The Issue The issue is whether Najeeb Iqbal, d/b/a Sister Donut & Bagels is guilty of violations of rules governing public food service establishments.
Findings Of Fact On June 24, 1987, this matter was noticed for hearing at the Dade County Courthouse for August 26, 1987. A copy of the notice was served upon the Respondent at its business address, 13889 West Dixie Highway, North Miami, Florida 33161. Respondent did not appear at the hearing, although in a telephone conversation with the attorney for the Division of Hotels and Restaurants he had indicated that he was aware of the hearing and had stated his intention to attend. Sister Donut & Bagels is owned by Najeeb Iqbal, and it is a licensed food service establishment in North Miami Beach, Florida. The establishment was-inspected by Frances Reid, a Department of Health and Rehabilitative Services Environmental Health Specialist on February 4, 1987 during a regular three month inspection performed on licensed food service establishments. Ms. Reid found ten violations. The food service inspection report permits the inspector to classify the violations as major or minor, and all the violations were listed as minor. The report also states that a re-inspection to check on the violations listed would be made on February 9, 1987. The re-inspection on February 9, 1987 was made. At that time six violations remained. Referencing them to the food service inspection report (Exhibit 2) these included: #9 - The manner in which ice was handled because there was no drain to remove excess water from the ice as it melted, #14 - Food items behind the counter were placed on shelves which had not been cleaned or painted, #23 - A table in the back of the establishment for a bagel oven had not been cleaned, #27 - Hot water was not available at the hand washing sink in the front of the establishment which is needed for good hygiene in food preparation. #29 - The plumbing was not properly maintained (this is essentially a restatement of the prior violation concerning the hot water at the hand washing sink), and #35 - There was no screen for the men's restroom window which would contribute to the entry of vermin in the establishment. Ms. Reid had specifically pointed out each of these violations to Mr. Iqbal at the time the original inspection was done on February 4, 1987 and they should have been corrected by February 9, 1987. This is not the first time that Sister Donut & Bagels has been found in violation of the rules governing public food service establishments. A prior case in 1984 resulted in the imposition of a $200 fine, a case in 1985 resulted in the imposition of a $100 fine and another case in 1987 resulted in the imposition of a $100 fine.
Recommendation It is recommended that a fine of $1,500 be imposed on Najeeb Iqbal, d/b/a Sister Donut & Bagels for violations of the rules of the Division of Hotels and Restaurants governing public food service establishments. DONE and ORDERED this 28th day of August, 1987, in 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 28th day of August, 1987. COPIES FURNISHED: Mr. Najeeb Iqbal 13899 West Dixie Highway North Miami, Florida 33161 Lynne A. Quimby, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Norm Hayes, District Supervisor Division of Hotels and Restaurants 510 State Office Building 1350 N.W. 12th Avenue Miami, Florida 33136 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 R. Hugh Snow, Director Division of Hotels and Restaurants 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issues presented are (1) whether the Subscriber Assistance Panel had jurisdiction to hear the Subscriber's appeal; (2) whether this matter is properly before the Division of Administrative Hearings; and (3) whether the cold water therapy device utilized by the Subscriber is covered under the subject Humana commercial policy.
Findings Of Fact Petitioner Humana Medical Plan, Inc., is a health maintenance organization (hereinafter "Humana" or "HMO") authorized to operate in Florida pursuant to a certificate of authority issued in accordance with Part I of Chapter 641, Florida Statutes. The affected agency in this proceeding is the Office of Insurance Regulation (hereinafter "Office"). Humana issued a large group contract providing health insurance coverage to the School District of Hillsborough County for the benefit of the School District's employees and their eligible dependents. During all times relevant to this proceeding, the Subscriber T. O. was enrolled in this HMO Plan. The Office had previously reviewed and approved the terms of Humana's Certificate of Coverage at issue in this proceeding. The Certificate of Coverage is a contract between Humana and the School District. Pursuant to this contract, Humana provides an agreed-upon set of healthcare services to its subscribers in exchange for an agreed-upon sum of money. Humana's Certificate of Coverage provides coverage for durable medical equipment (hereinafter "DME"), which is defined as equipment meeting all of the following criteria: it can stand repeated use; it is primarily and customarily used to serve a medical purpose rather than being primarily for comfort