Findings Of Fact The Respondent, Colonial Palms, Inc., is licensed to operate Colonial Palms Nursing Home in Pompano Beach, Florida, as a nursing home facility, pursuant to Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. On December 15, 1981, two representatives from the Petitioner visited the Respondent's facility in connection with its annual license survey. On this occasion the following conditions were found which were in violation of the applicable provisions of the Florida Administrative Code. Supervision of all details of nursing care to patients was not being fulfilled by the Nursing Supervisor in that: The charge nurses were not monitoring the functions of the clean and soiled utility rooms, as evidenced by mixed clean and soiled functions in the rooms. Personal luggage of patients was stored in a soiled utility room, clean foam padding was stored on a shelf in a soiled utility room. Three weeks staffing was reviewed. There was no RN on duty during the AM shift on 4 out of 21 days, 11/22, 11/28, 11/29, 12/12/81, when the average census was 74 patients. Patients' rights were violated in 4 charts reviewed in that the patients were not advised of their full rights as promulgated by the 1980 Legislature. Written consultation reports from a consulting dietitian to the Administrator were not available for review for the months of April, May, June, July, 1981. The dietary department lacked the required test kit that measures the parts per million concentration of the sanitizing solution used to sanitize the patient trays, as well as the multi use pots and pans. The hood above the cook's range, the sprinkler system, and the electric lights were soiled with a grease encrustation. Medications being administered by the nursing staff consisted of controlled and prescription drugs which were not stored in locked cabinets, but were stored on side carts exposed and accessible to all patients. The soiled utility room in the south wing was not equipped with a flushing rim clinical service sink having a wide area service trap with bedpan flushing equipment. The Respondent nursing home was given until January 15, 1982, to correct all of the conditions described above. On February 8, 1982, a follow-up visit was made to the Respondent nursing home. On this occasion the conditions described above at subparagraphs (a), (c), (d) and (f) had been corrected. The conditions described at subparagraphs (b), (e), (g) and (h) above had not been corrected. The flushing sink mentioned in subparagraph (h) above had been ordered from the nursing home's supplier on December 20, 1981. However, due to a delay in shipment, it was not received until July or August, 1982. It is now in place, as required. The remainder of the conditions which existed on February 8, 1982, are now corrected.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Colonial Palms, Inc., d/b/a Colonial Palms Nursing Home, be found guilty of four separate violations on one occasion after the specified date for correction, and that Colonial Palms, Inc., be assessed an administrative fine in the amount of $400.00. THIS RECOMMENDED ORDER entered on this 30 day of November, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1982. COPIES FURNISHED: Harold Braynon, Esquire 201 West Broward Boulevard Fort Lauderdale, Florida 33301 William L. Pace Administrator of Colonial Palms Nursing Home 51 West Sample Road Pompano Beach, Florida 33064
Findings Of Fact Petitioner is a nursing home facility located at 1900 Mercy Drive, Orlando, Florida. It is licensed by Respondent and certified to participate in the Medicaid Program. Prior to the rating at issue in this case, Petitioner was rated a "superior" nursing home by Respondent. The "standard" rating at issue in this case was for the period November 30, 1984 to February 28, 1986. The most recent rating for Petitioner, for the period after February 28, 1986, is "superior." Petitioner was deprived of increased Medicaid reimbursement due to its "standard" rating during the period in question. Additionally, Petitioner was deprived of the ability to hold itself out to the public as a "superior" nursing home for the period in question. The parties stipulated that Petitioner was qualified for a "superior" rating for the period in question, except for the factors considered by Robert Maryanski, former Director of the Office of Licensure and Certification, when he made the decision to give Petitioner a "standard" rating, effective November 30, 1984 until February 28, 1986. The factors considered by Maryanski which formed the basis of his decision were: a rating sheet and results of a survey conducted of Petitioner's facility on November 5 through 7, 1984, as well as follow-up visits on January 15 and February 1, 1985: a report of a complaint or surveillance visit conducted on February 1, 1985; a memo dated March 14, 1985 from Robert W. Smith, Area Supervisor of the Office of Licensure and Certification: concerns of the Long-Term Care Ombudsman Council as expressed by letter dated November 15, 1984 and concerns of Paul Snead, Jr., Respondent's District Administrator as expressed by memo dated November 26, 1984. In conducting its annual survey of Petitioner's facility, Respondent's surveyors, George Farrar and June Monaghan, identified seven Class III deficiencies which were corrected by the time follow-up visits were conducted on January 15 and February l, 1985. However, in conjunction with the February 1, 1985 follow-up visit, Respondent's surveyors also conducted an unannounced complaint or surveillance visit which identified eight additional deficiencies. No exit interview was conducted following this complaint or surveillance visit, and Petitioner was not informed of these additional deficiencies, or the fact they could affect their annual rating, until approximately a week later. Neither Farrar nor Monaghan, the surveyors who conducted the February 1 complaint or surveillance visit and who are still employed by Respondent, testified at the hearing. The only witnesses testifying at the hearing who were present during all or a portion of the February 1 visit were Charlotte Uhrig, Administrator of Petitioner's facility, Kathleen Wingard, Director of Operations for Petitioner's management company, and Linda Anderson, a licensed practical nurse employed by Petitioner. Uhrig and Anderson offered credible testimony to explain the deficiencies found during the complaint or surveillance visit, and their unrebutted testimony precludes any finding that the deficiencies reported by Farrar and Monaghan actually existed. To the contrary, based on the evidence presented, it is specifically found that during this visit on February 1, 1985: Petitioner did not violate a patient's right to privacy in treatment since only the patient's heel and back of the leg were exposed at the request of the surveyor; Petitioner took prompt action in terminating a Director of Nursing who violated its policies by allowing aides to do and chart dressings and treatments; Anderson's actions in attempting to give a patient two pills were reasonable and in accordance with proper nursing practice. The fact that the patient did not swallow the pills and the surveyor found them in a glass of water does not indicate any failure on the part of Petitioner to adhere to required nursing home procedures; The lock on a treatment cart was only broken for a couple of hours and was repaired as soon as possible. During the time the lock was broken, the cart was in the nurse's station and observable by nurses on duty; Stains on the walls were fully explained as the result of roof leaks which had recently been repaired and Petitioner was simply waiting for a good rain to insure the leak was fixed before repainting; There was no dust or soap residue on chair lifts, but rather a small amount of powder used on patients was identified by the surveyors; In-service training was promptly given to all aides about washing their hands after treating each patient; An unidentified cart noticed in the new linen room was simply the cart used to carry new linen to the laundry for washing before use; An unidentified, undated bottle of liquid on the medication cart was apple juice given to patients to assist them in taking their medication; The door to the janitor's closet was not left open, but rather the door had been closed but the lock had not engaged; In service training was promptly given to aides concerning leaving unattended bottles of germicide and cups of liquid soap in patients' bathrooms. In his memo dated March 14, 1985, Robert W. Smith recommended that Petitioner be given a "superior" rating for the time in question. Smith supervised nursing home surveyors including Farrar and Monaghan. Robert Maryanski was Smith's superior and had the final authority on rating decisions. Yvonne Opfell, Vice Chairperson of the Long-Term Care Ombudsman Council, testified that one-fourth of all complaints in the Orlando area the Council received in 1984 involved Petitioner's facility. The Council investigates every complaint received and found most complaints against Petitioner to be "not substantiated." However, several were found to be "substantiated" including one which was substantiated by Adult Protective Services involving an incident in August, 1984 in which a patient was allegedly dropped and suffered a broken arm. Henry McLaulin investigated this incident for Adult Protective Services and testified that Petitioner was less than cooperative with him in this investigation. However, based on the evidence received, including the testimony of Uhrig and Karen Skadering, a physical therapist who worked with this patient in August, 1984, it has not been proven that aides dropped the patient causing a broken arm. The patient was very weak and dependent, with brittle bones, and according to