Findings Of Fact Upon consideration of the oral and documented evidence adduced at the hearing, the following relevant facts are found: In General Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the state of Florida, having been issued license number ME 0016786. On February 27, 1984, Florida Medical license of the Respondent was suspended for a period of one year in Department of Professional Regulation vs. Teotimo D. Bonzon, M.D., Case Number 82-799. At all times material to this proceeding, Respondent was the primary care physician for Mary T. Upton, a patient with a history of bronchial asthma. Valium On January 11, 1985 the patient, Mary T. Upton, developed onset of acute respiratory distress and was seen by the Respondent, first in his office and then as an outpatient. On the second occasion, Respondent gave the patient valium, a Schedule IV Controlled Substance. On January 12, 1985, Upton was admitted to Methodist Hospital of Jacksonville, Florida, with a complaint of Acute Asthmatic Bronchitis. Bronchial Asthma is a condition that affects the respiratory drive. Valium relaxes the muscles and sedates the central nervous system and respiratory drive of a person and, as such, is not a drug to be administered in an outpatient setting under the circumstances that Respondent administered valium to Upton. Theo-Dur After admission and initial treatment, the patient continued to experience respiratory distress, and the Respondent was notified. Respondent ordered the drug Theo-Dur to be given orally. This was after Upton was given Theophylline, but before she was stabilized on Theophylline. Theo-Dur is a long sustained action form of Theophylline, which takes twelve hours to have an appreciable affect and, as such, is used primarily for maintenance and should not be used in acute situations such as Upton's until the patient is stabilized. Theophylline At the time Upton was admitted to the hospital on January 12, 1985 and Respondent started her on Aminophylline (also called Theophylline I.V.), Respondent was aware of Upton's previous use of medication containing Theophylline for her asthma condition and that she had a prescription to obtain such medication. Although Respondent was aware of Upton's previous use of medication containing Theophylline, Respondent did not inquire of Upton, or in any other manner determine, if she had ingested any form of Theophylline before administering the Aminophylline I.V. upon admission to the hospital on January 12, 1985. Upton had taken Theophylline before the Theophylline I.V. was administered. It is the recognized standard of care for a physician to obtain the level of Theophylline in the patient's body before administering Theophylline and, to periodically check the level of Theophylline to assure the best therapeutic level is achieved. Upton was on the hospital floor at approximately 11:20 a.m. on January 12, 1985 and the first time a physician ordered the Theophylline level checked was between 4:00 p.m. and 5:00 p.m. on January 12, 1985 after Respondent consulted with Dr. Libao. Before the Theophylline level was checked, Respondent had already administered Theo-Dur. Toxicity of Theophylline occurs when the content of the blood exceeds 20 milligrams per 100cc and any level over the 20 milligrams per 100cc may cause the patient to have gastrointestinal side affects such as nausea, vomiting and nervousness which may be life threatening. Respondent's failure to monitor the Theophylline level resulted in the patient receiving a toxic level of 24 milligrams per 100cc of Theophylline; however, there was no evidence that Upton suffered any side affects. D. Thoracostomy On January 17, 1985, routine chest x-rays confirmed a pneumothorax in Upton's left lung which was reported to the Respondent by the radiologist, Dr. Victor Saenz, by telephone between 10:00 a.m. and 11:00 a.m. on January 17, 1985. Without reviewing the x-rays, Respondent proceeded to treat the left pneumothorax with a chest tub (or Thoracostomy) in Upton's right lung. There was sufficient time to review the x-rays since the Thoracostomy was not performed until between 2:00 p.m. and 3:00 p.m. on January 17, 1985. Respondent did not order follow-up x-rays the day of the surgery to determine the effectiveness of the surgery. It is accepted medical practice for the physician, particularly a surgeon who performs an invasive procedure such as a thoracostomy, to order x- rays immediately following the surgery to make sure the procedure is working By placing the chest tub in the wrong side of the lung, Respondent created a situation wherein another pneumothorax might occur; however, by removing the chest tub from the right lung and placing it in the left lung alleviated this possibility. Respondent failed to realize that the chest tub had been placed in the wrong side of the lung (the right side) until the morning of January 18, 1985 when he was advised by the nurse that Upton had a pneumothorax on the left side rather than the right side where the chest tub had been placed by Respondent. Respondent's error was discovered as a result of routine x-rays performed by Dr. Walkett at 7:45 a.m. on January 18, 1985, the day following surgery. These follow-up x-rays also revealed Subcutaneous Emphysema throughout Upton's chest. Placing the chest tub in the right lung will not re-expand the left lung. Upon being informed of his error, Respondent proceeded to the hospital and removed the chest tub from Upton's right lung and placed it in her left lung. As a result of Respondent's error, Upton's heart beat increased around 3:00 a.m. on January 18, 1985 causing cardiac distress. Allergies At the time of the patient's admission it was noted that she was allergic to iodine. However, Respondent having treated Upton for some time prior to this admission, had knowledge that she was not allergic to iodine. Prior to the Thoracostomy and Tracheostomy, Respondent used Betadine scrub on Upton. Betadine contains iodine. Other solutions are readily available at Methodist Hospital that are not iodine-based. Tracheostomy On January 17, 1985 at or about the same time he performed the Thoracostomy, the Respondent performed a surgical procedure known as a Tracheostomy on Upton. Following the Tracheostomy, performed by the Respondent, the patient's condition did not improve and she continued to experience complications, including Subcutaneous Emphysema. Subcutaneous Emphysema occurs when air pockets form under the patient's fat tissue layer which cause swelling and can compromise the patient. On January 18, 1985, the Respondent's temporary admitting and consultation privileges at Methodist Hospital were suspended in a letter from Dr. Wallace Walkett, the president of the Medical and Dental Staff. The treatment of Upton was turned over to other physicians. Dr. Frederick Vontz, a Board Certified Cardiovascular and Thoracic Surgeon was called in by Dr. Walklett to repair the problems with Upton's trachea. When Dr. Vontz first saw Upton she was in moderate to severe distress and her body was swollen from the Subcutaneous Emphysema. On January 26, 1985, Dr. Vontz performed a Bronchoscopy on Upton that showed granulation tissue, which is scar tissue that may be an obstacle to breathing. The cause of this granulation tissue was the tracheostomy procedure performed by Respondent. Due to Upton's difficulty in breathing and the continuing Subcutaneous Emphysema, she was taken to the operating room on January 31, 1985. In the operating room, Dr. Vontz discovered a tear in the trachea that extended to six and one-half centimeters above the carina. Dr. Vontz also discovered that the air causing the Subcutaneous Emphysema was escaping from a false channel in the trachea. The damage to the posterior wall of the patient's trachea was caused by the improper tracheostomy procedure performed by Respondent on January 17, 1985. Upton died at 12:00 noon on March 6, 1985 and, although there is evidence that the tear in Upton's trachea may have contributed to Upton's death, there is insufficient evidence to show that it was clearly the sole cause of Upton's death. The record is clear that the level of care, skill and treatment provided Upton by the Respondent, fell below that which would be recognized as being acceptable under similar conditions and circumstances by a prudent similar physician.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses, and Rule 21M- 20.001(2), Florida Administrative Code, it is, therefore RECOMMENDED that the Board enter a Final Order suspending the Respondent, Teotimo D. Bonzon's license to practice medicine in the state of Florida for a period of two (2) years with condition for reinstatement determined by the Board as it deems appropriate. RESPECTFULLY SUBMITTED and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-3022 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner In General 1.