The Issue The issue posed herein is whether or not the Petitioner's imposition of a civil penalty upon Respondent in the amount of $750.00, based on conduct which is set forth hereinafter in detail, should be upheld.
Findings Of Fact Based on the testimony of the witnesses and their demeanor while testifying, the arguments of counsel and Respondent's representative, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. On October 2 and 3, 1979, Petitioner's inspection team led by Jules M. Gayle, Hospital Consultant, made a routine annual inspection of Hollywood Hills Nursing Home (herein sometimes called Respondent or the Home). Based on this inspection, Respondent was issued a list of deficiencies and allowed thru October 6, 1979 to correct same. The deficiencies cited were: A patient in Room #4 had oxygen in use with an improperly grounded electric lamp in use. A patient in Room #61 had oxygen tank in use not properly secured to a base pedestal and an electric clock located on a table next to tank was improperly grounded. The oxygen storage room on the second floor, opposite the elevator shaft, had one tank of oxygen not firmly secured on chain attachment; a prefilled humidifier attachment was left exposed to air, dust and possible bacteria contamination. A full oxygen tank stored within the first floor storage area exhibited a cannula attachment to a prefilled humidifier bottle not encased in any protective covering with the nasal apertures dangling from the tank and resting upon the dirty floor. Approximately 20-23 patients in wheelchairs were observed obstructing the first floor corridor passageway, and a similar situation existed on the second floor corridor, a hazard in the event of an emergency. Two psychiatric hospital or maximum security seclusion rooms, located within the nursing home proper, pose a potential hazard to nursing home patients and to staff. The toilet room ceiling in patient Room #65 was covered with a green mold fungus growth. A follow-up inspection of the home on November 15, 1979 indicated that, with the exception of the mass assembly of patients in the corridor, the cited deficiencies were not corrected. (Testimony of Jules M. Gayle). Based on the results of the follow-up inspection, Respondent was noticed by Petitioner's Administrative Complaint dated February 21, 1980, that a $750.00 fine would be imposed. The Home is a 200 bed facility which is licensed to care for 100 psychiatric and 100 regular patients in need of nursing care. All of the beds (psychiatric and general) are housed under one roof with a security door divider. RESPONDENT'S DEFENSE Messr. Steve M. Raizin, Administrator for the Home related that the Home has a policy of correcting deficiencies as soon as practicable. As examples of this policy, the Administrator pointed out that a dietician was replaced when criticism arose respecting unsanitary conditions of the kitchen and the improper dispensing of food; a roof replacement at a cost of approximately $40,000 when the Home was cited and the purchase of a dumpster for trash and refuse at a cost to the Home of $10,000. The Home immediately removed the improperly grounded electrical lamp and radio from the patients room. The large congregation of patients in the corridor was a result of patients being transferred from the activity room to the cafeteria. The Administrator has attempted to convert the psychiatric seclusion rooms but has encountered resistence and opposition by the local Health Planning Council and the Courts. Finally Respondent has, according to the Administrator, taken steps (unspecified) to ensure the safety of all patients. Even assuming that Respondent has taken the corrective actions set out above, there remains outstanding deficiencies which, as best as can be determined by the record, remain uncorrected. For example, it appears that the cited problem of an unsecured oxygen tank still exists. No mention was made by Respondent's Administrator as to what, if any, corrective action was taken to cover the exposed prefilled humidifier attachment and the fungus growth in the toilet of Room 65. That being the case, in view of the record evidence that these problems exist, it can only be concluded that the deficiencies remain (Petitioners Composite Exhibit #1 and Testimony of Jules M. Gayle). Any one of the above deficiencies amount to a violation of Section 400.141(4)(h), Florida Statutes, for which Respondent is subject to a civil penalty of not less than $500.00 and not more than $1,000.00 for each deficiency. I shall therefore recommend that Petitioner's imposition of a $750.00 civil penalty be upheld.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's imposition of a civil penalty in the amount of $750.00 be UPHELD. RECOMMENDED this 21st day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1980. COPIES FURNISHED: Harold Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Steve M. Raizin, M.H.A. Administrator Hollywood Hills Nursing Home 1200 North Thirty-fifth Avenue Hollywood, Florida 33021
