vs.
Respondent.
) Case No. 02-1292
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,
Jeff B. Clark, held a formal administrative hearing in this case on August 13, 2002, in Lakeland, Florida.
525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701
For Respondent: Karen L. Goldsmith, Esquire
Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011
The issue for consideration is whether Respondent, Carpenter's Home Manor, should be given a "Conditional" or "Standard" license effective January 24, 2002.
On February 8, 2002, Petitioner, Agency for Health Care Administration, notified Respondent, Carpenter's Home Manor, of its intention to assign a Conditional licensure status effective January 24, 2002, as a result of a survey conducted on that date. This notice also advised Respondent of its right to request an administrative hearing; Respondent requested an administrative hearing on February 21, 2002.
On March 28, 2002, Petitioner forwarded a Notice to the Division of Administrative Hearings advising of Respondent's request for formal administrative hearing and requesting that the matter be assigned to an Administrative Law Judge.
On March 29, 2002, an Initial Order was sent to both parties. On April 12, 2002, the case was scheduled for final hearing in Lakeland, Florida, on June 10, 2002.
On May 30, 2002, Petitioner moved to reschedule the final hearing; the motion was granted, and the final hearing was rescheduled for August 13, 2002.
The final hearing took place on August 13, 2002, as rescheduled. Petitioner presented three witnesses:
Margaret Messenger, Marie Todd Maisel, and Susan Parrish. Petitioner offered four exhibits into evidence which were admitted and marked Petitioner's Exhibits 1 through 4.
Respondent presented four witnesses: Anna Marie Ross, Diane Lamb, Deborah Rivenburgh, and Brian Robare. Respondent offered two exhibits. One exhibit was admitted into evidence and marked Respondent's Exhibit 1; the second exhibit was marked Respondent's Exhibit for Proffer, and is included with this record.
The deposition of Michael Yu, M.D., taken on August 16, 2002, was admitted as hearing testimony.
The parties agreed that proposed recommended orders would be submitted within 21 days after the filing of the deposition of Dr. Yu. The Transcript of the proceedings was filed on September 16, 2002; Dr. Yu's deposition was filed on September 11, 2002. Both parties timely filed Proposed Recommended Orders.
Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made:
Petitioner is the State of Florida agency charged with licensing nursing homes in Florida under Subsection 400.021(2), Florida Statutes, and assigning licensure status pursuant to Section 400.23, Florida Statutes.
Respondent operates a nursing home located at 1001 Carpenter's Way, Lakeland, Florida, 33809.
Respondent was at all times material to this matter licensed by Petitioner and required to comply with applicable rules, regulations, and statutes.
On or about January 24, 2002, an annual survey was conducted of Respondent. Petitioner surveys Respondent to determine whether it is in compliance with applicable laws and regulations. If there are deficiencies, it determines the level of deficiency. When Petitioner conducts a survey of a nursing home, it issues a survey report, commonly referred to by its form number, a "2567." The particular regulation and the allegedly deficient practices, which constitute a violation of that regulation, are cited in the 2567.
The deficiencies are designated as tag numbers. The subject survey noted one deficiency and assigned it Tag F224. Petitioner rated this deficiency as a Class II deficiency.
By assigning the deficiency a Class II rating, Petitioner maintained the deficiency "compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services."
The 2567 asserts, under Tag F224, which incorporates
42 C.F.R. Subsection 483.13(c), that "the facility failed to follow their [sic] own policy and procedure for accident investigation for one of 17 sampled residents (#5) resulting in a delay in treatment. The facility's delay in providing needed interventions placed the resident at risk for clinical complications."
The 2567 constitutes the charging document for purposes of issuing a Conditional License. No other document was offered to describe the offense, or deficiency, which resulted in the imposition of the Conditional License. On April 24, 2002, Petitioner filed an Administrative Complaint with the stated intent to "provide the licensee with notice with particularity." The Administrative Complaint alleges: " . . . Respondent failed to follow it's [sic] own policy and procedure for accident investigation for one of 17 sampled residents (#5) resulting in delay in treatment. The facility's delay in providing needed intervention placed the resident at risk for clinical complications."
The Administrative Complaint alleges violation of
Rule 59A-4.1288, Florida Administrative Code, which incorporates
42 C.F.R. Subsection 483.13(c) which dictates that: "The facility must develop and implement written policies and
procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property."
The Administrative Complaint also alleges violation of Subsection 400.022(1)(l), Florida Statutes, which reads as follows:
All licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the following:
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(l) The right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency.
The Administrative Complaint further alleges violation of Rule 59A-4.106(2), Florida Administrative Code, which reads
as follows:
(2) Each nursing home shall adopt,
implement, and maintain written policies and procedures governing all services provided in the facility.