and convenience (i.e., scooter to allow a patient to go shopping); it is usually not useful to a person in the absence of sickness or injury; it is appropriate for home use; it is related to the patient's physical disorder; and the equipment must be used in the subscriber's home, a relative's home, or a home for the aged or other type of institution. By the use of the word "and" to connect all of the criteria in the definition of DME, the contract provides coverage for a DME only if it meets all of the conditions. Thus, Humana is neither obligated nor authorized to provide coverage for a DME if any of the criteria in the definition are not met. The Certificate of Coverage also excludes coverage for supplies, care, or treatment that are not essential for the necessary care and treatment of an injury or sickness. The Certificate also provides that Humana has the full and exclusive discretionary authority to interpret the Plan's provisions, to make decisions regarding eligibility for coverage and benefits, and to resolve factual questions relating to coverage and benefits. The Subscriber T. O., a then-13-year-old male, underwent reconstructive knee surgery to repair a torn anterior cruciate ligament. The surgery was performed by Dr. Steven Page, an orthopedic surgeon, on August 13, 2007. Dr. Page was part of a group practice known as Brandon Orthopedic Associates, which had a contract with Humana to provide in-network healthcare to Humana subscribers and was, therefore, a participating provider. On August 7, 2007, the Subscriber's mother received an item of DME while in Dr. Page's office, which had been prescribed by Dr. Page. The DME was a cold water therapy device. She did not receive the device from Dr. Page, and he had no discussion with her regarding whether the device would be covered under her group insurance contract. Dr. Page made no representations to her regarding coverage or non-coverage, and she made no inquiry regarding whether her insurance would pay for the device. Instead, according to her own testimony, she made the decision that she would pay for the device herself if there was no coverage. In a Letter of Medical Necessity dated August 7, Dr. Page prescribed the DME to be used for 14 days following surgery. The Letter further states that the device is being prescribed for its ability to reduce pain and edema, limit the patient's hospital stay, and facilitate recovery. It further states that ice or ice substitutes cannot be used continuously due to possible tissue damage. The cold water therapy device delivered to the Subscriber was provided by Aberdeen Medical Services through office space within the office space of Dr. Page's practice group. Aberdeen does not have a contract with Humana to provide services to Humana's subscribers and is, therefore, a non- participating provider. At the same time the cold water therapy device was delivered to the Subscriber, the Subscriber's mother signed Aberdeen's Assignment Agreement. The Agreement includes a paragraph entitled Assignment of Benefits, which provides that if the Subscriber's insurance company does not pay the claim in full, the Subscriber assigns to Aberdeen all rights to any appeal granted by the Subscriber's insurance company. When the Subscriber's mother failed to bring the cold water therapy device to the hospital on the day of her son's surgery, Dr. Page instructed the Subscriber's mother to return home to retrieve the device. He did not tell her that he would not perform the surgery if she did not retrieve the device, and he would not have refused to perform the surgery for a patient who chose not to use the device. Aberdeen submitted a claim to Humana seeking to be paid $850 for the Subscriber's rental of the cold water therapy device for 14 days. Humana denied coverage for the device in September 2007, stating that there was no prior authorization on file. The contract between Dr. Page's practice group and Humana requires that prior authorization must be obtained before a Subscriber can receive treatment or services from a non- participating provider. When Humana denied Aberdeen's claim for payment, Aberdeen initiated the internal appeal and grievance process with Humana. Humana requested that Aberdeen obtain the Subscriber's consent by having the Subscriber's mother complete an Appointment of Authorized Representative Form. The Form was completed by the Subscriber's mother and returned to Humana by Aberdeen. Upon receiving confirmation that the Subscriber wished to be represented in the appeal by Aberdeen, Humana continued with the internal review process. Humana's Grievance and Appeal Panel considered the appeal and upheld the denial of coverage, stating that Humana considers the device to be a convenience item. Humana informed Aberdeen of the denial of the appeal by letter dated December 21, 2007, and further informed Aberdeen that an additional grievance procedure was available before the State's Subscriber Assistance Panel. The Subscriber's mother filed a grievance with the Subscriber Assistance Panel (hereinafter "Panel") appealing Humana's denial of the claim. The Panel heard the case on April 15, 2008. Two