David Parsons, M.D., a patient in this condition could break a bone simply by turning over in bed through no fault of Petitioner's staff. As District Administrator of Respondent, Paul Snead, Jr. expressed his concerns about Petitioner's rating in a memo dated November 26, 1984. Snead testified at the hearing about these concerns and his feeling that Petitioner-should not be given a "superior" rating. He also admitted he has never visited Petitioner's facility. In addition to the incident in August, 1984 involving a patient's broken bone discussed above in Finding of Fact 9, Snead reported complaints about scabies at Petitioner's facility during 1984. Based upon the testimony of Charlotte Uhrig, Petitioner's Administrator, Bob Duncan, a pharmacist, Ruth E. Laughlin, senior community health nurse, and David Parsons, M.D., it is found that scabies did exist on several occasions during 1984 at Petitioner's facility. However, scabies is frequently found in nursing homes, even those rated "superior". It is a highly communicable parasitic condition which can be introduced into a nursing home by patients, family and staff. When the condition was diagnosed, Petitioner took action to eradicate the problem, but due to the lengthy three to six week incubation period and highly contagious nature of this condition, it did take repeated efforts to remove it from the nursing home. Petitioner's efforts were successful, and there is no evidence that the condition continued to exist after November, 1984.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order granting Petitioner a "superior" rating for the period November 30, 1984 to February 28, 1986. DONE and ENTERED this 14th day of April, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1986. COPIES FURNISHED: Karen Goldsmith, Esquire Jonathan S. Grout, Esquire Suite 500, Day Building 605 East Robinson Street Orlando, Florida 32802 Douglas Whitney, Esquire 400 West Robinson Street Suite 912 Orlando, Florida 32801 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Adopted in part in Findings of Fact 4, 5. Adopted in part in Findings of Fact 5, 7. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 5, 9, 10, 11. Adopted in part in Findings of Fact 5, 9, but otherwise rejected as irrelevant and unnecessary. Rejected as cumulative and also as a conclusion of law rather than a finding of fact. Adopted in Finding of Fact 8. Rejected as a conclusion of law rather than a finding of fact.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner, Stacey Health Care Centers, Inc., is licensed to operate Riverside Care Center, located at 899 Northwest Fourth Street, Miami, Florida, as a nursing home in compliance with Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. On July 9, 1986, James A. Bavetta, assistant area supervisor, Office of Licensure and Certification, made a visit of Riverside's facility and determined that Ralph Stacey, Jr., the administrator of record, was acting in the capacity of administrator for two facilities, the subject facility and another facility in Kentucky, without having a qualified assistant administrator to act in his absence. (Respondent's Exhibit 1) Ralph L. Stacey Jr., is a licensed nursing home administrator in the States of Ohio, Kentucky and Florida. He has been licensed in Kentucky and Florida since 1974. At the time of Mr. Bavetta's visit and inspection during July, 1986, Ralph Stacey, Jr., was in Cincinnati, Ohio preparing the payroll for Stacey Health Care Centers. During this time period, Ralph Stacey, Jr., served as the administrator for the subject facility, Riverside Care Center, and another facility in Kentucky and did not have a qualified assistant administrator employed to act in his absence. However, once Mr. Bavetta issued his recommendation for sanctions, Petitioner, as part of its plan of correction, has employed a licensed administrator who is presently on staff and serves as Riverside's assistant administrator during the administrator's absence.
Recommendation Based on the foregoing findings of fact and conclusions of lawn it is RECOMMENDED: The Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine in the amount of One Thousand Dollars ($1,000.00) upon Stacey Health Care Centers- Inc., d/b/a Riverside Care Center, which amount shall be payable to Respondent within thirty (30) days after entry of Respondent's Final Order. RECOMMENDED this 18th day of September, 1987, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 September, 1987. COPIES FURNISHED: Kenneth S. Handmaker, Esquire MIDDLETON & REUTLINGER 2500 Brown & Williamson Tower Louisville, KY 40202-3410 Leonard T. Helfand, Esquire Office of Licensure and Certification Department of Health and Rehabilitative Services 5190 Northwest 167th Street Miami, Florida 33014 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard -Building One, Room 407 Tallahassee, Florida 32399-0700
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated May 28, 2000, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with regulating nursing home administrators licensed by the Board of Nursing Home Administrators to practice in Florida. Chapters 455 and 468, Florida Statutes (1997). AHCA is the state agency charged with licensing and regulating nursing homes in Florida. Chapter 400, Florida Statutes (1997). Among its duties, AHCA is required to inspect nursing homes every 15 months "to determine compliance by the licensee with statutes, and with rules promulgated under the provisions of those statutes, governing minimum standards of construction, quality and adequacy of care, and rights of residents." Section 400.19(2), Florida Statutes (1997). Recertification surveys are conducted each 9-to-15 months, are unannounced, and are conducted for both federal certification and Florida nursing home rating and licensure purposes. The surveys are conducted by a team of surveyors each of whom must pass an examination entitled the Surveyor's Minimum Qualification Test before being allowed to participate as an independent member of a survey team. At all times material to this proceeding, Ms. DePonte was a Florida-licensed nursing home administrator, having been licensed in Florida for a period in excess of 28 years. Ms. DePonte's license has never been suspended, revoked, or otherwise sanctioned. Ms. DePonte was employed as the Executive Director/Administrator of Darcy Hall of Life Care ("Darcy Hall") in West Palm Beach, Florida, from July 1989 until September 4, 1998. Darcy Hall is a 220-bed nursing home that was built in 1960 as a 160-bed nursing home; 60 beds were added in 1972, making Darcy Hall one of the oldest and largest nursing homes in Palm Beach County, Florida. Darcy Hall received superior ratings from AHCA for six of the nine years Ms. DePonte was the Executive Director/Administrator, and Darcy Hall received a deficiency-free recertification survey in 1996, during Ms. DePonte's tenure. From July 20 through 24, 1998, an unannounced recertification survey was conducted at Darcy Hall. The survey team identified a number of deficiencies, which deficiencies were itemized in the survey report, commonly referred to as a "Form 2567."4 In an action unrelated to the present proceeding, Darcy Hall challenged the results of the survey, and that challenge was resolved through a settlement agreement.5 The following were observed by the surveyors who inspected Darcy Hall during the July 1998 recertification survey: Call lights were "out of reach" of several residents when the rooms in one wing of the facility were inspected in the pre-dawn hours of July 23, 1998. A totally dependent middle-aged person with multiple schlerosis could not use the pneumatic call light she had been given, because it was not in her hand but was close to her arm, where she was unable to reach it. The nurses' station was located too far away from the resident's room for the resident to be heard at the station if she needed help. An elderly female resident was sitting in a wheelchair outside the facility, about one-half hour after lunch. The resident was in the garden area, close to the nurse's station. The resident, who could understand but not express herself, had lost control of her bladder. A totally dependent resident whose nose was draining was sitting in a wheelchair, with the call light, tissues, and water out of reach. An elderly resident was wearing clothing with what appeared to be burn marks from a cigarette on the front. Dust had accumulated on the filter of an oxygen concentrator. Ceiling tiles were missing from several areas in the facility; some of the rooms contained chipped furniture; a baseboard under an air conditioner was loose; a ceiling tile in a bathroom had a brownish stain; and dust had accumulated in the corners of a bathroom. A geri-chair6 had peeling tape and a black-brown stain on the seat, which the surveyor attributed to a resident becoming incontinent at some point. Approximately 50 ants were found in and around an empty juice cup sitting on a bedside table. Two treatment carts were stained with dried liquid and had an accumulation of debris in the crevices. Hand cranks were protruding from the foot of several beds. Prescription medications were found in the bedside table of one resident; zinc oxide was found on the top of the bedside table of another resident; and a bottle of Caladryl was found on top of the bedside table of a third resident. No physician's orders for these medications were found in the residents' clinical records. A cup left sitting on a bedside table in a room whose residents were cognitively impaired contained a white, thick, creamy ointment. A supply room containing pump sets with pins, syringes, tubing, catheter tips, and special nutritional supplements was found unlocked at approximately 9:00 a.m. on July 22, 1998. During a two-hour period one morning, a