Respondent has a written policy regarding accidents which states: "[A]ll accidents or incidents occurring on our
premises must be investigated and reported to the administrator." This written policy outlines "policy interpretation and implementation." In particular, it directs, in a paragraph titled "Reporting of Accidents/Incidents," that: "[R]egardless of how minor an accident or incident may be,
. . . , it must be reported to the department supervisor"; and, in a paragraph titled "Assisting Accident/Incident Victims," it directs an employee witnessing an accident and rendering aid to an accident victim, as follows: "[R]ender immediate assistance. Do not move the victim until he/she has been examined for possible injuries." The policy further directs, in a paragraph titled "Medical Attention," "[T]he charge nurse shall: a. [E]xamine all accident/incident victims; b. [N]otify the medical director or the victim's personal or attending physician, and inform the physician of the accident or incident."
No evidence was presented that suggested that Respondent's written policy regarding accidents was deficient.
Resident 5's risk assessment rated her "at high risk for falls"; the Annual Minimum Data Set indicated that Resident 5 had fallen in the past. A care plan for fall prevention, developed following admission in August 2002 and updated quarterly, suggested various changing approaches; however, the resident continued to fall.
Nurse's notes reflect that on January 19, 2002, at 6:15 a.m., Resident 5 was found on the floor of her room. The Certified Nurses Assistant who found Resident 5 placed her in a wheelchair and transported her to the nurses' station where Resident 5 was examined by the nurse on duty. Both legs were examined; no injury was noted. This accident was not reported to the medical director or the resident's physician until January 21, 2002, at 4:45 p.m.
Although Resident 5 has senile dementia, she is able to report when she is in pain.
On January 19, 2002, at 10:30 a.m., Resident 5 complained of pain in the right knee and was medicated for knee pain. Nurse Rivenburgh examined both of Resident 5's lower extremities, and observed the right knee to be swollen and the left knee to be normal.
The same nurse medicated Resident 5 on January 20, 2002; in an examination of Resident 5's lower extremities, she noted that the right knee was a "little bit" swollen, but Resident 5 did not complain of pain. Nurse's notes for January 19, 20, and 21, 2002, all reflect that Resident 5 was continuing to have pain in the right knee.
Nurse Ross performed "range of motion" testing on Resident 5's lower extremities on January 20, 2002, on two occasions; while she noted complaints of pain, swelling, and
redness in the right knee, no abnormalities were noted in the left knee or leg. She also observed Resident 5 on January 21, 2002, in the early morning hours, and gave her "range of motion" testing with the same results.
The 11:00 a.m. nurse's note reflects that Resident 5 had a swollen left thigh, knee, and ankle. Resident 5's physician was notified. X-rays revealed a fracture to the femur of the left leg for which she was treated.
Two licensed practical nurses and one registered nurse, all employed by Respondent, opined, based on their training and experience, that they would expect pain, swelling, and limitation of motion to occur in close proximity to the time of a fracture and the location of the fracture.
Dr. Yu, who was qualified as an expert witness and who had extensive experience dealing with elderly patients, opined that a fracture such as occurred in Resident 5 would demonstrate pain, swelling, and immobility almost immediately after the fracture occurs.
Resident 5 takes the prescription medication Coumadin, a blood-thinning agent; as a result, Dr. Yu opined that internal bleeding and swelling would occur at the fracture site which would cause appreciable swelling and discoloration.
Dr. Yu opined that he saw nothing in the nurse's notes for Resident 5 that reflected symptoms he would expect had she suffered the fracture from the accident which occurred on January 19, 2002. He also opined that Respondent provided adequate and appropriate medical care to Resident 5 from January 19 through 21, 2002.
Dr. Yu's opinions are accepted as credible, as are those of the nurses. The opinions of the nurses are considered within the limitation of their education, training, and relevant experiences. The nurses had a cumulative total of approximately
60 years of nursing experience with geriatric patients.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.
Petitioner is authorized to license nursing home facilities in the State of Florida, and pursuant to Subsection 400.23(7), Florida Statutes, is required to "at least every
15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance "
Petitioner's evaluation must be based on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and
inspections. It must assign either a standard or conditional licensure rating to each facility after it is surveyed.
Subsection 400.23(7)(b), Florida Statutes.
A nursing home facility is substantially affected by a conditional rating and/or an administrative fine. For example, Section 408.035, Florida Statutes, governing certificates of need, provides that an applicant's ability and record of providing quality of care are among the criteria for competitive review. Additionally, a facility cannot qualify for the Gold Seal program if it has had a conditional rating within the previous 30 months, Section 400.235, Florida Statutes. A conditional rating can substantially affect the reputation of a facility in the community and have a negative impact on staff morale and recruiting. Spanish Gardens Nursing & Convalescent
Center (Beverly Health & Rehab Svcs., Inc.) v. Agency for Health Care Administration, 21 FALR 132 (AHCA, 1998).
