STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. )

) DELTA HEALTH GROUP, INC., d/b/a ) BAYSIDE MANOR, )

)

Respondent. )

Case No. 02-3858

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Diane Cleavinger, Administrative Law Judge, Division of Administrative Hearings, on March 13, 2003, in Pensacola, Florida.

APPEARANCES

For Petitioner: Joanna Daniels, Esquire

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

Tallahassee, Florida 32308

For Respondent: Donna H. Stinson, Esquire

R. Davis Thomas, Jr., Esquire Broad and Cassel

215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether Respondent’s nursing home license should be disciplined, and whether Respondent’s nursing home license

should be changed from a Standard license to a Conditional license.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 13, 2002, Petitioner, Agency for Health Care Administration (AHCA), changed Respondent’s, Delta Health Group, Inc., d/b/a Bayside Manor’s (Bayside Manor) nursing home facility license from "Standard" to "Conditional" as a result of one alleged Class II deficiency under the Florida classification system for nursing home facilities, as defined by Section 400.23(8)(b), Florida Statutes. The Class II deficiency was for failure to provide adequate supervision and assistance devices to prevent accidents cited during a complaint investigation survey conducted June 20, 2002.

Additionally, by Administrative Complaint dated September 3, 2002, AHCA also sought to impose a fine of two thousand five hundred dollars ($2,500) as a result of the same

deficiency that resulted in the Conditional License. In seeking the fine, AHCA alleged that Bayside Manor had a Class II deficiency for violations of Rule 59A-4.1288, Florida Administrative Code, and for a violation of Sections 400.022(1)(l) and 400.022(3), Florida Statutes, for failure to ensure the resident’s right to receive adequate and appropriate health care and protective and support services.

Bayside Manor timely requested formal hearings on AHCA’s actions. Both requests were forwarded to the Division of Administrative Hearings and consolidated for hearing.

At hearing, AHCA presented the testimony of one witnesses and submitted 18 exhibits into evidence. Bayside Manor presented the testimony of one witness and submitted two exhibits into evidence.

After the hearing, AHCA submitted its Proposed Recommended Order on April 30, 2003. Bayside Manor submitted its Proposed Recommended Order on May 1,2003.

FINDINGS OF FACT

1. Bayside Manor is a licensed nursing home located in Pensacola, Florida.

2. On June 14, 2003, Resident No. 4 climbed out of her bed without assistance to go to the bathroom. She fell to the floor and sustained a bruise to her forehead and lacerations to her cheek and chin. Her Foley catheter was pulled out with the bulb still inflated. The fall occurred shortly after Resident No. 4 had finished eating. No staff was in her room when she climbed out of her bed. She was found on her side on the floor by staff. According to the June 14 Bayside’s Nurses' notes, Resident No. 4 stated, "Oh, I was going to the bathroom." In the hour prior to her fall, Resident No. 4 was seen at least

   three times by nursing assistants, which was more than appropriate monitoring for Resident No. 4.

3. On June 20, 2002, AHCA conducted a survey of Bayside Manor’s facility. In its survey, AHCA found one alleged deficiency relating to Resident No. 4. The surveyor believed that Resident No. 4 should have been reassessed for falls by the facility and, based upon that reassessment, offered additional assistive devices and/or increased supervision. The surveyor also believed that the certified nursing assistant had left Resident No. 4 alone with the side rails to her bed down. The deficiency was cited under Tag F-324. Tag F-324 requires a facility to ensure that “[e]ach resident receives adequate supervision and assistance devices to prevent accidents.” The deficiency was classified as a Class II deficiency.

4. On October 9, 2001, and January 14, 2002, Bayside Manor assessed Resident No. 4 as having a high risk for falls, scoring 9 on a scale where scores of 10 or higher constitute a high risk. In addition to the June 14, 2002, fall noted above, Resident No. 4 had recent falls on November 30, 2001, April 19, 2002, and May 12, 2002. Resident No. 4's diagnoses included end-stage congestive heart failure and cognitive impairment. She had periods of confusion, refused to call for assistance, and had poor safety awareness. Resident No. 4 had been referred to hospice for palliative care. Because hospice care is given

   when a resident is close to death, care focuses on comfort of the resident rather than aggressive care. Additionally, the resident frequently asked to be toileted even though she had a catheter inserted. She frequently attempted to toilet herself without staff assistance, which in the past had led to her falls. Often her desire to urinate did not coincide with her actual need to urinate. She was capable of feeding herself and did not require assistance with feeding.

