vs. ) Case No. 02-2512
Respondent. )
A hearing was held pursuant to notice on September 11, 2002, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, in Pensacola, Florida.
For Petitioner: Jodi C. Page, Esquire
For Respondent: M. H. Mikhchi, Administrator
Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed.
The Agency for Health Care Administration (AHCA) filed an Administrative Complaint on May 30, 2002, for the imposition of an administrative fine alleging a Class II and a Class III deficiency. Northpointe Retirement Community, Inc. (Northpointe) requested a formal administrative hearing, and AHCA forwarded the case to the Division of Administrative Hearings on or about June 20, 2002. A hearing was scheduled for September 11, 2002, in Pensacola, Florida.
On September 4, 2002, AHCA filed a Motion to Amend Complaint with an Amended Administrative Complaint attached, again alleging a Class II and a Class III deficiency and again seeking to impose an administrative fine. Specifically, Count I of the Amended Administrative Complaint alleged that Northpointe failed to provide care and services to meet the needs of a resident in violation of Rule 58A-5.0182, Florida Administrative Code. Count II alleged that Respondent failed to maintain an up-to-date medication observation record of a resident in violation of Rule 58A-5.0185, Florida Administrative Code. The Amended Administrative Complaint sought to impose administrative fines and to impose a survey fee.
The Motion to Amend Complaint was heard at the commencement of the hearing. Respondent did not object to the motion, which was granted.
At hearing, Petitioner presented the testimony of two witnesses, Norma Endress and Shawn Bolender. Petitioner's Exhibits numbered 1 through 6 were admitted into evidence. Respondent presented the testimony of Mohamed Mikhchi and the deposition testimony of Rochelle Pitt. Respondent did not offer any exhibits.
A Transcript, consisting of one volume, was filed on October 3, 2002. The deposition transcript of Rochelle Pitt was also filed on October 3, 2002. Petitioner requested more than ten days after the filing of the Transcript in which to file Proposed Recommended Orders. That request was granted.
Petitioner timely filed a Proposed Recommended Order on October 18, 2002. Respondent did not file any post hearing submission.
AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to Chapter 400, Florida Statutes.
At all times material hereto, Northpointe was licensed as an assisted living facility with a capacity of 100 beds. Northpointe is located in Pensacola, Florida.
Count I
As the result of a complaint received by AHCA, Norma Endress, a registered nurse and agency surveyor employed by
AHCA, conducted a survey inspection of Northpointe on March 1 and 2, 2002. According to Nurse Endress, the nature of the complaint was an allegation regarding failure to prevent falls.
Upon arriving at Northpointe, Ms. Endress spoke with Rochelle Pitt, a Licensed Practical Nurse who is Director of Nursing at Northpointe, made a quick tour of the facility and then asked for the records of five residents. These records included those of Resident 1 and four others chosen randomly. Included within Resident 1's records was an Outcome Planning Discharge Sheet (discharge sheet) from Sacred Heart Hospital dated January 31, 2002.
The discharge sheet noted that Resident 1 had a wound on his left heel. The discharge sheet included a section entitled "Post Discharge Medical Appointments" which included the following hand written notation: "Dr Matthew Ethridge (Podiatrist) (illegible telephone number). Date + time to be arranged within the week by daughter."
The discharge sheet also included a section entitled "Medications Dose Frequency" which contained the following hand written notation: "Resume pre-hospital meds. Clean and dress left heel (illegible) everyday with antibiotic ointment and dress with gauze."
Also included within Resident 1's records was another document from Sacred Heart Hospital which indicates that Resident 1 subsequently was treated in the Emergency Room on February 2, 2002. This document includes a section entitled "Triage," which indicates that Resident 1 was seen in the Emergency Room because of a fall and that Resident 1's chest hurt.
The section of the February 2, 2002, Emergency Room document entitled "Physical Exam" indicates that Resident 1 was awake and alert and was accompanied by his daughter. This section also includes the following: "EXTREMITIES: no clubbing, cyanosis, WITH2+ edema, perpipheral pulses intact, motor and sensation intact. BANDAGE ON FOOT NOT CHANGED AS HOME HEALTH NURSING CHANGING REGULARLY." (emphasis in original)
During the survey inspection, Nurse Endress also reviewed Resident 1's medication record. According to Nurse Endress, the medication record did not reference the discharge instructions of the physician from the January 31, 2002, discharge from the hospital.1/
Also included in Resident 1's records was a fax cover sheet dated February 1, 2002, from Rochelle Pitt of Northpointe to Dr. Retzloff. The fax cover sheet contained the following hand written notation: "Returned from hospital 1-31-02, needs
new health assessment (with) orders for home health to open area L heel. (see discharge instructions) Thanks, Rochelle Pitt."
According to Nurse Endress, there was nothing in Resident 1's medication administration record or medical chart to reflect the physician's discharge instructions of January 31, 2002 nor to indicate that Resident 1 received any treatment to his left foot after his discharge from the hospital on
January 31, 2002.