Subsection 400.23(7)(b), Florida Statutes, provides:
[C]onditional 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 . . . . If the facility has no
class I, class II, or class III deficiencies at the time of the followup survey, a standard licensure status may be assigned.
Petitioner has the burden of proving by a preponderance of the evidence the basis of changing Respondent's licensure rating to Conditional and the basis for imposing an administrative fine. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d
349 (Fla. 1st DCA 1977).
In the instant case, Petitioner alleges that it was proper to issue Respondent a Conditional License effective January 24, 2002, because a Class II deficiency was cited. Accordingly, it is Petitioner's burden to establish by at least a preponderance of evidence the existence and severity of the deficiency cited in the survey of January 24, 2002.
Subsection 400.23(8)(b), Florida Statutes, reads as
follows:
(b) 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 psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.
Respondent is entitled to a succinct and understandable statement of the charges. Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill
v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA
1996). As the charges are made through the 2567 and the Administrative Complaint, the allegations of those documents are what must be proven, and what Respondent is required to defend.
Interpretive guidelines are found in the State Operations Manual required of the states in conducting surveys for Medicare and Medicaid certification. In conducting a survey, Petitioner's surveyors rely on these guidelines in determining whether a facility has violated 42 C.F.R.
Chapter 483.
Petitioner does not charge that Respondent failed to develop an accident investigation and reporting policy. Petitioner asserts in the 2567 and Administrative Complaint that there was a violation of 42 C.F.R. Section 483.13(c) based upon an alleged incident of neglect involving Resident 5. As provided in 42 C.F.R. Section 483.13(c) “[t]he facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.” Petitioner asserts that this requirement was not met because "the facility failed to follow their own policy and procedure for accident investigation for one of 17 sampled residents (#5) resulting in a delay in treatment. The facility's delay in providing needed interventions placed the resident at risk for clinical complications."
The guidelines for 42 C.F.R. Section 483.13(c), Guidelines to Surveyors - Long Term Care Facilities, are instructive in furnishing a definition of "neglect" in stating in relevant part:
"Neglect" means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.
A single incident, as cited in the 2567 and the Administrative Complaint, may be a violation, but does not necessarily indicate that Respondent has failed to implement a policy designed to protect residents from neglect. United States Department of Health and Human Services Departmental Appeal Board decisions are helpful in interpreting the regulation at issue. In Life Care Center of Hendersonville v. Health Care Financing Administration, Department of Health and Human Services, Departmental Appeals Board Decision No. CR542 (July 22, 1998) available at http://www.hhs.gov/dab/decision/cr- 542, the Administrative Law Judge stated:
In evaluating a long-term care facility’s compliance with the regulation, the questions that must be answered are: (1) has the facility developed written policies and procedures that prohibit abuse, mistreatment or neglect of residents; and
(2) have those policies been implemented?
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[The] question [regarding whether a facility has implemented its anti-neglect policies] may not be answered simply by identifying
random episodes of abuse, mistreatment or neglect which may have occurred at a facility. A conclusion that a facility has failed to implement anti-abuse, mistreatment or neglect policies does not follow necessarily from evidence of an isolated episode or episodes of abuse, mistreatment or neglect. A facility may be found to have implemented the required policy even if an isolated instance of abuse, mistreatment or neglect occurs at the facility despite the facility’s best efforts.
That is underscored by the guidance which HCFA gives to State survey agency surveyors. The State Operations Manual provides that: The intent of . . . [42 C.F.R. Section 483.13(c)] is to assure that the facility has in place an effective system that . . . prevents mistreatment, neglect, and abuse of residents . . . . However, such a system cannot guarantee that a resident will not be abused; it can only assure that a facility does whatever is within its control to prevent mistreatment, neglect and abuse of residents. (Emphasis in original.)
Neither the medical director nor Resident 5's personal or attending physician was notified of the accident which occurred at 6:15 a.m., January 19, 2002; in failing to report this accident, Respondent failed to follow its own written procedures.
Petitioner has failed to demonstrate Resident 5 suffered "neglect" as a result of Respondent's failure to follow its own procedures. The cause of the fracture to Resident 5's distal left femur is unexplained. Persuasive evidence was presented that the medical care Resident 5 received from the
occasion of the January 19, 2002, accident to the discovery and treatment of the left leg fracture on January 21, 2002, was appropriate. Similarly, persuasive evidence was presented that pain, swelling, and immobility would be apparent at the time the fracture occurred.
Petitioner failed to demonstrate that Resident 5's ability to maintain or reach her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services was compromised by Respondent's failure to follow its own accident reporting procedures.
Recommended that Petitioner enter a final order determining that the deficiency described under Tag F224 in the January 24, 2002, survey was not a Class II deficiency, and issue a Standard rating to Respondent.
DONE AND ENTERED this 11th day of October, 2002, in Tallahassee, Leon County, Florida.
JEFF B. CLARK
Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2002.
525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701
Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011
Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive
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.
