STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
CASO, INC., d/b/a PARADISE MANOR II,
Respondent.
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) Case No. 06-3731
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RECOMMENDED ORDER
A formal hearing was conducted in this case on January 30, 2007, in Deland, Florida, before Suzanne F. Hood, Administrative Law Judge with the 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: Christal Caso, Owner
Caso, Inc., d/b/a Paradise Manor II
435 Greenleaf Square
Port Orange, Florida 32127 STATEMENT OF THE ISSUES
The issues are as follows: (a) whether Respondent is guilty of a Class II violation because Respondent failed to discharge a resident who no longer met the criteria for
continued residency contrary to Sections 400.426 and 400.428, Florida Statutes (2005), and Florida Administrative Code Rule 58A-5.0181; (b) whether Respondent is guilty of a Class II violation because Respondent transferred a resident’s prescription medication from one storage container to another contrary to Florida Administrative Code Rule 58A-5.0185; and (c) what penalties, if any, should be imposed.
PRELIMINARY STATEMENT
On August 6, 2006, Petitioner Agency for Health Care Administrative (Petitioner) issued an Administrative Complaint against Respondent Caso, Inc., d/b/a Paradise Manor II (Respondent). The complaint alleges that Respondent had two class II violations during a biennial survey on May 17, 2006. Petitioner seeks to impose an administrative fine and a survey fee against Respondent.
On September 22, 2006, Respondent filed a request for an administrative hearing to contest the allegations in the Administrative Complaint. On October 2, 2006, Petitioner referred the request to the Division of Administrative Hearings.
The undersigned issued an Initial Order on October 3, 2006.
The parties filed a Joint Response to Initial Order on October 9, 2006.
A Notice of Hearing dated October 12, 2006, scheduled the hearing for December 15, 2006.
On November 28, 2006, Petitioner filed an unopposed Motion for Continuance of the Final Hearing. That same day, the undersigned issued an Order Granting Continuance and Re- scheduling Hearing for January 30, 2007.
During the hearing, Petitioner presented the testimony of two witnesses. Petitioner offered five exhibits that were accepted as evidence.
Respondent presented the testimony of five witnesses. Respondent offered three exhibits that were accepted into evidence.
The Transcript was filed on February 9, 2007.
On February 14, 2007, Petitioner filed an unopposed request for extension of time to file proposed recommended order. The undersigned issued an Order Granting Extension of Time on February 16, 2007. On February 28, 2007, the parties timely filed their Proposed Recommended Orders.
FINDINGS OF FACT
Petitioner is the agency charged with licensing of assisted living facilities (ALFs) in Florida. Petitioner has the duty to ensure that ALFs comply with the provisions of Chapter 400, Part III, Florida Statutes (2005). In the performance of its duties, Petitioner is required to conduct biennial surveys and monitoring visits to verify correction of any deficient practices.
The evaluation, or survey, of a facility includes a resident review/observation and, depending on the circumstances, a record review and interviews with family and facility staff. Surveyors note their findings on an agency Form 3020-0001, titled “Statement of Deficiencies and Plan of Correction.”
If deficiencies are found during a survey, the violations are noted as “Tags” on the Form 3020-0001. A Tag identifies and summarizes the applicable regulatory standard that the surveyor believes the licensee has violated. A Tag also sets forth specific facts in support of alleged deficiencies, identifies the classifications of deficiencies depending on their nature and gravity, and identifies the probable effect that deficiencies have on facility residents.
Respondent operates a licensed ALF facility (the facility) located in Port Orange, Florida. Respondent is also licensed to provide its residents with limited nursing services (LNS). Respondent is authorized to admit a maximum of six residents.
Resident 2 was admitted to the facility on October 11, 2004. She was an elderly female who had psychological and medical problems, including schizophrenia, chronic obstructive pulmonary disease, and hypertension.