representatives from Humana and the Subscriber's mother appeared before the Panel by telephone. Aberdeen did not participate in the Panel review. The Panel found that the cold water therapy device is excluded from coverage under the terms of the Subscriber's Certificate of Coverage. The Panel also found that the Subscriber's mother "detrimentally relied upon the participating physician's recommendation of the cold water therapy device and she was not given any other option as to alternative treatments." The Panel determined that Humana "acted inconsistently with its obligations to the Subscriber under the rules and laws that regulated managed care entities" and recommended to the Office that Humana be ordered to provide coverage despite the device being excluded under the terms of the Certificate of Coverage. The Panel did not, however, cite to any "rules and laws" allegedly violated by Humana. By letter dated June 18, 2008, the Office adopted by reference and incorporated all the terms of the Panel's Proposed Recommended Order and ordered Humana to provide coverage for the device, finding that "coverage ordered herein is necessary in order for representations made to the Subscriber via the Member Handbook and Certificate of Coverage to be unambiguous and not violative of Sections 641.31 and 641.3903, Florida Statutes." The letter fails to specify what representations made in the Member Handbook or the Certificate of Coverage are ambiguous and fails to specify what provisions within the two lengthy statutes cited would be violated if coverage were excluded in accordance with the Certificate of Coverage. Humana filed with the Office a timely Petition for Summary Hearing, which was forwarded to the Division of Administrative Hearings on July 23, 2008. The cold water therapy device at issue consists of an 8-quart water cooler that looks like a small drink cooler, a cuff, a pump, and a hose. The pump automatically exchanges water through the hose from the pump to the cooler to provide a continuous flow of cold water through the cuff which is wrapped around the injured area. As opposed to other treatment modalities such as an ice pack/compression bandage combination or a cuff/water cooler combination, the cold water therapy device involved in this case is designed to provide a continuous flow of cold water through the cuff and eliminate the need for the patient to remove and replace ice packs or manually exchange the warmed water in the cuff with cold water from the cooler. The cold water therapy device also provides compression to the injured area because of a compression strap and the water pressure inside the cuff. The device comes with directions to use 20 minutes on and 20 minutes off, so monitoring is required. Humana requires providers to submit claims using claims codes. Humana's claims codes for cold water therapy devices include separate codes for a water-circulating cold pad with pump, for a pump for a water-circulating cold pad, and for a pad for a water-circulating unit. None of these devices or components is a covered benefit under the Certificate of Coverage involved in this case. Neither Dr. Page nor Aberdeen obtained pre- authorization from Humana before providing the cold water therapy device to the Subscriber. According to the contract between Humana and Dr. Page's practice group, pre-authorization was required before this device could be considered for coverage since it was supplied by a non-participating provider. Likewise, the Subscriber never attempted to contact Humana regarding any issue related to coverage prior to receiving this device. Aberdeen's president testified at deposition that Humana has reimbursed Aberdeen in previous claims for the cold water therapy device at issue here. However, in those situations Aberdeen was reimbursed under different policies with different coverage terms than the one at issue in this case. Moreover, if a specific code is available for a specific piece of DME, then that is the proper claims code to use for reimbursement purposes. Aberdeen has submitted claims for payment for cold water therapy devices under the claims code "E1399," a claims code that is used for unlisted DMEs. In conjunction with using that claims code, Aberdeen described the DME as being "electronic controlled thermal therapy acute pain management." This claims code and this accompanying description are not applicable to the cold water therapy device for which Aberdeen was seeking reimbursement. The correct code should have been "E0218," the code for a water-circulating cold pad with pump. Humana admits that it has paid Aberdeen two claims in error due to Aberdeen's use of the wrong code. The Subscriber's mother has paid nothing toward the rental of the cold water therapy device from Aberdeen. Aberdeen has not even sent an invoice or other request for payment to the Subscriber. Whether Aberdeen will ever seek reimbursement for the device from the Subscriber is speculative. Whether Aberdeen can seek reimbursement from the Subscriber is questionable since the Office offered into evidence two forms provided to the Subscriber by Aberdeen. One of them is entitled: "Frequently Asked