nurse dispensed medications to residents by opening the medication and putting the medicine in her bare hands before placing it into a cup and handing it to the resident. The temperature in the medication storage refrigerator was six degrees below the minimum acceptable temperature. The staff member washing pots in the facility's three pot sink obtained from the chemical storeroom a gallon jug of what he thought was dish sanitizer; the chemical was actually Sysco Fry and Grill Cleaner. The fry and grill cleaner was used in the sink in place of sanitizer from 9:00 a.m. on July 22, 1998, until approximately 1:00 p.m. that day, when the error was discovered by a surveyor. All of the pots, pans, and cooking and storage wares were re-washed and sanitized. The residents were monitored for 24 hours, and only one resident had intestinal distress, the source of which was undetermined. During the time that all of the pots and pans were being re-washed and sanitized, a cook washed a pot so that she could begin cooking the soup for the evening meal. She failed to sanitize the pot. Cold food on the tray line in the dining room was not maintained at 41 degrees Fahrenheit or below; applesauce was at 51 degrees, pear halves were at 66.2 degrees, whole milk was at 55.5 degrees, chocolate milk was at 42.8 degrees, and cranberry juice was at 55.2 degrees. All of the items noted in paragraph 7 were identified in the Form 2567 as Class III deficiencies, except for the deficiencies cited regarding the incontinent resident who was sitting outside in the garden area after lunch and the resident who was wearing clothing with cigarette burns on the front, which were designated Class II deficiencies. A Class II deficiency is one that the agency determines has "a direct or immediate relationship to the health, safety, or security of the nursing home facility residents." Section 400.23(9)(b), Florida Statutes (1997). A Class III deficiency is one that the agency determines has "an indirect or potential relationship to the health, safety, or security of the nursing home facility residents." Section 400.23(9)(b), Florida Statutes (1997). As the Executive Director/Administrator of Darcy Hall, Ms. DePonte was responsible for overseeing all operations of the facility, for hiring and firing employees, and for ensuring compliance with all government regulations. At the time of the survey, Darcy Hall employed a dietician, a dietary technician, and a certified dietary manager on staff, who were responsible for running the dietary department. A trained head of maintenance and environmental services, who supervised several full-time employees, and a head of housekeeping services were on staff. Darcy Hall employed two social workers, who were supervised by a director of social services. Darcy Hall was also staffed with a full complement of trained registered nurses, licensed nurses, and certified nurse assistants, who were supervised by a Director of Nursing and Assistant Director of Nursing. It was Ms. DePonte's practice at Darcy Hall not to use nurses provided on a temporary basis by a registry, and all of the nurses employed at Darcy Hall during her time there were employees of the facility. Darcy Hall had written policies and procedures governing the operation of the facility, which were kept both in Ms. DePonte's office and at each unit on the floor. Darcy Hall employed a full-time in-service training coordinator, and Ms. DePonte arranged for outside consultants to conduct in-service training seminars for the staff. Ms. DePonte also made sure that the staff was apprised of any changes in state law and regulations. In-service training was also scheduled whenever Ms. DePonte became aware of an on-going problem. Ms. DePonte personally monitored the facility regularly. Each morning, the first thing she did was visit each nurses' station to determine the staffing levels for the day. She stopped and spoke with residents and family members in the hall, and she entered some of the residents' rooms. She spoke daily with the professional staff of the dietary department and checked with housekeeping and maintenance to make sure there was adequate staff. She also would let the maintenance department know of any problems she found during her morning rounds and would follow up each day to make sure the problems had been corrected. Each afternoon, around 3:30 p.m. or 4:00 p.m., after the change of shift, Ms. DePonte would again visit each nurses' station to follow-up on any issues that had arisen during the day. In addition to personally monitoring the floor twice each day, Ms. DePonte assigned responsibility for monitoring a particular area of the facility to each department head. The department heads were expected to go through their assigned areas at least twice a day to make sure, among other things, that the residents' needs were being met, that call bells were answered timely, that call bells were within reach of residents, and that bed cranks were underneath the beds. Any maintenance problems were also noted. Any problems observed by the department heads were to be reported. Ms. DePonte's policy was to see that problems were addressed within 24 hours. It was the policy at Darcy Hall to discipline staff members who were observed violating an established policy or procedure in accordance with the three-point disciplinary program in place at Darcy Hall. Ms. DePonte had in place at Darcy Hall policies and procedures implementing the requirement that call lights be accessible to residents. The policy required that call lights be positioned within reach of the residents when they were in bed, and the staff was trained to place the call light in accordance with the policy. In addition, Ms. DePonte had every wheelchair equipped with a bell so that the resident could ring the bell if the resident needed help and the call light was out of reach, and there were call lights in all of the residents' bathrooms. As Ms. DePonte made her rounds, she would check the rooms of certain residents to make sure their call lights were accessible. It is not, however, possible to ensure that call lights are within arm's reach of each resident at all times. Ms. DePonte had in place policies and procedures at Darcy Hall regarding the need for staff to recognize and respect the dignity of its residents. Staff training was on-going, and the staff were continually made aware of the residents' rights. Darcy Hall had in place policies and procedures regarding the placement of hand cranks for the residents' beds that required that the staff put away any bed crank they saw sticking out from a bed. Protruding hand cranks were on-going problems because often residents and/or family members would adjust the beds and fail to remove the cranks and place them under the beds. A cleaning schedule was in place for oxygen concentrators and other equipment used in the facility, and cleaning was to be done on a routine basis. Darcy Hall had an on-going program to replace old and worn materials and equipment. Some of the equipment was stained but this did not mean the equipment was not clean. Pursuant to the policy and procedure in place at Darcy Hall during Ms. DePonte's tenure as administrator, nurses were not allowed to dispense medications by placing the pills into their bare hands prior to giving them to residents. Much of the chipped furniture noted in the Form 2567 was furniture belonging to the residents and not furniture owned by Darcy Hall. Because Darcy Hall is an older facility, much needed to be done to maintain the facility. The number of ceiling tiles that were stained constituted a very small percentage of the total number of ceiling tiles in the facility, and ceiling tiles were missing in some places because a new roof was being installed. The baseboard that was coming apart from the wall was located behind an air conditioning unit that was being repaired at the time of the survey. Replacement of ceiling tiles and baseboards was on-going at Darcy Hall. Darcy Hall had a regular extermination service and, if insects were found in the facility, the exterminator would be called immediately and would take care of the problem. The deficiencies identified in the Form 2567 prepared after the July 1998 recertification survey were corrected by September 1, 1998, the time specified by AHCA in the Form 2567. Ms. DePonte left Darcy Hall on September 4, 1998, to take a job as administrator at another nursing home. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that the "deficiencies" at Darcy Hall identified by its witnesses in this proceeding were attributable to the negligence, incompetence, or misconduct of Ms. DePonte.7 The position reiterated by the Department's witnesses is that a nursing home administrator is strictly liable for all deficiencies cited on a Form 2567 and that her license is subject to discipline simply because deficiencies were found. The Department has failed to present evidence to establish with the requisite degree of certainty any lack of competence, misconduct, or act or omission on Ms. DePonte's part that caused the deficiencies. Indeed, the Department did not controvert the evidence presented by Ms. DePonte that there were policies and procedures governing the day-to-day operation of Darcy Hall in place, that in-service training was provided to the staff with respect to the policies and procedures on a regular and an as- needed basis, or that Ms. DePonte and her department heads regularly monitored the performance of the staff and their adherence to the policies and procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing Home Administrators, enter a final order dismissing the Administrative Complaint against Eugenia DePonte. DONE AND ENTERED this 30th day of November, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 30th day of November, 2000.