Resident 2 needed supervision for ambulation with a walker, dressing, eating, grooming, bathing, and total care for
toileting due to incontinence of bowel and bladder. Resident 2 never received LNS from Respondent.
Resident 2 was a strong-minded person who would not always cooperate with the efforts of the facility’s staff to keep her repositioned in her wheelchair or bed. At times she refused to take her medicines.
Because Resident 2 was forgetful, the facility’s staff had to provide her with reminders so that she could stay oriented to time and place. She was always very verbal about her wishes, especially her desire to be left alone.
Christal Caso is Respondent’s administrator and owner.
She is also a licensed practical nurse.
In March 2006, Resident 2 experienced trouble with vomiting for several days before she would allow Ms. Caso to take her to the hospital. After receiving treatment for kidney failure in the hospital, she recovered sufficiently to travel in a wheelchair on a seven-day cruise with Ms. Caso.
After the cruise, Resident 2's health seemed to decline rapidly. She began to lose weight because she was not eating properly.
Around the first of May 2006, Ms. Caso took Resident 2 for an appointment with her personal physician. After that appointment, she was referred to a local hospice.
Resident 2 was admitted to hospice care on May 10, 2006. The hospice agreed to provide her hospice care in Respondent’s facility. Because hospice did not provide 24-hour day-to-day care, Respondent continued to provide care for her.
A nurse from the local hospice visited with Resident 2 on May 12, 2006. The hospice nurse noted that she was very thin with poor appetite. The hospice nurse observed that she was very stiff with multiple skin breakdowns that seemed to get worse every day. The hospice nurse also noted that Respondent’s staff used normal saline solution and triple antibiotic ointment to treat the pressure sores.
Resident 2 yelled when the hospice nurse or anyone touched her. She would not let the hospice nurse treat her pressure sores.
On May 12, 2006. the hospice nurse requested the hospice physician to order ibuprofen (Motrin) suspension for Resident 2. The physician’s order stated that she could take the Motrin every six hours as needed for pain.
On May 17, 2006, Petitioner’s staff performed a biennial survey of the facility. The survey involved an evaluation of the facilities’ care for Resident 2.
Petitioner’s surveyor observed the following problems with Resident 2’s skin integrity: (a) a medical dressing at mid-calf on her right leg, draining a yellow, serosanguineous
substance; (b) a bandage on her right foot, covering an swollen area that was deep red to bluish in color; (c) a pressure sore on her right heel that was black but not draining; (d) a black, draining ulcer on the outer side of her right foot about the size of a quarter; (e) a large bandage under her incontinent brief that covered an ulcer approximately 7 centimeters wide, 11 centimeters long, and 2-3 centimeters deep, with a yellow, serosanguineous drainage and that constituted a stage 4 ulcer almost exposing the hip bone. Petitioner’s surveyor could not see other parts of Resident 2’s body because she refused to change her position.
During the course of viewing her pressure sores, Petitioner’s surveyor observed Respondent’s certified nurse assistant (CNA) removing Resident 2’s bandages. The CNA took off the dressings, one at a time, and laid them on the over-bed table. The CNA put the same dressings back on her after handling her clothing and the over-bed table, thus contaminating the dressings and the table. Contamination of the reapplied dressings created a direct threat of infection.
The CNA stated that he was the only staff member that performed wound care at the facility. Ms. Caso admitted that she did not perform wound care. She also admitted that the facility did not have a staff member who was licensed and properly trained to provide wound care.
During the surveyor’s observation, Resident 2 had periods of clearly understanding what was being said to her. At other times, she would either refuse to talk or was unable to do so. She yelled during the observation because she was annoyed and/or in pain.
On May 17, 2006, Respondent could not provide Petitioner’s surveyor with a record more recent than 2004 or 2005 of Resident 2’s health status. There was no documentation to show that she received appropriate management of her pressure sores in Respondent’s facility before or after her admittance to hospice care.
