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
The Issue The issue is whether disciplinary action is appropriate with regard to Respondent's license as a Certified Nursing Assistant.
Findings Of Fact The Department is the state agency charged with regulating the practice of nursing pursuant to Section 20.43 and Chapters 456 and 464, Florida Statutes. Mrs. Thompson, during times pertinent, held a certificate as a Certified Nursing Assistant (C.N.A.) and was assigned license number CNA24755 by the Department. She was originally licensed October 6, 2003. At the time of the hearing she was a resident of Fountain, Florida. Lesly Buchikos (Ms. Buchikos) is a C.N.A. licensed in the State of Florida. She is also licensed in the State of New Hampshire, and has been licensed in that state since 1976. Ms. Buchikos currently lives in New Hampshire and works as a C.N.A. in a New Hampshire medical facility. She has 31 years of experience as a C.N.A. Ms. Buchikos has worked continuously as a C.N.A. since 1976. She has received specialty training in geriatrics and caring for patients suffering from Alzheimer's and related disorders. She has trained medical personnel on providing aid to elderly persons and on the rights of persons residing in nursing homes. Professionally, Ms. Buchikos has substantially more experience than Mrs. Thompson, and has undergone more training. On February 15, 2005, Mrs. Thompson and Ms. Buchikos were working together at the Community Health and Rehabilitation Center in Panama City, Florida (Community). This facility houses elderly persons. Some of the residents are mentally and physically challenged. On that day, Mrs. Thompson and Ms. Buchikos were assigned to change the soiled undergarments worn by Resident R.L. Resident R.L. was more than 70 years of age and was suffering from dementia. He was nonverbal and resisted care. He was a very difficult patient. Ms. Buchikos believes that when tending to residents, like Resident R.L., it is best to carefully explain what you wish to accomplish, before undertaking care, and to allow the resident time to respond. She believes that when the two approached Resident R.L., in the morning hours of February 15, 2005, Mrs. Thompson failed to explain their intentions toward him and that failure caused him to become agitated. According to Ms. Buchikos' testimony, Resident R.L. resisted the efforts of Mrs. Thompson. She testified that Mrs. Thompson became rough and angry with Resident R.L., cursed him, and slapped him on the left buttock. Ms. Buchikos testified that the sound emanating from the slap was so loud that it echoed through the building. Ms. Buchikos is certain that the slap was intentional and that it jolted him. She said that Mrs. Thompson used her left hand to strike him. She said this behavior upset her and that she cried. She reported this to the charge nurse, Amy Rosin, and prepared a written statement relating her allegations. Resident R.L. was unable to make a statement and has since died. Registered Nurse Jodie Mills was the nurse supervisor who was in charge of the entire facility during the hours from 11:00 p.m. February 14, 2005, to 7:00 a.m. on February 15, 2005. Early in the morning of February 15, 2005, Ms. Rosin, informed Nurse Mills of Ms. Buchikos' allegation. Based on that report he sent Mrs. Thompson home. Nurse Mills had no personal knowledge of the incident, nor, insofar as the evidence reveals, did Ms. Rosin. He noted in a statement signed by him and dated February 15, 2005, "I could not find any sign of marks on Resident R. L.'s bottom." He now works with Mrs. Thompson at Sea Breeze. He has never seen Mrs. Thompson strike anyone at Community or Sea Breeze. Registered Nurse Stan Dunn, on February 15, 2005, was a supervisor and risk manager at Community. He has 11 years of experience in the nursing field. Nurse Dunn's chain of command ran to the assistant director of nursing, who reported to the director of nursing. He was informed of the incident by Nurse Mills. Nurse Dunn investigated the incident. When he questioned Mrs. Thompson about the incident, she denied the events occurred as related by Ms. Buchikos. Nurse Dunn was intimately familiar with Resident R.L. He had personally cared for him and described him as incoherent, bigger than average, strong, and sometimes aggressive. He stated that usually two staff members were required to control him. On February 16, 2005, Nurse Dunn prepared an Initial Adverse Incident Report-Day 1 that was submitted to the Florida Agency for Health Care Administration (AHCA). This report parroted the information supplied by Ms. Buchikos. He later sent AHCA a Complete Adverse Incident Report-15 Day, which added the information that Mrs. Thompson had been formally suspended. On February 21, 2005, Nurse Dunn signed a memorandum entitled "Employee Counseling." He informed Mrs. Thompson of the results of the internal investigation into the events of February 15, 2005, and informed her that she would be terminated. She responded with threats to, "call the board" and report them. A subsequent Personnel Action Request dated February 21, 2005, effected Mrs. Thompson's termination. Nurse Dunn stated that Mrs. Thompson was terminated because the facility was not able to totally preclude that the incident did not occur and because the facility had to err on the side of caution. Mrs. Thompson stated that on the morning of February 15, 2005, it was necessary for Ms. Buchikos and her to clean Resident R.L. She said that she was holding Resident R.L. with her left arm and washing him with her right. Resident R.L. was being difficult and while holding him she had to draw back and when she did, her glove snapped and made a sound that she believes Ms. Buchikos mistook for a slap. Mrs. Thompson said that she had been in an automobile accident on December 28, 2004, and that she suffered severe injuries to her left arm and required skin grafts on it as a result. Indeed, at the hearing it was obvious that her arm was the recipient of skin grafts at some time in her life. She said that her arm was in a sling at the time of the reported incident. She stated that these injuries made it impossible for her to slap anyone with her left hand. Mrs. Thompson stated that she did not curse or otherwise speak or yell inappropriately to Resident R.L. Donna Sirk, Kevin McVay, and Joseph Mowers are licensed practical nurses with many years of experience, and they currently work with Mrs. Thompson at Sea Breeze. They have worked with her for about two years. They stated that they had never seen her curse or otherwise misbehave and stated that she was a good caregiver upon whom they could depend.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, dismiss the Amended Administrative Complaint. DONE AND ENTERED this 24th day of April, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2007. COPIES FURNISHED: William F. Miller, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Brenda A. Thompson 21734 Clarks Road Fountain, Florida 32438 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM, Executive Director Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701 Patricia Dittman, PhD(C), RN, CDE, Board Chair Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent violated the duly promulgated rules of the Department of Health and Rehabilitative Services by designating and continuing to designate the same person as the Assistant Administrator and the Director of Nursing of the Bonifay Nursing Home, Inc., after having been cited for such deficiency and allowed sufficient time to correct the deficiency.