Questions Regarding Your Responsibilities for the Use of the Controlled Cold Therapy Device," and the other is entitled: "Most Frequently Asked Questions Regarding Your Responsibilities for the Use of the Controlled Cold Therapy Device." Both contain the question: "Will I be personally responsible for any of the bill for my use of this device?" The first form answers the question as follows: "We accept payment consistent with the terms of your applicable insurance." The second answers as follows: "We accept payment according to the terms of your applicable insurance and this is the extent of your responsibility." Dr. Page uses the cold water therapy device for his patients who undergo surgery to repair the anterior cruciate ligament. He was impressed with an article in the American Journal of Knee Surgery, which found the device to be superior to using crushed ice. He does not, however, know the prevailing medical standard among orthopedic surgeons as to use of the device. The fact that he knows many who do does not establish a standard of care. He agrees that not everything deemed medically necessary is covered by insurance and that under his contract with Humana, Humana has the authority to determine that the device is a convenience item and not a covered benefit. Dr. Louis Hochheiser is Humana's Medical Director for clinical policy development. He oversees the committee that is responsible for examining new medical technologies, as well as writing and reviewing clinical policies. A clinical policy provides guidance to Humana's providers so they know what Humana covers, and it also serves as guidance for physicians and nurses doing case review to help ensure that all of Humana's subscribers are treated equally. The clinical policies are published on Humana's website and are available to its subscribers and providers. When Humana is developing a clinical policy for a medical technology or device such as the cold water therapy device at issue in this case, a workgroup of the committee researches the device using medical literature and any statement or assessment that any specialty organization may have made on that particular device. Humana also subscribes to the services of two companies that examine and rate new technologies. Humana also consults the rules of the Center for Medicare and Medicaid Services and reviews its competitors' positions with respect to any new technology. When the workgroup has compiled and reviewed the information, it creates a draft clinical policy. One of the medical directors of the full committee then reviews the draft policy form and all the literature that was reviewed in creating the draft policy form. If necessary, the draft policy is revised after discussion and further research. Once the draft policy is approved, it is sent to the full committee for presentation, discussion, and approval. When the policy is approved, it is posted on Humana's website and sent to its providers as part of a quarterly update of new and revised policies. The provider contract between Humana and Dr. Page's practice group that requires the group's physicians to comply with Humana's policies and procedures includes such policies. The voting members of the committee are physicians from three different areas of Humana: regional medical directors, market medical officers who work with Humana's providers, and Medicare medical directors. Approximately 20 physicians participate in the committee on a monthly basis. Additional input is provided by nurses, legal counsel, product development, sales and communications, but the voting and approval of clinical policies is only done by physicians. The committee does not consider cost of the technology when it creates Humana's clinical policy forms but relies on medical evidence to make its decisions. If a technology is supported by the medical evidence, and if it makes improvements for Humana's subscribers, then the committee will approve the technology. If such approval results in a higher cost, this increased cost is addressed by Humana's actuaries and built into the cost of the health plan. With respect to the development of the clinical policy on the cold water therapy device at issue in this case, Humana's technology assessment forum reviewed journal articles, information supplied by the two organizations that provide reviews of technology, and literature from the Institute of Arthritis and Musculoskeletal Skin Diseases' web site to determine the efficacy of cold and heat therapy based on the published literature. There is no reliable evidence that cold water therapy devices provide better outcomes for patients than traditional cold packs. The only advantage to the cold water therapy devices compared to cold packs is that of convenience because the patient does not have to change cold packs if the patient is using the cold water therapy device.
