STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. )

) SHADY REST CARE PAVILION, INC., ) d/b/a SHADY REST CARE PAVILION, )

)

Respondent. )

Case No. 04-1578

)

RECOMMENDED ORDER

On September 23, 2004, an administrative hearing in this case was held in Ft. Myers, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gerald L. Pickett, Esquire

Agency for Health Care Administration Sebring Building, Suite 330K

525 Mirror Lake Drive, North St. Petersburg, Florida 33701

For Respondent: Karen L. Goldsmith, Esquire

Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011

Winter Park, Florida 32790-2011

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations set forth in the Administrative Complaint are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 31, 2004, the Agency for Health Care Administration (Petitioner) alleged that Shady Rest Care Pavilion, Inc., d/b/a Shady Rest Care Pavilion (Respondent), failed to "ensure residents received the necessary care and services to manage pain for the resident to attain and maintain their highest practicable physical and mental well being." Petitioner seeks to impose on Respondent a fine of

$2,500 and a conditional licensure status.

Respondent disputed the allegations and requested a formal hearing. Petitioner forwarded the request for hearing to the Division of Administrative Hearings, which originally scheduled the hearing for July 16, 2004. The hearing was rescheduled for August 12, 2004, upon Respondent's unopposed motion and again rescheduled for September 23, 2004, upon Respondent's unopposed motion. The case was transferred to the undersigned administrative law judge on September 15, 2004.

At the hearing, Petitioner presented the testimony of two witnesses and had Exhibits numbered 1, 2, and 5 admitted into

evidence. Respondent presented the testimony of ten witnesses and had Exhibits numbered 1 through 3 admitted into evidence.

At the request of parties, the record remained open for 30 days after the hearing for filing deposition testimony of additional witnesses. Proposed recommended orders were originally due ten days following the filing of the depositions or the hearing transcript, whichever occurred later.

The Transcript of the hearing was filed on October 11, 2004. On October 26, 2004, the parties advised by Motion to Establish Date Certain that there would likely be no deposition testimony and that the parties agreed to a deadline of

November 22, 2004, for filing proposed recommended orders. No deposition testimony was subsequently filed, and on November 22, 2004, the parties filed the Proposed Recommended Orders and a joint stipulation in lieu of the deposition testimony.

The Administrative Complaint included allegations related to four residents of the facility (identified in the Complaint as Residents 9, 13, 19, and 21). In the November 22, 2004, stipulation, Petitioner withdrew the allegations related to Resident 21, and no findings of fact related to Resident 21 are contained herein.

FINDINGS OF FACT

1. Petitioner is the state agency charged with licensure of nursing homes and enforcement of applicable rules and regulations.

2. At all times material to this case, Respondent has owned and operated a skilled nursing facility (License

   No. 1497096) located at 2310 North Airport Road, Fort Myers, Florida 33907.

3. Respondent is a long-term care facility that participates in the Medicare and Medicaid programs and is subject to the requirements set forth at 42 C.F.R. § 483.

4. On January 29, 2004, an employee of Petitioner conducted an annual licensure survey of Respondent's facility and, insofar as is relevant to this proceeding, determined that the facility operation was deficient as to compliance with one requirement. Deficiencies are commonly identified on the survey form as numbered "tags" and are communicated to the facility at the time of the survey.

5. The parties have stipulated to the following fact: "During that survey, Respondent was cited for F 309 at scope and severity of "G" as a Class II." Otherwise stated, Petitioner cited Respondent for a "Tag F 309" violation and assessed the violation as Class II.

6. The assertion of the Tag F 309 violation is based on Petitioner's assertion that Respondent failed to provide adequate pain management services to certain patients identified in the Administrative Complaint as Residents 9, 13, and 19.

7. The evidence establishes that routine quarterly assessments of the residents were completed as required and appropriate.

8. There is no evidence that a "pain care management plan" is a specific plan required by any applicable rule or regulation of a relevant licensing entity.

