STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Petitioner, )
)
vs. )
) DESTIN HEALTH CARE ASSOCIATES, ) LLC, d/b/a DESTIN HEALTHCARE ) AND REHABILITATION CENTER, )
)
Respondent. )
Case No. 03-1558
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case before Diane Cleavinger, Administrative Law Judge, Division of Administrative Hearings, on October 21, 2003, in Shalimar, Florida.
APPEARANCES
For Petitioner: Michael O. Mathis, Esquire
Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive
Tallahassee, Florida 32308
For Respondent: R. Davis Thomas, Jr.
Qualified Representative Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302
STATEMENT OF THE ISSUE
Whether Petitioner’s license should be changed from Standard to Conditional and/or disciplined.
PRELIMINARY STATEMENT
On July 1, 2003, Petitioner, Agency for Health Care Administration (AHCA), filed an Administrative Complaint against Respondent, Destin Healthcare Associates, LLC, d/b/a Destin Healthcare and Rehabilitation Center (Destin), alleging that Respondent violated 42 C.F.R. Section 483.25; and Florida Administrative Code Rule 59A-4.106(4)(aa), and requesting an administrative fine, costs and reduction of Respondent’s license from Standard to Conditional. Respondent timely requested an administrative hearing. Respondent’s request was forwarded to the Division of Administrative Hearings.
The Administrative Law Judge (the ALJ) initially set the case for hearing on July 23, 2003, based upon the parties’ representations as to their availability and length of time needed for the hearing set forth in their Joint Response to Initial Order. On June 3, 2003, the parties filed a Joint Motion to Reschedule Hearing. Based on the parties’ representations of just cause for a continuance, the ALJ granted the motion. The hearing was re-scheduled for October 21, 2003.
At the hearing, AHCA presented the testimony of three witnesses and submitted one composite exhibit into evidence.
Respondent presented the testimony of two witnesses and submitted two composite exhibits into evidence.
Subsequent to the hearing and with the permission of the ALJ, Destin took the depositions of Valerie Hamel and
Dr. Randall Lorenz, M.D. The transcripts and exhibits to the depositions were submitted by Destin in lieu of the live testimony of those witnesses at hearing.
After the hearing, Petitioner and Respondent submitted Proposed Recommended Orders on January 20, 2004 and January 26, 2004, respectively.
FINDINGS OF FACT
Destin is a licensed nursing home located in Destin, Florida.
On January 16, 2003, AHCA conducted a survey of Destin.
AHCA asserted five “tag” deficiencies involving the nursing home. Tag deficiencies are a shorthand reference to state and federal nursing home regulations. The deficiencies cited during the January survey involved Tag F226, Tag F490, Tag F324,
Tag F327 and Tag F329.
Tag F226 incorporates the standard of 42 Code of Federal Regulations (CFR) contained in Section 483.13(c)(1)(i). It provides that a nursing home must “develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident
property,” and “not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.” The standard addresses policy development by a facility. It does not address specific acts of abuse neglect or mistreatment that are covered by other tags.
In addition to Tag F 226, Tag F490 incorporates the standard of 42 CFR Section 483.75, which provides that a nursing home must “be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental and psycho-social well- being of each resident.” Under this Tag, AHCA charged essentially the same violations against Destin that were made under Tag F226. The surveyor offered no additional factual basis for the charge and opined that it was appropriate because the administrative staff bears ultimate responsibility for the operation of a nursing home.
Under Florida law, no prospective employee can be hired by a nursing home until that person has cleared a Level I background screen. § 400.215(2)(a), Fla. Stat. (2003). To complete that screen, a nursing home must check with prior employers of the prospective employee, and must also obtain a statewide criminal correspondence check from the Florida Department of Law Enforcement (FDLE). § 435.03(1), Fla. Stat. (2003). If a nursing home conducts a Level I screen and finds
that a prospective employee has pled nolo contendere or has been found guilty of one of the statutory offenses listed in
Section 435.03(2), a nursing home cannot hire the prospective employee until that person obtains an exemption from AHCA.