The Issue Did the Respondent direct aides to administer medications to patients?
Findings Of Fact John David Degnan is a licensed practical nurse holding License No. 0470411 issued by the Florida State Board of Nursing. The primary evidence presented by the Board was contained in the testimony of two nursing aids. These aides testified that Degnan had given them liquids and pills to be given to patients at Tanglewood Nursing Home. The aides were not told by Degnan that the substances given them were medications. The substances given the aides were unlabeled, and the aides did not observe details of the containers from which the substances were taken by Degnan. The aides did state that the substances given them by Degnan were taken from the medicine cart. Evidence was received that patients at Tanglewood received colored, artificially-flavored fruit drinks. Supplies of this drink were maintained on the medicine cart. Evidence was also received that patients at Tanglewood received placebos PA and were often given juices as a pacifier when they were not able to receive medications or no medications were ordered. Evidence was also received that pills are generally crushed and given with a soft food to aged, infirm patients. The nursing aides in question had received no training beyond that necessary for them to perform their duties as nursing aides.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida State Board of Nursing take no action against the license of John David Degnan. DONE and ORDERED this 4th day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jeffery B. Morris, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Mr. John David Degnan Post Office Box 2164 Lake City, Florida 32055 Geraldine B. Johnson, R. N. Board of Nursing 111 Coastline Drive, East, Suite 504 Jacksonville, Florida 32202
Findings Of Fact At the outset, it should be noted that the record in this proceeding is much less remarkable for its content than for what it fails to contain. The dispute between Petitioner and Respondent appears to revolve around Petitioner's objections to Respondent's disallowance of certain claimed items of operational costs and expense in the operation of Petitioner's nursing home. Respondent's disallowance was apparently based upon an audit of Petitioner's books, none of which were introduced into evidence, conducted by a private accounting firm, no representative of which was called to testify at the final hearing, which accounting firm submitted to Respondent a report, which was neither offered nor received into evidence. The only "pleading" on file in this cause is a letter dated March 20, 1978, from the office of Petitioner's certified public accountant, which letter is not signed by any individual, but simply bears the imprimatur of that firm. This letter details certain "specific areas of disagreement" and requests a formal administrative hearing thereon. Nowhere in this letter are the specific reasons for disagreement detailed. Respondent chose not to file any pleadings in response to the aforementioned letter. Because of the lack of detail in the "pleadings", the Hearing Officer, by Order dated April 25, 1979, required counsel for Petitioner and Respondent to meet together no later than fifteen days prior to the date of final hearing in this cause, which at that time had been set for July 10, 1979, to prepare a prehearing stipulation. The Order required the prehearing stipulation to be filed no later than ten (10) days prior to the date set for final hearing, and further required that the prehearing stipulation contain: a concise statement of the nature of the controversy; a brief, general statement of each party's position; a list of all exhibits, which shall be prenumbered, to be offered at the hearing, noting any objections thereto, and the grounds for each objection; a list of the names and addresses of all witnesses intended to be called at the hearing by each party. Expert witnesses shall be so designated. a concise statement of those facts which are admitted and will require no proof at hearing, together with any reservations directed to such admission; a concise statement of those issues of law on which there is agreement; a concise statement of those issues of fact which remain to be litigated; a concise statement of those issues of law which remain for determination by the Hearing Officer; a concise statement of any disagreement as to the application of the rules of evidence; a list of all motions or other matters which require action by the Hearing Officer; the signature of counsel for all parties. At the time of convening the final hearing in this proceeding on July 10, 1979, counsel for Petitioner and Respondent had failed to confer and prepare the prehearing stipulation required by the Hearing Officer's Order of April 25, 1979. As a result, the Hearing Officer agreed to proceed with the taking of testimony, subject to counsel for Petitioner and Respondent complying with the requirements of the prehearing order within seven (7) days from conclusion of the final hearing. On July 19, 1979, counsel for Petitioner and Respondent filed a Joint Stipulation, in two parts, which contained, in part, the following pertinent information: The nature of the controversy concerns itself with the claim of the [Petitioner] for the year ending March 31, 1976, as more fully set forth in the "adjustments to Statement of Cost of Operations" audit by Elmer Fox, Westheimer & Co., dated June 17, 1977, with particular reference to the following items: (1) Excess depreciation claimed on building through providers' use of original cost before adjustment for reduced basis from forgiveness of indebtedness ($ 6,912) (2) Excess depreciation erroneously calculated ($ 6,619) (3) The return on equity erroneously calculated ($30,873) (4) Owner/Administrator compensation ($ 5,287) In the prehearing stipulation, counsel for Petitioner and Respondent also agreed that a total of $13,513, covering insurance expense, housekeeping services and expenses for unallocatable income should be allowable to Petitioner for operational expenses. In addition, the following facts were stipulated to by counsel for Petitioner and Respondent: 3. (a) Petitioner, Sweeting Nursing Home is a facility located in Broward County, Florida, accepting Medicaid Nursing Home patients. Respondent, the Department of Health and Rehabilitative Services, is a department of the State of Florida charged by law with administrating [sic] the Medicaid program which includes auditing all nursing homes accepting Medicaid patients. At the request of the Department of Health and Rehabilitative Services, Elmer fox, Westheimer, & Co., an accounting firm in Broward County, did a fiscal year end audit of Sweeting Nursing Home for the period of March 31, 1975 to March 31, 1976. The audit report dated June 17, 1977, was forwarded to the Department of Health and Rehabilitative Services with certain recommended disallowances which included the following items: Depreciation $13,531.00 Return on Equity 30,873.00 Owner's compensation disallowance 5,287.00 After reviewing the Fox, Westheimer audit, the Department of Health and Rehabilitative Services' Audit, Evaluation and Review Unit initially notified the Sweeting Nursing Home that it had been overpaid the sum of $97,324.00, which sum was later reduced by stipulations between the parties. The nursing home requested certain adjustments and a reduction of the amount of overpayment. However, the Department disallowed the adjustments requested by letter addressed to Irving Lambert [sic] dated March 13, 1978, and Sweeting Nursing Home requested an Administrative Hearing. The Department of Health and Rehabilitative Services approved the FYE Audit Report, with disallowances, and takes the position that Sweeting Nursing Home is not entitled to the adjustments claimed by the nursing home in the areas enumerated in Paragraph (a). No exhibits to be offered. * * * Both parties admit that the audit was made by Elmer Fox, Westheimer, and Co. Both parties agree that the Department of Health and Rehabilitative Services had a legal right to audit Sweeting Nursing Home for Medicaid purposes. Further, that Fox, Westheimer, & Co., performed the audit in a manner perscribed [sic] by law. There are two issues of fact which remain to be litigated: Depreciation - "Did the Department of Health and Rehabilitative Services' validly disallow the Nursing Home's class depreciation on certain equipment, i.e., was the method used by Sweeting in depreciating certain equipment acceptable and consistent with the Medicaid HIM Manual?" "Was the Department of Health and Rehabilitative Services correct in disallowing the owner's compensation claimed by Sweeting Nursing Home?" The principal issue of law involved herein is the determination of "What is historical cost?" Historical cost touches on both item (1) of