Findings Of Fact An Administrative Complaint was filed by Petitioner Department of Health and Rehabilitative Services on October 27, 1980 notifying Respondent Bonifay Nursing Home, Inc., a skilled nursing care home, that Petitioner intended to impose a civil penalty of $100 for violating duly promulgated rules by designating the same person to act as Assistant Administrator and Director of Nursing of the nursing home. At the formal administrative hearing the Administrator admitted that he served more than one health facility, that at all times pertinent to the hearing the acting Assistant Nursing Home Administrator was also designated as the Director of Nursing, and that she was the only registered nurse on duty. It was admitted that no change had been made after the inspector for the Petitioner Department had called attention to this alleged violation until after the time period allowed for correcting this situation had expired and after the Petitioner had informed Respondent it intended to impose a $100 civil penalty. In mitigation Respondent presented testimony and adduced evidence showing that as the owner and operator of the nursing home he had made an effort to employ registered nurses at the home and that on the date of hearing the nursing home was in compliance with the statutes, rules and regulations. It was evident to the Hearing Officer that the nursing home serves a need in the community and that the residents appreciate the service. Petitioner Department submitted proposed findings of fact, memorandum of law and a proposed recommended order, which were considered in the writing of this order. Respondent submitted a memorandum. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered by the Petitioner assessing an administrative fine not to exceed $50. DONE and ORDERED this 10th day of February, 1982, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1982. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32301 Mr. J. E. Speed, Administrator Bonifay Nursing Home 108 Wagner Road Bonifay, Florida 32425 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent committed violations of Section 468.1755, Florida Statutes, as alleged in an Administrative Complaint dated October 7, 1988, and if so, what discipline should be taken against his nursing home administrator's license.
Findings Of Fact Respondent, Robert Allen Maurer, is a licensed nursing home administrator, holding State of Florida license number NH 0002026. He is currently employed by Central Park Lodges, Inc., as a corporate administrator out of the corporate offices in Sarasota, Florida. From July 19, 1985, until February 9, 1989, Robert Maurer was the administrator at Central Park Lodges' retirement center and nursing home facility, Central Park Village, in Orlando, Florida. On April 28, 29 and 30, 1986, Grace Merifield and other staff from the Department of Health and Rehabilitative Services (HRS) Office of Licensure and Certification conducted their first annual inspection of Central Park Village. Ms. Merifield is an RN Specialist and licensed registered nurse. Ms. Merifield found several licensing rule violations, including the following, and noted them on a deficiency report form: NURSING SERVICES NH127 3 of 3 bowel or bladder retraining program patients charts reviewed lacked documentation of a formal retraining program being provided. The documentation lacked progress or lack of progress towards the retraining goal, ie., in the care plan, nurses notes or the monthly summaries. 10D-29.l08(5)(b), FAC, Rehabilitative and Restorative Nursing Care. DIETARY SERVICES NH193 1) Stainless steel polish containing toxic material was observed in the dishwasher area. Bulk ice cream and cartons of frozen foods were stored directly on the floor in the walk-in freezer. 10D-29.110(3)(g)1, FAC, Sanitary Conditions INFECTION CONTROL NH448 Infection control committee had not insured acceptable performance in that the following was observed: After a dressing change the nurse failed to wash her hands; three nurses failed to cover the table they were working off, one nurse used the bedstand along with the syringe for a tube feeding resident and returned the supplies to medical cart or medical room, cross contaminating the supplies. Floors of utility rooms were observed with dead bugs unmopped for two days of the survey. Syringe unlabeled and undated. Urinals and graduates unlabeled. Clean linen placed in inappropriate areas and soiled linen on floors, laundry bucket overflowing being pushed down the hall. 10D-29.123(2), FAC, Infection Control Committee (Petitioner's Exhibit #3) During the survey, Robert Maurer, as Administrator, and other nursing home staff met with the inspection team, took partial tours with them and participated in exit interviews, wherein the deficiencies were cited and recommendations were made for corrections. The infection control deficiencies required immediate correction, the dietary services deficiencies required correction by May 5, 1986, and the other deficiencies were to be corrected by May 30, 1986. On July 14, 1986, Ms. Merifield returned to Central Park Village for reinspection and found that most of the violations had been corrected. These, however, still remained: Stainless steel polish containing toxic materials was found in the dishwashing area, a violation of Rule 10D-29.110(3)(g)(1), Florida Administrative Code; Bulk ice cream and frozen food was stored directly on the floor in the walk-in freezer, and one of the five gallon ice cream container lids was completely off, exposing the ice cream, a violation of Rule 10D-29.110(3)(g)(1), Florida Administrative Code; Three out of three bowel or bladder retraining program program charts of residents reviewed lacked documentation, from all shifts of nurses, of a formal retraining program where progress or a lack of progress should be documented, a violation of Rule 10D-29.108(5)(b), Florida Administrative Code; The infection control committee had not insured acceptable performance, a violation of Rule 10D-29.123(2), Florida Administrative Code, in that: two nurses failed to properly cover the bedside table they were working from and cross contaminated dressing supplies; urinals and graduates were unlabeled; clean linen was placed in inappropriate areas, soiled linen was in the bathroom basin, and laundry buckets were overflowing with soiled linens in two utility rooms. After the survey in April, the facility was given a conditional license. That was changed to a standard license in October, 1986, when another inspection was conducted and no deficiencies were found. The following April, in 1987, the facility was given, and still maintains, a superior license. All of the deficiencies noted in April and July 1986 were class III, the least serious class of deficiencies, denoting an indirect or potential threat to health and safety. Deficiencies in Classes I and II are considered life-threatening or probably threatening. The number of deficiencies found at Central Park Village was not unusual. After the April inspection and before the July inspection, Robert Maurer took steps to remedy the deficiencies. Although the staff already had in-service training, additional training was given. Mr. Maurer met with the food service director and was told that a delivery had been made the morning of inspection, but that items had not been placed on the shelves by the stockman. Some of the food items had been left out to be discarded. Prior to the case at issue here, no discipline has been imposed against Robert Maurer's nursing home administrator's license.