Findings Of Fact On May 4, 1979, the Department received from Hudson an Application for Variance from Rules 1704.244(1)(f), 1704.244(1)(h)(1), 1704.244(1)(i)(1) and 1704.4244(4), Florida Administrative Code. The request was for a period of twenty four months and was prompted by Hudsons alleged inability to meet the standards set forth in the rules at a secondary waste water treatment facility which is operated in conjunction with a pulp and paper plant in Palatka, Florida. The wastewater is discharged from the plant into Rice Creek and from the creek into the St. Johns River. Hudson stated in its request for a variance that no technology exists, now or in the foreseeable future, which would enable Hudson to meet the rule standards. Hudson further stated that it is presently utilizing the best available technology economically feasible at its Palatka plant. After reviewing the Application for Variance, the Department requested additional information concerning Hudson's application which involved: Hudson's inability to meet applicable water quality standards within the 800 meter mixing zone set forth in Rule 1704.244(1)(f), Florida Administrative Code. Hudson's inability to meet water quality standards within 10 percent of the total length of Rice Creek as required by Rule 1704.244(1)(h)(1), Florida Administrative Code. Hudson's inability to meet a dissolved oxygen level of not less than 4 mg/1 as required by Rule 17-4.244(1)(i)(1), Florida Administrative Code. and Hudson's inability to meet a minimum dissolved oxygen level of 1.5 mg/1 at any time or place. Due to its alleged inability to meet the applicable standards, Hudson proposed that the zone of mixing be extended into the St. Johns River and that average and minimum dissolved oxygen levels be inapplicable in the extended mixing zone. Hudson clarified its request on July 11, 1979, to include in the mixing zone that portion of Rice Creek between Hudson's point of discharge and Rice Creek's confluence with the St. Johns River and 2000 feet beyond the confluence into the river. Additionally, Hudson clarified its request for average and minimum dissolved oxygen levels 0.0 mg/1, respectively, within the modified mixing zone. On August 24, 1979, the Department issued a Notice of Intent to approve the variance subject to the following conditions: That the variance be in effect for a period of not ore than 24 months. That Hudson study alternative discharge and monitoring systems with details and scope of the studies to be approved prior to the effective date of the variance. That Hudson utilize its treatment facilities to the maximum extent to minimize BOD5 loading into Rice Creek and maximize dissolved oxygen levels. Within two months of the effective date of the variance, Hudson is to provide the Department a report outlining how the company will meet this requirement. That Hudson continue to apply new technology as it becomes available and conduct ongoing studies in this area and submit the same to the Department upon completion and That Hudson continue to study, stress and utilize water reuse conservation techniques to reduce the amount of water consumed per ton of product produced. Subsequently, the Department received from Hudson a technical program for continued water quality studies at Rice Creek. Following further communications and discussions, Hudson and the Department agreed on a six month study to replace the two month requirement concerning dissolved oxygen levels in the effluent. Eventually, the Respondents agreed on a study to encompass conditions 5(b) and (c) set forth, supra. Following receipt of a letter to the Department from the Florida Game and Fresh Water Fish Commission, Hudson agreed to incorporate into its study the issues raised by that agency. At the formal hearing the Petitioner and Intervenor, an adjoining property owner, pressed their objections to the Department's intent to issue a variance to Hudson. Hudson demonstrated that its wastewater treatment system at its Palatka facility utilizes the most effective and technologically advanced treatment system available. Hudson has made a major commitment towards upgrading its treatment facilities as new and practicable treatment technologies become available. Hudson's Palatka plant has the highest quality of effluent of any paper mill operating in the state. Hudson is unable to meet the present standards for discharge due primarily to the classification of Rice Creek as a Class III water body. Although classified as a Class III water, Rice Creek, even in the absence of the Hudson discharge, would be unable to meet the standards of the Florida Administrative Code for such waters at all places and times. There is no practicable technology currently available which would enable Hudson to meet Class III water standards. Hudson's annual average for discharge of Biochemical Oxygen Demand ("BOD") and Total Suspended Solids ("TSS") exceeded the Best Available Technology ("BAT") standard proposed by the Federal Environmental Protection Agency by 47% and 22% respectively. Hudson's permit levels only require the standards to be exceeded by 20% and 19%, respectively. Despite Hudson's good faith efforts to meet water quality standards, it is not presently possible to meet Class III criteria for discharge into the St. Johns River. Accordingly, a variance is required from the mixing zone and dissolved oxygen provisions of Chapter 17-4 Florida Administrative Code, if Hudson is to continue in operation. In the intended mixing zone proposed by Hudson, dissolved oxygen levels of 0.0 mg/1 could be expected at certain times of the year and under certain conditions. The variance does not authorize Hudson to discharge at levels in excess of its present permits. If the Palatka plant were to close, Putnam County and a surrounding area would experience severe economic harm due to the tremendous impact the plant has on the local economy. The water quality of the St. Johns River is not significantly affected by the discharge into Rice Creek.