Findings Of Fact The Petitioner, St. Jude Manor Nursing Home, is a skilled nursing facility within the meaning of Title XIX of the Social Security Act. In the past, and as recently as October 14, 1976, the Petitioner has received permission for a variance in its seven-bed ward which exceeds the number of beds per ward specified by Section 405.1134(e), Code of Federal Regulations (CFR). The most recent permission for variance has been received from the State of Florida, Department of Health and Rehabilitative Services. The terms and conditions of that variance may be found in Petitioner's Exhibit No. 2 admitted into evidence. In particular, that variance was allowed with the proviso that as patients whose needs justified the type of occupancy in excess of the limit were discharged, the seven-bed ward would be reduced to four beds to achieve compliance with the terms of the Code of Federal Regulations. It was further indicated in the statement of permission that the Respondent expected the reduction to be completed by November 30, 1977. The variance of October 14, 1976, came about after an inspection had been performed by the Respondent at the Petitioner's facility. Following that inspection a statement of deficiencies and plan of correction was made and one of the items, which is the sole item in dispute at this time, dealt with the seven-bed-ward. Out of the August 16-18, 1977, inspection performed by the Respondent, a request for waiver was made by the Petitioner that led to the permission found in the October 14, 1976, letter by the Respondent. (The statement of deficiencies and plan of correction which indicates this request may be found as Hearing Officer's Exhibit No. 1 admitted into evidence.) One of the items in support of the request for variance was a letter from Richard J. Wilhelm, M.D., which spoke to the criteria found in Section 405.1134(e), Code of Federal Regulations (CFR), and apparently this explanation and reason for requesting a variance was persuasive, due to the subsequent grant of the variance. (Dr. Wilhelm's letter may be found as Petitioner's Exhibit 3 admitted into evidence for limited purposes as set forth in the transcript of the hearing.) It is not abundantly clear what transpired beyond the suspension date of the variance; however, the action of the parties beyond that time has led to the current hearing. In essence what has occurred is the fact that the Respondent has taken the position that no further variance may be granted beyond the period of the normal attrition of the three extra patients in the seven-bed ward, which patients were in excess of the four patients allowed in any given room under the terms of the aforementioned Code of Federal Regulations. The Respondent has come the conclusion that no further variance may be granted, premised upon its understanding that it is required to operate within the dictates and requirements and interpretations of the Code of Federal Regulations which have been placed by employees within the United States, Department of Health, Education and Welfare. The Respondent has come to this conclusion after receiving a January 30, 1976 communication from John E. Pipes, Director of the Office of Long Term Care Standards Enforcement, Region IV, United States, Department of Health, Education and Welfare, Atlanta, Georgia. A copy of this letter may be found as Respondent's Exhibit No. 1 admitted into evidence. Within the body of that correspondence Mr. Pipes states that Section 405.1134(e), Code of Federal Regulations (CFR), will only allow a variance to last for as long as the needs of the affected patients justify. Subsequent to that correspondence, officials with the Respondent wrote to Mr. Pipes on March 4, 1976, to try to clarify the status of those nursing homes in the state of Florida which had wards with more than four beds per room, and to try to emphasize to Mr. Pipes the potential loss of beds if the opinion of Mr. Pipes was allowed to go forth on the question of not allowing variances after the first attrition of the patients who were housed in the excess beds. (The full details of the March 4, 1976 letter may be found in a copy of that letter which is Respondent's Exhibit No. 3 admitted into evidence. On April 1, 1976, Mr. Pipes responded to the March 4, 1976 letter and refused to change his position on the question of the variance letter. Henceforward, the Respondent has taken the position that Mr. Pipes' opinion of the meaning of Section 405.1134(e), Code of Federal Regulations (CFR), is dispositive of that issue and the Respondent, as the agent for the State of Florida; in the Respondent's opinion, may not use its independent judgment in determining whether a variance may be granted to a facility with more than four beds in a ward. The position taken by the Respondent is contrary both to the language of Section 405.1134(e), Code of Federal Regulations (CFR), and the terms of the State Plan for Medical Assistance, under Title XIX of the Social Security Act, Revision MSA-PI-75-3 August 20, 1974. This conclusion is reached due to the unequivocal statement found within the referenced section of the Code and the written agreement by the State of Florida to take the responsibility for making determinations under the Code of Federal Regulations in matters pertaining to Title XIX of the Social Security Act, without the necessity of the permission of the United States, Department of Health, Education and Welfare or its officials. The efficacy of this conclusion may be seen by a reading of the portion of Section 405.1134(e), Code of Federal