-4. Adopted in Findings of Fact 1-4. Valium 1.-4. Adopted in Findings of Fact 5, 8, 7 and 6, respectively. Theo-Dur 1.-2. Adopted in Findings of Fact 9 and 10. Theophylline 1.-2. Adopted in Findings of Fact 11 and 13, respectively. 3.-4. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Findings of Fact 12 and 16. 7.-8. Adopted in Findings of Fact 12 and 17, respectively. Thoracostomy 1.-4. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. 7.-8. Adopted in Finding of Fact 19. Adopted in Finding of Fact 21. Adopted in Finding of Fact 20. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 26. 15.-l6. Adopted in Finding of Fact 27. 17. Adopted in Finding of Fact 25. Allergies 1.-2. Adopted in Findings of Fact 28 and 29. 3. Rejected as not being material or relevant. Tracheostomy 1.-9. Adopted in Findings of Fact 31-39 Unnecessary in reaching a conclusion in this case. Adopted in Finding of Fact 40. 12.-13. Subordinate to facts actually found in the Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent A. General 1.-3. Adopted in Findings of Fact 2, 1 and 4, respectively. B. The Use of Betadine 1. Adopted in Finding of Fact 28, but clarified. Theophylline Adopted in Finding of Fact 9, but clarified. Adopted in Finding of Fact 13 that Respondent had ordered Theophylline intravenously before checking the Theophylline level in the patient. Theo-Dur Rejected as not supported by substantial competent evidence in the record. Valium Rejected as not supported by substantial competent evidence in the record. Thoracostomy Adopted in part in Findings of Fact 18-27, otherwise rejected. Tracheostomy Adopted in Finding of Fact 31, but modified. Adopted in Finding of Fact 34. Adopted in Findings of Fact 24, 32 and 33, but modified. Adopted in Finding of Fact 36. The first sentence and the first phrase of the second sentence are adopted in Findings of Fact 38 and 39. The balance is rejected as being a restatement of testimony rather than a finding of fact. However, even if the last sentence was stated as a finding of fact, it would be rejected as not being supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. COPIES FURNISHED: MARK A. SIERON, ESQUIRE POST OFFICE BOX 855 ORANGE PARK, FLORIDA 32067 JOHN R. WEED, ESQUIRE 605 SOUTH JEFFERSON STREET PERRY, FLORIDA 32347 STEPHANIE A. DANIEL, ESQUIRE CHIEF ATTORNEY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 KENNETH D. EASLEY, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 DOROTHY FAIRCLOTH, EXECUTIVE DIRECTOR BOARD OF MEDICINE 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 =================================================================
The Issue The central issue in this case is whether proposed amendments to Rule 59G- 4.200, Florida Administrative Code, are invalid.
Findings Of Fact In 1993, the Florida legislature directed the Agency for Health Care Administration to implement a pressure ulcer therapy program for nursing home patients. The agency's legislative budget request for fiscal year 1993-94 sought funding for a pressure ulcer therapy program for eligible nursing home patients and estimated that 711 patients at a cost of $6,091,137 would utilize the program. A pressure ulcer is commonly known as a "bed sore." It is a loss in the integrity of the epidermis and is ranked, in stages, according to the severity of the sore. A stage I ulcer is a reddening or erythema of the skin. A stage II pressure ulcer includes an interruption of the epithelium in the surface lining of the skin. A stage III ulcer involves a deeper interruption of the epidermis, into the fatty layers of the skin. And a stage IV pressure ulcer extends to the bone or muscle, totally interrupting the surface of the skin. The rule which is the subject of this challenge, proposes reimbursable nursing home services for persons with stage III, stage IV, or multiple (three or more) stage II pressure ulcers. The nursing home facility must provide documentation that the resident meets the criteria established for the supplemental payment. The proposed rule provides that reimbursement is only available for the use of an "air fluidized therapy bed." An "air fluidized therapy bed" is defined by the proposed rule as "a support device that uses a high flow rate of air to fluidize a fine particulate material such as sand to produce a support medium that has characteristics very similar to a liquid." Generally, air fluidized therapy, also called "high air loss therapy," consists of a tublike chamber with a bottom surface and a blower that pushes air through ceramic or silicon beads. A top sheet covers the beads such that the patient, lying directly on the sheet, is supported by the floating beads. The beads circulate in a bath of warm air and maintain a very low support surface pressure against the patient. The therapy is described as "high air loss" because of the volume of warm air which escapes around the patient. Air fluidized therapy was originally developed to treat burn patients. The technology has proven beneficial with skin grafts or skin flaps. The Petitioner, Lumex, Inc., manufactures and markets various medical products including a "low air loss" therapy bed and mattress. The Petitioner, B & P Medical, Inc., is a medical equipment distributor based in Florida dealing with "low air loss" therapy beds. "Low air loss" therapy beds utilize a different technology from the air fluidized system described above. The system manufactured by Lumex and distributed by B & P is a bed or portable mattress with individual air cushions designed in zones. A true low air loss product should have a minimum of five zones. The Lumex 4000 consists of eighteen individual air cells and has six zones which are microprocessor controlled. The air pressure in each zone can be increased or decreased, depending on the patient's need. The billowing of the zonal pillows causes the reduced surface pressure to the patient. Generally, this pressure is "below capillary closing." Both low air loss and air fluidized systems are used in the treatment of pressure ulcers. Since approximately 31 percent of all nursing home patients suffer from some degree of pressure ulcer formation, effective treatments are needed. Among additional treatment options are: turning the patient regularly; providing adequate nutrition; dressing wounds properly; and keeping the wound bed clean. Although both technologies are used, the low air loss system is used more in Florida. The low air loss system is lighter in weight than the air fluidized systems, and requires no additional nursing home staff to implement for a patient. An air fluidized system requires additional staff as patients are lowered into and raised out of the mechanism. The costs associated with such staff may result in higher daily rates. As a result, such daily rates may be higher than necessary if the low air loss services were otherwise reimbursable. Additionally, the rates for reimbursement of the air fluidized systems are higher than for the low air loss system. To date, there is no definitive study to verify which treatment system will render better care to a pressure ulcer patient. In fact, some patients do not improve despite the treatment provided as even the best therapies used may not heal all pressure ulcers. Aetna, the largest intermediary in the United States for Part A reimbursement under the Medicare Program, has defined "low air loss therapy" to be reimbursable under Part A. Pursuant to such definition, the Lumex product at issue in this proceeding is reimbursable under Part A. Additionally, two states have accepted the Lumex Akrotech 4000 for reimbursement under Medicaid. Medicare does not pay for the use of air fluidized systems in nursing homes. The proposed rule would eliminate Lumex from the Florida Medicaid market. As a result, B & P would expect to lose approximately one-third of its business, a substantial portion of its revenue.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petitioner's application for a clinical laboratory supervisor's license without examination be DENIED. Respectfully submitted and entered this 15th day of August, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Joan Marie Bartoe 1 Plaza Manor Venice, Florida 33595 Anthony DeLuccia District VIII Counsel Department of HRS Post Office Box 2258 Ft. Myers, Florida 33902 Secretary David H. Pingree Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether the Agency for Health Care Administration (AHCA or Agency) was entitled to change the rating of Gulf Coast Convalescent Center (Gulf Coast) from Standard to Conditional.