Respondent did not have a written plan of care for Resident 2 reflecting wound care, pain management, or hospice care. Ms. Caso admitted that she did not have time to keep records. More important, she could not produce any records kept by hospice.
Petitioner’s surveyor checked Resident 2’s medication.
As of May 17, 2007, she had not received a dose of the Motrin ordered for her on May 12, 2006. Respondent did not pick up the medicine from the pharmacy until May 16, 2006.
Petitioner’s surveyor also observed that Resident 2 had a prescription bottle of medicine by the name of Metoprolol, a medicine commonly prescribed for high-blood pressure and heart problems such as angina. The medicine bottle contained two
kinds of tablets: pink and round tablets and white oval tablets.
When the pharmacist filled Resident 2’s prescription for Metoprolol, he did not have enough of the medicine to complete the physician’s order. When the pharmacist received a shipment of the same medicine from a different manufacturer, he sent Resident 2 the balance of the physician’s order. The Metoprolol tablets from the two manufacturers were different in color and shape.
A member of Respondent’s staff combined all the tablets of Metoprolol in one prescription bottle. Thereafter, a third person would not know if these tablets in the same bottle were actually the same prescribed medication or whether someone mixed the wrong medications. Combining the tablets from two prescription bottles was a class II violation of Tag A626 because it created a direct threat to Resident 2‘s health.
At the request of Ms. Caso, the hospice nurse visited Resident 2 during the survey on May 17, 2006. The hospice nurse noted that her skin continued to break down. The hospice nurse decided to consult a wound care specialist regarding Resident 2’s skin breakdown. During the hearing, the hospice nurse conceded that at least one of Resident 2’s pressure sores had advanced to a stage 3.
During the survey on May 17, 2006, Petitioner’s surveyor recommended that Resident 2 be transferred to a facility with a higher level of nursing care. The surveyor contacted Resident 2’s personnel physician to advise the doctor about her health status and the advanced state of her pressure sores. After making that call, the surveyor was unable to get Resident 2 to voluntarily go see her physician at the emergency room. Ms. Caso took the position that Resident 2 was receiving appropriate care and refused to initiate discharge proceedings.
Resident 2 required wound care on a daily basis.
Hospice did not perform that care. A hospice nurse visited her on a weekly basis to monitor her condition. A hospice home health aide bathed her three times a week. Respondent’s CNA continued to provide all of her wound care, a task outside the scope of a CNA’s license.
Resident 2’s skin breakdown had become very severe by May 17, 2006. Her admission to Respondent’s facility did not include LNS. Clear and convincing evidence indicates that Resident 2 required a higher level of nursing care for her pressure sores than Respondent provided or was licensed to provide.
Resident 2’s admission to hospice care did not relieve Respondent of the duty to ensure that Resident 2 received appropriate care or, in the alternative, to initiate steps to
discharge her. Respondent’s failure to do so was a class II violation of Tag A509 because it created a direct threat to Resident 2’s health.
The hospice nurse made a weekly visit to Resident 2 in Respondent’s facility on May 23, 2006. The hospice nurse made the following progress notes: (a) patient has been eating three meals a day, consisting of approximately three ounces per meal;
(b) brought out air pressure seat for wheelchair; (c) instructed ALF to use home health aide to give patient bath that is OK and allowed by ALF’s; (d) patient sitting up in wheelchair and feeds self puree diet very slowly; (e) wounds continue to look clean and without signs of infection; (e) see assessment; (f) poor circulation, poor nutritional status, daily wound care once a day; and (g) continue to assess diet, circulation, and wounds once a week and as needed. Resident 2 died a few days after the hospice nurse’s visit.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).
Petitioner has the burden of proving by clear and convincing evidence that Respondent has committed two class II violations, and therefore, is subject to an administrative fine
and a survey monitoring fee. See Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).
