STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

GENESIS ELDERCARE NATIONAL CENTERS, INC.,

d/b/a OAKWOOD CENTER,

Respondent.

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) Case Nos. 02-3849

) 02-3850

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RECOMMENDED ORDER

A hearing was held pursuant to notice on January 14, 2003, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, in Leesburg, Florida.

APPEARANCES

For Petitioner: Jodi C. Page, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Mail Station 3

Tallahassee, Florida 32308

For Respondent: Alfred W. Clark, Esquire

Post Office Box 623 (32302)

117 South Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Agency for Health Care Administration (AHCA) filed an Administrative Complaint on August 15, 2002, seeking to assign a conditional license alleging a Class II deficiency.

Specifically, the Administrative Complaint alleged that Respondent, Genesis Eldercare National Centers, Inc., d/b/a Oakwood Center (Oakwood) failed to have due diligence taken to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for avoidable bilateral pressure ulcers that developed on both of a resident's heels. Oakwood requested a formal administrative hearing, and AHCA forwarded the case to the Division of Administrative Hearings on or about October 2, 2002.

AHCA filed a second Administrative Complaint against Oakwood on August 15, 2002. The second Administrative Complaint again alleges a Class II deficiency and seeks to impose an administrative fine. Specifically, the second Administrative Complaint alleges that Oakwood failed to have due diligence taken to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for avoidable bilateral pressure ulcers that developed on both of a resident's heels. Oakwood requested a formal administrative hearing and the case was forwarded to the Division of Administrative Hearings on or about October 2, 2002.

Respondent filed an Agreed Motion to Consolidate which was granted, consolidating Case Nos. 02-3849 and 02-3850. A hearing was scheduled for January 14 and 15, 2003, in Tavares, Florida.

At hearing, Petitioner did not present the testimony of any witness. By agreement of the parties, Petitioner presented the testimony of one witness, Dorothea Mueller, by a deposition taken on January 24, 2003. Petitioner's Exhibits numbered

1 through 3, 5, 8 and 9 were admitted into evidence.

Petitioner's Exhibit 4 was withdrawn. Petitioner's Exhibits numbered 6, 7 and 10 were offered during Ms. Mueller's deposition. Respondent objected to the introduction of Petitioner's 6, 7, and 10 as hearsay. Petitioner's Exhibit 6 is admitted under Section 120.569(1)(g), Florida Statutes.

However, Petitioner's Exhibit 6 is hearsay, contains hearsay within hearsay, and is not sufficient in itself to support a finding of fact as contemplated by Section 120.57(1)(c), Florida Statutes. Petitioner's assertion that Exhibit 6 constitutes an exception to hearsay under Section 90.803(8), Florida Statutes, is rejected. Petitioner's Exhibit 7 is admitted. However, the portions of Petitioner's Exhibit 7 which contain uncorroborated hearsay are not sufficient to support a finding of fact as contemplated by Section 120.57(1)(c), Florida Statutes.

Petitioner's Exhibit 10 is admitted under Section 120.569(1)(g), Florida Statutes. However, Petitioner's Exhibit 10 is hearsay,

contains hearsay within hearsay, and is not sufficient in itself to support a finding of fact as contemplated by Section 120.57(1)(c), Florida Statutes.

Respondent presented the testimony of Wendy Stoutjesdijk; Nancy Mitchell, an expert in nursing care with a specialty in gerontology; Dorothy Gilbert, an expert in nursing care and long term care nursing; Cynthia Burbey; Charles Bird; Lea Buffenbarger; Ethel Young; Fay Hill; Carol Taylor; and Emma Maria Centeno (formerly Emma Stubbits). Respondent's Exhibits numbered 1 through 4 were admitted into evidence.

A Transcript, consisting of one volume, was filed on February 10, 2003. A Transcript, consisting of one volume, of Ms. Mueller's deposition was filed on January 21, 2003. The parties timely filed Proposed Recommended Orders, which have been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code.

2. At all times material hereto, Oakwood was licensed by Petitioner as a skilled nursing facility. Oakwood operates a 120-bed nursing home located in Eustis, Florida.

3. From June 19 through July 1, 2002, Dorothy Mueller, who at the time was employed by AHCA as a Registered Nurse Specialist, conducted a complaint investigation at Oakwood. She received the complaint from Florida Protective Services of the Department of Children and Family Services (DCFS). Ms. Mueller is Surveyor Minimum Qualification Test (SMQT) qualified. She is currently licensed as a registered nurse in Florida but retired from AHCA in December 2002.

4. Ms. Mueller began the complaint investigation on June 19, 2002. She announced her visit to the facility's administrator, observed residents, interviewed staff, and reviewed records. She requested a sampling of residents' records. The sample she reviewed included the record of

   Resident D.R. During the course of the complaint investigation, Ms. Mueller did not interview Resident D.R. as she had already been discharged from the facility. Ms. Mueller examined Resident D.R.'s care plans, assessments, nursing notes, and wound care.