Findings Of Fact Gulf Coast is a nursing home located in Panama City, Florida, which is duly licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency which licenses and regulates nursing homes in the state. As such, it is required to evaluate nursing homes in Florida, pursuant to Section 400.23(8), Florida Statutes. AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of Standard or Conditional to each licensee. In addition to its regulatory duties under Florida law, the Agency is the state "survey agency" which, on behalf of the federal government, monitors nursing homes which receive Medicaid or Medicare funds. Ms. Bonnie Cile Baxter is employed by AHCA in the Division of Managed Care and Health Quality Assurance, Area Two. She is a registered nurse specialist and a graduate of the Florida State University School of Nursing. She has been a registered nurse for 27 years. She currently conducts surveys of nursing homes as required by state and federal law in AHCA's Area Two. Ms. Baxter visited Gulf Coast while conducting a licensure survey report. The survey began on March 13, 2000, and ended on March 15, 2000. As a result of the survey, a Statement of Deficiencies was issued on March 15, 2000. This report is referred to as a TAG 314. The report alleged Class II deficiencies. A Class II deficiency occurs when the outcome of the resident care directly affects the health, safety, or security of the resident. The TAG 314, set forth on a "2567" form, entered into evidence as Petitioner's Exhibit 1, is, in effect, the charging document. The residents to be checked were determined off-site by AHCA, prior to the survey. The information used to make these decisions was provided by the facility. The focus of the survey was pressure sores and nutrition and the four residents who were observed are referred to as Residents 16, 26, 22, and 15. Resident 16 Resident 16 was approximately 75 years of age. Ms. Baxter observed Resident 16 on March 13, 2000 at 9:00 a.m. Ms. Baxter observed that Resident 16 had a stage IV pressure sore. Pressure sores are evaluated in stages, beginning with stage I; a stage IV is the worst stage. A stage IV pressure sore may be open or closed, and it involves more than just the outer skin. A stage IV pressure sore involves severe damage to tissue. When evaluating the treatment of a resident with pressure sores, the evaluator observes the assessment and care plan and determines whether nutritional considerations have been addressed. The plan is evaluated to determine if it is sufficiently aggressive. What is implemented depends on the resident's need and the resident's desire. If the resident is incompetent to determine what care the resident wishes to accept, then a guardian may make the determination. Resident 16 was unable to make cognitive choices. Kimberly Roland, the Special Services Director at Gulf Coast at the time of the survey tried to contact Developmental Services of the Department of Children and Family Services with regard to a care plan for Resident 16 but the Agency asserted that it did not get involved with medical decisions. Ms. Baxter also tried, unsuccessfully, to determine who was authorized to make medical decisions on behalf of Resident 16. Resident 16 had been admitted to Gulf Coast on September 16, 1999. Facility staff noted that Resident 16 was first observed with a stage I pressure ulcer on February 1, 2000. The care plan developed by the facility in the case of Resident 16 did not facially address the pressure sore problem because it lacked specificity. Excellent nutrition serves to prevent pressure sores and to promote their healing. During the period subsequent to February 1, 2000, Resident 16 was without dentures, and this negatively affected her ability to ingest the type of foods which would address Patient 16's nutritional needs. There were discrepancies in Exhibit's 5, 7, and 8. Exhibit 5, which memorialized a one-time visit with a physician from Bay Psychiatric Services on February 12, 2000, indicated that Resident 16 did not exhibit symptoms of tardive dyskinesia, yet Exhibit 7 indicates that Resident 16 could not wear dentures because of involuntary movements related to tarsive dyskenesia on February 23, 2000. Exhibit 8, nurses' notes, indicate the presence of tardive dyskenesia involving movements of the tongue and body on January 27, 2000. Petitioner's Exhibit F demonstrated that Resident 16 had tardive dyskenesia symptoms, which resulted from long-time Mellaril use. The symptoms reported included involuntary movements of the tongue, which precluded the use of dentures. These involuntary movements were present on September 19, 1999. Mr. Gilliland, a licensed practical nurse with many years' experience working in nursing homes, stated he noticed that Resident 16 manifested involuntary movements of the tongue and body in December, 1999. If a person has tardive dyskenesia, it may preclude the utilization of dentures. The disappearance of Resident 16's dentures indicated a deficiency in security procedures but even if Resident 16 had dentures available, Resident 16 could not masticate hard food. Resident 16 had been on a mechanical soft diet prior to January 20, 2000. Subsequently, when Resident 16 no longer had the ability to masticate food, Resident 16 was put on a pureed diet. Resident 16's condition was the subject of an "at risk" meeting by the facility staff on February 15, 2000. Subsequently, Resident 16's nutritional needs were addressed with an enhanced diet. Resident 16 was provided with multi- vitamins and milkshakes twice a day in addition to other food. From February to March 2000, Resident 16 lost weight. The facility staff's efforts to provide Resident 16 with proper nutrition were appropriate under the circumstances. The first pressure sore on Resident 16 was found on February 1, 2000, and it was already a stage II without drainage. On February 18, 2000, the sore had advanced to a stage III and an additional pressure ulcer had formed on Resident 16's hip. This latter ulcer was also a stage II. By February 25, 2000, the ulcer on the hip changed to stage III and there was some draining. Subsequent to the inception of the ulcers, Resident 16 had been placed on a pressure reduction mattress. On March 3, 2000, more frequent turning was ordered by her attending physician. Mr. Gilliland observed that Resident 16 was mentally incapable of decision-making. Mr. Gilliland spent a lot of time with Resident 16. He was emotionally attached to Resident 16 who, to him, ". . . was like a little child." He spent a lot of time with Resident 16, kept Resident 16 clean and dry, and turned her frequently. At the time of the survey, the representatives of the state insisted that Resident 16 be fed through a tube. Dr. Haslam, Resident 16's physician, would not have ordered tube feeding had not the surveyors insisted that it be done. Resident 16 objected when Mr. Gilliland put the feeding