Regarding class II violations and their accompanying penalties, Section 400.419, Florida Statutes (2005), as follows in relevant part:
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:
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(b) Class “II” violations are those conditions of occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines directly threaten the physical or emotional health, safety, or security of the facility residents, other than class I violations. The agency shall impose an administrative fine for a cited class II violation in an amount not less than $1,000 and not exceeding $5,000 for each violation. A fine shall be levied notwithstanding the correction of the violation.
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In determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors:
The gravity of the violation, including the probability that death or serious physical or emotional harm to a
resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provision of the applicable laws of rules were violated.
Action taken by the owner or administrator to correct violations.
Any previous violations.
The financial benefit to the facility of committing or continuing the violation.
The licensed capacity of the facility.
Tag A427
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(10) In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility’s biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under s. 400.428(3)(c) to verify the correction of the violations.
Admissions and discharges from ALFs are regulated by Florida Administrative Code Rule 58A-5.0181, the applicable version of which states as follows in pertinent part:
58A-5.0181 Residency Criteria and Admission Procedures.
(1) ADMISSION CRITERIA. An individual must meet the following minimum criteria in order to be admitted to a facility holding a standard, limited nursing or limited mental health license:
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(j) Not have any stage 3 or 4 pressure sores. A resident requiring care of a stage
2 pressure sore may be admitted provided that:
The facility has a LNS license and services are provided pursuant to a plan of care issued by a physician, or the resident contracts directly with a licensed home health agency or a nurse to provide care;
The condition is documented in the resident’s record; and
If the resident’s condition fails to improve within 30 days, as documented by a licensed nurse or physician, the resident shall be discharged from the facility.
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(n) Have been determined by the facility administrator to be appropriate for admission to the facility. The administrator shall base the decision on:
An assessment of the strengths, needs, and preferences of the individual, and the medical examination report required by Section 429.26, F.S., and subsection (2) of this rule;
The facility’s admission policy, and the services the facility is prepared to provide or arrange for to meet resident needs; and
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CONTINUED RESIDENCY. Criteria for continued residency in a facility holding a standard, limited nursing services, or limited mental health license shall be the same as the criteria for admission, except as follows:
The resident may be bedridden for up to 7 consecutive days.
A resident requiring care of a stage 2 pressure sore may be retained provided that:
The facility has a LNS license and services are provided pursuant to a plan of care issued by a physician, or the resident contracts directly with a licensed home health agency or a nurse to provide care;
The condition is documented in the resident’s record; and
If the resident’s condition fails to improve within 30 days, as documented by a licensed nurse or physician, the resident shall be discharged from the facility.
A terminally ill resident who no longer meets the criteria for continued residency may continue to reside in the facility if the following conditions are met:
The resident qualifies for, is admitted to, and consents to the services of a licensed hospice which coordinates and ensures the provision of any additional care and services that may be needed;
Continued residency is agreeable to the resident and the facility;
An interdisciplinary care plan is developed and implemented by a licensed hospice in consultation with the facility. Facility staff may provide any nursing service permitted under the facility’s license and total help with the activities of daily living; and
Documentation of the requirements of this paragraph is maintained in the resident’s file.
The administrator is responsible for monitoring the continued appropriateness of placement of a resident in the facility.
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DISCHARGE. If the resident no longer meets the criteria for continued residency, or the facility is unable to meet the resident’s needs, as determined by the facility administrator or health care provider, the resident shall be discharged in accordance with Sections 400. 426 [9] and 429.28(1), F.S.
Under the resident bill of rights, a resident of an ALF is entitled to certain relocation or termination of residency notice provisions. These notice provisions do not apply when a resident requires “an emergency relocation to a facility providing a more skilled level of care . . . .” See
§ 400.428(1)(k), Fla. Stat. (2005).
The owner or administrator of an ALF is responsible for determining the “appropriateness of admission of an individual to the facility and for determining the continued appropriateness of residence of an individual in the facility.” See § 400.426(1), Fla. Stat. (2005). The appropriateness of admission and/or continued residency depends on several factors, including but not limited to statutory and rule limitations. Id.