Regulations (CFR), which states: * * * "The Secretary (or in the case of a facility participating as a skilled nursing facility under Title XIX only, the survey agency - See Section 249.33(a)(1)(i) of this title) may permit variations in individual cases where the facility demonstrates in writing that such variations are in accordance with the particular needs of the patients and will not adversely affect their health and safety. Each room is equipped with or is conveniently located near, adequate toilet and bathing facilities. Each room has direct access to a corridor and outside exposure, with the floor at or above grade level. The Petitioner is a facility participating as a skilled nursing facility under Title XIX and the State of Florida, Department of Health and Rehabilitative Services, under the terms of its contract with the United States, Department of Health, Education and Welfare, is the surveying agency, within the meaning of the above referenced provision. Moreover, when this is considered in conjunction with the terms and conditions of that contract, the only reasonable interpretation to be given this matter is that the Respondent not only has the power but has the duty to make determinations on various requests make by those skilled nursing facilities operating under Title XIX only, which are found in the state of Florida. (The after-filed exhibit which is the State Plan for Medical Assistance, under Title XIX of the Social Security Act, Revision MSA-PI- 75-3 August 20, 1974, is hereby made Hearing Officer's Exhibit No. 2 admitted into evidence.) Having resolved this issue in favor of the Petitioner, the question then becomes whether or not the Petitioner has sufficiently demonstrated a right to a variance on the merits of his claim as tendered at the time of the hearing. The principle witness in behalf of the Petitioner who appeared at the hearing for purposes of speaking to the substance of the request was Richard Wilhelm, M.D. Dr. Wilhelm attends the patients in the seven-patient ward and feels that the care that those patients are receiving in the seven-patient ward is equal to the care received by others in the four-patient or less wards. He felt that psychologically the patients in the seven-patient ward are progressing as well as patients in the other rooms and some patients who have been in the seven- patient ward have progressed to the point of being sent to intermediate care or home care. Overall, he is extremely impressed with the care and to cutback the number of beds from seven to four would not help the quality of that care. At present, according to Dr. Wilhelm, none of the original patients who were in the seven-bed ward at the time of the variance being granted in October, 1976, are still in that ward. This is born out by Petitioner's Exhibit No. 6 admitted into evidence, which Is a list of admissions in the seven-patient ward, beginning in August, 1976. through January 11, 1978. C. M. Knight, the Petitioner's administrator, testified at the hearing to the effect that there is more staff participation in the seven-patient ward than in other patient rooms. He also indicated that the patients who were in semiprivate rooms and were subsequently moved to the seven-bed ward have improved. He further stated that patients who had been in the seven-bed ward and been moved to other wards had requested to return to the seven-bed ward. Mr. Knight also expressed some concern that removal of the three beds would hurt the ability of the city of Jacksonville, Florida to respond to the needs for skilled nursing care. He had no particular basis for this conclusion, but it does seem consistent with the fears expressed by Joseph C. Thompson, Acting Chief of the Bureau of Health Facilities, State of Florida, Department of Health and Rehabilitative Services, in his March 4, 1976, correspondence to Mr. Pipes, which is Respondent's Exhibit No. 3. As may be recalled, this letter indicated that at that time 144 beds were feared to be lost by a reduction of beds in the wards with more than four patients. After full consideration of the testimony offered by the Petitioner on the question of a variance, it must be concluded that the variance should be rejected at this time, due to the failure of the Petitioner to sufficiently address the issue of safety, adequate toilet and bathing facilities, and access to the corridor and outside exposure, with floors at or above grade level, as required by Section 405.1134(e), Code of Federal Regulations (CFR). Should these areas of consideration be satisfactorily met, and should the excessive number of patients in the subject ward continue to be in accordance with the particular needs of the patients and not adversely affect their health; then the Respondent acting in its own discretion and not that of the United States Department of Health, Education and Welfare, may grant a variance on the number of patients in the seven-patient ward. Notwithstanding any decision on the request for variance by the Petitioner that may be made in the future, the undersigned is absolutely convinced that the Respondent may not arbitrarily refuse to consider the merits of the variance request based upon its interpretation of the Pipes' correspondence which has been referred to in the course of this Recommended Order.