Paragraph (a), Depreciation and item (2) of Paragraph (a), Return on Equity. "May a Nursing Home, for Medicaid purposes, use an amount as historical costs of a facility, when such amount, subsequent to the original purchase, was reduced substantially by a forgiveness of an indebtedness agreement?" The Department of Health and Rehabilitative Services takes the position that the historical cost was $817,654.00 minus the $276,577.00 forgiveness of the indebtedness or actual historical cost of $541,077.00 Despite the above-mentioned provisions of the prehearing stipulation that no exhibits were to be offered, counsel for Petitioner in another section of the prehearing stipulation, which, as previously noted, was filed seven (7) days after the conclusion of the final hearing, indicated that: Petitioner relies upon as its principal exhibit the Medicare Provider Manual, HIM-15, together with all reports submitted to the Florida Department of Helath [sic] and Rehabilitative Services heretofore and objects to the introduction of the Elmer Fox audit dated June 17, 1977, since no testimony was presented with respect to said audit. Petitioner's objection in the prehearing stipulation to the introduction of the audit report was, in fact, moot, since the report was not offered into evidence at the final hearing by counsel for Respondent. In addition, neither counsel for Petitioner nor counsel for Respondent requested that the Hearing Officer take official notice of, nor did they attempt to introduce into evidence, either the Medicare Provider Manual, HIM-15; any rules or regulations of the State of Florida Department of Health and Rehabilitative Services; any applicable depreciation guidelines adopted by the American Hospital Association; or any depreciation guidelines promulgated by the Internal Revenue Service. In fact, no documents of any kind were offered for inclusion in the record in this proceeding by either Petitioner or Respondent. As indicated in the prehearing stipulation, there are four areas of disagreement between Petitioner and Respondent: the amount claimed as depreciation on Petitioner's building; the amount of depreciation claimed on certain items of equipment; the amount claimed as return on equity; and owner/administrator compensation. Although the record reflects that Petitioner used an original cost figure of $817,654.00 in calculating depreciation on its building, and that Respondent's auditors apparently used $541,077.00, there are no facts of record to substantiate the use of either amount. These same figures were apparently also used in calculating Petitioner's "return on equity", again with no factual justification for their use. Likewise, there is no competent evidence to demonstrate the manner in which Petitioner calculated depreciation on its equipment, or even the specific items of equipment on which such depreciation is claimed. Finally, although the record demonstrates that Petitioner's owner/administrator was paid $10,000 as salary for the fiscal year in question, and that he spent 25 percent to 30 percent of his time involved in the administrative functioning of the facility, there are no facts in this record on which to base a determination of the reasonableness of that salary or the owner's entitlement thereto. There is, in short, neither any competent evidence in this record concerning the methodology employed by Petitioner in computing the allowances to which it deems itself entitled, nor any reliable explanation of Respondent's rationale for disallowing those claims. To further complicate matters, the failure of both Petitioner and Respondent to introduce into evidence, or to request official notice of applicable governmental rules, regulations and guidelines against which to measure their respective claims, renders any meaningful resolution of their dispute impossible on this record.
The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner against the Respondent are correct and if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida. The Respondent operates a licensed nursing home at 1001 9th Street North in St. Petersburg, Florida. At approximately 7:00 p.m. on May 31, 2000, a certified nursing assistant (CNA) was feeding a resident of the nursing home an appropriate soft food meal. During the feeding, the resident began to gasp. At the time of the incident, the CNA who was feeding the resident had received training related to feeding this resident. The CNA had fed the resident previously without incident. At the time of the event, another CNA was also present in the room. An off-duty nurse walking by the resident's room saw the situation, and because the resident was seated with a food tray before her, assumed that the resident was choking. The nurse responded to the situation by performing a finger sweep of the mouth to locate food, and then performing a "Heimlich" maneuver. Because no food was located during the finger sweep or expelled after the "Heimlich" the nurse concluded that the resident was not choking. She also became aware that the resident was not breathing. The off-duty nurse lowered the resident's bed and began to perform emergency CPR. She also directed one of the CNA's present to call for the on-duty nurse. The on-duty nurse arrived shortly thereafter and began assisting with the CPR, using an "ambu-bag." Both nurses have substantial experience in nursing and as caregivers in nursing homes. There is no credible evidence that the nurses were unqualified or lacked appropriate training for their responsibilities. While performing the CPR, the off-duty nurse asked the on-duty nurse to determine whether the resident had "advance directive" information in her file. The on-duty nurse stopped using the "ambu-bag" and went to the nurse's station approximately 30 feet from the resident's room, determined that the resident had a "living will" on file, and returned to the resident's room to inform the off-duty nurse. Although there was a "living will" in the patient's file, there was no order prohibiting efforts to resuscitate the resident (commonly called a "DNR") and therefore such emergency procedures were appropriate; however, at the time the off-duty nurse initiated the CPR effort, the resident's status had not been determined. Upon the return of the on-duty nurse, the off-duty nurse stopped performing CPR and went to the nurse's station to review the paperwork in the resident's file after which she called the facility's director of nursing to report the situation. When the nurse halted her CPR effort, she had been administering "chest massage" for approximately three minutes and had gotten no response from the patient. The director of nursing told the nurse to immediately call 911 for emergency assistance. As directed, the off-duty nurse called 911, reported the information, and returned to the resident's room to resume her CPR effort. An EMT team arrived at the facility quickly after the nurse's telephone call. The EMT personnel unsuccessfully attempted to intubate the resident, and ultimately were unable to revive her. Approximately 25 minutes elapsed from initiation of efforts by the off-duty nurse to the EMT personnel determination to halt resuscitation attempts. The resident suffered from end-stage Parkinson's disease. According to the Certificate of Death, the immediate cause of death is listed as "debility of age." There is no evidence that the employees of the nursing home were the cause of or contributed to the resident's death. There is no evidence that the resident choked on food. There is no evidence that resident’s "gasping" sounds were caused by any foreign obstruction within her airway. The facility properly notified the Petitioner of the incident. The Petitioner conducted an investigation on June 2, 2000. The results of the inquiry were set forth on a form identified as a "HCFA 2567" which identifies alleged deficiencies in the Respondent's procedures and activities related to the resident's death. Deficiencies are identified on a "2567" form as "tags." Such alleged deficiencies also include a narrative description of the Petitioner's review and citation to a provision of the Florida Administrative Code rule. Insofar as relevant to this proceeding, the "2567" form identifies tags F156 and F280. TAG F156 Tag F156 alleges that the Respondent failed to "employ a system which ensured the prompt identification of residents who had formulated advance directives for purposes of implementation. The Petitioner charges that the Respondent failed to have policies and procedures for prompt identification of residents who had formulated advance directives for purposes of implementation, especially during an emergency. The Respondent maintained records of each resident's advance directive information in a red folder contained within the resident's medical file. The files were maintained at the nurse's station to