As a general rule, “[a] resident may not be moved from one facility to another without consultation with and agreement from the resident.” Id. However, Section 400.426(9), Florida Statutes (2005), sets forth the procedure to follow when a resident will not agree to transfer to a facility with a higher level of care.
Section 400.426(9), Florida Statutes (2005), states as follows:
If, at any time after admission to a facility, a resident appears to need care beyond that which the facility is licensed to provide, the agency shall require the resident to be physically examined by a licensed physician or licensed nurse practitioner. This examination shall, to the extent possible, be performed by the resident’s preferred physician or nurse practitioner and shall be paid for the resident with personal funds, except as provided in s. 400,418(1)(b). Following the examination, the examining physician or licensed nurse practitioner shall complete and sign a medical form provided by the agency. The completed medical form shall be submitted to the agency within 30 days after the date the facility owner or administrator is notified by the agency that the physical examination is required. After consultation with the physician or licensed nurse practitioner who performed the examination, a medical review team designated by the agency shall then determine whether the resident in appropriately residing in the facility. The medical review team shall base its decision on a comprehensive review of the resident’s physical and functional status, including the resident’s preferences, and not on an isolated health- related problem. In the case of a mental
health resident, if the resident appears to have needs in addition to those identified in the community living support plan, the agency may require an evaluation by a mental health professional, as determined by the Department of Children and Family Services. A facility may not be required to retain a resident who requires more services or care than the facility is able to provide in accordance with its policies and criteria for admission and continued residency.
Members of the medical review team making the final determination may not include the agency personnel who initially questioned the appropriateness of a resident’s placement. Such determination is final and binding upon the facility and the resident. Any resident who is determined by the medical review team to be inappropriately residing in a facility shall be given 30 days’ written notice to relocate by the owner or administrator, unless the resident’s continued residence presents an imminent danger to the health, safety, or welfare of the resident or a substantial probability exists that death or serious physical harm would result to the resident if allowed to remain in the facility.
Hospice organizations may provide care in an ALF pursuant to Section 400.426(10), Florida Statutes (2005), which states as follows:
A terminally ill resident who no longer meets the criteria for continued residency may remain in the facility if the arrangement is mutually agreeable to the resident and the facility; additional care is rendered through a licensed hospice, and the resident is under the care of a physician who agrees that the physical needs of the resident are being met.
In this case, Resident 2 did not meet the requirements for continued residency in Respondent’s facility under Florida Administrative Code Rule 58A-5.0181(4)(b) because she had at least one pressure sore that was stage 3 or stage 4. As a terminally ill hospice patient, Resident 2 could not remain in Respondent’s facility for the following reasons: (a) neither Respondent nor the hospice organization provided Resident 2 with required wound care from an individual who was properly licensed and trained to care for such severe bed sores; (b) there is no evidence of an interdisciplinary care plan that was developed and implemented by the hospice in consultation with the facility; (c) the facility provided wound care that it was not licensed to provide, using a CNA to provide services beyond the scope of his license; and/or (d) the facility failed to maintain documentation in Resident 2’s file regarding Resident 2’s hospice care, including but not limited to, the care plan. See Fla. Admin. Code R. 58A-5.0181(4)(c).
The evidence is clear and convincing that Resident 2’s continued residency in Respondent’s facility was not appropriate on May 17, 2006. When Resident 2’s pressure sores were no larger than a stage 2, Respondent did not comply with the requirements of Florida Administrative Code Rule 58A- 5.0181(4)(b). When Resident 2 developed a stage 3 or stage 4 bed sore, Respondent refused to take whatever steps were
necessary to have Resident 2 re-evaluated by her physician, to initiate discharge proceedings, and to facilitate her transfer to a skilled-nursing facility.