Recommendation It is recommended that the Petitioner's request for variance under Section 405.1134(e), Code of Federal Regulations (CFR) be denied; however, future consideration of variance requests should be made when those requests are tendered and the request should be considered in keeping with the judgment of the Respondent, State of Florida, Department of Health and Rehabilitative Services. DONE and ENTERED this 26th day of May, 1978, In Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: C. M. Knight, Administrator St. Jude Manor Nursing Home 2802 Parental Home Road Jacksonville, Florida 32206 Robert A. Eisenberg, Esquire Department of HRS District IV Counsel Post Office Box 2417F Jacksonville, Florida 32231 Joseph Dowless, Jr., Director Leonard Schaeffer, Esquire Office of Licensure and Certification Suite 1300, 1845 Walnut Department of HRS Philadelphia, Pa. 19103 Post Office Box 210 Jacksonville, Florida 32201
The Issue The issue addressed in this proceeding is whether Respondent's license to practice nursing should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 464, Florida Statutes.
Findings Of Fact Respondent, Nan Lynn Baumgartner, is a licensed practical nurse in the State of Florida, holding license number PN-34192-1. Respondent was licensed in 1972. In 1974, Respondent was employed at Tallahassee Convalescent Home located in Tallahassee, Florida and during the time period relevant to this proceeding, worked the 3-11 p.m. shift. The Home's function is to provide for the care of its geriatric residents. Respondent had responsibility for 72 residents. Respondent was employed at the Center until April 26, 1988, when she was terminated by the facility for incompetent nursing skills, exercising poor judgment, failure to follow-up on orders and inability to pass out medications on time and appropriately. Ms. Baumgartner's employer suspected her performance problems were due to a alcohol or drugs. None of the evidence presented at the hearing clearly or convincingly established that Respondent had an alcoholic or drug abuse problem which impaired her ability to function. The bulk of the evidence which would have indicated such a problem was uncorroborated hearsay some of which was contradicted by other more reliable testimony. The remainder of the evidence which was relied upon by the Department to show impairment due to a drug or alcohol abuse problem was Respondent's demeanor, her lethargy and slowness in handing out medications, and various examples of her using poor judgment in performing her duties. All of these incidents occurred during a 1-1 1/2 month period during which Respondent had suffered four broken ribs in the fall from a horse. In fact, her doctor had advised her not to work for several weeks after her fall from the horse. However, Respondent could not get the time off from work and attempted to work during this period of time. As to Respondent's demeanor and lethargy, there was a great deal of conflict in the evidence depending on how each respective witness thought or assumed Respondent should behave. More importantly, however, is that Respondent's demeanor and lethargy during this time period can be attributed to some medical difficulties she had with her jaw and blood pressure and to the fact that she experienced a great deal of pain form her broken ribs. The examples of Respondent's judgment which Petitioner alleges demonstrate Respondent's poor judgment, frankly do not rise to such a level. The examples were: 1) Respondent called the oncall physician instead of the Director of Nursing when the oxygen concentrator being used by a patient malfunctioned; 2) She allowed a certified nursing aide to give oxygen to a patient; 3) She called the police when it was reported to her that a patient had mysteriously been burned; and 4) There was a patient who was not restrained. The incident involving the oncall physician simply does not demonstrate poor judgment. The fact that Ms. Baumgartner may or may not have followed some unproven chain of command in making her calls does not establish below standard judgment. She quite correctly called the physician who was on-call for that evening when she discovered the oxygen concentrator was not working. She then followed the Doctor's instructions. The alleged contents of a later conversation which occurred between the facility's Director