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a final order be entered finding Respondent guilty of a violation of Section 468.1755(1)(m), F.S., with a letter of guidance from the Probable Cause Panel of the Board. DONE AND RECOMMENDED this 11th day of October, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: PETITIONER'S PROPOSED FINDINGS 1. and 2. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in part in paragraph 5. Some of the deficiencies had to be corrected before the 30-day deadline. and 7. Adopted in paragraph 6. RESPONDENT'S PROPOSED FINDINGS Adopted in paragraph 1. Adopted in part in paragraph 1. Petitioner's exhibits #1 and #2 and Respondent's testimony at transcript, pages 54 and 55, establish that he was administrator from 1985-1989. Adopted in paragraph 2. Adopted in paragraph 6. Rejected as inconsistent with the evidence, including Respondent's testimony. Adopted in paragraph 6. Rejected as contrary to the evidence. Adopted in paragraph 9. through 11. Rejected as contrary to the weight of evidence. 12. and 13. Adopted or addressed in paragraph 8. 14. and 15. Adopted in paragraph 7. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Victoria Raughley, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 R. Bruce McKibben, Jr., Esquire P.O. Box 10651 Tallahassee, FL 32302 Mildred Gardner Executive Director Dept. of Professional Regulation Board of Nursing Home Administrators 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792
The Issue Was Petitioner properly cited for a Class III deficiency.
Findings Of Fact Horizon Healthcare & Specialty Center (Horizon), is an 84-bed nursing home located at 1350 South Nova Road, Daytona Beach, Florida. It is licensed under Chapter 400, Part II, Florida Statutes. The Agency for Health Care Administration (AHCA) is the state agency charged with licensing and regulating nursing homes in Florida. On August 14, 2000, AHCA conducted a survey of Horizon. This was accomplished in part by Rose Dalton, a nurse. At the hearing Ms. Dalton was determined to be an expert in nursing care. A report on a nursing home survey is made on a Form 2567-L which is approved by the U.S. Department of Health and Human Services, Health Care Financing Administration. A Form 2567-L was generated as a result of Ms. Dalton's survey. It was reported under the category Tag 327. Resident 7. Ms. Dalton, in conjunction with the survey team accompanying her, determined on August 17, 2000, that Resident 7 was dehydrated. This conclusion was reached because facility records indicated that Patient 7 had a blood urea nitrogen (BUN) of 57 on August 7, 2000, with normal being 6-26, and a high normal creatinine of 1.6. Another factor used in concluding that Resident 7 was dehydrated was a report dated August 8, 2000, which revealed a BUN of 34. On August 12, 2000, a report indicated a BUN of 43 and a creatinine of 1.9. The survey team was also aware that Resident 7 was ingesting Levaquin, a powerful antibiotic which requires that a patient remain well-hydrated. Ms. Dalton and the survey team cited the facility with a Class III deficiency, for state purposes, and a "G" on the federal scale. The federal scale goes from "A", which is a deficiency which causes no harm, to "J", which is harm which may cause death. The "G" level meant that it was the team's opinion that there was great potential for actual harm. Resident 7 was admitted on August 3, 2000. Among other ailments, Resident 7 was suffering from a femoral neck fracture and renal insufficiency when admitted. The resident contracted a urinary tract infection (UTI), and was being administered Levaquin, an antibiotic appropriate for UTI treatment. On August 8, 2000, a physician's order requested that the patient be encouraged to consume fluids. It is Ms. Dalton's opinion that Resident 7 was not provided proper fluid intake by the facility which could have caused serious health consequences for Resident 7. When Resident 7 was in the hospital, prior to being admitted to Horizon, his BUN was 41 and his creatinine was 2.3, which is consistent with Resident 7's chronic renal insufficiency. The BUN of 43 and creatinine of 1.9 observed in the facility on August 12, 2000, did not indicate Resident 7's condition was worsening, and in fact, it was improving marginally. The values for a normal BUN might vary from laboratory to laboratory but generally a normal BUN would be around 25 or less. Because of Resident 7's underlying renal disease and ischemic cardiomyopathy, it was unlikely that Resident 7 would ever manifest a BUN which would be considered normal. Dr. Elizabeth Ann Eads, D.O., an expert in the field of geriatric medicine, reviewed the laboratory values and the nursing notes in the case of Resident 7. It is her opinion, based on that review, that the facility provided appropriate care, that the patient improved during the stay at the facility, and that there was nothing in the record which suggested any actual harm to Resident 7. This opinion was accepted. Resident 8. Ms. Dalton opined that, based on her personal observation and a review of Resident 8's medical records, that the facility failed to respond to the hydration needs of Resident 8 and did not follow the care plan which was developed for Resident 8. Ms. Kala Fuhrmann was determined to be an expert in the field of long-term care nursing. She noted that Resident 8 was admitted to the facility on August 1, 2000. Resident 8's hospital records indicated that Resident 8 might be developing a UTI based on a urinalysis performed on July 31, 2000, which revealed blood and protein in the urine. On August 3, 2000, Resident 8's doctor started an antibiotic, Levaquin, and ordered another urinalysis. On August 4, 2000, a culture determined that Resident 8 was positive for a UTI, so the antibiotic treatment was continued. On August 15, 2000, it was determined the UTI had been cured. During the course of the UTI, Resident 8 was incontinent, which is often the case when elderly patients are afflicted with UTI. By August 18, 2000, Resident 8 was continent. It is Ms. Fuhrmann's opinion that the care provided to Resident 8 was appropriate and that there is nothing in the record which demonstrates that anything less than adequate hydration was provided to this resident. This opinion was accepted.