5. Nurse Mueller was specifically looking for whether anyone at Respondent's facility was actually looking at the skin of Resident D.R.'s heels because Resident D.R. was wearing TED hose. Because Resident D.R. was at risk for developing pressure sores, Ms. Mueller was concerned that she found no specific

   preventative measures taken by the facility to help prevent the development of pressure sores on Resident D.R.'s heels.1/

6. In determining her findings, Ms. Mueller took into consideration the findings of the person from DCFS who had filed the complaint that caused AHCA to send Ms. Mueller to investigate. Additionally, Ms. Mueller also took into consideration notes from Resident D.R.'s family physician and statements he made to her regarding the condition of Resident D.R.'s heels two days after her discharge from Oakwood.2/ Based on Ms. Mueller's findings during this complaint investigation, federal tag F224 was cited against Oakwood.

7. Resident D.R. was admitted to Oakwood on February 24, 2002, following a four-day hospitalization for hip surgery due to a fall at her home which resulted in a hip fracture.

8. Resident D.R.'s hospital records reveal the development of a skin ulcer in her sacral area the morning of February 23, 2002, and that the ulcer worsened before Resident D.R.'s discharge from the hospital on February 24, 2002.

9. Upon admission to Oakwood, Resident D.R. was assessed by Dorothy Gilbert, a Registered Nurse employed by Oakwood. Nurse Gilbert's full skin assessment of Resident D.R. noted two skin ulcers on Resident D.R.'s sacral area with no other skin breakdown. Nurse Gilbert noted that Resident D.R.'s heels were "soft nonreddened." According to Nurse Gilbert, that notation

   meant that the skin on Resident D.R.'s heels was normal, intact, nonreddened and showed no deterioration.

10. The nurse's assessment form contains a diagram of a person showing front and back with the following instruction: "Skin: Indicate on diagram below all body marks such as old or recent scar, bruise, discoloration, laceration, amputation, decubitus ulcer, and any other questionable marking(s) considered other than normal." Nurse Gilbert made detailed notations and drawings on the diagram indicating any and all skin breakdown of Resident D.R. The foot area of the diagram contained no notation or drawing indicating any skin breakdown on Resident D.R.'s feet upon admission to Oakwood.

11. Another page of the nurse's assessment form is entitled "Braden Scale-For Predicting Pressure Sore Risk." Nurse Gilbert gave Resident D.R. a score of 14 which identified her to be at moderate risk for pressure sores or ulcers. She was at risk for skin breakdown over her entire body, not just her heels, and her care plan accounted for this.

12. Resident D.R. was wearing TED hose at the time of admission and wore them throughout her stay. TED hose are anti- embolism stockings typically used following surgery to enhance blood flow and prevent clotting. Resident D.R. was a petite, elderly woman weighing 83 pounds.

13. Appropriate assessments and interdisciplinary care plans were developed for Resident D.R., including for her existing skin ulcers also referred to as sores or wounds. During Resident D.R.'s stay at Oakwood, one of her existing sacral skin wounds improved and the other wound healed. She received daily wound treatment by the nurses on duty and the wound care nurse measured her ulcers and assessed her skin each Thursday.

14. Cynthia Burbey is an Licensed Practical Nurse employed by Oakwood. She observed Resident D.R.'s heel condition usually every day when she gave her treatment for wound care on her coccyx, and on her shower days which occurred twice a week. While the Certified Nurses Assistants (CNAs) give showers to the residents, the nurses follow the bathing of the resident with a body check/body assessment. Nurse Burbey never saw any skin deterioration on Resident D.R.'s heels, including the day Resident D.R. was discharged. At the time of the discharge, Nurse Burbey did a body assessment from head to toe of Resident

    D.R. and did not observe any skin deterioration on Resident D.R.'s heels.

15. The CNAs at Respondent's facility play a significant role in observing skin condition and are to report any change in skin condition to the nurses. In addition to their role in observing skin condition at bath time, the CNAs repositioned

    Resident D.R. every two hours and assisted her in and out of bed each day. She was completely dressed and undressed each day by her attending CNAs who would remove her TED hose and change them.

16. Pressure on skin over bony areas is a primary cause of pressure ulcers or bed sores. Resident D.R. received a variety of services and devices during her stay at Oakwood aimed at reducing the likelihood of bed sores, including knee wedges for both her bed and wheelchair, calf pads for her wheelchair, a pressure reducing mattress, and physical therapy. Because of her petite size, the knee wedge used for her bed resulted in Resident D.R.'s heels being "floated" off her mattress.

17. Resident D.R., also received physical therapy services including range of motion exercises while at Oakwood. The range of motion exercises for her lower extremities would have provided her therapists and restorative aids an opportunity to detect evidence of skin breakdown on her heels, because her heels were touched by the therapists or aides during these exercises. While Resident D.R. wore socks for these therapies, the therapists and aides saw no evidence of staining on her socks, which often happens from drainage from a heel wound, or any evidence that their touching her heels resulted in any pain to Resident D.R. The restorative aides provided Resident D.R.

    with range of motion exercises six days a week, including the day before her discharge from Respondent's facility.