The Issue Whether Respondent, Lakeland Manor Health Care Associates, LLC, d/b/a Wedgewood Healthcare Center, committed a Class I deficiency at the time of a survey conducted on October 29, 2004, so as to justify the issuance of a "conditional" license; and whether to impose an administrative fine of $10,000 under Section 400.23, Florida Statutes (2004), and an additional fine of $6,000 under Section 400.19, Florida Statutes (2004).
Findings Of Fact Based upon the evidence presented at the final hearing, the following relevant findings of fact are made: At all times material hereto, Petitioner is the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a license status pursuant to Subsection 400.23(7), Florida Statutes (2004). Petitioner is charged with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Pursuant to Subsection 400.23(8), Florida Statutes (2004), Petitioner must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered determines whether the licensure status of a nursing home is "standard" or "conditional" and the amount of the administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, entitled, "Statement of Deficiencies and Plan of Correction," which is commonly referred to as "Form 2567." During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A tag identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, and sets forth specific factual allegations that they believe support the violation. Insofar as relevant to this proceeding, Form 2567 identifies Tag F323, which is the basis of Petitioner's charging document. Respondent is a licensed nursing facility located at 1010 Carpenter's Way, Lakeland, Florida 33809. Based on the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and pursuant to Florida Administrative Code Rule 59A-4.133(16)(d), Petitioner determined that Respondent failed to comply with state requirements and under the Florida classification system, classified the noncompliance as an isolated state Class I deficiency which required immediate corrective action because Respondent's noncompliance was likely to cause serious injury, harm, impairment, or death to residents receiving care at Respondent. Should Respondent be found to have committed the alleged deficient practice, the period of the "conditional" licensure status would extend from October 29, 2004, through December 7, 2004, the date of Petitioner's follow-up survey in which the cited violations were found to have been corrected. On October 26, 2004, through October 29, 2004, Petitioner conducted an annual health and life safety survey of Respondent. On the morning of October 26, 2004, Thomas Gill, Petitioner's surveyor, who was the team leader of the survey team, toured the 800 hall of Respondent's facility. Gill was accompanied during his tour of the 800 hall with one of Respondent's employees, Kelly Riehn, an LPN. The survey procedure involved, inter alia, sampling rooms on the hall to determine if the hot water was felt to be within accepted temperature ranges. After the hot water in the lavatories in Rooms 800 through 803 had been turned on for more than 30 seconds, Gill noted that the skin on his hands turned a reddish color after holding his hands under the water for one to two seconds. He believed the water to be hotter than it should be. Gill proceeded to check the hot water by hand-inspection in the remainder of the rooms on the 800 hall. He found that the other rooms appeared to have hot water within the accepted range, including the bathing areas. The bathrooms in the residents' rooms contain only a toilet and sink. Gill then determined that he needed the maintenance director to come to the 800 hall to test the water temperatures with a thermometer. Gill informed Riehn that he needed the maintenance director. After some delay, Gill reported his findings to the survey team. He then located the life safety surveyor, who conducts an independent survey, and requested that he locate the facility maintenance director and assist him in measuring the water temperature in the four rooms and throughout the facility. After some delay in locating Respondent's employee, Leslie Bower, the life safety surveyor, accompanied the maintenance director, Mark Mulligan, to the maintenance office to review the blueprints for the facility and then proceeded to the room where the hot water heater was located to inspect the water heating devices and system. Bower then observed Mulligan test the water with a thermometer in three of the resident rooms. The temperature of the hot water coming out of the lavatory faucets in the residents' rooms registered 140 degrees