tube in her nose. Resident 16 removed the tube. Mr. Gilliland put the tube in three or four times. Each time, Resident 16 removed it. When Dr. Haslam was informed of this, he told Mr. Gilliland that he could discontinue using the feeding tube. Resident 16 ate until two days before she died. When Resident 16 was admitted to Gulf Coast on September 3, 1999, Resident 16 could ambulate with assistance and was incontinent of bladder and bowel. By the time of the survey, Resident 16 could not walk at all and was bladder and bowel incontinent. At the time of the survey, and for several months before the survey, Resident 16 was bowel and bladder incontinent, had impaired mobility, and was an insulin-dependent diabetic. Resident 16 had occlusion of the arteries and veins of her lower extremities, which resulted in poor circulation. These are high-risk conditions for pressure wounds. Resident 26 Resident 26 was admitted to Gulf Coast on June 7, 1998. Resident 26 required extensive care with daily living activities and was approximately 83 years old at the time of the survey. On August 14, 1999, a stage I pressure sore was observed on the coccyx of Resident 26. By August 20, 1999, the pressure sore had become a stage II. By October 1999, the pressure sore on the coccyx had become a stage IV, and pressure sores had developed on the Resident 26's knee and on the left heel. Both of these sores were diagnosed as stage II. By November 11, 1999, the pressure sore on the coccyx was causing pain to Resident 26. It was determined on November 16, 1999, that the wound on the coccyx was infected with methicellin- resistant staphylococcus aureus (MRSA). MRSA is a type of infection that is resistant to antibiotics. It is communicable, and it is imperative that it be controlled. Vancomycin is the antibiotic of choice when treating MRSA. Resident 26 was administered Vancomycin and procedures were instituted to determine its effectiveness. The facility's staff determined that it would be best if a PICC line was installed in Resident 26. A PICC line is a method for administering antibiotics intravenously. In the case of Resident 26, records which tracked the status of the MRSA, were inadequate. Resident 26 refused to allow the PICC line to be placed. There is no indication whether Resident 26 refused Vancomycin administered in some other manner. On November 19, 1999, Dr. Ernest Haslam was notified of Resident 26’s refusal to allow installation of the PICC line. This information was not available at the time of the survey. At the time of the survey there were no documents indicating that the infection was being properly tracked or that there was an adequate treatment plan. The care plan for the treatment of Resident 26's pressure sores addressed providing proper nutrition, which included dietary supplements and pressure-relieving devices. Resident 26 was offered a feeding tube but Resident 26 declined. The implementation of the feeding tube was discussed by Resident 26's doctor with Resident 26's family and together they decided not to use it. The nutrition provided for Resident 26 was acceptable under the circumstances. Resident 26 was, at the time of the survey, and for several months before the survey, incontinent of both bowel and bladder. Resident 26's rheumatoid arthritis was so severe that Resident 26 was required to ingest anti-neoplastic drugs, which can kill cells. Resident 26 was admitted with a diagnosis of failure to thrive. Resident 26 was required to take Prednisone, which can contribute to the formation of pressure sores. Resident 26's albumin level was high, and a high albumin level promotes the formation of pressure sores. Resident 26 had a living will and had provided instructions not to resuscitate and resisted necessary treatment. These factors put Resident 26 at a high risk for pressure sores. Resident 22 Resident 22 was 67 years of age upon admission to Gulf Coast on May 12, 1999. Resident 22 had an open surgical wound on the hip upon admission, along with a fractured hip and gastrointestinal bleeding. Resident 22 also was anemic and had cardiovascular disease. On July 7, 1999, Resident 22 had a stage II pressure sore on the right heel, which had been present on admission. On September 2, 1999, it was noted that the left hip was infected and antibiotics were administered. On October 13, 1999, it was noted that Resident 22 had a stage III pressure sore on the right heel and a stage II open area on the right lateral foot. Poor nutrition was not a contributing factor with regard to Resident 22's pressure sores. On May 29, 1999, bilateral profo boots were prescribed for Resident 22, to be used for positioning of the feet while in bed. Dr. Osama Elshazly ordered the use of the profo boots. The use of profo boots was not included in the plan of care. Dr. Elshazly discontinued the use of the boots on January 1, 2000. There was speculation among the facility staff that the profo boots may have contributed to the pressure sores. Resident 22, at the time of the survey, and for several months before the survey, had pressure sore risk factors of diabetes mellitus, end-stage renal disease, coronary artery disease and arteriosclerosis obliterans. This latter condition means that the circulation in Resident 22's lower extremities was poor. Resident 15 Resident 15 is 87 years of age. Resident 15 was admitted to Gulf Coast on September 13, 1994. Upon admission, Resident 15 had ingrown toenails, a deformed left hammer toe, and other medical conditions involving the feet. Resident 15 required extensive assistance from staff in the activities of daily living and received nutritional support in the form of tube feeding. On December 17, 1999, Resident 15 was admitted to the Bay Medical Center due to a cerebrovascular accident, which is commonly referred to as a "stroke." Resident 15 was returned to Gulf Coast on December 23, 1999. After the cerebrovascular accident, Resident 15 was even less mobile and suffered a decline both mentally and medically. On March 1, 2000, Resident 15 was noted as having a pressure sore on her left bunion. Staff informed Ms. Baxter that they believed it occurred because Resident 15 had limited mobility. Resident 15, at the time of the survey and for several months before the survey, had pressure sore risk factors of bowel and bladder incontinence, congestive heart failure, and peripheral vascular disease. Resident 15 was a noninsulin- dependent diabetic.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner not guilty of the alleged deficiencies and reinstating Petitioner's license rating to Standard as of March 15, 2000. DONE AND ENTERED this 27th day of December, 2000, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 27th day of December, 2000. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue Whether Petitioner should have received a passing grade on the Firefighter Minimum Standards Retest taken on November 30, 1998.