Resident 2 was not an appropriate patient to receive hospice services in Respondent’s facility when her medical needs exceeded the scope of Respondent’s license and neither hospice nor Respondent made arrangements for a qualified professional to provide daily wound care. Respondent never attempted to correct the class II violation before Resident 2’s death at the end of May 2007. Respondent is subject to a $1000 administrative fine for failing to follow the requirements Florida Administrative Code Rule 58A-5.0181(5). See § 400.419(2)(b), Fla. Stat. (2005).
Tag A626
An ALF’s staff may prepare pill organizers for residents to use when self-administering medication. See Fla. Admin. Code R. 58A-5.0185(2). A pill organizer is “a container which is designed to hold solid doses of medication and is divided according to day and time increments.” See Id.
While ALF staff are allowed to transfer a pill from a prescription bottle to a pill organizer, the staff is not allowed to transfer the contents of one prescription bottle to another. Florida Administrative Code Rule 58A-5.0185(7) provides as follows in relevant part:
(7) MEDICATION LABELING AND ORDERS.
No prescription drug shall be kept or administered by the facility, including assistance with self-administration of medication, unless it is properly labeled and dispensed in accordance with Chapters 465 and 499, F.S., and Rule 64B16-28.108,
If a customized patient medication package is prepared for a resident, and separated into individual medicinal drug containers, then the following information must be recorded on each individual container:
The resident’s name; and
Identification of each medicinal drug product in the container.
Except with respect to the use of pill organizers as described in subsection (2), no person other than a pharmacist may transfer medications from one storage container to another.
The prohibition against transferring prescription medicine from one original prescription container to another makes no exception for tablets of different shapes and colors for the same medicine from different manufacturers.
Ms. Caso stated during the hearing that she has implemented policy to correct this violation. She reprimanded her staff and instructed them as follows: (a) empty prescription bottles should not be thrown away; (b) medicine removed from a pill organizer but refused by a resident should not be replaced in the prescription bottle; and (c) medicine from two different prescription bottles should not be combined
under any circumstance. Additionally, Ms. Caso is in the process of hiring a pharmacist to fill pill organizers and to review the medication administration records on a bi-weekly basis.
Clear and convincing evidence indicates that Respondent’s staff committed a class II violation of Florida Administrative Code Rule 58A-5.0185(7)(b) when they mixed the contents of two prescription bottles of Resident 2’s Metoprolol. Respondent is subject to an administrative fine in the amount of
$1,000 pursuant to Section 400.419(2)(b), Florida Statutes (2005).
Survey Fee
The record clearly establishes that Respondent is guilty of two class II violations. Petitioner is entitled to assess a monitoring fee in the amount of $500 under Section 400.419(10), Florida Statutes (2005).
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That Petitioner enter a final order finding that Respondent is guilty of two Class II violations and imposing an administrative fine in the amount of $2,000 and a survey fee in the amount of $500.
DONE AND ENTERED this 20th day of March, 2007, in Tallahassee, Leon County, Florida.
S
SUZANNE F. HOOD
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 20th day of March, 2007.
COPIES FURNISHED:
Gerald L. Pickett, Esquire
Agency for Health Care Administration Sebring Building, Suite 330K
525 Mirror Lake Drive, North St. Petersburg, Florida 33701
Christal Caso, Owner
Caso, Inc., d/b/a Paradise Manor II
435 Greenleaf Square
Port Orange, Florida 32127
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3
Tallahassee, Florida 32308
Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116
2727 Mahan Drive, Mail Station 3
Tallahassee, Florida 32308
Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431
2727 Mahan Drive, Mail Stop 3
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 |
|---|---|---|
| Apr. 23, 2007 | Agency Final Order | |
| Mar. 20, 2007 | Recommended Order | Respondent is guilty of two class 2 violations and therefore is subject to an administrative fine in the amount of $2,000, and a survey fee in the amount of $500. |