An employee who has not resided in Florida for the five years preceding the employee's hire date is also required to clear a Level II screen. § 400.215(2)(b), Fla. Stat. A Level II screen is a nationwide criminal background check conducted by the Federal Bureau of Investigation. Id. A nursing home is not required to do a Level II screen for an employee who has not been a resident of Florida for the preceding five years if that employee worked in another nursing home within the last 180 days and received a Level II screen at that time. Importantly, a nursing home is permitted to hire employees for a period of 180 days while awaiting the results of a Level II screen. If a Level II screen reveals that the employee has plead nolo contendere or has been found guilty of one of the disqualifying offenses, the employee can no longer work at the nursing home until an exemption is obtained from AHCA.
Destin has a written policy that requires its staff developer to conduct background screens of all of its prospective employees and new employees to determine if any prospect or new hire has a history of abuse or neglect and otherwise complies with the background screening requirements in
Florida. Destin also has a policy requiring annual performance evaluations of its employees.
During the January survey, AHCA alleged that Destin failed to implement its policy related to background screens of its employees because its surveyor found, that out of 61 employee files reviewed:
11 did not contain Level I criminal background checks
21 did not contain Level I employer reference checks
17 did not contain attestations of residency, and
15 did not contain Level II criminal background checks
AHCA has a written non-rule policy that a nursing home need only conduct background screens on its employees, not on employees of an independent contractor with whom a nursing home may contract. The policy was disseminated to the nursing home industry, including the Respondent. Respondent relied on this policy in utilizing an independent firm to perform housekeeping and laundry services. The independent contractor was responsible for screening its employees.
In this case, nine workers included by the surveyor in her charge were not employed by Destin, but were employees of the company with whom Destin had a contract for housekeeping and laundry services. Destin was not required to perform background
screens on these nine employees. Consequently, these nine employees should not have been included in AHCA’s charge.
AHCA also included an employee on its Level II list who had been a Florida resident for the five years preceding her hire, and an employee who had an earlier Level II screen at another facility. These two employees should not have been included in AHCA’s charge.
When the contract employees and the two employees who did not require Level II screens are eliminated from AHCA’s list, the undisputed numbers with regard to Destin’s failure to do required background screens are as follows:
did not contain Level I criminal background screens
did not contain Level I employer reference checks
8 did not contain attestations of residency
6 did not contain Level II criminal background checks
In this case, Destin had a staff developer who had been trained in performing her job duties. She was hired on January 22, 2002. She had experience in other nursing homes, was highly recommended and was well qualified to fill the position of staff developer at Destin. Unfortunately, unknown to Destin and for reasons not revealed by the evidence, she did not perform her screening duties after October of 2002. She did
perform her other job duties well. Indeed, Destin does not dispute that unknown to it, the staff developer failed to do some required background screens beginning in October of 2002. Upon discovery of the staff developer’s nonfeasance, she resigned her position and left the facility. In fact, Destin would have discovered the staff developer’s failure in approximately nine days because she was scheduled for her annual performance review by the hospital administrator, who was in the process of preparing for that review.
AHCA rated the screening failure as a Class I deficiency. A Class I deficiency is one that has caused or is likely to cause serious injury, harm or death to a resident. A Class III deficiency is one which can potentially cause harm to a resident.
AHCA rated the screening deficiency as Class I, in part, because Destin allegedly hired two employees, 48 and 19, in the Fall of 2002 who had disqualifying offenses in their past, without obtaining any exemption for their disqualifying offenses.
Employee 48’s file contained a Level I criminal background screen that indicated that he plead no contest to a charge of aggravated assault with a weapon. Employee 19’s file indicated that she plead no contest to a charge of writing a bad check.
Employee 48 was an employee of the laundry and housekeeping contractor and was not an employee of Destin. Destin had no obligation to conduct a background screen on that employee, and any risk of harm to residents that potentially might have been created by his hire cannot properly be blamed on Destin. Moreover, after discovery, the worker was not permitted to work at Destin.