facilitate immediate location and provide for a proper response by facility staff. Such record maintenance provided access to information for medical staff while maintaining each resident's rights to privacy. The evidence fails to establish that the facility's system did not provide for "prompt identification of residents who had formulated advance directives for purposes of implementation." TAG F280 Tag F280 alleges that the Respondent failed to review and revise the comprehensive interdisciplinary care plan for the resident to indicate chewing and swallowing problems. The tag also states that "the staff did not implement use of compensatory safe swallow techniques as recommended by the speech language pathologist, resulting in an emergency choking situation which compromised the life of a resident." The Petitioner charges that the Respondent failed to develop a comprehensive care plan for the resident "who was identified with chewing and swallowing problem." The evidence establishes that the interdisciplinary care plan prepared for the resident appropriately addresses the resident's potential for chewing and swallowing difficulty. The care plan identifies the specific steps to be taken in providing nutrition to the resident, including the type of diet, the positioning of the resident's body for feeding, the actual timing of food provision, and indicates that observation is required to ascertain whether the resident was aspirating or choking. The care plan set forth goals for nutrition consumption and established a deadline for achieving the goal with the resident. Tag 281 At the hearing, the Petitioner initially indicated that Tag F281 was not at issue in this proceeding. The Administrative Complaint alleges that the Respondent failed to follow the policies and procedures for obstructed airway management and did not have a system-wide policy and protocol for how nursing services respond during medical emergencies. Evidence was presented at the hearing related to this issue, which appears to be included within Tag F281. Accordingly, the following findings of fact are set forth. There is no evidence that the facility failed to maintain policies and procedures in the area of nursing services. The facility policy related to obstructed airway management is set forth in the "Nursing Policy & Procedure Manual." The types of maneuvers identified as appropriate are "abdominal thrusts" and "finger sweeps." An "abdominal thrust" is commonly referred to as a "Heimlich" maneuver. There is further no evidence that the off-duty nurse failed to follow the facility policy on obstructed airway management. The greater weight of the evidence establishes that the off-duty nurse appropriately performed both procedures on the resident prior to initiation of CPR activities. As to the provision of CPR, the off-duty nurse's CPR certification had expired at the time of the incident, but there is no evidence that she administered the CPR incorrectly during the time her efforts were made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a Final Order dismissing the Administrative Complaint filed in this case. DONE AND ENTERED this 1st day of August, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2001. COPIES FURNISHED: Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, Room 310G St. Petersburg, Florida 33701 Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Tallahassee, Florida 32301 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
The Issue Whether the Petitioner was properly issued a conditional license on March 24, 1997.
Findings Of Fact Survey Background Rio Pinar (Petitioner) is a 180-bed nursing home in Orlando, Florida, licensed by the Respondent pursuant to Chapter 400, Florida Statutes. Pursuant to its licensing authority the Respondent conducts surveys of nursing homes to determine compliance with statutes and regulatory standards that are established by the state, as well as the federal Medicare and Medicaid programs. On February 13, 1997, the agency conducted an annual re- certification survey of Petitioner. The multi-disciplinary survey team was comprised, in part, of Sharon Hudson, Zola Whitmore, James Lang, and Lisa Privett. The team met with facility staff, then toured the facility to develop a sample of residents on which to conduct an in-depth review. Two of the issues on which the team focused were falls and restorative care by patients. The information was obtained by the team from patient examinations, records' review, and discussions with staff. At the conclusion of the survey inspection, Respondent issues a survey report which sets forth the factual findings made by the surveyors (which are organized as deficiencies by Tag numbers), the applicable federal and state regulations which the surveyors believe have been violated by the facility, and a federal scope and severity rating and state class rating for each tag numbered deficiency. Respondent issues a nursing facility a conditional license anytime it finds a state Class I or II deficiency or anytime it finds a Class III deficiency that is not corrected within the time frame mandated by AHCA. (Section 400.023, Florida Statutes.) In each of the nine annual surveys preceding February 1997, Petitioner received a Superior licensure rating. Falls The nursing home is required to ensure that each patient receives adequate supervision and assistance devices to prevent accidents. An accident is an unexpected, unintended event that can cause bodily injury. It does not include adverse side effects or reactions to drugs. The most common accidents in nursing homes are falls by patients. The facility is expected to provide the supervision necessary to prevent those falls, and each patient must be assessed for being at risk. Tag F324 of the survey report alleges that Petitioner violated 42 CFR s. 483.25(h)(2), which provides that a facility "must ensure that a resident receives adequate supervision and assistive devices to prevent accidents." Respondent's surveyors testified that 11 residents: residents numbered 1, 2, 3, 5, 8, 10, 11, 12, 14, 23, 27, and 30 identified under Tag F324 of the survey report did not receive adequate supervision to prevent accidents because the facility did not timely assess these residents for interventions to prevent falls. They also testified that one of the residents, Resident number 4, did not receive appropriate restorative training that could have prevented a fall suffered by that resident. Finally, Respondent alleged that the number of surveyed residents at Rio Pinar who had fallen was exceptionally high and reflected inappropriate care. Petitioner comprehensively assesses each of its residents for their risk for falls and, where appropriate, provides a preventive care plan for those residents. An assessment is a thought process designed to lead a care-giver to determine the appropriate plan of care for a resident. Each resident is assessed for his or her risk for falls through a variety of assessment mechanisms. Resident 1 fell on November 24, 1996, after having been admitted to the facility on October 28, 1996. No preventable cause of the fall was found. Resident 1 was assessed by Petitioner upon admission for her risk for falls using the MDS assessment and Physical Therapy Assessments. She was determined to be independently ambulatory but cognitively impaired so that there was no care plan to prevent falls that could have been written or implemented for her other than "common sense" nursing. While sitting in a chair in her room, Resident 8 fell asleep, slumped over and hit her head on the windowsill next to her chair. No preventable cause of the fall was found. Resident 8 had been comprehensively assessed for her risk of falls by Petitioner, was determined to be totally dependent upon the facility for assistance in transfers and ambulation, and had a written care plan in place to prevent falls at the time she slumped over and hit her head on the windowsill. The resident was not considered to be at risk for falls while sitting in her chair, and there were no care plan interventions written to address that risk. The use of a helmet would be highly intrusive and is not a viable preventative measure in this case. Resident 14 fell on January 15, 1997. No preventable cause of the fall was found. Prior to her January 15, 1997, fall, Resident 14 had been at Petitioner for four years and had not fallen. However, she had been assessed for her risk for falls and was determined to be independent in her ambulatory skills so that she needed no care plan to prevent falls. There was no evidence submitted by Respondent regarding Resident 30. Resident 5 fell on December 7 and December 17, 1996. Resident 5 had been assessed by Petitioner using the Minimum Data Set (MDS) and Physical Therapy Assessments. Like many of the other cited residents, she was independently ambulatory and had