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the allegations set forth in relation to the TAG 327. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2001. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 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 (1) Whether Respondent, Rockledge NH, L.L.C., d/b/a Rockledge Health and Rehabilitation Center, should be given a "Conditional" or "Standard" license effective February 12, 2002, or March 7, 2002; (2) Whether Respondent is subject to an administrative fine in the amount of $2,500.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent operates a skilled nursing home located at 587 Barton Boulevard, Rockledge, Brevard County, Florida. Petitioner is the State of Florida agency responsible for licensure and regulation of nursing home facilities in Florida. Respondent was, at all times material to this matter, licensed by Petitioner and required to comply with applicable rules, regulations, and statutes, including Sections 415.1034 and 400.022, Florida Statutes. On or about March 7, 2002, Petitioner conducted a complaint survey of Respondent. Petitioner's surveys and pleadings assign numbers to residents in order to maintain the residents' privacy and confidentiality. The resident who was the subject of the Class II deficiency from the March 7, 2002, complaint survey has been identified as Resident number 1, with the initials "H.C." Resident number 1 is 82 years old and was admitted to Respondent's facility on January 19, 2002, with diagnoses of dementia, back pain from multiple falls, hypertension, osteoarthritis, recurrent bronchitis, and chronic obstructive pulmonary disease. At all times material to this matter, Resident number 1 was a "vulnerable adult" as defined in Subsection 415.102(26), Florida Statutes. On February 5, 2002, at approximately 9:50 p.m., a certified nursing assistant employed by Respondent went into Resident number 1's room to see why Resident number 1 was yelling. Upon entering the room, the certified nursing assistant found Resident number 1's bed positioned in such a way that his head was down and his feet were up. A blanket had been tied across the "up" end of the bed securing Resident number 1's feet allowing him to be held in a "head down" position. The certified nursing assistant who investigated the yelling "pulled on the blanket to verify that it was tied down." There were no prescriptions or written orders justifying the restraint of Resident number 1. The certified nursing assistant who found Resident number 1 in the above-described position identified a different certified nursing assistant, one provided to Respondent by a staffing agency, as the caregiver for the shift in question. The alleged abusive act was perpetrated by the certified nursing assistant provided by the staffing agency. The certified nursing assistant provided by the staffing agency placed Resident number 1 in a position that was contraindicated for a person with a diagnosis of chronic obstructive pulmonary disease. Respondent's certified nursing assistant waited approximately two days before reporting the alleged abusive act to the abuse hotline, Respondent's abuse coordinator or the Director of Nursing. A medical record review indicated that Resident number 1 was sent to the hospital on February 22, 2002, for shortness of breath and again on February 26, 2002, for difficulty in breathing and lung congestion. The History and Physical from the hospital, dated February 23, 2002, revealed that Resident number 1 was sent to the hospital because of progressive shortness of breath. Resident number 1's lower extremities were documented to have been severely edematous with "skin changes subsequent to chronic stasis and edema with excoriation, loss of circulation, blisters, etc." The certified nursing assistant provided by the staffing agency had a full resident assignment and cared for several residents the day of the alleged abusive act. After the discovery of the alleged abuse, the certified nursing assistant provided by the staffing agency continued to care for Resident number 1 and other residents assigned to her for approximately one hour or until the end of her shift. Documentation, dated March 8, 2002, from the staffing agency, confirmed that the certified nursing assistant provided by the staffing agency did have education in the current rules and regulations related to the abuse and neglect of the elderly. Petitioner's surveyor believed that the failure to immediately report the alleged abuse constituted a Class II deficiency because the certified nursing assistant provided by the staffing agency was allowed to continue to care for Resident number 1 and other residents until the shift ended and could have further abused Resident number 1 or other residents in her care.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaints in this matter be dismissed and Respondent's licensure status be returned to Standard for the period it was Conditional and that no administrative fine be levied. DONE AND ENTERED this 18th day of February, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 18th day of February, 2003. COPIES FURNISHED: Joanna Daniels, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Alex Finch, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Should Respondent, Agency for Health Care Administration, rate Petitioner's, Beverly Healthcare Evans, nursing home facility license "Conditional" for the 60-day period of January 8 through March 5, 2001, pursuant to Section 400.23(7), Florida Statutes? In particular, did Petitioner commit the acts or omissions alleged in Tags F281, F326, and F426 as determined in Respondent's periodic survey concluded on November 15, 2000? Are Tags F281, F326, and F426 "Class III" deficiencies as defined in Section 400.23(8)(b), Florida Statutes (2000)? Did the results of Respondent's survey concluded on January 8, 2001, reveal "Class III" deficiencies that were uncorrected on or before February 8, 2001, the time specified by Respondent? If so, was Petitioner's "Conditional" rating for the 60-day period of January 8 through March 5, 2001, appropriate?