Findings Of Fact Respondent, Department of Insurance and Treasurer (Department), through its Division of State Fire Marshall, certifies all paid firefighters. Applicants for firefighters must complete a 360-hour minimum standards training course and pass a written and practical examination. If the applicant fails the examination, the applicant may retake the examination within six months after taking the initial examination. If the applicant does not pass the retest, the applicant must complete the minimum standards training course before additional retesting will be allowed. The examination has two parts, a written and a practical part. The written examination consists of 100 multiple choice questions. The practical portion tests the applicant on skills dealing with breathing apparatus, hose and nozzle operation, and the 24-foot extension ladder. The applicant must receive a score of 70 percent on both portions of the examination in order to pass the examination. In the breathing apparatus section of the practical examination, the applicant is timed during the donning of the equipment. If the applicant does not don the equipment within one minute and thirty seconds, points are deducted from the applicant's score. The number of points deducted increases in proportion to the amount of time it takes to don the equipment. If the applicant dons the equipment in more than one minute and thirty seconds but not more than two minutes, five points are deducted. In the hose and nozzle operation portion of the practical examination, the applicant is timed. If the applicant fails to perform the operation in two minutes or less, points are deducted from the applicant's score. Five points are deducted if the applicant takes greater than two minutes but not over two minutes and thirty seconds. Ten points are deducted if the applicant takes greater than two minutes and thirty seconds but not more than three minutes. The ladder operation portion of the examination is timed. If the applicant takes more than two minutes and thirty seconds but not more than three minutes, five points are deducted. During the practical examination, applicants are required to demonstrate their skills in tying knots and hitches. The applicant is required to tie one of a number of knots or hitches. Applicants are also required to show their proficiency in dealing with fire hoses, hose appliances and various fittings by performing one of a number of functions. Applicants must demonstrate their knowledge of the North American Emergency Response Guidebook by answering three questions using the guidebook a reference. On January 20, 1998, Petitioner, Michelle M. McCue (McCue), applied for certification as a firefighter. She completed the Minimum Standards Course. On July 30, 1998, McCue took the minimum standards examination. She received a score of 81 on the written portion and 55 on the practical examination. She was notified by memorandum dated August 12, 1998, of her scores. By memorandum dated September 3, 1998, McCue was notified that she was scheduled to retake the examination on September 22, 1998. She did not take the examination on that date. By memorandum dated October 5, 1998, McCue was notified that she was rescheduled to retake the practical examination on November 30, 1998. She retook the practical portion on the day scheduled. On the retake examination, five points were deducted from McCue's score because her donning time for the breathing apparatus portion was one minute and fifty-one seconds. She took three minutes during the timed portion of the hose and nozzle operation; thus, ten points were deducted from her score. Five points were deducted from her score because she took two minutes and thirty-five seconds to perform the ladder operation. Five points were deducted from McCue's score for failure to correctly tie a Becket Bend knot. Another five points were deducted from her score for failing to properly connect a supply line into a female pumper intake. Five points were deducted for her failure to properly answer a question using the North American Emergency Response Guidebook. McCue received a final score of 65 on the retake of the practical examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Michelle M. McCue failed the retake of the practical portion of the Minimum Standards Test and that she shall be required to repeat the Minimum Standards Course before taking any further examinations. DONE AND ENTERED this 8th day of October, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 8th day of October, 1999. COPIES FURNISHED: Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Shiv Narayan Persaud, Esquire Department of Insurance Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Michelle M. McCue 4801 Northwest 26th Avenue Tamarac, Florida 33309
Findings Of Fact Sobel has applied for a license under the provisions of the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, as a Laboratory personnel supervisor in the speciality of Chemistry, Respiratory Therapy. On August 23, 1977, Sobel was notified by HRS that his application was denied because he lacked a degree in Respiratory Therapy or in the alternative that he lacked seven years experience in Chemistry (special). On September 2, 1977, Sobel requested an administrative hearing. Sobel has been given credit by HRS for six years experience in Chemistry (special). Long Island University, Sobel's alma mater, conducts a respiratory therapist program of at least two years duration. This program is accredited by the Council on Medical Education of the American Medical Association. In addition to his Bachelor of Science degree in Physical Education and his Master of Science degree in Health, Science and Physical Education, Mr. Sobel successfully completed the requirements of training in Respiratory Therapy given by Long Island University. In addition, Sobel is a registered Respiratory Therapist with the National Board of Respiratory Therapy, Inc., and has successfully completed the written registry examination for self assessment administered by the National Board for Respiratory Therapy. HRS recognizes that fourteen hours of Sobel's curriculum as reflected in his transcript of grades qualifies under the suggested basic units of instruction for a two year respiratory therapist program contained in the Allied Medical Directory. These general areas of study form the basis, in part, of accreditation by the Council on Medical Education of the American Medical Association.
Findings Of Fact Mr. Young has been employed full-time in the field of respiratory care since 1977. He completed training as a respiratory therapy technician at Miami Dade Community College in December, 1977. Mr. Young completed the registry examination of the National Board for Respiratory Care in December, 1985, and became a Registered Respiratory Therapist. This professional title can be somewhat confusing, however, because under the Respiratory Care Act, Section 468.35, Florida Statutes, et seq., it is necessary to apply for registration with the Advisory Council on Respiratory Care to practice as a respiratory therapist. Mr. Young's application for registration as a statutory respiratory therapist by endorsement under Section 468.358(2), Florida Statutes, has given rise to this proceeding. Mr. Young's application for statutory registration was made in June of 1986. The Advisory Council on Respiratory Care issued a Notice of Intent to Deny the application on February 19, 1987, on the grounds that Applicant falsified the reason for termination of employment on his application. Applicant was terminated for being addicted to pain medication and forging prescriptions. See Section 468.365(1)(a), (g), (x), and 468.365(2), Florida Statutes. Applicant is denied without prejudice to reapply for licensure in two years. It is undisputed that Mr. Young meets the education and training requirements for registration as a statutory respiratory therapist. Mr. Young sought a hearing on this denial and in the prehearing stipulation the parties agree the issues of fact are whether Mr. Young's application contained false information amounting to fraudulent misrepresentation, whether he is chemically dependent, and whether his past conduct is cognizable under Section 368.365(1)(g), Florida Statutes. Question 5 on page 3 of the application submitted by Mr. Young, for registration by endorsement as a respiratory therapist, asks Have you ever been terminated, disciplined or allowed to resign from any employment setting where you were employed to deliver respiratory care services? Yes No If "yes", give name of employer or institution, date and reason for such action. Mr. Young answered "yes" and gave as his response "Coral Reef Hospital, January 7, 1983, Seizure Disorder." On the same page of the application Mr. Young stated that he had been addicted to or excessively used alcohol, narcotics, barbiturates or other medication and that he had been treated at South Miami Hospital Addiction Treatment Center. In a letter which Mr. Young wrote to the Advisory Council on September 27, 1986, he stated On March 27, 1981, I was admitted to South Miami Hospital Addiction Treatment Program for chemical dependency. I was instructed to attend aftercare for one year. I attended two (2) months of aftercare and stopped. It was at this time I changed jobs and began to work at Coral Reef Hospital. I did however attend Alcoholics Anonymous meetings in South Miami area twice a month. In December of 1982 I had a grand mal seizure due to medication that I was taking. The medication contained Codine. I was admitted to Coral Reef Hospital January 1, 1983 and evaluated for seizure disorder. I was under the care of Dr. Timothy Grant, a Nurologist. I was placed on Dilantin for two (2) years. After I was released from the hospital I was terminated. From what I now/still understand I was terminated as a "high risk. Mr. Young's account is literally