18. The initial nursing assessment indicating "heel soft, nonreddened" raised Ms. Mueller's concerns that there was no care specifically directed toward Resident D.R.'s heels. However, there is no competent evidence that Resident D.R. had heel wounds either upon admission or which developed during her stay at Oakwood. Accordingly, there was no reason for Oakwood to have a skin care plan specifically addressing Resident D.R.'s heels, particularly in light of the fact that Oakwood had a skin care plan in place for Resident D.R. which was followed. Further, during cross examination, when asked whether the phrase "heel soft nonreddened," was an indicator that Resident D.R. had a problem with her heel, she acknowledged, "I would have to answer yes and no to that."

19. AHCA 's charge of failure to have due diligence taken to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for avoidable bilateral pressure ulcers is based solely on hearsay evidence. AHCA's sole witness, the surveyor who conducted the complaint investigation, never observed Resident D.R. at any time, either in Respondent's facility or after her discharge.

20. The evidence presented does not establish that Oakwood failed to have due diligence to prevent, subsequently detect if

    the condition could not be prevented, and then provide appropriate care and treatment for bilateral pressure sores. There is no competent proof that any heel sore developed on Resident D.R.'s heels while a resident at Oakwood. Moreover, the evidence shows that the nursing staff appropriately addressed the skin care needs of Resident D.R.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Sections 120.569 and 120.57, Florida Statutes.

22. The Administrative Complaint in DOAH Case No. 02-3850 seeks to impose a $2,500.00 administrative fine for failure to have due diligence taken to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for avoidable bilateral pressure ulcers that developed on both of a resident's feet in violation of Rule 59A-4.1288, Florida Administrative Code, and 42 CFR 483.13(c). The Administrative Complaint specifies that this is a Class II deficiency.

23. The Administrative Complaint in DOAH Case No. 02-3849 seeks to assign a conditional licensure status to Respondent failed to have due diligence taken to prevent, subsequently detect if the condition could not be prevented, and then provide appropriate care and treatment for avoidable bilateral

    ulcers that developed on both of a resident's heels, in violation of 42 CFR 483.13(c) via Rule 59A-4.1288, Florida Administrative Code. The Administrative Complaint asserts that this constitutes a Class II deficiency.

24. Further, the Administrative Complaint in DOAH Case No. 02-3850 seeks to assess costs related to the investigation pursuant to Section 400.121(10), Florida Statutes, in an unspecified amount.

25. The burden of proof in this proceeding is on the Agency. Because of the proposed penalty of an administrative fine in DOAH Case No. 02-3850, 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). In DOAH Case No. 02-3849, the Agency is required to prove the allegations against Respondent by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

26. Section 400.23(7)(b), Florida Statutes, provides that a conditional rating means that the facility, due to the presence of one or more Class I or Class II deficiencies, or a Class III deficiency not corrected within the time established by the agency, is not in compliance with established criteria.

27. Section 400.419, Florida Statutes, defines a Class II deficiency and sets forth the parameters of any administrative fine to be imposed regarding such deficiency. Section 400.419, Florida Statutes, reads in pertinent part as follows:

    400.419 Violations; administrative fines.--

    
    

    1. 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:

       
       

       * * *

       
       

       (c) 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 facility residents, other than class I violations. A class II violation is subject to an administrative fine in an amount not less than $1,000.00 and not exceeding $5,000.00 for each violation. A citation for a class II violation must specify the time within which the violation is required to be corrected.

       
       

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    2. In determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors:

       
       

       1. 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.

          
          

       2. Actions taken by the owner or administrator to correct violations.

          
          

       3. Any previous violations.

          
          

       4. The financial benefit to the facility of committing or continuing the violation.

          
          

       5. The licensed capacity of the facility.

    
    

28. Rule 59A-4.1288, Florida Administrative Code, incorporates by reference certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities.

29. 42 CFR 483.13(c)(tag F224) provides,

    
    

    (c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

    
    

30. AHCA has not met its burden of proof in regard to the imposition of a fine in that it failed to prove that a Class II deficiency existed at Oakwood.

31. AHCA has not met its burden of proof as to the imposition of a conditional license in that it did not prove that a Class II deficiency existed at Oakwood.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints issued against Respondent, Oakwood Center.

DONE AND ENTERED this 21st day of March, 2003, in Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 21st day of March, 2003.

ENDNOTES

1/ Ms. Mueller's investigation report alleged that Oakwood failed to obtain a physician's order for TED hose. However, Ms. Mueller acknowledged at her deposition that the use of TED hose for Resident D.R. was not being questioned.

2/ At Ms. Mueller's deposition, Respondent objected to

Ms. Mueller's testifying about any conversations Ms. Mueller had with the DCFS investigator or the family physician as hearsay.

The agency's response that anything said by the physician for the purpose of diagnosis and or treatment was an exception to hearsay pursuant to Section 90.803(4), Florida Statutes, is rejected.

COPIES FURNISHED:

Jodi C. Page, Esquire Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Alfred W. Clark, Esquire Post Office Box 623

117 South Gadsden Street, Suite 201 Tallahassee, Florida 32301

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

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

Valinda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

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: 02-003850

Orders for Case No: 02-003850