Fahrenheit. To check the water temperatures, the water was allowed to run for 30 to 40 seconds, in order for it to get hot. Bower informed Gill that the hot water in the four affected rooms registered 140 degrees Fahrenheit. Gill reported his findings to the survey team. The survey team determined that because the hot water coming out of the tap was 140 degrees Fahrenheit, there was a likelihood of harm, injury, or death to residents and action need to be taken quickly. The survey team did not suggest that any resident was at risk of receiving extensive burns from immersion in a tub or placement under a shower. The only allegation of likelihood of harm to residents pertained to the sinks in Rooms 800 to 803. Gill informed Respondent's administrator, Clark Evans, at approximately 2:00 p.m., that the hot water in the four residents' rooms was 140 degrees Fahrenheit. Evans immediately proceeded to the four rooms (Rooms 800 through 803), where he tested the hot water with his hands in one of the affected rooms. After approximately 30 seconds, the water became "uncomfortable," and he had to remove his hands. Evans then turned the hot water off under the sink. He instructed Mulligan to turn off the hot water to the other three sinks, which was done. The evidence clearly reflects that the hot water temperature in the sinks of the four rooms was 140 degrees Fahrenheit on October 24, 2004, if the water was allowed to run for 30 to 40 seconds. During the time of Petitioner's survey, Riehn was a floor nurse on the 700 and 800 halls working the 7:00 a.m. to 3:00 p.m. shift. Riehn presented testimony that she washed her hands after giving medications to residents who resided in Rooms 800 through 803 prior to Petitioner's tour of the 800 hall. She typically washes her hands for 45 seconds. Then, she passes medications out to 30 residents each morning over a period of "about an hour and a half." Riehn testified that she "sometimes" turn on both the hot and cold water faucets when washing her hands. She did not recall anything "exceptional" about the water and that it "seemed normal." Riehn also administered medications at 12:00 noon and 2:00 p.m. on her unit, however, she presented no testimony concerning the water temperature at those times. Respondent had a system in place to check water temperatures on a weekly basis. The maintenance director checked one room on each hall, selected randomly, and checked all bathing areas each week. The reports were written in a log book, though the room number was not written down. Respondent also had a system for reporting maintenance and safety issues and kept a log for those purposes, as well. Staff received training on how to report safety issues. There was no record of any complaints of the water being excessively hot. There were also no incidents involving hot water in the facility's incident and accident reporting logs. When told that the water temperature in the four rooms was 140 degrees Fahrenheit, Evans attempted to determine the cause of the problem. He and the maintenance director pulled blueprints of the building and determined that those rooms were on a separate water heater from the remainder of the hall. This was an unusual system. As he had experience running a small nursing home, where he also had maintenance director duties, Evans, along with the maintenance director, also inspected the water heater and tried to adjust the mixing valve, which mixes hot and cold water to the appropriate temperature. Instead of resulting in an adjustment, the temperatures changed inconsistently, demonstrating that there was a problem with the valve. The circulating pumps that keep the water flowing through the hot water pipes, which provide hot water to the four affected rooms, were not working. The hot water pipes were on a loop system. Because the circulating pumps were not working, the hot water, once turned off at the sink, would just sit in the pipes instead of circulating back to the hot water heater. When the hot water was turned on at the sinks, it could come out hot or cold depending on how long it had been since the hot water was last turned off. A plumber was called immediately, and the problem was corrected before the end of the survey. While there was some hearsay evidence that some staff, upon questioning by the surveyors, indicated the water in the affected rooms was overly hot, this evidence was not reliable, as it was not known what questions were asked by the surveyors or in what context, and some of this hearsay was refuted by testimony. The greater weight of the evidence was that facility management had no reason to be aware of a problem with the hot water in those rooms and that as soon as they became aware of the problem, they responded quickly and thoroughly. Resident No. 27, who resides in one of the subject rooms, had dementia, resulting in poor safety awareness; and as a consequence, was at risk for falls. She was in a wheelchair, but would sometimes attempt to stand. Because of these concerns, she had a wheelchair alarm and a bed alarm which would sound if she attempted to get up. Additionally, she was positioned in her chair in front of the nurses' station