true with respect to the grand mal seizure he suffered, but his version is so shaded in his favor as to be seriously misleading. His explanation that he was terminated from employment because he was a "high risk" is partly true. To fully explain the situation it is necessary to go back to the beginning of Mr. Young's chemical dependency. In 1980 Mr. Young had a laminectomy and was given Percodan for pain control. At this time he had been working at South Miami Hospital. Mr. Young became addicted to Percodan, and began going from physician to physician in order to get Percodan prescriptions. Eventually, his supervisor at South Miami Hospital directed him to the hospital's addiction treatment program where he spent 21 days in inpatient care. The program calls for one year of participation in an aftercare program. After he left the inpatient care, he participated in aftercare for no more than four months, but was drug-free. He thereafter had the opportunity to take a better job at Coral Reef Hospital where he began employment in September 1, 1981. He then developed an upper respiratory infection in the summer of 1982 and his physician prescribed Actifed with Codine. He then began the addiction cycle again, and went to different physicians to get Actifed with Codine from them. In addition, he forged prescriptions on a prescription pad to which he had access at Coral Reef Hospital for Actifed with Codine, but listed the prescription in the name of his wife and his daughter. As the result of the Codine he was taking, either due directly to the Codine, or to the activation of some underlying seizure disorder, Mr. Young had a grand mal seizure December 24, 1982, for which he was treated in the hospital emergency room, and another on December 31, 1982, which led to his hospitalization for a seven- day evaluation. He was given Dilantin for seizure control after the second seizure on December 31, 1982. Mr. Young no longer took the Dilantin after about June of 1983. After the December, 1982, seizures Mr. Young began attending Alcoholics Anonymous on a regular basis, i.e. about twice a month, and has regularly attended those meetings since that time. He attended Alcoholics Anonymous meetings because he was more comfortable there than at Narcotics Anonymous, although these self-help programs are almost identical. Returning to Mr. Young's September 26, 1986, letter to the Council, it was seriously misleading to inform the Advisory Council that he had the grand mal seizure in December of 1982 "due to medication that I was taking." Mr. Young did not merely suffer an adverse reaction to over-the-counter medication or something prescribed by his physician, but as the result of physician shopping, and forging prescriptions accessible to him at the hospital where he worked to obtain preparations containing Codine. Moreover, immediately after he was released from the hospital following the second seizure, he was terminated from his position at Coral Reef Hospital. The hospital's record, which he signed, shows a supervisory contact for Use of controlled substances which were not prescribed by a physician. This potential abuse could have been a contributing factor to two syncopal episodes (12/24, 12/31) had while on duty at the hospital. Mr. Young was terminated the same day. It is clear that Mr. Young was not only terminated for the seizures which interfered with his ability to perform his duties as a respiratory therapist, but also for forging prescriptions for controlled substances. Mr. Young's contention that he did not know his termination was based on the illicit use of controlled substances cannot be credited. Mr. Young has had two bouts of chemical dependency, the first resulting from addiction to Percodan in 1980 which led to his treatment at South Miami Hospital where he did not complete the aftercare program, and the second resulting from addiction to Actifed with Codine in the second half of 1982, which he had dealt with by attending Alcoholics Anonymous meetings approximately every other week, but at least twice a month. The testimony of Dr. Roger Goetz for the Advisory Council on Respiratory Care concerning the need for a highly controlled aftercare program for persons to continue practicing health care professions was generally persuasive. After the completion of an inpatient program for drug dependency, the practitioner must complete an extended care program and continue a period of monitoring. Participation in Alcoholics Anonymous or Narcotics Anonymous, while valuable, is not comparable to a structured aftercare program because those programs involve no - monitoring. Indeed, it is against the philosophies of those programs to monitor participants. Health care practitioners are at particularly high risk for relapse into drug dependency because they are surrounded by and have access to drugs in hospital settings and their jobs involve high levels of stress. Particularly, respiratory care practitioners are subject to stress because they are often the only persons on duty in intensive care wards, and they have access to drugs in critical care areas of the hospital. Although Mr. Young did introduce into evidence two drug screenings, there is no indication whether they were announced or unannounced, or whether the collection of the urine sample was witnessed. Two drug screenings performed over a four-month period is insufficient evidence to determine whether the person is drug free. Moreover, for a person to succeed in long-term recovery, the person should attend at least two meetings of an organization such as Alcoholics Anonymous or other aftercare program each week. Attending one or two meetings a month as Mr. Young has done is "skating on very thin ice" (Tr. 118). The report of the psychiatric evaluation performed by Arthur T. Stillman, M.D., a diplomate of the American Board of Psychiatry, is entitled to little weight. Dr. Stillman did not testify, and it is impossible to determine the accuracy of the information contained in his report, since he was not subject to cross-examination. Similarly, testimony of Gloria Gross does not play an important part in the evaluation of Mr. Young's ability to practice respiratory therapy safely. While he may have been a good employee while a teacher of respiratory care services at Flagler Career Institute since September, 1983, and may generally have a good reputation in the community, that provides very little in the way of predicting whether Mr. Young will be able to deliver respiratory care services with reasonable skill and safety to patients due to Mr. Young's history of addictions.
Recommendation It is recommended that the current application of Mr. Young for registration as a statutory respiratory therapist be denied, but that upon entry into a structured aftercare program with monitoring, Mr. Young be eligible to reapply for licensure after one year's successful participation in such a program. DONE AND ORDERED this 18th day of December, 1987, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2641 The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 17 Covered in finding of fact 17. Covered in finding of fact 17. Covered in finding of fact 17. Covered in finding of fact 6. Covered in finding of fact 6. While true, rejected as unnecessary. Rejected. See finding of fact 12. Covered in finding of fact 10. Covered in finding of fact 10 and 12. Rejected for the reasons given in the rulings on documentary evidence. Rejected. See finding of fact 12. Covered in finding of fact 14 and 15. Rejected as unnecessary. Rejected as unnecessary. Rejected because the underlying facts have not been proven, i.e. there is insufficient proof that Mr. Young has actually been drug free for four years, and while he is regularly attending AA meetings, he has not been attending as regularly as the testimony of Dr. Goetz shows is appropriate. Rejected because I am not satisfied that the grand mal seizure resulted in any memory loss to Mr. Young. Rejected as unnecessary. Rulings on Respondent's Proposed Findings: Covered in finding of fact 3. Covered in finding of fact 3. Rejected as unnecessary. Covered in finding of fact 6. Covered in finding of fact 7. Generally covered in findings of fact 8, 10 and 13. Rejected as argument, not a finding of fact. Generally accepted in finding of fact 12. Rejected as argument, not a finding of fact. Rejected as constituting argument, rather than findings of fact. Generally covered in findings of fact 14 and 15. While some monitoring of a person in Mr. Young's position is appropriate, the Hearing Officer is not convinced of the need for lifetime monitoring, nor certain what the intensity of the "lifetime monitoring" Dr. Goetz referred to would be. To condition professional licensure based on lifetime monitoring, rather than monitoring for a period such as one year, is not warranted by this record. Covered in finding of fact 15. Covered in finding of fact 16. Covered in finding of fact 17 to the extent necessary and relevant. COPIES FURNISHED: Rosanne Brady, Esquire 2030 Douglas Road, No. 21 Coral Gables, Florida 33134 M. Catherine Lannon, Esquire Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neill, Esquire Gereral Counsel Department of Professional Regulation Tallahassee, Florida 32399-0750
The Issue In DOAH Case No. 04-0025, the issue is whether the Agency for Health Care Administrative (AHCA) correctly assigned conditional licensure status to Lady Lake NH, L.L.C., d/b/a/ Lady Lake Specialty Care Center (Lady Lake) for the period of August 26, 2003, through October 3, 2003. In DOAH Case No. 04- 1065, the issues are as follows: (a) whether Lady Lake committed a violation of 42 C.F.R. Section 483.25, as it relates to care of patients with or who develop pressure sores; (b) whether Lady Lake committed a violation of 42 C.F.R. Section 483.75, as it relates to clinical records; and (c) if so, what, if any, penalty should be imposed.