Mr. M. H. Mikhchi is the administrator of Northpointe.
According to Mr. Mikhchi, the type of license held by Respondent does not permit it to do the dressing changes on Resident 1's foot referenced in the doctor's hospital discharge instructions. That is, Respondent asserts that it holds a standard license, not a mental health license or a limited nursing license.
According to Mr. Mikhchi, Respondent received a call from the hospital prior to Resident 1's discharge on Thursday,
January 31, 2002, informing them that Resident 1 was being discharged. The following day, Friday, February 1, 2002, Nurse Pitt sent a fax to Dr. Retzloff, requesting a new health assessment with orders for home health care to treat Resident 1's heel. The time of day that this request was faxed is not reflected on the fax cover sheet, although Mr. Mikhchi indicated that it was Friday afternoon. The request was necessary because Resident 1's insurance required a physician's order for home
health services. According to Mr. Mikhchi, Respondent did not hear back from Dr. Retzloff's office on Friday, February 1, 2002. As a result, the weekend passed without Resident 1 receiving home health care for his heel wound. Mr. Mikhchi acknowledges that Nurse Pitt viewed the heel wound over the weekend although the record is unclear as to whether or not she changed the dressing or applied ointment. Nurse Pitt's actions in this regard were not recorded in Resident 1's record because of the limitation of Respondent's license.
Upon Resident 1's return to the facility, Nurse Pitt noted that Resident 1's discharge order stated that Resident 1's daughter would set up an appointment with Dr. Ethridge. As far as Nurse Pitt or Respondent knew, Resident 1's daughter had not set up an appointment with the doctor as of Monday, February 4, 2002. Accordingly, Nurse Pitt called the office of Dr. Ethridge, a podiatrist, on Monday, February 4, 2002, to set up an appointment which was then scheduled for the following day. Count II
Shawn Bolander is a registered nurse and a surveyor for AHCA. According to Nurse Bolander, she went to Respondent's facility on April 5, 2002, to conduct a survey visit as a follow-up to a complaint investigation. However, the record contains no evidence as to the nature or subject matter of the complaint investigation to which this was a follow-up survey
visit. There is nothing in Nurse Bolander's testimony to indicate that her visit of April 5, 2002, was related in any way to the events discussed above regarding Count 1 or Resident 1.
Upon arriving, Nurse Bolander took a tour of the facility and requested a list of residents to select a sample of records for chart review. She reviewed the records of Resident 22/ and found that there was a missing page to Resident 2's medication administration record. She determined that there was a missing page by comparing the physician's orders to the medication administration record for the month of April. That is, Resident 2's resident health assessment mentioned two medications that were not found on Resident 2's medication administration record.
Upon discovering that some medications were not listed on the medication administration record, Nurse Bolander spoke to Nurse Pitt. Nurse Bolander requested that Nurse Pitt recopy the second page of Resident 2's medication administration record and provide her with a copy of it prior to Nurse Bolander's departure from Respondent's facility.
Nurse Pitt did provide Nurse Bolander with a second page to Resident 2's medication administration record prior to Nurse Bolander's departure from the facility on April 5, 2002. At the top of the second page of the medication administration record appears the following hand written notations: "Re-written
4-5-02 2:15pm RP." This was followed by a notation made by Nurse Bolander which read, "Received 4/5/02 SB @2:35."
Page two of Resident 2's medication administration record listed six medications, three of which were designated "PRN." Based upon her review of the medication administration record, Nurse Bolander determined that there was no evidence that Resident 2 actually received any of the medications listed on page two from April 1, 2002 to April 5, 2002.
There is nothing in the record to support the allegation in Count II that Respondent's alleged failure to maintain an up to date medication observation record is a repeat violation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Sections 120.569 and 120.57, Florida Statutes.
The Amended Administrative Complaint in Count I seeks to impose a $1,000.00 administrative fine for failure to provide care and services appropriate to the needs of residents accepted for admission to the facility in violation of Rule
58A-5.0182, Florida Administrative Code. Count I specifies that this is a Class II deficiency.
The Amended Administrative Complaint in Count II seeks to impose a $500.00 fine for failure to maintain an up-to-date
medication observation record in violation of Rule 58A- 5.0185(5)(b), Florida Administrative Code. Count II alleges that this is a repeat Class III deficiency in that this tag was first cited during a complaint investigation conducted on
March 1, 2002.
Further, The Amended Administrative Complaint seeks to assess a survey fee pursuant to Section 400.419(9), Florida Statutes, in the amount of $500.00.
The burden of proof in this proceeding is on the agency. Because of the proposed penalties in the Amended Administrative Complaint, the agency is required to prove the allegations against Respondent by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
Section 400.419, Florida Statutes, defines Class II and III deficiencies and sets forth the parameters of any administrative fine to be imposed regarding such deficiencies. Section 400.419, Florida Statutes, reads in pertinent part as
follows:
400.419 Violations; administrative fines.--
Each violation of this part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows:
* * *
Class 'II' violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines directly threaten the physical or emotional health, safety, or security of the facility residents, other than class I violations. A class II violation is subject to an administrative fine in an amount not less than $1,000 and not exceeding $5,000 for each violation.