5. Bayside Manor addressed Resident No. 4’s high risk of falls by providing medication which eliminated bladder spasms that might increase her desire to urinate and medication to alleviate her anxiety over her desire to urinate. She was placed on the facility’s falling stars program which alerts staff to her high risk for falls and requires that staff check on her every hour. The usual standard for supervision in a nursing home is to check on residents every two hours. The facility also provided Resident No. 4 with a variety of devices to reduce her risk of falling or any injuries sustained from a fall. These devices included a lap buddy, a criss-cross belt, a roll belt while in bed, a low bed, and a body alarm. Some of the devices were discontinued because they were inappropriate for Resident No. 4. In December 2001, the roll belt was discontinued after Resident No. 4, while attempting to get out of bed, became entangled in the roll belt and strangled herself

   with it. On May 6, 2002, the low bed and fall mat were discontinued for Resident No. 4. The doctor ordered Resident No. 4 be placed in a bed with full side rails. The doctor discontinued the low bed because it could not be raised to a position that would help alleviate fluid build-up in Resident No. 4’s lungs caused by Resident No. 4’s congestive heart failure. Discontinuance of the low bed was also requested by hospice staff and the resident’s daughter to afford the resident more comfort in a raised bed. The fact that placement in a regular raised bed potentially could result in an increase in the seriousness of injury from a fall from that bed was obvious to any reasonable person. The May 5, 2002, nurses’ notes indicate that there was a discussion with Resident No. 4’s daughter about returning the resident to a high bed for comfort. On balance, the placement of Resident No. 4 in a regular raised bed was medically warranted, as well as reasonable.

6. The placement in a regular bed with side rails was not noted directly in the care plan but was contained in the doctor’s orders and was well known by all the facility’s staff. There was no evidence that directly mentioned the regular bed in the formal care plan was required or that the failure to do so had any consequence to Resident No. 4’s care. Even a lack of documentation clearly would not constitute a Class II deficiency. Moreover, the bed with side rails was not ordered

   to protect or prevent falls by Resident No. 4. The facility does not consider a bed with side rails of any sort to be a device which assists in the prevention of falls. Indeed rails often cause falls or increase the injury from a fall. In this case, the rails were ordered so that the resident could more easily position herself in the bed to maintain a comfortable position. Again, the decision to place Resident No. 4 in a regular raised bed with side rails was reasonable.

7. The focus is on comfort as opposed to aggressive care for hospice residents.

8. The evidence did not demonstrate that Bayside Manor failed to adequately supervise or provide assistive devices to Resident No. 4. There was no evidence that reassessment would have shown Resident No. 4 to be at any higher risk for falls, since she was already rated as a high risk for falls. Nor did the evidence show that reassessment would have changed any of the care given to Resident No. 4 or changed the type bed in which she was most comfortable.

   CONCLUSIONS OF LAW

   
   

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

10. AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules

    governing nursing home facilities pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code.

11. A nursing home facility is any facility that provides nursing services as defined in Chapter 464, Part I, Florida Statutes, and which is licensed according to Chapter 400,

    Part II, Florida Statutes. Section 400.021(13), Florida Statutes.

12. AHCA has the burden of proving the basis for changing Bayside Manor’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). However, the imposition of a Conditional license is not penal in nature. Therefore, AHCA bears the burden to show by a preponderance of the evidence violations warranting the imposition of a Conditional license. On the other hand, AHCA has the burden in a license discipline case to establish by clear and convincing evidence the violations which it has alleged subject a license to discipline. Department of Banking and Finance v. Osborne Stern, 670 So. 2d 932, 935 (Fla. 1996); Latham v. Florida

    Commission on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).

13. Section 400.022, Florida Statutes, provides in pertinent part:

    1. 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:

       
       

       * * *

       
       

       (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.

       
       

14. The federal regulations at Title 42 C.F.R., Part 483, Subsection B, provide in pertinent part:

    Section 483.25 Quality of Care

    Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.

    
    

    * * *

    
    

    1. Accidents. The facility must ensure that--

       1. The resident environment remains as free of accident hazards as is possible; and

       2. Each resident receives adequate supervision and assistance devices to prevent accidents.

    
    

15. Section 400.23, Florida Statutes, provides in pertinent part:

    (7) 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.

    
    

    * * *

    
    

    (b) 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.

    
    

16. Section 400.23(8)(b), Florida Statutes, defines a Class II deficiency as:

    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. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine shall be levied notwithstanding the correction of the deficiency.

    
    

17. A Standard licensure means that the facility has no Class I or Class II deficiencies with regard to the statutes and rules, governing nursing homes. An isolated incident of deficient care can, as a matter of law, be classified as a Class II deficiency. AHCA vs. Beverly Healthcare Lakeland, DOAH Case No. 00-2465, Final Order rendered July 10, 2001, Final Order at page 2. In Vista Manor vs. AHCA, DOAH Case

No. 98-5471, Final Order rendered July 16, 1999, the tag at issue was F-309, not F-324. Furthermore, Vista Manor does not discount the role of assessment and review of care plans for fall prevention. Recommended Order, paragraph 78.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Agency for Health Care Administration enter a final order restoring the Respondent’s licensure status to Standard and dismissing the Administrative Complaint.

DONE AND ENTERED this 3rd day of June, 2003, 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 3rd day of June, 2003.

COPIES FURNISHED:

Joanna Daniels, Esquire

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

Tallahassee, Florida 32308

Donna H. Stinson, Esquire

R. Davis Thomas, Jr., Esquire Broad & Cassel

215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302

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: 02-003858

Orders for Case No: 02-003858