dementia. She had a tendency to wander and thus a specific care plan was in place to address that problem. However, her other conditions did not merit a specific care plan to prevent falls. Resident 5's fall on December 7, 1996, was investigated and no cause was found. However, because the Resident fractured her femur and suffered a decline, the facility re-assessed her and properly deemed her to be at risk for future falls. A care plan to prevent falls was drawn up by the physical therapy department that included providing the Resident with assistance in all transfers and ambulation, putting the side rails up while the Resident was in bed, and providing the Resident with a wheelchair and a walker. Her fall of December 17, 1996, was investigated and no cause was found, nor was there any supervision or assistive device that was lacking. Resident 11 did not fall during this period. Petitioner assessed Resident 11 for her risk for falls and had a care plan in place to address her need for assistance in transfers and ambulation. In addition, she was put on an ambulation program, was given a wheelchair and had a "lap buddy" to use to prevent falls from the wheelchair. Resident 3 fell twice over the course of four months, once on August 5, 1996, and once on November 10, 1996. Resident 3 was assessed by Rio Pinar when she was admitted to the facility and four days prior to her initial fall. Those assessments determined that the Resident was independent in ambulation and transfers and had dementia. Accordingly, there was no written care plan to prevent falls prior to August 5, 1996. After her fall on August 5, the incident was investigated and no preventable cause for the fall was identified. However, the facility prepared a written care plan to prevent falls that essentially emphasized common sense preventative measures because the Resident's assessed conditions did not merit additional supervision or assistive devices. Likewise, the November fall was investigated and no preventable cause was found that merited a change in this Resident's care plan. Resident 2 wore a halo device and was found sitting on her floor on December 4, 1996. The Resident's fall was investigated by nursing but the investigation did not identify any preventable cause that merited a change in the care plan approaches. The Resident had been assessed for falls and a care plan had been in place to prevent falls since November 19, 1996. That plan included physical therapy, a wheelchair and walker, assistance in ambulation, and side rails while in bed. Because the halo device was heavy, the Resident was also instructed to be careful; however, she would frequently ignore those warnings. Resident 10 was found sitting on the floor on January 21, 1997, and slipped on February 1, 1997. No preventable causes were identified for either fall. The first fall was caused by the Resident being startled by another resident in the facility. The second fall occurred because the Resident slipped while wearing shoes with slippery soles. Neither of the falls could have been prevented by Petitioner with interventions that were not already addressed in the Resident's plan of care. The Resident had been assessed for her risk for falls and, even though she was independent in her ambulation, had a care plan in place in September of 1996 to prevent falls. The facility was particularly concerned that the Resident, who was capable of dressing herself, would put on shoes that had slippery soles. Accordingly, the care plan provided that the facility would encourage the Resident to wear shoes with non-slip soles. The facility could do nothing more than encourage the Resident to wear appropriate shoes since the Resident could dress herself and her choices had to be respected by the facility. Resident 27 fell on December 8, 1996. No preventable cause of the fall was identifiable. Resident 27 was assessed upon admission to the facility in November 1996, and was determined to be at high risk for falls. A care plan to address falls was developed for this Resident that included assistance with ambulation, a daily ambulation program and side rails up while the Resident was in bed. Resident 4 fell twice on February 1, 1997. The February 1st fall was investigated by nursing and was determined to have been caused when the Resident attempted to get in bed by herself and missed the bed. The Resident was cognizant enough to know that she should call for assistance when needed so that it was determined that there was no additional supervision or assistive device that could have prevented the fall that was not already in place. This Resident had a care plan in place to prevent falls that was based on common sense preventative measures. The common sense approach was used because the Resident was independent in ambulation. Because of that independence, there was never any recommendation made by physical therapy or nursing that the Resident receive gait or balance programs, and none was given. Resident 23 fell on January 29, 1997. The Resident fell while going to the bathroom. No preventable cause of the fall was determined. This Resident had been assessed for her risk for falls, and her fall on January 29, 1997, was thoroughly investigated. The Resident had been initially assessed as being at risk for falls, but that risk was addressed through physical therapy and restorative ambulation. Respondent suggested that deficient care was given at Rio Pinar to prevent falls because there was an unusually high number of residents at Rio Pinar who experienced falls. Respondent surveyed 30 residents at Rio Pinar and 12 of them -- 40 percent of the sample -- had fallen. However, the sample pool of residents was compiled from the files of residents who had fallen. The sample used by the surveyors -- and the percentage of residents who fell -- was not randomly created but produced a high percentage of residents who had fallen. Petitioner experiences approximately 360 falls per year by its residents. Three hundred and sixty falls a year by its residents is within the average number predicted by one clinical study. Respondent proposed that a facility must provide one- on-one care, 24-hours a day to residents who are at risk for falling if that is the only way to ensure that a resident will not fall. This type of staffing would significantly exceed the staffing requirements set forth in the state regulations and is unreasonable. Petitioner was not cited as being in violation of any minimum staffing requirements. Such a high level of supervision would require a tremendous increase in staff which would, in turn, result in a tremendous cost to the facility and its residents. Petitioner would be required to double its current staff. Providing that level of care is neither feasible nor consistent with generally accepted standards of care. Restorative Care Tag F311 of the survey report alleges that Petitioner violated 42 CFR 483.25(a)(2), which provides that a facility must ensure that "a resident is given appropriate treatment and services to maintain or improve" his or her activities of daily living ("ADLs"). Specifically, Respondent alleged that five residents did not receive restorative ambulation programs, two residents did not receive bowel and bladder programs, and one resident did not receive a restorative feeding program. A resident's ADLs include ambulating, feeding, toileting, grooming and bathing. When a resident's ability to do these activities has declined, the facility will frequently implement a restorative care program to address the decline, or will implement a maintenance program to maintain the resident's status if the resident's decline cannot be improved. At Petitioner Rio Pinar restorative or maintenance programs are developed by one of the therapy departments in the facility after an assessment of the resident's needs by the appropriate therapist. The programs are implemented by the nursing staff based upon instruction from the therapist who developed the program. Programs dealing with ambulation are developed by the Physical Therapist. Programs dealing with feeding are developed by the Occupational Therapist. The bowel and bladder program at Petitioner is developed and implemented by the nursing staff. Most bowel or bladder programs which are implemented for residents in a nursing home are for residents who have suffered irreversible declines in their bowel or bladder functions. In these cases, there is little prospect that they can be restored to independent status. The objectives for those residents are preventing incontinent episodes from occurring, keeping the resident dry and free of skin breakdown, and maintaining the resident's dignity. At Petitioner, the preferred toileting program for incontinent residents is a program that requires a staff member to check on a resident every two hours and toilet the resident if appropriate. An alternative