Employee 19’s conviction for writing bad checks, though ultimately considered a disqualifying offense under Florida law, is not predictive of abusive behavior. Moreover, Employee 19 was an exemplary employee at the facility, was never involved in any incident of abuse or neglect of residents, and was ultimately granted an exemption for her past offense by AHCA so that she could work in the facility. Destin’s decision to hire her certainly did not cause serious harm to residents nor make such harm likely or demonstrate that failure to screen was a Class I deficiency.
Additionally, AHCA charged that the Class I rating assigned to the deficiency was appropriate, in part, because one cited employee allegedly abused a resident, thereby causing the requisite “serious physical harm” to the resident. However, the incident was reported to the Department of Health which determined, upon investigation, that no abuse occurred. Accordingly, the incident does not demonstrate serious harm or
injury to support a Class I rating within the meaning of Section 400.23(8)(a), Florida Statutes.
Furthermore, Destin completed the employer background calls for each cited employee immediately after the survey, and none revealed any information about an abusive past or any other disqualifying information for any employee. This evidence demonstrated that none of the employees had a past history of abuse or neglect of residents, or if one existed, that Destin would not have discovered it through the employer calls.
The surveyor’s opinion as to the severity of the problems at Destin was also based, in part, on her failure to recognize that the legislature has determined that certain risks with regard to Level II checks, though potentially harmful, are nonetheless remote enough to be acceptable. As noted earlier Section 400.215, Florida Statutes, allows a nursing home to hire an employee for up to 180 days, pending receipt of the FBI background screen, thus indicating the legislature’s determination that any risk of harm presented to residents during that time period is minimal.
Additionally, Destin ultimately obtained all of the Level II background screens for each of the cited employees within 180 days of each employee’s hire date, and none of those screens revealed any disqualifying information. Thus, Destin’s failure to obtain Level II checks earlier did not create a
likelihood that residents would suffer death or serious harm within the meaning of Section 400.23(8)(5).
Clearly, this evidence does not demonstrate that a nursing home's failure to conduct background screens would cause or likely cause serious harm or death to any resident. Nor is it reasonable to assume such a nexus exists. Therefore, Destin’s failure to make those calls did not create a likelihood that residents would suffer death or serious harm within the meaning of Section 400.23(8)(5), Florida Statutes.
Indeed, the greater weight of the evidence demonstrated that the screening deficiency under either Tag 226 or 490 did not create any likelihood of death or serious harm to support a Class I rating within the meaning of Section 400.23(8)(a), Florida Statutes. At most, the failure to obtain the background screens presented a “potential” for harm to residents, which is a Class III, not a Class I, deficiency.
AHCA presented no evidence to indicate the duration of the identified F226 or F490 deficiency. The surveyor testified that she returned to the facility on January 23, 2003, and determined that conditions no longer existed for a Class I deficiency. On the other hand, Destin demonstrated that any potential harm to residents as a consequence of the deficient practice was corrected and abated before the end of the survey on January 16, 2003. On that same day, Destin ordered every
employee cited by AHCA to leave the facility and remain out of it pending receipt of an acceptable background screen. These actions were more than sufficient to correct any problems identified by AHCA under Tag F226 or F490. Destin also had reasonable policies in place and implemented to enable the facility to do appropriate background checks and comply with Florida law.
Additionally, it was undisputed that the administrative staff had no reason to believe that its system for conducting background checks was not working at the time of the survey. The staff developer was highly qualified for the job, had a history of outstanding work in nursing homes, and was performing all of her other job duties well. The rate of alleged incidents of abuse in the facility in 2002 was very low and did not indicate any systemic problem involving background screens. Moreover, the facility had been surveyed in March of 2003, and the survey team looked at employee background checks at that time and determined that there were no identified problems.
Thus, the evidence demonstrated that the administrative staff at Destin had appropriate systems in place to ensure that background checks were being done, and that there was no reason to believe that those systems were not working at the time of the survey or that administration should be doing
something more. The identified deficiency occurred simply because one employee failed to do her job, not because of any failure by the administration of Destin. Such circumstances do not create a violation under Tag F490 or F226.