Findings Of Fact Evans is a nursing home located at 5405 Babcock Street, Northeast, Fort Myers, Florida, which is duly-licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, it is required to evaluate nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes. AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of standard or conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency," which, on behalf of the federal government, monitors nursing homes that receive Medicaid or Medicare funds. This standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288, Florida Administrative Code, which provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. Non-certified facilities must follow the contents of this rule and the standards contained in the Conditions of Participation found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference with respect to social services, dental services, infection control, dietary and the therapies. AHCA conducted an annual survey of Evans on November 15, 2000, and alleged that there were three deficiencies. These deficiencies were organized and described in a survey report by "Tags," numbered F281, F326, and F426. The results of the survey were noted on an AHCA form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to this form as the HCFA 2567-L or the "2567." AHCA conducted a follow-up survey of Evans, which was completed on January 8, 2001. The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identified each alleged deficiency by reference to a Tag number. Each Tag on the 2567 includes a narrative description of the allegations against Evans and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number (Resident 1, etc.) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The ratings reflect the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There are three Tags (F281, F326, and F426) at issue in the case at bar, and, as a result of the November 15, 2000, survey, AHCA assigned each Tag a Class III deficiency rating. Tag F281 generally alleged that Evans failed to meet professional standards of quality, evidenced by examples of three residents, in violation of 42 C.F.R. Section 483.20(k)(3)(i), which provides: Comprehensive Care Plans The services provided or arranged by the facility must--- Meet professional standards of quality. Tag F326 generally alleged that Evans failed to ensure that a resident received a therapeutic diet, when there was a nutritional problem, in violation of 42 C.F.R. Section 483.25(i)(2), which provides, in pertinent part: (i) Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident--. (2) Receives a therapeutic diet when there is a nutritional problem. Tag F426 generally alleged that Evans failed to provide pharmaceutical services to meet the needs of the residents, evidenced by examples of three residents, in violation of 42 C.F.R. Section 483.60(a), which provides: Procedures. A facility must provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident. The November 15, 2000, survey cites three Class III deficiencies. AHCA's January 8, 2001, survey cites repeated (or failure to correct the three) Class III tag violations cited in the November 15, 2000, survey. Effective January 8, 2001, AHCA changed the rating of Evans' license from Standard to Conditional. Tag F281 - NOVEMBER 15, 2000 - SURVEY Tag F281, a Class III deficiency, generally alleged that Evans failed to meet professional standards of quality of care regarding three residents in violation of 42 C.F.R. Section 483.20(k)(3)(i). Glenn T. Boyles, a surveyor/pharmacist for AHCA and qualified as an expert pharmacist, testified that a nurse for Evans, on November 15, 2000, was observed not to have followed the professional standards and quality in preparing and administering medications for three residents. Boyles observed the nurse preparing the drug Colace for administration by removing the medications from the manufacturer's bottle and placing the medications into her hand before placing these medications into a soufflé cup. Boyles also observed the same nurse pre-pour two doses of Colace liquid for administration to two other residents. Medications are not to be pre-poured or touched with the fingers except when opening a capsule to empty the medication into a cup, which is not the case here. The correct number of tablets or capsules are to be poured directly into the medication cup. In a discussion with the Director of Nurses for Evans about the above observations, the Director of Nurses substantially acknowledged that the nurse's actions were an inappropriate standard of practice. Boyles opined that there was an increased risk of contamination; there was a potential for subsequent infectious conditions that would affect the resident; pre-pouring the medication increased the opportunity for the dosages to be contaminated by organisms of an infectious nature which could, in turn, be transferred to the resident; and there was an increased risk of administering the medications to the wrong residents. Evans' contention that hand washing by the nurse prior to administering medications and the length of time the Colace capsule was in contact with the nurse's hands resulted in minimizing the chance of actual contamination misses the mark of no hands on the actual medication to be administered and no pre- pouring as was the case here. Based upon Findings of Fact 11 through 16 hereinabove, AHCA has proved that Evans failed to follow policy and to meet the professional standards of quality in preparing and administering medications regarding the three residents who were subjects of Tag F281 as to the November 15, 2000, survey. TAG F281 - JANUARY 8, 2001 - SURVEY Tag F281, a Class III deficiency, generally alleges that Evans failed to meet professional standards of quality of care regarding Resident 2 and Resident 7. Resident 2 Lori Riddle, AHCA's surveyor, during the January 8, 2001, follow-up survey of the November 15, 2000, survey, conducted a survey involving Resident 2. A review of Resident 2's medical records revealed multiple diagnoses, one of which was convulsions, for which the anti-convulsant medication Dilantin was prescribed to be taken four times a day. The importance of taking the anti-convulsant medication Dilantin as prescribed is to maintain a therapeutic level of the drug in the body to prevent convulsions. Resident 2's medical administration record (MAR) reflected that the resident refused medication, by spitting out the Dilantin, on seven different occasions in December 2000 and on five different occasions in January 