9. Petitioner asserts that the Respondent failed to appropriately perform "pain assessments" on the cited residents. Respondent asserts that "pain assessments" are performed on a daily basis as facility employees respond to pain expressed by residents. There is no evidence that staff is required to complete new assessments for pain management at every complaint of pain or administration of medication.

10. At Respondent's facility, resident pain management is included within the "activity of daily living" (ADL) plan. The person responsible for maintaining the plans testified that the residents deal with pain on a daily basis, and so it was logical to include the topic within the ADL plan. Such documentation has been Respondent's practice since at least as early as 2000 without objection from Petitioner's surveyors.

11. There is no credible evidence that placement of pain information in the ADL plan adversely affected the delivery of pain care to residents.

    Resident 9

    
    

12. Resident 9 was diagnosed with multiple sclerosis, a debilitating disease that causes chronic pain of indeterminate origin. The resident was alert, oriented, and capable of making needs known to staff. The resident was involved in pain management decisions, including refusal of medication.

13. Pain related to multiple sclerosis is difficult to treat because it is of unknown origin. The resident's attending physician attempted to address the resident's pain through a variety of medications.

14. Resident 9's pain was noted in his daily care plan.

    
    

    The resident had a Lidoderm patch and could receive Vicodin every six hours as requested. The resident could also receive Tylenol and medication for muscle spasms.

15. Resident 9's records indicate that as of May 20, 2003, the resident's pain was assessed as daily, moderate pain (noted as "2/2" in the records).

16. As of November 5, 2003, Resident 9's pain was assessed as less than daily, and mild (noted as "1/1" in the records).

17. On December 7, 8, 16, and 22, 2003, Resident 9's records indicate that the resident complained of pain and received medication.

18. A quarterly pain assessment was performed on January 28, 2004.

19. There is no evidence that the resident was denied any requested pain medication. There is no credible evidence that the provision of additional medication would have increased the physical, mental, or psychosocial well-being of the resident.

    Resident 13

    
    

20. Resident 13 was suffering from prostate cancer and was placed on hospice care in October 2003. Resident 13 was noted as having daily severe pain as of October 30, 2003.

21. Resident 13's care plan provided that the resident would be observed for pain and medicated "as indicated" with the effectiveness of the medication monitored.

22. Resident 13 had a Duragesic patch releasing 75 units per hour and was receiving Roxanol (25 mg. administered under the tongue) every three hours.

23. On the date of the survey, the surveyor heard the resident, who was in bed and attended by his wife, expressing pain. The surveyor went to the nurse's station and requested that the resident's nurse attend to the situation. At that time, Resident 13's nurse was in the dining room assisting

    another resident, but she was quickly relieved of that responsibility and returned to the unit to assist Resident 13.

24. The nurse determined that the pain was the result of a catheter that had become positioned under the patient. The nurse repositioned the catheter and administered some Tylenol to the resident. After about an hour, the nurse observed the resident and there was no further discomfort noted.

25. There is no evidence that the resident used the call bell to obtain the nurse's assistance, or that the staff failed to promptly respond to the complaint of pain related to the catheter once it was relayed to them by the surveyor.

26. There is no credible evidence that provision of additional medication would have increased the physical, mental, or psychosocial well-being of the resident.

    Resident 19

    
    

27. At the time of the survey, Resident 19 was suffering from end-stage cardiomyopathy and renal insufficiency.

28. The resident's attending physician testified that the most appropriate medication to address the renal insufficiency was Lasix, but Lasix would have worsened the situation related to the cardiomyopathy. Morphine could have been administered to relieve pain, but would have adversely affected the resident's pulmonary function.

29. According to a hospital discharge summary, Resident 19 suffered from severe back pain and was discharged to Respondent with a Duragesic patch releasing 25 units per hour. Darvocet was administered in 100 mg. doses as needed for pain.

30. As to pain, Resident 19's care plan provided that the resident was to be assessed and medicated for pain "as ordered" by the physician.

31. The pain assessment of January 19, 2004, noted non- verbal and non-cognitive signs of pain, including grunting and screaming.