Tag F324 incorporates the standard of 42 CFR Section 483.25(h)(2), and provides that a nursing home “must ensure that each resident receives adequate supervision and assistance devices to prevent accidents.” AHCA charged that Destin failed to provide required supervision to Resident 26 and thereby allowed him to injure another resident.
Resident 26 was admitted to Destin on May 30, 2002, with a diagnosis of dementia, a history of mental illness and a history of aggressive behaviors. The facility developed a care plan to address those behaviors, which included the interventions that staff would encourage the Resident to attend activities of interest, to attend “diversional” activities when he was agitated, or to place him in a calm environment when agitated. The facility also obtained orders for medications for the Resident’s behaviors, including Remeron, Zyprexa, Celexa and Ativan.
Despite many noted incidents involving the Resident striking out at staff or other residents after his admission, the facility was able to manage his behaviors through staff interventions and medications without injury to any other
resident. In those instances, staff would re-direct the Resident by toileting him, offering him snacks, placing him in the dayroom or taking him to activities. His physician was called and appropriate medication changes were made to his regimen.
On September 7, 2002, Resident 26 was noted as being aggressive toward staff through the shift. He was taken by staff to a quiet area. He was provided with one-to-one supervision for a brief period of time until he settled down.
He was given a regular dose of Ativan in the afternoon to address his agitation, but it was noted as having little effect.
Around 7:00 p.m., Resident 26 was placed in the facility dayroom with other residents, where a certified nursing assistant was stationed to observe them. Thereafter, while the assistant’s back was briefly turned to him, the Resident grabbed another resident’s wheelchair, and pushed it back and forth so as to cause the other resident to fall out of her chair. The assistant saw the incident but could not get to the residents in time to prevent the other resident from falling out of the chair. The other resident sustained a subdural hematoma as a consequence of Resident 26’s actions.
The dayroom was a relatively small room that was being monitored by a designated staff member. Such monitoring is a high level of supervision in a nursing home setting. Placing
the Resident in the dayroom was also consistent with his care plan and had been utilized successfully in the past by staff. Furthermore, the Resident was noted to have eaten 100 percent of his supper, thereby indicating that he had calmed down and would not be a threat to other residents in the dayroom. Finally, the Resident had no history of grabbing other residents’ wheelchairs while in the dayroom or elsewhere. Under these circumstances, it cannot be said that the decision to place him in the dayroom was unreasonable.
Destin also demonstrated that the Resident was receiving a high level of supervision that was more than adequate to meet industry standards. Unfortunately, the incident occurred in spite of such supervision. The incident occurred when the assistant turned her back briefly to attend to another resident in the dayroom. She saw part of the attack when she turned around.
One-to-one supervision is not a required standard in nursing homes. The quantity or quality of supervision that is required for a resident is ultimately based upon nursing judgment. However, as noted above, the situation with Resident
26 at 7:00 p.m. was not an emergency or imminently threatening situation, and the nursing staff’s decision to place him in the dayroom under the observation of a nursing assistant was reasonable under the circumstances. Even one-to-one supervision
would not necessarily have prevented the incident as it occurred in a brief moment when the observer’s back was turned.
AHCA’s survey report charged that Destin should have notified Resident 26’s physician or psychiatrist about his behaviors earlier in the day. AHCA’s surveyor offered no testimony to support this charge, nor was any explanation offered to indicate how a failure to notify a physician falls under the umbrella of a regulation requiring a facility to adequately supervise residents. Nonetheless, Destin demonstrated that there was no need to contact the physician prior to the incident because the facility successfully calmed the Resident at supper. Moreover, after the incident, the doctor was notified but took no immediate action.
Based upon the foregoing, AHCA did not demonstrate that Destin failed to adequately supervise Resident 26. Though unfortunate, the incident and ensuing injury to one of Destin’s residents occurred in spite of good care, not because of inadequate care.