2001. Resident 2 was not taking the medication as prescribed, and there was no documentation by Evans' staff that the physician had been alerted to the fact that Resident 2 was not taking the prescribed medication. It was the responsibility of Evans' nursing staff to inform the physician that Resident 2 was not taking the prescribed medication, for whatever reason. Evans had no documentation or facility staff testimony evidencing the fact that a nurse contacted the physician concerning Resident 2 spitting out the prescribed medication, Dilantin. Dr. Dosani, resident physician, after completion of the January 8, 2001, survey, informed the surveyor that the doctor had been notified that Resident 2 was spitting out the prescribed medication, Dalantin. Jim Marrione, expert in nursing practices and procedures, opined that Evans failed to provide services that met professional standards of quality as to Resident 2 under the facts and circumstances presented at the time. Evans does not contest and, in fact, agreed that its staff did not document Resident 2's repeated spitting out of the Dalantin and, thus, was not in compliance of assuring the accurate dosage of prescribed medication. Failure to document Resident 2 spitting out the medication at the time it occurred, when coupled with the failure to document advising the resident's physician of the situation, resulted in Resident 2 not receiving medication four times a day. AHCA has proved the allegations regarding Resident 2, Tag F281 of the January 8, 2001, survey, regarding the failure to properly medicate the resident with anti-convulsant medication, Dilantin, four times a day. Resident 7 Jim Marrione, a surveyor and an expert in nursing practices and procedures, conducted a survey of Resident 7 during the survey of January 8, 2001. According to Marrione, Resident 7 suffered pneumonia and chronic airway obstruction and hypoxemia. In his opinion, Evans was out of compliance with standards of practice for the following reasons: (i) failure to document daily record of oxygen saturation rates as ordered by the physician on October 23, 2000; (ii) failure to document the monitoring of daily oxygen saturation on December 25 and 26, 2000; and (iii) failure to document the monitoring of daily oxygen saturation on January 3, 4, 5, and 6, 2001. Daily monitoring of the oxygen saturation rate indicated that the doctor wanted to make sure that the resident's saturation rate was maintained at an acceptable level. The potential harm that results from the failure to document the saturation rate is respiratory failure of the resident. This failure to document the daily oxygen saturation rate was beneath the professional standards of quality and in violation of the Nursing Practice Act. Evans' contention that other manifested physical symptoms would be more observable indicators of respiratory failure begs the question of quality care that is intended to avoid and prevent, when possible, respiratory failure in residents. The standard of care does not permit substitution of more observable indicators of potential respiratory failure. AHCA has proven Evans' failure to document the daily record of oxygen saturation rates; failure to document the monitoring of daily oxygen saturation on December 25 and 26, 2000; and failure to document the monitoring of daily oxygen saturation on January 3, 4, 5, and 6, 2001. TAG F326 - NOVEMBER 15, 2000 - SURVEY Tag F326, a Class III deficiency, generally alleges that Evans failed to ensure that Resident 6 received a therapeutic diet,1 when there was a nutritional problem, in violation of 42 C.F.R. Section 483.25(i)(2). Resident 6 Mary Maloney, an expert in nutrition, surveyed Resident 6 who had multiple diagnoses, including being severely underweight, chronic renal failure, diabetes, dysphagia (difficulty in swallowing), and other conditions that caused him to be much debilitated, bed bound and, therefore, requiring a specialized tube feeding formula for diabetes and a gastrostomy tube for the dysphagia. According to Maloney, Resident 6's ideal body weight (IBW) was 136 pounds; therefore, the care plan goal for this resident was weight increase. Evans' nutritional assessment for Resident 6 dated September 19, 2000, revealed that the resident weighed 122 pounds on September 9, 2000, and his caloric needs were 1,706 per day. The nutritional assessment dated September 25, 2000, assessed Resident 6's caloric needs at 1,6ll calories; however, the resident was only receiving 1,380 calories. Evans' dietician recommended increasing the tube feeding from 60ccs to 65ccs over a 23-hour period, providing 1,495 calories over a 24-hour period. The caloric increase recommended by Evans' dietician, in Maloney's expert opinion, did not meet Resident 6's caloric needs. Maloney opined that the initial assessment documented Resident 6 as underweight and did not include sufficient additional calories to promote weight gain (the target weight of 136 pounds). Even with the additional tube feeding increase to provide 1,495 calories, there was a deficit of 116 calories from the initial assessment of 1,611 calories. Inquiry was made of an Evans' dietician, Andrea, as to why Resident 6 was not receiving the calorie amount assessed (1,495 calories), to which she replied that Resident 6 had hemoptysis (spitting up blood). Review of Resident 6's medical records revealed only periodically excessive sputum and no documented episodes specifically related to hemoptysis. In the opinion of Maloney, not receiving enough calories for this resident, who was underweight and suffering with pressure sores, may have delayed healing of the pressure sores and resulted in a continued weight loss. Further, holistic consideration of Resident 6's debilitated condition, with the addition of a failure to receive sufficient calories, over time would not assist but would rather delay or defeat Resident 6's efforts to reach the resident's highest practicable condition. AHCA has proven, by a preponderance of the evidence, the allegations of failure of Evans to provide therapeutic diet for the nutritional problems suffered by Resident 6, Tag F326 of the November 15, 2000, survey. TAG F326 - JANUARY 8, 2001 - SURVEY Resident 7 AHCA surveyor, Jim Marrione, testified concerning Resident 7. Evans stipulated to the factual allegations contained in paragraph 2 of Tag F326 of the survey report of January 8, 2001, to wit: Based on the record review, observations and interview with the Dietician and staff nurse two (Resident 7 and Resident 10) of 13 active residents of the