program for residents is a "patterning program" which attempts to determine the resident's bathroom pattern and uses that pattern to schedule when a resident should be toileted. Either of these programs can meet the needs of an incontinent resident, and neither program is a demonstrably better program than the other. Although the program of choice at Petitioner is the two-hour program, Petitioner does attempt to ascertain toileting patterns for residents, and will follow those patterns instead of the two-hour system where the patterns can be ascertained. Respondent alleged that three Certified Nursing Assistants ("CNAs") at Petitioner had not completed a restorative training course offered at the facility and implied that they were inadequately prepared to give restorative care. The training course the CNAs missed was only an in-house refresher course of restorative care techniques which the CNAs had previously been taught during their certification training. The course was not required by any state or federal regulation. Furthermore, the CNAs received individualized instruction for restorative care from the Physical Therapy department for each resident for whom restorative care was ordered. Respondent alleged that Resident 1 had an unsteady gait and did not receive any restorative ambulation program for that problem. This was based upon an assessment done when the Resident was admitted to the facility which indicated that the Resident's gait was "wide based." That assessment was interpreted to mean that the Resident was unsteady when she walked. Resident 1 was assessed by the Physical Therapy Department upon her admission to the facility and it was that Department which determined that the Resident had a wide-based gait. A wide-gait is a steady gait. Resident 1 was further assessed to be independent and at her optimal level of ambulation. No restorative ambulation program was needed by or ordered for the Resident. It was alleged that Resident 7 did not receive required restorative ambulation, and that he had family members who were concerned about their ability to ambulate this Resident as a result of the absence of that program. Resident 7's ambulation program was daily ambulation with hand-held assistance from the nursing staff. It was not a restorative program but was designed to maintain the Resident's ambulatory abilities because he was ambulating at his highest capability. Resident 17 was admitted to Petitioner with orders for physical and occupational therapy. She began taking her occupational therapy; however, due to a bad experience she had with physical therapy while in the hospital, she refused to take physical therapy while in the hospital. She also refused to take physical therapy at Petitioner. She was given a psychiatric evaluation which recommended that the physical therapist go by and say "hello" to the Resident to try and help increase the Resident's confidence. Petitioner was required to honor the Resident's choice not to participate in physical therapy. It was alleged that there was no evidence to indicate that the physical therapist acted on the psychiatrist's recommendation. Going by and saying hello to a resident is not part of physical therapy or restorative care. Nonetheless, the physical therapist went by and visited with Resident 17 in an effort to build rapport with her. Because she was not giving physical therapy to this Resident, the physical therapist did not document these visits in her notes. Furthermore, the Resident's restorative needs were being met by the Occupational Therapy department at Petitioner. The Resident was in need of upper body strengthening, and the therapy provided by the Occupational Therapist was addressing that need. The Resident was not deprived of any ADL by her failure to participate in a physical therapy program. Resident 28 had declined, but maintained some ability to feed himself with assistance. He was discharged to a restorative self-feeding program. It was alleged that there was no evidence that the program was ever implemented for this Resident. Resident 28 had only minimal ability to feed himself, and the Occupational Therapist who developed his restorative feeding program was not optimistic that the program could improve the resident because he had declining dementia. The prescribed program was started but had to be discontinued almost immediately. The Resident suffered a significant weight loss, and the nurses were instructed to discontinue the feeding program in that event. Thereafter, the program was not re-started because the Resident suffered a further decline due to his dementia and could not have any of his feeding abilities improved. In the brief time between the implementation of the program and its termination, the Resident's wife attempted to feed the Resident by herself. This act, motivated out of an understandable difficulty in watching her husband struggle to feed himself in the restorative program, was counter-productive to the goal of the program that the Resident learn to feed himself. The wife had been involved in the training instructions for the program and had been reminded frequently of the need for the Resident to feed himself, but she fed him anyway. The Occupational Therapist was not interviewed prior to citing this deficiency. There was no deficiency if the Occupational Therapist determined that the Restorative Program for this Resident should be discontinued. The Occupational Therapist made that determination for this Resident. Resident 27 was discharged from physical therapy to a restorative ambulation program. It was alleged that there was no evidence that the ambulation program was administered in December. However, the program was given for 14 of the 17 days that the Resident was in the facility. Respondent claimed that Residents 19 and 30 suffered declines in bowel and bladder functions and were not further assessed to determine if they could be placed in a retraining program. The Residents were not observed to be wet or otherwise unattended regarding their toileting needs. Both Residents were assessed using the MDS, which contains a comprehensive assessment (including a RAP key) for incontinence. Neither Resident could be restored to continence or independent status. They were both placed on a two-hour toileting program.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent enter its Final Order granting Petitioner's request to change its conditional license rating for the period contemplated by the February 1997 survey. DONE AND ENTERED this 29th day of April, 1998, at Tallahassee, Leon County, Florida. COPIES FURNISHED: R. Davis Thomas, Jr., Esquire Qualified Representative Donna H. Stinson, Esquire Broad and Cassel Post Office Box 11300 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1998. Tallahassee, Florida 32302-1300 Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Jerome W. Hoffman, General Counsel Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Arlene C. Taylor Rich is a licensed practical nurse holding License No. 34195-1 issued by the Florida State Board of Nursing. The primary evidence presented by the Board was contained in the testimony of two nursing aides. These aides testified that Rich had given them liquids and pills to be given patients at Tanglewood Nursing Home. The aides were not told by Rich that the substances given them were medications. The substances given the aides were unlabeled, and the aides did not observe details of the containers from which the substances were taken by Rich. The aides did state that the substances given them by Rich were taken from the medicine cart. One aide related an experience in which she advised Rich that a patient was running a temperature and coughing. Rich gave the aide a red liquid, which the aide testified smelled like cough syrup. Evidence was received that patients at Tanglewood received colored, artificially-flavored fruit drinks. Supplies of this drink were maintained on the medicine cart. Evidence was also received that patients at Tanglewood received placebos PA and were often given juices as a pacifier when they were not able to receive medications or no medications were ordered. Evidence was also received that pills are generally crushed and given with a soft food to aged, infirm patients. The nursing aides in question had received no training beyond that necessary for them to perform their duties as nursing aides.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida State Board of Nursing take no action against the license of Arlene C. Taylor Rich. DONE and ORDERED this 4th day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jeffery B. Morris, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Ms. Arlene C. Taylor Rich Route 4, Box 50 Lake City, Florida 32055 Geraldine B. Johnson, R. N. Board of Nursing 111 Coastline Drive, East, Suite 504 Jacksonville, Florida 32202