Tag F327 incorporates the standard of 42 CFR Section 483.25(j), and provides that a facility “must provide each resident with sufficient fluid intake to maintain proper hydration and health.” AHCA charged that Destin failed to provide sufficient fluids to Resident 16 in December of 2002
and, as a consequence of that failure, Resident 16 developed a urinary tract infection because she was dehydrated.
Resident 16 was admitted to Destin in June of 1996.
She required a feeding tube, and had a history of pressure sores. She was incontinent and had a catheter which, when changed, would frequently cause her to develop urinary tract infections.
In April of 2003, the facility dietitian assessed the Resident as needing 1560-1820 ccs of fluid per day. However, in November, the dietitian decreased the Resident’s tube feeding from five cans per day to four cans per day, which resulted in a lowering of the fluid offered to her from that source to 1264 ccs per day. However, even though not reflected in the dietitian’s fluid calculations for the Resident, the Resident received water flushes each time her medications were administered through her feeding tube. When these additional flushes are added to the daily fluid she received from other sources, the Resident’s total daily fluid intake in December of 2002 was 1587, not 1262 ccs per day, and was within her assessed fluid range.
The noted explanation on the dietary assessment for the change in tube feeding was that the resident had recently experienced a large and quick weight gain.
AHCA’s surveyor did not dispute the dietitian’s stated justification for reducing the tube feeding amount in November. She also was not aware of the amount the flushes added to the Resident’s fluid intake or that the Resident had chronic urinary tract infections.
Subsequently, the Resident developed a urinary tract infection which can be, but is not necessarily, a sign of dehydration. AHCA’s surveyor, who is not a registered dietitian or a doctor, opined that the Resident was dehydrated and that her dehydration was possibly caused by the decision to reduce her tube feeding amounts in November. She cited the facility for a Class II deficiency because she believed that the facility caused actual harm to the Resident through its noncompliance with the requirements of this Tag.
However on December 5, 2002, prior to the survey the dietitian re-assessed the Resident and noted that her pressure sores were healing and that there were no signs of dehydration. Additionally, at that same time, the Resident had two catheter changes. Given these facts, AHCA failed to prove that Resident
16 was not provided with sufficient fluids to maintain proper hydration. Additionally, AHCA failed to establish that any decision made by the dietitian to reduce the tube feeding caused the Resident to experience a urinary tract infection or any
other sign of dehydration that would support the Class II rating assigned to the deficiency.
Tag F329 incorporates the standard of 42 CFR Section 483.25(l)(1), which provides that “each resident’s drug regimen must be free from unnecessary drugs.” It further provides in relevant part that an “unnecessary drug” is, among other things, a drug “used . . . without adequate monitoring.”
AHCA charged that Destin violated this Tag because it did not conduct ordered PT/INR tests on Residents 2 and 18 while they were taking Coumadin.
Coumadin is a blood thinner often prescribed for persons who are at risk of suffering a stroke. Excess Coumadin can cause a person’s blood to become so thin it will not clot. This condition is known as Coumadin toxicity and can place the individual at risk for excessive bleeding.
Residents on Coumadin typically have an order for a test commonly called a PT/INR, which measures the clotting time of their blood. For Residents whose Coumadin dosages are low or whose past PT/INR levels have been normal, the standard frequency for PT/INR tests is once a month. For others, more frequent testing may be required by their physicians.
A resident’s risk for excessive bleeding is also monitored by nursing staff through observations. A resident whose Coumadin Levels are excessive and causing the resident to
bleed will show that condition by bleeding from the gums, passing blood in urine or by showing bruises.
Destin did not dispute, that Resident 18 had a physician’s order for weekly PT/INR tests beginning in September of 2002, and that the facility did not follow it because it only conducted those tests monthly. However, Resident 18 did not have any abnormal test results and manifested no signs of excessive bleeding. Destin contacted the Resident’s physician after the survey and he discontinued the order and replaced it with an order to conduct the tests monthly. Unquestionably, it is a good idea for a facility to obey doctors' orders. The issue here is the level of the risk of harm associated with this violation. Given these facts, the risk for failing to do the ordered tests was at best, potential only.