so she could be monitored. She was closely observed, and this is reflected in the nursing notes. Staff was required to help Resident No. 27 ambulate. The resident was sufficiently alert to know when she had to go to the bathroom and would request staff assistance. The routine was that staff would take her to the bathroom, place her on the toilet, get her up, and then turn on the water to help her wash. CNAs check water temperatures before wetting a cloth to give to the resident. On one occasion, on September 24, 2004, Resident No. 27 was found in the bathroom by herself. Her bed alarm was going off, and Riehn, who found her, recorded the incident in the nursing notes. Though the water was running, there was apparently no problem with the temperature. This was the only known occasion when the resident tried to use the bathroom without assistance, as she was not allowed to use the bathroom without assistance. Resident No. 27 had no medical problems which would affect feeling in her extremities, and she was capable of feeling pain and reacting to it. She would not leave her hand in water hot enough to cause pain. Resident No. 29, who resides in one of the subject rooms, was more cognitively impaired than Resident No. 27. She required staff assistance for all her activities. She was in a Broda chair, which is a chair positioned to lean back so that a resident will not fall out. While the chair was mobile, Resident No. 29 did not have the cognitive capability to negotiate it through doorways to reach the bathroom and had never been known to do so. Resident No. 29 also did not have any condition which would cause her to lose feeling in her extremities or prevent her from withdrawing from pain. Resident No. 29 was not capable of getting herself into the bathroom. Resident No. 29 was under close and careful supervision, not because of fear of burns, but because she had a tendency to try to walk and fall. Even if she managed to get into the bathroom without staff observation, even if she turned on the hot water, even if the mixing valve was malfunctioning at that time, even if the water in the pipes was still excessively hot, and even if the facility had not detected and corrected the problem by then, she would have to defy pain while holding some part of her body under the faucet for several seconds. This occurrence was highly unlikely. There did not appear to be a sufficiently significant risk of harm to residents for the lead surveyor to notify facility staff when he checked the water temperature on the initial tour. Instead, he waited to report it at the team meeting, and the team thought it appropriate to wait for the maintenance director to return from lunch to check the temperatures, even though their protocol requires that the survey staff measure with their own equipment. A second-degree burn from water at 140 degrees Fahrenheit requires immersion for approximately five seconds. A second-degree burn damages, but does not destroy the top two layers of skin and heals in ten to 21 days. As it took approximately 30 to 40 seconds for water in the taps to reach 140 degrees Fahrenheit, a scalding burn would require that a person run the water for that period of time, and then hold his hand under the water, in spite of pain, for another five seconds. The problem with the hot water was either of recent origin or very intermittent, as there were no recorded difficulties. The water had been of appropriate temperature just prior to the survey, and no problems had been discovered in the weekly random room checks. Petitioner's position that water coming out of a sink at 140 degrees Fahrenheit constitutes a likelihood of serious injury or death to a resident is at odds with other regulations it enforces. Petitioner requires that hot foods be maintained at 140 degrees Fahrenheit for serving, so that a bowl of soup must be served to a resident at that temperature. It appears that there would be as much, if not more, chance of a burn from spilling a bowl of soup than from using a sink, where a resident would have to turn on the water and let it run and then voluntarily place her hand under the water. The evidence is not convincing that Respondent knew or should have known that water temperatures in the lavatories of four rooms were in excess of 115 degrees Fahrenheit on the day of the survey. The preponderance of evidence does not support the assertion that Residents 27 and 29 were in immediate risk of harm and were likely to be scalded by the hot water. The evidence does not support the likelihood of harm, injury, or death to those residents from the hot water.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Healthcare Administration, enter a final order revising the October 24, 2004, survey report by deleting the deficiencies described under Tag F324, issuing a "standard" rating to Respondent to replace the previously-issued "conditional" rating, directing that all other records maintained by Petitioner that reflect the deficiency be revised by deleting it, and dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of June, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 29th day of June, 2005.