A citation for a class II violation must specify the time within which the violation is required to be corrected.
Class "III" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or class II violations. A class III violation is subject to an administrative fine of not less then $500.00 and not exceeding $1,000.00 for each violation. A citation for a class III violation must specify the time within which the violation is required to be corrected. If a class III violation is corrected within the time specified, no fine may be imposed, unless it is a repeated offense.
In determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors:
The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.
Actions taken by the owner or administrator to correct violations.
Any previous violations.
The financial benefit to the facility of committing or continuing the violation.
The licensed capacity of the facility.
Rule 58A-5.0182, Florida Administrative Code, provides that an assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility.
Rule 58A-5.0185, Florida Administrative Code, reads in pertinent part as follows:
58A-5.0185 Medication Practices
(5) MEDICATION RECORDS.
* * *
(b) For residents who receive assistance with self-administration or medication administration, the facility shall maintain a daily up-to-date, medication observation record (MOR) for each resident. A MOR must include the name of the resident and any known allergies the resident may have; the name of the resident's health care provider, the health care provider's telephone number; the name of each medication prescribed, its strength, and directions for use; and a chart for recording each time the medication is taken, any missed dosages, refusals to take medication as prescribed, or medication errors. The MOR must be immediately updated each time the medication is offered or administered.
Count I of the Amended Administrative Complaint alleges that AHCA performed a complaint investigation at Respondent's facility on March 1, 2002. Count I makes a general allegation that Respondent violated Rule 58A-5.0182, Florida Administrative Code, by not providing care and services appropriate to the needs of residents accepted for admission to the facility. Count I also alleges that Respondent was given a mandated correction date for this violation in accordance with Section 400.419(1)(b), Florida Statutes.
However, no evidence was presented regarding any mandated correction date. If Petitioner issued a citation, statement of deficiencies, or plan of correction with a mandated correction date as a result of the March 1, 2002, survey visit by Nurse Endress, it is not in evidence. Section 400.419 (1)(b), Florida Statutes, includes a requirement that a citation for a Class II violation must specify the time in which the violation is required to be corrected. Petitioner has failed to prove that Respondent did not take corrective action within a specified time. Accordingly, the fine of $1,000.00 sought to be imposed by Petitioner in Count I is not appropriate.
Count II of the Amended Administrative Complaint alleges that AHCA cited Respondent for failure to maintain an up-to-date medication observation record as a result of a complaint investigation conducted on March 1, 2002.
Paragraph 13 of the Amended Administrative Complaint describes this as a repeated deficiency. Paragraph 14 of the Amended Administrative Complaint alleges that AHCA may give a citation for a Class III violation which specifies the time period within which the violation is required to be corrected. Paragraph 14 continues that after the time for correction has expired and if the problem is not corrected, a Class III violation is subject to an administrative fine.
However, no evidence was presented that Petitioner issued a citation, statement of deficiencies, or plan of correction to Respondent for failure to maintain an up-to-date medication observation record as the result of the March 1, 2002, survey visit. Nurse Endress' testimony concerned only Resident 1 and the allegations raised in Count I, not any earlier failure of Respondent keeping an up to date medication observation record. According to Nurse Endress, the purpose of her visit was to investigate an allegation of failure to prevent falls. Further, while Nurse Bolander noted that her visit to Respondent's facility on April 5, 2002, was a follow-up to a complaint investigation, her testimony about Resident 2's medical records does not mention any earlier alleged violations regarding medication observation records or that this was a repeat offense.
Section 400.419, Florida Statutes, requires a citation for a Class III violation to specify the time within which the violation is to be corrected. If a Class III violation is corrected within the time specified, no fine may be imposed unless it is a repeated offense.
Petitioner failed to meet its burden of proving that Respondent failed to correct a deficiency within a specified time or that Respondent committed a repeat offense.
Accordingly, the $500.00 fine sought to be imposed by Petitioner in Count II is not appropriate.
In light of the disposition of Counts I and II of the Amended Administrative Complaint, the assess survey fee sought by AHCA to be imposed pursuant to Section 400.419(9), Florida Statutes, is not justified.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That the Agency for Health Care Administration enter a final order dismissing the Amended Administrative Complaint issued against Respondent, Northpointe Retirement Community.
DONE AND ENTERED this 8th day of November, 2002, in Tallahassee, Leon County, Florida.
BARBARA J. STAROS
Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2002.
1/ Resident 1's medication record is not in evidence.
2/ Nurse Bolander identified this Resident on the medication record as Resident 1. This is a different resident than the Resident 1 previously discussed. Accordingly, in an effort to avoid confusion, this resident will be identified herein as Resident 2.
Jodi C. Page, Esquire
M. H. Mikhci, Administrator Northpointe Retirement Community 5100 Northpointe Parkway Pensacola, Florida 32501
Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive
Valinda 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.