AHCA’s surveyor acknowledged that she did not charge and had no evidence to support that Resident 18 experienced any harm or negative outcome as a consequence of Destin’s failure to conduct the ordered weekly tests. She further conceded that the charges relating to Resident 18 only evidenced a Class III deficiency, not a Class II deficiency. The Class II rating was assigned solely because of AHCA’s charged deficiency with Resident 2.
Resident 2 was admitted to Destin on August 20, 2002, from the hospital. During the Summer of 2002, Resident 2
experienced three strokes. He received treatment at the hospital after the strokes in June and July. The treatment included Coumadin. He was discharged home. In early August he experienced another stroke which required hospitalization.
However, he was unable to return home after that stroke and was admitted to Destin.
While in the hospital in August, Resident 2 received Coumadin and had PT/INR tests done that indicated that his Levels were stable. He was admitted to Destin with orders from the hospital physician for a relatively low dosage of Coumadin and for a PT/INR lab to be done on August 27, 2002.
Destin did not draw the ordered PT/INR on August 27.
The Resident showed no outward signs that he was bleeding as a consequence of taking Coumadin. However, on September 18, Resident 2 passed out and fell at the facility. He had to be transported to the hospital. While in the hospital, a PT/INR test was done and the results exceeded normal Coumadin levels. The hospital assigned a preliminary diagnosis of Coumadin toxicity.
AHCA’s surveyor concluded that the facility failed to properly monitor the Resident’s Coumadin Levels when it failed to take the PT/INR lab that was ordered by the emergency room physician. Though she is not a physician, she further opined that the Resident became Coumadin toxic as evidenced by his
September hospital PT/INR results, and that his fall was related to excessive internal bleeding. She charged that the facility could and should have been aware of his perilous state and prevented it if it had taken the ordered PT/INR test. She further opined that a Class II rating for this deficiency was appropriate because the Resident was Coumadin toxic and sustained a subdural hematoma as a consequence of his fall in the facility.
When Resident 2 was discharged from the hospital and admitted to Destin, the Resident’s care was transferred to Dr. Lorenz. Dr. Lorenz issued orders for Coumadin testing every month.
Dr. Lorenz testified that he issued his order for monthly testing because it is the standard for individuals who have been on Coumadin for quite some time, whose dosages of Coumadin are relatively low, and whose Coumadin Levels have been stabilized. Because Resident 2 fit those criteria, Dr. Lorenz concluded that monthly testing was all that was required for Resident 2. He further opined that his order was the controlling order for the frequency of testing for Resident 2, and that the facility was not required to follow the hospital physician’s order for testing on August 27.
Facility staff did not note in Resident 2’s chart that the hospital physician’s order for the PT/INR test had been
discontinued, and the surveyor assumed that it was still effective when she did her file review. Notably, she did not speak to Dr. Lorenz about the intended meaning of his order.
Under Dr. Lorenz’ order for monthly testing, no PT/INR test would have been required for Resident 2 until September 20, 2002, after Resident 2 fell and was admitted to the hospital. Accordingly, the evidence failed to support AHCA’s basic charge that Destin was required to monitor Resident 2’s use of Coumadin through a PT/INR test on August 27, or that any test was required for Resident 2 prior to his admission to the hospital in September.
Dr. Lorenz was also Resident 2’s treating physician at the hospital in September and testified that there was no evidence in his observations or in the medical record that the Resident experienced a subdural hematoma or was Coumadan toxic. He opined that the Resident’s fall was caused by a number of compromising conditions that the Resident had, including an elevated white cell count, bacteria in his urine, elevated and potentially lethal potassium Levels and metabolic acidosis. None of these conditions were related to the Resident's Coumadin Levels. Dr. Lorenz testified that Coumadin toxicity is not, of itself, actual harm to a resident but is instead a situation that indicates that a resident might be at risk for excessive
bleeding. The actual harm, according to Dr. Lorenz, would be excessive loss of blood, which Resident 2 did not experience.
