents, families of residents, ombudsman council members in the planning and service area in which the facility is located, guardians of residents, and staff of the nursing home facility.

          
          

20. Rule 59A-4.1288, Florida Administrative Code, includes the federal rules contained in 42 C.F.R. 483 as part of the

    regulations with which a nursing home, such as Petitioner, must comply.

21. Section 400.23(8), Florida Statutes, establishes the classification system for deficiencies in the care or operation of a nursing home. Four classes of deficiencies are established. Class I deficiencies are deficiencies which have caused or are likely to cause serious injury, harm, impairment, or death to a resident. A Class II deficiency is a deficiency that compromises a resident's ability to maintain or reach the resident's highest practicable physical, mental, or psychosocial well-being as defined by a comprehensive resident assessment and plan of care. A Class III deficiency is a deficiency that constitutes no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise a resident's ability to maintain or reach the resident's highest practicable physical, mental, or psychosocial well-being as defined by a comprehensive resident assessment and plan of care. A Class IV deficiency is a deficiency that has the potential for only minor negative impact on a resident.

22. 42 C.F.R. Section 483.10(b)(11) (Tag F157), which is adopted pursuant to Section 400.23(2)(f), Florida Statutes, and Rule 59A-4.1288(1), Florida Administrative Code, 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 and has the potential for requiring physician intervention; a significant change in the resident's physical, mental, or psychosocial status in (i.e., a deterioration in health, mental, or psychosocial status in either life threatening conditions or clinical complications); a need to alter treatment significantly (i.e., a need to discontinue an existing form of treatment due to adverse consequences or to commence a new form of treatment); or a decision to transfer or discharge the resident from the facility as specified in section 483.12(a). (Emphasis added)

1. Respondent bears the burden of proving by a preponderance of the evidence deficiencies to warrant the imposition of a conditional license. Beverly Enterprises-

   Florida v. Agency for Health Care Administration, 745 So. 2d 1133 (Fla. 1st DCA 1999).

2. This case involves whether there was a significant change pursuant to Tag F157 in Resident No. 1's condition which required Petitioner to contact Dr. Sampson after 6:54 a.m., on November 2, 2001; and if so, whether the failure amounted to a Class II violation with a scope and severity of "G".

3. Respondent did not prove by a preponderance of the evidence that the resident had a significant change after 6:45 a.m., on November 2, 2001, in the resident's physical,

mental, or psychosocial status, thus requiring that the resident's physician, Dr. Sampson, be contacted or that compromised the resident's ability to maintain or reach his highest practical physical, mental, and psychosocial well-being. There was no significant change in Resident No. 1's condition given his temperature history and the lack of any signs of distress. Temperature alone does not necessarily constitute a significant change in condition warranting a doctor's consultation or intervention. Whether a change is significant depends on the resident and that resident's history. In fact, Dr. Sampson testified that if he was contacted after several hours and informed that the resident's temperature had only decreased to 105.1 degrees or 105.2 degrees and the resident was still sweating, he would not have transferred the resident to the hospital and would not have done anything different. Since there was no significant change the failure to call the doctor is not a Class II deficiency. Therefore Petitioner, is entitled to a licensure status of standard.

RECOMMENDATION

Base on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED:

That Tag F157 should be reversed and Petitioner should retain a standard license status.

DONE AND ENTERED this 24th day of July, 2002, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 24th day of July, 2002.

COPIES FURNISHED:

Jonathan S. Grout, Esquire Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue

Suite 100

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

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.

Docket for Case No: 02-000671

Orders for Case No: 02-000671