of Nursing and the Doctor was the rankest of hearsay and is simply too unreliable to clearly and convincingly demonstrate poor judgment on Respondent's part. Connected with the oxygen concentrator incident was the incident involving Respondent's allowing a Certified Nursing Assistant to work the oxygen concentrator machine. The more persuasive evidence involving this incident was that it occurred during the oxygen concentrator's malfunction discussed above. A group of people surrounded the machine. One of the persons present around the machine was a CNA and at least two nurses were also present. They were attempting to figure out how to fix the oxygen machine. No one could and the Doctor was called. Given the fact that there were at least two other nurses present along with the CNA attempting to fix the oxygen machine, these facts do not clearly and convincingly demonstrate poor judgment on Respondent's part which would fall below minimum standards and constitute a breach of Chapter 479, Florida Statutes. Similarly, the facts surrounding the mysterious burn incident do not demonstrate that Respondent fell below minimum standards or failed to report the incident. There was no reliable evidence demonstrating Respondent's involvement in or knowledge of a patient being burned on her shift. Respondent was called at home around 3:00 or 3:30 in the morning. She had been asleep. The Respondent was called by Pat Yates, who was the charge nurse on the shift following Respondent. Respondent believed the incident had happened on Ms. Yates' shift. After Respondent spoke with Ms. Yates and because of some similar rumors about Ms. Yates floating around the facility, Respondent decided to call the police. 1/ She believed Ms. Yates was trying to "frame" one of the CNA's on Respondent's shift with whom Ms. Yates had a very heated argument at the shift change. Again this incident in which there was no reliable substantive evidence suggesting Respondent's involvement or responsibility, does not demonstrate poor judgment on Respondent's part or her failure to report the incident's occurrence. The incident involving the unrestrained patient likewise does not demonstrate poor judgment on the part of Respondent. The patient was prescribed by the doctor to be restrained on an as needed basis. The as needed prescription by the physician suggests that such restraints were not necessary all of the time unless the patient was showing some sort of behavior which would require her to be restrained. The evidence did not demonstrate that such restraints were needed on Respondent's shift. The only allegation established by the Department was that for approximately a month to a month and a half Respondent was extremely slow in passing out medications to the patients. The center had established medications at 5:00 p.m. and 9:00 p.m.. The 5:00 p.m. medication pass took approximately an hour and a half to perform. The 9:00 p.m. medication pass took approximately 45 minutes to an hour to perform. Respondent frequently, for at least half of the month to a month and a half time period would be handing out medications three hours late. It was not demonstrated that she was not documenting or charting the lateness of these medications since no medical records were introduced into evidence and the testimony on that point was unclear. The standard practice in Florida is to attempt to pass medicine to nursing home residents within plus or minus one hour of the designated time. The fact that the desired hour leeway is not always obtained does not indicate that a nurse is falling below minimum standards. The number of patients to be served, the difficulty in getting the patient to take his or her medication, and the types of medication being given all enter into the determination of whether a nurse is falling below minimum standards in the length of time it takes her to pass out medications. None of these factors were presented at the hearing. 2/ Without, such specific evidence it is impossible to determine whether Respondent was falling below minimum standards. 3/
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order dismissing the Administrative Complaint against Respondent. DONE and ORDERED this 1st day of October, 1990, in Tallahassee, Florida. DIANE CLEAVINGER 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 1st day of October, 1990.