32. The weekend prior to the survey, Resident 19 became agitated and anxious. The physician prescribed Ativan, a tranquilizer.

33. At about 8:00 a.m. on the date of the survey, Petitioner's surveyor observed Resident 19 seated in a wheelchair, yelling that he was in pain while a staff member attempted to administer medication. The staff member administered Tylenol.

34. At the hearing, there was testimony from staff members that Resident 19's family wanted him out of bed several times daily, particularly at mealtimes, and that the resident was unhappy with the situation.

35. At about 9:30 a.m., the surveyor inquired of a registered nurse as to whether pain medication to the resident

    had been increased based on her earlier observation that the resident was complaining of pain. The nurse did not observe signs of pain and attributed the morning incident to the resident's agitation and unhappiness at being in the wheelchair rather than in bed. Subsequent observations of the resident did not indicate increased pain.

36. The surveyor testified that she understood something "stronger" would be obtained for the resident. The greater weight of the evidence establishes that the medication available to the resident was appropriate under the circumstances of his medical condition. There is no evidence that the administration of additional medication would have alleviated pain without adversely affecting the resident's condition.

37. There is no credible evidence that the provision of additional medication would have increased the physical, mental, or psychosocial well-being of the resident.

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.57(1), Fla. Stat. (2003).1

39. Petitioner has the burden of establishing the truthfulness of the allegations set forth in the Administrative Complaint. As to the assignment of the conditional licensure, Petitioner must establish the facts by a preponderance of the

    evidence. Florida Department of Transportation v. JWC 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). As to the imposition of an administrative fine, Petitioner must establish the facts by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern

    and Company, 670 So. 2d 932, 935 (Fla. 1996). Clear and convincing evidence is that which is credible, precise, explicit, and lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations. Slomowitz v.

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

40. The Administrative Complaint alleges that Respondent violated 42 C.F.R. § 483.25, which provides that Respondent is required to provide the necessary care and services to residents to obtain or maintain the highest practicable physical, mental, and psychosocial well-being of the residents in accordance with each resident's comprehensive assessment and plan of care.

    There is no credible evidence that Respondent failed to comply with 42 C.F.R. § 483.25. There is no evidence that any resident was denied pain medication that would have positively affected a resident's ability to obtain or maintain his or her highest practicable physical, mental, and psychosocial well-being.

    There is no evidence that Respondent's practice of addressing pain management in the ADL plans adversely affected the delivery of pain care to residents.

41. Subsection 400.23(8)(b), Florida Statutes, provides in relevant part as follows:

    (8) The agency shall adopt rules to provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature and the scope of the deficiency. The scope shall be cited as isolated, patterned, or widespread. An isolated deficiency is a deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations. A patterned deficiency is a deficiency where more than a very limited number of residents are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same resident or residents have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the facility. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility's residents. The agency shall indicate the classification on the face of the notice of deficiencies as follows:

    
    

    * * *

    
    

    (b) A class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach

    his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. 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.

    
    

42. The evidence fails to establish that Respondent committed a deficiency that compromised the residents' ability to maintain or reach their highest practicable physical, mental, and psychosocial well-being.

43. Subsection 400.23(7)(b), Florida Statutes, provides in relevant part as follows:

    (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 followup survey, a standard licensure status may be assigned.

    
    

44. The evidence fails to establish that Respondent should receive a conditional licensure status.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint filed in this case.

DONE AND ENTERED this 10th day of December, 2004, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 10th day of December, 2004.

ENDNOTE

1/ All citations are to Florida Statutes (2003) unless otherwise indicated.

COPIES FURNISHED:

Karen L. Goldsmith, Esquire Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011

Winter Park, Florida 32790-2011

Gerald L. Pickett, Esquire

Agency for Health Care Administration Sebring Building, Suite 330K

525 Mirror Lake Drive, North St. Petersburg, Florida 33701

Charlene Thompson, Acting 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

Alan Levine, Secretary

Agency for Health Care Administration Fort Knox Building, Suite 3116

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.

Docket for Case No: 04-001578

Orders for Case No: 04-001578