AHCA thus failed to demonstrate that Resident 2’s Coumadin Levels were not adequately monitored by Destin or that Resident 2 sustained any negative outcome as a consequence of any failure to take a August 27 PT/INR test. Because the only remaining deficiency identified was that related to Resident 18, and because AHCA acknowledged that the deficient practice with regard to Resident 18 was, at most, a Class III deficiency, AHCA failed to demonstrate that any deficiency under Tag F329 was a Class II deficiency.
Finally, any deficiencies for which Respondent was cited was during the January survey was timely corrected by February 15, 2003.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57(1), Fla. Stat.
Petitioner has the burden of proving the basis for the deficiencies and their ratings by a preponderance of the evidence. Florida Department of Transportation v. J.W.C., Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
"F" Tags are the Center for Medicare and Medicaid Services (CMS) (formally Health Care Administration (HCFA)) data
tags assigned to each of the Federal regulatory requirements for long term care facilities in 42 C.F.R. Chapter 483.
Section 400.23(7)(b), Florida Statutes (2001), 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:
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.
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.
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 license status may be assigned.
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.
42 C.F.R. Section 483.13(c), contained in Tag 226 provides that "the facility must develop and implement written
policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property."
In this case, Petitioner has not alleged that Respondent failed to develop any policy required by the regulation or did not implement its policies in a reasonable manner as required by Tag F490.
United States Department of Health and Human Services Departmental Appeal Board decisions are helpful in interpreting the regulations 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 ALJ stated:
In evaluating a long-term care facility's compliance with the regulation, the questions that must be answered are:
has the facility developed written policies and procedures that prohibit abuse, mistreatment or neglect of resident; and
have those policies been implemented?
* * *
[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 necessarily follow 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.
This approach to the interpretation of the regulation has been followed by Petitioner in one Final Order. AHCA v. Plantation Bay Rehabilitation Center, DOAH Case No. 01-1983, FO
February 28, 2002. However, in Beverly Health and Rehabilitation Center - Coral Trace v. AHCA, DOAH Case
No. 01-1606, FO February 18, 2002 the agency declined to follow the federal precedents in its interpretation of these tags. In any event, the language of these tags does not support the agency’s interpretation. The language itself demonstrates that the tags involved here address the development and adequacy of the facilities policies to prevent abuse or neglect. The actual acts of neglect or abuse fall under other tags.
In this case Destin had such policies in place and a reasonable policy of employee evaluation and qualification to
ensure its employees were performing and capable of performing their duties. Moreover, the evidence did not demonstrate that the staff developer’s failure to do screens on several employees resulted in any harm or could result in likely harm to a resident. Therefore, imposition of a Class I violation for the staff developer’s failure was not appropriate.
Finally, none of the evidence demonstrated that Destin violated Tags F324, F327, or F329 in providing services to the Resident’s involved under those tags. Fluid intake was within the range established for the Resident. Destin did not fail to adequately supervise an agitated Resident and Coumadin testing was done as per doctor’s orders. The one case where Coumadin tests was not performed per a doctor’s orders did not result in harm and was not a Class II violation. Therefore, the Administrative Complaint should be dismissed and a standard licensure status reinstated.
Based upon the Findings of Fact and Conclusions of Law,
it is
RECOMMENDED:
That the Administrative Complaint be dismissed and Respondent’s license be reinstated as a standard license.
DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida.
S
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 2nd day of March, 2004.
COPIES FURNISHED:
Michael O. Mathis, Esquire
Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive
Tallahassee, Florida 32308
Donna Holshouser Stinson, Esquire Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300
R. Davis Thomas, Jr. Qualified Representative Broad and 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 Station 3
Tallahassee, Florida 32308
Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431
2727 Mahan Drive
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 04, 2004 | Agency Final Order | |
| Mar. 02, 2004 | Recommended Order | Petitioner did not show violations of Tags F490, 226, 329, 324, or 327. Staff developer`s failure to do background screens on employees (F2226) is a Class III violation. Failure to follow doctor`s orders on weekly tests is not a Class I violation. |