Findings Of Fact Petitioner and Respondent operate two of the four medical equipment suppliers located on Fowler Avenue in Fort Myers. The other two companies are Fort Myers Surgical Company and American Medical Oxygen Supply Company. Petitioner received an erroneous statement from Summit Medical Supplies, Inc., containing two invoice numbers for which Petitioner had no record. When asked for a copy of these invoices, Summit Medical Supplies, Inc., provided Petitioner with copies of invoices made out to Respondent, both of which had been marked paid on the face of the invoices. These two invoices were addressed to Home Oxygen Services and Medical Equipment, Inc., 4536 Fowler Avenue, Fort Myers, Florida (Exhibit 1). Petitioner's address is 3559 Fowler Avenue and the erroneous statement addressed to Home Medical Supplies, Inc., was sent to this address. On one occasion Petitioner received a call from Smalley Transportation regarding delivery of hospital beds to Petitioner which, it was soon discovered, were addressed to Respondent. In his testimony Shawn Bayes referred to several incidents involving customers and several incidents involving businesses which had contacted his company regarding equipment belonging to Respondent. None of these incidents had been observed by the witness but had been told to him by other employees. Timely objection to this testimony was made. On one occasion a suction pump had been delivered to a patient who later requested Petitioner to pick up equipment. Upon arrival it was learned Respondent had inadvertently picked up Petitioner's pump with the other equipment provided by Respondent. The suction pump was returned to the premises from which it had been picked up by Respondent. Respondent acknowledged there has been some confusion by customers regarding whose equipment they were using but that confusion was not limited to Petitioner and Respondent but also involved the other medical supply companies. Once explained to a customer, the confusion did not recur. All of the equipment supplied by the parties is clearly identified by tags on the property containing the name and address of the supply company. All of the medical equipment suppliers with businesses in Fort Myers supply similar equipment to predominantly elderly patients, approximately 50 percent of which are covered by Medicare. These patients are referred to the supplier by doctors, hospitals, and home health agencies.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Petition of Home Medical Equipment Company be dismissed. DONE AND RECOMMENDED this 12th day of April, 1985, at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1985. COPIES FURNISHED: Shawn D. Bayes, President Home Medical Equipment Company 11899 90th Avenue North Seminole, Florida 33542 Vincent D. Sapp, Esquire Post Office Box J Fort Myers, Florida 33902 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
The Issue In DOAH Case No. 02-1421, addressing a survey concluded on October 23, 2001, the issue is whether Respondent Delta Health Group, doing business as Rosewood Manor (Rosewood), violated Rule 59A-4.1288, Florida Administrative Code and should be assessed a civil penalty and costs. In DOAH Case Nos. 02-1905 and 02-4040, addressing the survey of January 22 through January 25, 2002, the issue is also whether Rosewood violated Rule 59A-4.1288, Florida Administrative Code. In DOAH Case No. 02-1905, the issue is whether a conditional license should issue. In DOAH Case No. 02-4040, the issue is whether civil penalties and costs should be assessed.
Findings Of Fact AHCA is the state agency responsible for licensure and enforcement of all applicable statutes and rules governing nursing homes in Florida pursuant to Sections 400.021 and 400.23(7), Florida Statutes. Rosewood is a skilled nursing facility located at 3107 North H Street, Pensacola, Florida, holding license no. SNF1482096, which was issued by AHCA. Although not found in any rule, an unofficial standard in the industry requires that a resident be observed every two hours. This standard, when complied, is usually not documented. On September 11, 2001, AHCA conducted a survey of Rosewood's skilled nursing facility. During the survey AHCA concluded that the facility failed to ensure that a resident's environment remained as free as possible of accident hazards. Specifically, the AHCA surveyors determined that the door to a bio-hazardous storage area had been, either purposely or inadvertently, propped open instead of being locked, and as a result, a resident entered the area, and injured himself with used hypodermic needles stored therein. Subsequently, on December 6, 2001, AHCA filed a Notice of Intent to Assign Conditional Licensure Status, based on the September 11, 2001, survey. The Notice was dated November 29, 2001. The Notice had attached to it an Election of Rights for Notice of Intent. Prior to December 10, 2001, the Election of Rights for Notice of Intent was returned to AHCA indicating that the factual allegations contained in the Notice of Intent to Assign Conditional Licensure Status were not disputed. On January 30, 2002, ACHA filed its Final Order. This Final Order incorporated the Notice of Intent dated November 29, 2001, and recited, that by not disputing the facts