Findings Of Fact AHCA is the agency that is responsible for licensing nursing homes and for enforcing Chapter 400, Part II, Florida Statutes, and Florida Administrative Code Chapter 59A-4. This includes enforcement of federal nursing home regulations in the Code of Federal Regulations specifically referenced in this case. Lady Lake owns and operates Lady Lake Specialty Care Center (the facility), a 120-bed skilled nursing facility located in Lady Lake, Florida. The facility operates under license # SNF130470994. At all times material here, the facility was licensed under AHCA's authority. Accordingly, the facility was required to comply with all applicable statutes, rules, and regulations. The facility is a long-term care provider under Medicaid and Medicare. As such, it is subject to federal regulation relating to compliance with 42 CFR Section 483. AHCA has the statutory authority and mandated duty, pursuant to Section 400.23(7), Florida Statutes, to evaluate all nursing homes facilities periodically (at least every 15 months). After each such evaluation, AHCA must assign a licensure status of "standard or conditional" to each licensee. On or about August 26, 2003, AHCA conducted a monitoring survey at the facility. As a result of the survey, AHCA cited the facility for a quality of care deficiency. AHCA based the deficiency upon finding of an alleged lack of proper care of one male resident (hereinafter referred to as "the resident"). More specifically, the citation was for an alleged violation of 42 CFR Section 483.25(c), which pertains to quality of care as it relates to pressure sores. A violation of 42 CFR Section 483.25(c) is commonly referred to as a Tag F-314 deficiency. AHCA determined that the scope of the Tag F-314 deficiency was isolated. AHCA also determined that the nature of the Tag F-314 deficiency was a Class II violation. Pursuant to leave granted, AHCA also charged Lady Lake with violating 42 CFR Section 483.75(l)(1), and/or Section 400.141(21), Florida Statutes, by failing to properly document treatment and care. This violation is commonly referred to as a Tag F-514 deficiency. AHCA determined that the scope of the Tag F-514 deficiency was isolated. AHCA concluded that the Tag F-514 deficiency was a Class II violation. AHCA assigned conditional licensure status to the facility for the period August 26, 2003, to October 3, 2003. AHCA seeks to impose an administrative fine in the amount of $2,500 for the Tag F-314 deficiency and $2,500 for the Tag F-514 deficiency. Lady Lake admitted the 81-year-old resident to the facility on July 31, 2003. At that time, the resident was severely contracted and bedridden. He had much comorbidity, including but not limited to, severe dementia, severe cardiac disease, peripheral vascular disease, end-stage Parkinson's disease, incontinence, cancer, and diabetes mellitus. The resident was non-verbal, non-ambulatory, and emaciated. The resident's records include a Transfer Summary from the Marion County Hospice, dated July 30, 2003. The Transfer Summary indicates that the resident's legs were contracted, that his skin was intact, and that he was using a low-air mattress. When the resident was a patient at the Marion County Hospice, he suffered a number of pressure sores on his feet and legs and at least one Stage III pressure sore on his coccyx. These pressure sores developed at the hospice even though the resident received appropriate care because they were unavoidable given his physical condition. The resident was at "high risk" for pressure sores. He scored a "9" on the Braden Scale for evaluating such risks. A score below "12" is a "high risk" patient. Pressure sores are classified as follows: (a) in Stage I as a persistent area of skin redness (without a break in the skin) that cannot be blanched and which does not disappear within 30 minutes when pressure is relieved; (b) in Stage II as a partial loss in the thickness of skin layers that presents clinically as an abrasion, blister, or shallow crater; (c) in Stage III as a loss of a full thickness of skin layers, exposing the subcutaneous tissues and presenting a deep crater with or without undermining adjacent tissue; and (d) in Stage IV as missing a full thickness of skin and subcutaneous tissues, exposing the muscle and/or bone. Upon admission to the facility, the resident had a red area on the plantar region of the foot below and toward the outer aspect of the great right toe. This red area was a pressure sore in the initial stage with undetermined damaged below. In fact, the resident could have suffered pressure trauma during transit from the hospice to the facility, causing damage to the foot. The facility's Assistant Director of Admissions (ADON) instructed the admission nurse to document the resident's pressure sore so that the facility would not be blamed. However, the admission nurse did not record the red area as a Stage I pressure sore. Instead, she noted that there was no skin impairment with the exception of a reddened area on the outer aspect of the right great toe. She also noted that sheepskin heel protectors were in place. The first charge nurse to attend the resident on the day of his admissions made the same observations. There is no way to determine at the time of a Stage I pressure sore how much underlying tissue has been damaged and how large the wound may become. A wound may look very small, but within a short period of time become huge because there is underlying tissue damage. Additionally, a reddened area on one spot may surface as an open area somewhere else due to underlying tissue damage. The damaged tissue must be removed before new tissue can fill the wound. Tissue damage equates to tissue death. A pressure sore may unavoidably escalate to a Stage III or Stage IV due to tissue damage beneath the skin. This is especially true in cases where the patient, such as the resident here, has severe peripheral vascular disease and lack of adequate blood supply. The healing of the resident's pressure sore was negatively impacted by its location on the foot. The resident's peripheral vascular disease caused a decreased amount of blood circulation to the foot. Further, the resident was not active and therefore was not achieving a good heart rate, which meant that the cardiac output was low. Cardiac output is important in providing blood with oxygen, hemoglobin, and red blood cells to the wound to assist in the healing process. Between the time that the resident was admitted and August 7, 2003, there was no physician order for specific treatment of the reddened area on the resident's foot. There is no persuasive evidence that any such treatment was required. The Weekly Skin Review dated August 7, 2003, identified the damaged tissue on the resident's foot as a pressure sore. The August 7, 2003, Skin Grid indicates that it was a new site of skin impairment that was not present on admission. The pressure sore was documented as a new site of skin impairment because it was no longer just a reddened area typical of Stage I, but had progressed to Stage II, clearly visible as a black/blue area, 3 cm by 3 cm, with no depth or drainage. On August 7, 2003, the resident's doctor ordered a skin preparation to be applied to his right plantar foot region three times daily. At that point in time, the nurses transferred the order to the Treatment Administration Record (TAR), which is just one of the places that the facility uses to document treatment. On the day it was ordered, the treatment was rendered to the resident one time. This is most likely because the facility had to secure the doctor's order and receive the product from the pharmacy before treatment could begin. On August 8, 2003, the nurses on two shifts recorded the skin preparation treatment on the TAR. On August 9 and 10, 2003, all three shifts noted the skin preparation treatment on the TAR. On August 11, 2003, two nurses noted the skin preparation treatment on the TAR. The third nurse presented credible testimony that she provided the treatment even though she did not record it on the TAR. On August 11, 2003, the doctor issued an order for the pressure sore to be cleaned daily, treated with TAO, and covered with non-stick telfa. The TAR reflects that the nurses changed the dressing once on August 12, once on August 14, twice on August 15, once on August 16, twice on August 18, and once on August 20. However, the greater weight of the evidence indicates that the facility's staff complied with the doctor's orders even through they did not always document their treatments. On August 13, 2003, the Weekly Skin Review identified no new areas of skin impairment. The August 14, 2003, Skin Grid notes that the Stage II pressure sore had not changed in size, but was pink in color. On August 20, 2003, the Weekly Skin Review identified no new areas of skin impairment. The August 20, 2003, Skin Grid notes that the Stage III pressure sore had not changed in size or color but had some drainage and minimal odor. On August 21, 2003, the resident's doctor issued an order for the pressure sore to be treated twice a day with Santyl in the middle and TAO on the edges then wrapped with curex until healed. The facility's staff complied with the doctor's orders and recorded the treatments on the TAR twice a day until the doctor discontinued them on August 27, 