facility were sampled. Resident 7 was admitted to the facility with multiple diagnoses, including dysphagia (difficulty in swallowing). The medical orders on October 23, 2000, revealed that Resident 7 was to receive thickened liquids, nectar consistency, that the resident was capable of swallowing. The nectar-thickened liquids were a mechanically altered and therapeutic diet plan. Evans was to protect the resident from receiving any thin liquids that could cause him difficulty in swallowing. The potential for harm to this resident could have been choking if given non-thickened juices or water. On January 7, 2001, the surveyor observed Resident 7 being given non-thickened orange juice, and on January 8, 2001, again observed Resident 7 being given non-thickened water. Resident 10 Surveyor Norbert Smith's deposition testimony was admitted in lieu of his personal appearance. Evans objected to Smith's deposition testimony that was not related to and/or specifically contained in the 2567 survey report dated January 8, 2001. Resident 10 was admitted to the facility on May 24, 2000, whose diagnoses included dysphagia (difficulty in swallowing). The physician's order of September 23, 2000, required a "pureed" NCS (No Concentrated Sweets) diet, and the order of October 24, 2000, gives instruction to thicken all liquids to honey consistency for all meals, med passes, and activities. Smith observed Resident 10 on January 7, 2001, in the dining room, and at 12:40 p.m., observed the resident being served prune juice thickened by Evans' Quality Assurance Director (QAD) to the consistency of Jell-O and served soup that did not appear to be of honey consistency. The surveyor opined that the Mighty Shake (milk shake) being served Resident 10 did not appear to be honey-thickened. When Smith queried Evans' nurse about the Mighty Shake's thickness, she replied, "This is as close to honey thickened as they get." Smith inquired of Evans' QAD if the Mighty Shake and soup were honey thickened, and the QAD acknowledged she did not know. Evans' dietician became involved in this issue and confirmed that the soup served to Resident 10 was nectar- thickened and the Mighty Shake had to be further thickened to be considered honey-thickened. In the afternoon of January 7, 2001, Smith entered Resident 10's room and asked the staff nurse in the room at that time to check if the water on Resident 10's bedside stand was honey-thickened. Upon examination by the staff nurse, she determined that the water was not honey-thickened. Smith defined "dysphagia" as a condition where one's windpipe does not cover when swallowing, as it should. Therefore, when people suffering with dysphagia drink a liquid, unless thickened, that person could choke or aspirate and possibly die. Evans' two contentions: (1) AHCA's November allegation concerned "adequate diet to maintain acceptable nutritional status," was purportedly corrected; and (2) AHCA's January allegations of non-thickened liquids is different from the November allegation or at best is de minimus, are inadequate. AHCA has proven by a preponderance of evidence the allegation that Evans failed to thicken all liquids to honey consistency for all meals, med passes, and activities with regard to Resident 10 and, therefore, did not ensure that the resident received a therapeutic diet as ordered by the physician. TAG F426 - NOVEMBER 15, 2000 - SURVEY Tag F426, a Class III deficiency, generally alleges that Evans failed to provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of the residents, in violation of 42 C.F.R. Section 483.60(a). Glenn T. Boyles, AHCA's surveyor/pharmacist, gave testimony regarding allegations of paragraph 1 of Tag F426 of the November 15, 2000, survey report. According to Boyles, based upon his observations, record review and interviews with staff, he determined that Evans did not provide pharmaceutical services to meet the needs of three residents. Boyles testified that in his opinion a nurse failed to wait the federally prescribed amount of time (five minutes) between administering eye drops, and did not properly measure the prescribed amount of Abuterol solution (eye drops) for administration. The above-observed deficiencies created the potential for harm to the resident that would be more than minimal because the physician had ordered the resident to receive the medication's effect of two eye drops. The improper administration caused the resident to receive the medication's effect of only one eye drop. The improper administration also created the potential for harm because the physician had ordered a prescribed amount of solution to be used, and the nurse, when preparing the medication, did not properly measure the amount prescribed by the physician. In paragraph 2 of Tag F426 of the survey report, Boyles found two instances of non-compliance by Evans. First, Evans stocked an expired tube of ointment and allowed the expired medication to remain in the medication room. In doing so, Evans did not take steps to limit the possibility that the resident may receive a less than full potency antibiotic ointment. An outdated and expired antibiotic would not be as strong in combating the infection for which it was prescribed. Second, Evans failed to return medications prescribed for a resident who left the facility two months before the survey. The failure to return medication violated Evans' policy that states a medication form must be completed within 15 days of discharge (of a resident), and the policy sets out the procedure to be taken (return or destroy) with medications based on the class of the medication. In Boyles' opinion, the potential for harm is that Evans did not preclude the diversion to a resident or staff for whom the medications were not intended. Evans did not dispute the above Findings of Fact numbered 49 through 53, contending that the SOM guidelines contained no directive to surveyors to cite medication administration error as violations of the Tag, but rather directed surveyors to determine whether Evans' system provides that Evans' pharmaceutical services result in medication being available to residents. The requirement is clear that Evans must provide pharmaceutical services (including procedures that ensure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident. AHCA has proved by a preponderance of the evidence that Evans failed to provide pharmaceutical services (including procedures that ensure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of the residents hereinabove cited. In paragraph 3 of Tag F426 of the survey