alleged, Rosewood admitted the allegations of fact. However, Rosewood did not admit the facts alleged. Rosewood merely stated that it would not contest the facts. The Survey of September 11, 2001. Resident 1 suffered from dementia, congestive heart failure, and epilepsy. He had a history of psychiatric problems. He was known by the staff to engage in aggressive behavior. Resident 1 was a "wanderer," which, in nursing home jargon, is a person who moves about randomly and who must constantly be watched. On May 24, 2001, Resident 1 attempted to get in another resident's bed and when a staff member attempted to prevent this, he swung at her but missed. On the morning of August 28, 2001, Resident 1 wandered in the biohazard storage room, which was unlocked and unguarded. Resident 1 succeeded in opening a Sharp's container which was used for the storage of used hypodermic needles. His handling of these needles resulted in numerous puncture wounds. These wounds could result in Resident 1 contracting a variety of undesirable diseases. Because he died soon after of other causes it was not determined if he contracted any diseases as a result of the needle sticks. This incident resulted from Rosewood's failure to prevent Resident 1 from wandering and from Rosewood's failure to ensure that harm did not befall their resident. The Survey of October 23, 2001. Resident 1A Resident 1A was admitted to Rosewood on May 31, 2001. At times pertinent he was 87 years of age. He suffered from a urinary tract infection, cardiomyopathy, congestive heart failure, hypertension, degenerative joint diseases, and a past history of alcoholism. He was also a wanderer. On September 7, 2001, this resident engaged in combat with his roommate. Resident 1A was the loser in this contest. When found by staff, his fellow combatant had him in a headlock and was hitting him with a metal bar. The resident suffered facial lacerations as a result. The facility responded to this event by moving Resident 1A into another room. Resident 1A's care plan of September 10, 2001, had a goal which stated that, "Resident will have no further incident of physical abuse toward another resident by next care plan review." On October 4, 2001, the resident entered the room of a female resident and physically abused her. This resulted in this resident's being beaten by the resident with the help of another. Resident 1A suffered cuts and bruises from this encounter. As a result, Rosewood implemented a plan on October 4, 2001, which required that Resident 1A be observed every 15 minutes. Prior to that time he was observed at least every two hours, which is the standard to which Rosewood aspires. Subsequent to this altercation Resident 1A was evaluated by a psychiatrist. The psychiatrist did not recommend additional observation. On October 5, 2001, early in the morning, the resident was physically aggressive to staff and backed a wheelchair into another resident. The other resident struck Resident 1A twice in response. Later in the day, the resident also attempted to touch a female nurse's breasts and to touch the buttocks of a female nursing assistant. The evening of October 21, 2001, Resident 1A was found holding another resident by the collar while another was hitting the resident with his fist. Resident 1A suffered skin tears as a result. There was no documentation that Resident 1A was or was not observed every 15 minutes as required by the care plan of October 4, 2001. He was provided with drugs on October 5, 2001, and October 17, 2001, in an attempt to ameliorate his aggressive behavior; however, the pharmaceuticals provided were unlikely to modify his behavior until four to six weeks after ingestion. On October 31, 2001, Resident 1A was diagnosed by a psychiatrist as having dementia. He was discharged on that date because he was determined to be a danger to others. He died in November 2001. Resident 5 Resident 5 was admitted to Rosewood August 15, 1998. Resident 5 suffered from atrial fibrillation, cardiovascular accident, and pneumonia, among other maladies. Resident 5 was at high risk for accidents. Specifically, he was at risk from falling. In his admissions history dated August 15, 1998, it was noted by Dr. Michael Dupuis that, "If he attempts to stand, he falls." Indeed, the record reveals dozens of falls which occurred long before the survey of October 23, 2001. In response to Resident 5's propensity to fall, Rosewood tried self-opening seat belts while in his wheelchair, placement in a low bed, instituted a two-hour toileting schedule, and attempted to increase the resident's "safety awareness." Rosewood prepared a "Rehabilitation Department Screen" on June 8, 2001, to address the risk. This document indicated that the resident needed assistance with most activities. In the evening of July 28, 2001, Resident 5 was found on the floor of his room. It was believed that he fell when trying to self-transfer from his bed to his wheelchair. He suffered no apparent injury. On August 14, 2001, Resident 5 was found on the floor in the bathroom. He stated that he was trying to get into his wheelchair. He was not injured. On August 29, 2001, Resident 5 was found lying on his side on the floor in a bathroom because he had fallen. He received two small skin tears in the