2003. The resident was placed on the facility's Magnolia Wing. The facility usually places Medicare patients on this wing. The nurses on the Magnolia Wing use Medicare documents such as the forms for Daily Skilled Nursing Notes (DSNN). Because the resident was a private-pay patient, the nurses were not required to document his condition on the Medicare forms on a daily basis. In fact, the nurses were not required to fill out the DSNN at all. They were only required to chart his progress on a weekly basis or when there was a significant change that required charting. The use of the DSNN was at the facility's discretion. Under the facts of this case, the nurses were not expected to check off every box on the DSNN that was relevant or to write a comment on each shift. They were expected to "document by exception," noting anything on their shift that was out of the ordinary for the resident. It is acceptable practice in long-term care nursing to "chart by exception" as it would be insurmountable to chart every thing that a resident does on a daily basis. While the records reflect that some nurses charted routine care of the resident, that charting is indicative of the nurses' training or experience in another setting. The facility's system of documentary communication included, but was not limited to, Nurse's Notes, TAR, and Medication Administration Record (MAR). Other documentary forms were used for skin assessments and wound care treatment. The facility's staff also communicated with each other about the resident's condition by conducting shift-change meetings and nurses' rounds and by checking the dates and nurses' signatures on bandages. These methods of communication met the community standard for good nursing. The nurses and their assistants were not required to document every time they turned and repositioned the resident because it was not an "activity of daily living" for charting purposes. The nurses noted on the TAR that the resident needed to be turned every two hours. They made this notation merely as a reminder to turn the resident. There was no doctor's order to accomplish this task. There was a bear symbol on the resident's door to remind the staff that he needed skin precautions, including turning and repositioning. In any event, turning and repositioning the resident would have had no effect on the foot wound because his foot was not on the bed. Reviewing the MAR, TAR, Nurses' Notes, and DSNN together, there is consistent documentation of treatment being rendered in accordance with the doctor's orders. There is no persuasive evidence that any lack of documentation in the resident's medical records adversely impacted the resident's health and welfare or constituted a deficiency. Lady Lake substantially complied with the requirement to document the care and treatment of the resident. The resident was admitted to the facility on a pressure reduction mattress. The facility provided him with a low-air mattress on August 21, 2003. His mattress was upgraded on two occasions. Providing a long-term care patient like the resident with a pressure-relieving mattress is such a routine intervention that it does not require charting or a doctor's order. Regardless of the type of mattress provided, it did not impact the pressure sore because the resident's foot did not rest on the mattress. On August 26, 2003, AHCA's surveyor asked to observe the resident's wound. A nurse removed the dressing from the resident's foot. AHCA's surveyor had to pry the resident's right foot from where it pressed against his left leg in order to observe the Stage III pressure sore on the ball of the resident's right foot. The wound was crater-like, with irregular edges that were red and meaty looking. The surveyor was unable to determine its depth due to what appeared to be drainage. The bandage could not be reapplied because the nurse assisting the surveyor did not have a key to the medication cart. On August 26, 2003, the wound was covered with a slimy or gelatinous material, which could be attributed at least in part to the Santyl treatment. Santyl is a collagenase debriding agent that dissolves necrotic tissue without causing any harm to the new healing tissue. The use of Santyl can cause a wound to appear gelatinous and green or brown. It would not have been appropriate, at the time of the survey, to remove the gelatinous material from the wound to determine its depth. Because healing starts at the base of the wound, it should not be forcibly cleaned or rubbed. A wound can be left undressed for a period of time if it has not dehydrated. There was no evidence that the resident's wound became dehydrated on August 26, 2003, or at any other point in time. The resident's pressure sore never became infected. An infection would have been likely if he had not received appropriate treatment for the wound. The surveyor did not see any pillows on the bed or in the resident's room. However, the greater weight of the evidence indicates that the resident would have had many more skin problems if the facility staff had not been turning and repositioning him with pillows every two hours. Without pillows, the facility's staff would not have been able to position the resident on his back to feed him. The staff used pillows to separate the resident's legs to relieve the pressure on the foot to the extent possible. Repositioning with pillows is a standard procedure in long-term care facilities. The bandage on the pressure sore acted as padding to eliminate any friction on the pressure sore. The resident's pressure sore never progressed to Stage IV, which requires exposed bone or muscle. The only record of a Stage IV pressure sore is found in the Minimum Data Set (MDS). It is necessary to record a pressure sore as Stage IV on the MDS when it has a blister and the depth cannot be determined. Furthermore, there is no difference in the care rendered to a patient with a Stage III or Stage IV pressure sore. The resident's pressure sore changed to a Stage II before he was transferred out of the facility. The greater weight of the evidence indicates that the resident's ability to reach his highest practicable mental, physical and psychosocial well-being was not compromised by Lady Lake in regard to the quality of care provided or in regard to documenting his condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That AHCA enter a Final Order dismissing the Administrative Complaints in both cases. DONE AND ENTERED this 15th day of December, 2004, 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 15th day of December, 2004. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Tom R. Moore, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403 Charlene Thompson, Acting Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
Findings Of Fact Petitioner filed application for a clinical laboratory supervisor's license on March 31, 1977. Attached to this application as Exhibit 1 are transcripts of college credits, a certificate from the University of Chicago Hospitals and Clinics and a letter dated November 2, 1977 from the Executive Director of the Joint Review Committee for Respiratory Therapy Education (JRCRTE). Petitioner's claim for credit for the seven years experience required for licensure is dependent upon him being given credit for the advanced accelerated program he took at the University of Chicago Hospitals and Clinics. The University of Chicago Hospitals and Clinics is not a part of the University of Chicago. The JRCRTE is the arm of the American Medical Association which accredits various training courses and programs offered by medical education schools. The University of Chicago Hospitals and Clinics offered a two year course which has now been reduced to 18 months in respiratory therapy which is accredited by the JRCRTE. In addition, this school also offers an accelerated advanced standing program to qualified individuals with prior experience. This is the program completed by Knize. The program is concluded in five weeks and upon successful completion of the program the National Board for Respiratory Therapy, Inc. accepts graduates as qualified for admission to the Registry Examination for Respiratory Therapists, the same as they accept graduates from the two year or 18 months regular program. The JRCRTE accredits only programs of normal duration and for Respiratory Therapy than is approximately 2 years. However, they encourage the use of advanced standing principles. The letter of November 2, 1977 from JRCRTE above referred to, stated: It is of great concern to the Committee that a state agency would not recognize a graduate who has received advanced standing through an accredited program since the United States Office of Education in its criteria for accrediting agencies mandate that we encourage such activities. This comment may be compared to a prior sentence in the same letter which states "The [JRCRTE] has no mandate at this time to accredit formal advanced standing programs." To date the program completed by Knize has not received accreditation by the JRCRTE. By letter dated October 13, 1977 (Exhibit 6) HRS inquired of the University of Chicago Hospitals and Clinics if it considered its Advanced Respiratory Therapy course the equivalent of its former two year and present 18 month courses. No response to that inquiry was received.