report of November 15, 2000, Boyles reported (subsection A) that Evans failed to administer medications from September 20, 2000, to October 28, 2000, to a resident on dialysis. In the opinion of Boyles, this omission resulted from the failure of Evans' staff to comply with the physician's instructions that they "may" omit the resident's medications on days the resident underwent dialysis treatment, i.e. Tuesday, Thursday, and Saturday. Boyles further opined that Evans was to "hold" (not administer) these medications three days a week before the dialysis treatments. Boyles opined that Evans' nurses disregarded the physician's "hold" medication instructions and gave the medication before dialysis treatment on the above days. In Boyles' opinion, the medication and its effect was subsequently removed by the dialysis treatment. Further, Evan's staff did not re-administer the medication after each dialysis treatment, and thereby, did not ensure the accurate administration of medication as called for by 42 C.F.R. Section 483.60(a). Regarding paragraph 3 of Tag F426 of the survey report (subsection B) of November 15, 2000, Boyles reported that Evans was non-compliant for its failure to ensure accurate administration of drugs to Resident 4. This resident's physician prescribed the drugs Vasotec (for hypertension) and Diflucan. Both drugs, after being administered, were removed by the resident's dialysis treatment on Tuesdays, Thursdays, and Saturdays. Boyles opined that Evans, knowing the drugs were removed by dialysis, should have given Resident 4 supplemental doses of the prescribed drugs on Tuesdays, Thursdays, and Saturdays, after dialysis treatment. Boyles opined that the potential harm would be the negative effect that the absence of the anti-hypertension medication would have on the resident's ability to excrete urine, an added complication to the resident's dialysis treatment. As to paragraph 3 of Tag F426 (subsection A) Evans contends that the physician's order stated "may" withhold medications on dialysis days and that Boyles' opinion that Evans should have withheld medication until after dialysis treatment (or administered medication after dialysis treatment) would be in violation of the physician's order. Evans points to the fact that on October 28, 2000, the physician clarified the order to indicate that Evans should "not" (with) hold administration of medications on dialysis days. Evans' position hereinabove does not address the failure to ensure "accurate" administration of drugs to Resident 4. Should Evans' nursing staff doubt, question or be confused regarding the intent and meaning of the physician's instructions or content of the order, they were under professional obligation to seek clarification from the physician so as to maintain the required standard to ensure accurate administration of drugs on dialysis days. Accordingly, AHCA has proven by a preponderance of evidence that Evans failed to provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of the residents in paragraphs 1, 2, and 3 of Tag F426. TAG F426 - JANUARY 8, 2001 - SURVEY In the January 8, 2001, survey report, Tag F426, ACHA determined that Evans failed to provide pharmaceutical services to meet the needs of the residents, in violation of 42 C.F.R. Section 483.60(a). It was alleged by AHCA that Evans failed to comply with the regulations because Evans did not ensure accurate dispensing and administrating of drugs to meet the needs of each resident. The surveyor observed expired drugs in the A Wing and B Wing refrigerators. AHCA further alleged that Evans did not ensure that residents received their medications within one hour before and after the scheduled medication time. Lori Riddle, surveyor, testified that Evans' nurse was still passing out medications to residents at 12:00 noon. Evans does not dispute that morning medication for the A Wing were to be administered at 9:00 a.m. Mariana Yingling informed Riddle that she was an "Evans" nurse, paid by Evans. She admitted that even though the medications were not timely administered, she signed off as having given the medications at 9:00 a.m. Nurse Yingling acknowledged that as an Evans' nurse, she believed she was to be held to the same standards of nursing as a regular full-time employee responsible for ensuring compliance with Evans' policy: to wit, medications are to be administered within one hour before and one hour after the scheduled time, which was 9:00 a.m. for the A Wing and the B Wing. In Riddle's opinion, the potential for harm to residents if the drugs were not timely administered would be that the effectiveness of the drugs would be affected. If drugs were administered too close in time, there would exist a potential for toxicity and other related side effects. It is undisputed that four residents did not receive their medication in a timely fashion in violation of Evans' own policy. AHCA has proven by a preponderance of the evidence that Evans failed to provide pharmaceutical services (including procedures that ensure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of the residents as alleged under Tag F426. Evans does not dispute the above facts in Tag F426. On January 8, 2001, Jim Marrione, a registered nurse surveyor, saw medication in the medication room of the A Wing that expired "after 12/21/00." Marrione was informed by an Evans' nurse that the drug belonged to a resident who had died "last week," confirming that the drug should have been discarded as required by Evan's policy. On the above date, Marrione looked in the refrigerator of the B Wing medication room and found that two bottles of Ri Max, an over-the-counter antacid, were stored in the refrigerator and had expired on "12/00." Marrione opined that the potential for harm existed with the expired medications because of their lost of potency, which deprived the residents of the intended full benefits of the medications. Evans did not dispute the allegations regarding the expired medications in the refrigerators located in the A Wing and in the B Wing of the facility. Accordingly, AHCA proved, by a preponderance of the evidence, that Evans failed to ensure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals to meet the needs of each resident by Findings of Fact 62 through 69 hereinabove.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered in which Respondent assigns Petitioner a Conditional license for the period of January 8, 2001 through March 5, 2001. DONE AND ENTERED this 8th day of October, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2002.