course of this event. On September 12, 2001, Resident 5 was found on the floor holding onto his bed rails. He was on the floor because he had fallen. He told the nurse that he fell while trying to get in bed. He did not suffer any injury during this event. On October 5, 2001, Resident 5 was found lying on the floor in a puddle of blood. He had fallen from his wheelchair. On October 7, 2001, Resident 5 fell in the bathroom while trying to get on the toilet. On October 8, 2001, Resident 5 fell out of his wheelchair and was found by nursing staff lying on the floor in a puddle of blood. This event required a trip to a hospital emergency room. He received three stitches on his forehead and suffered a skin tear on his lower left forearm. On October 14, 2001, Resident 5 was discovered by a nurse to be crawling on the floor. He denied falling and stated that he was just trying to get back in his wheelchair. On October 20, 2001, Resident 5 fell out of his wheelchair. Resident 5's care plan dated September 19, 2001, noted a history of falls and injury to himself and defined as a goal to prevent fall with no report of injury or incidents due to falling by the next review date. Methods to be used in preventing falls included assistance with all transfers, verbally cuing resident not to stand or transfer without assistance, ensurance that a call light and frequently used items were in reach, the provision of frequent reminders, and ensurance that his living areas were kept clean and free from clutter. Rosewood implemented a plan to encourage the resident to ask for assistance when transferring. Subsequent to the June 8, 2001, evaluation, and the September 19, 2001, care plan, which called for a number of interventions, as noted above, Resident 5 continued to experience falls. Resident 5's feisty personality and determination to transfer himself without assistance made it difficult for the facility to guarantee that he did not experience falls. It was noted by Nurse Steele that a care plan requiring one-on-one supervision is not required by AHCA. Nurse Steele, however, opined that perhaps one-on-one supervision would be the only practice which would guarantee that the resident would experience no falls. The Survey of January 22-25, 2002. Resident 12 Resident 12 suffered from osteoporosis, dementia, hyperthyroidism, transient ishemic attacks, urinary tract infection, urinary incontinence, anemia, and hypoglycemia, among other things. Resident 12 was receiving nutrition through a tube so it was necessary to elevate the head of her bed to prevent pneumonia or aspiration. Resident 12, at times pertinent, was immobile and was dependent on facility staff to accomplish all of her transfers and all activities of daily living including turning and repositioning. As evidenced by numerous observations recorded on the "Braden Scale for Predicting Pressure Sore Risk," Resident 12 was at risk for developing pressure sores. Resident 12 was observed by the facility with a pressure sore on the coccyx on December 21, 2001. A care plan had been created on October 12, 2001, providing that she was to be turned every two hours, and was to be provided with a pressure reduction mattress, and was to be kept clean and dry, among other actions. On December 24, 2001, it was noted in a "Data Collection Tool," that the resident's coccyx area was healed. On January 10, 2002, it was noted in Resident 12's care plan that the sore was fully healed. During the January 2002 survey, Nurse Brown on one occasion observed a member of the facility's staff change a dressing over the resident's coccyx, observed the area, and determined that the resident had a pressure sore. A pressure sore is a wound, usually over a bony area, such as the coccyx, which is caused by the weight of the body compressing flesh between the bony area and a bed or chair. Depending on the severity of the sore, pressure sores require a substantial period of time to heal. Pressure sores are graded as Stages I, II, III, or IV, with Stage IV being the most severe. Nurse Brown evaluated Resident 12 as having a Stage II pressure sore during the survey. Nurse Brown observed Resident 12 on two occasions on January 22, 2002; on four occasions on January 23, 2002; on two occasions on January 24, 2002; and on four occasions on January 25, 2002. On each of these occasions Resident 12 was lying on her back with her head elevated. She also observed the resident on several occasions sitting in a wheelchair. A wheelchair does not cause pressure on the coccyx. A "Data Collection Tool" with an assessment date of January 18, 2002, indicated that on January 20, 2002, that there was present on Resident 12, a "coccyx split .25 cm superficial open area, left buttocks 2 cm dark gray rough area." On January 21, 2002, the "tool" noted, "left buttocks 2 cm open area darkened, coccyx split .25 cm remains." A "tool" dated January 25, 2002, noted, "open area on coccyx 2 cm." A "tool" dated February 1, 2002, noted "red area on buttocks" as did a "tool" dated February 8, 2002. A "tool" dated February 15, 2002, noted, "excoriation on buttocks" and on February 22, 2002, the notation was "red area on buttocks." A "Data Collection Tool" dated March 1, 2002, noted, "No open areas." There is nothing in the records maintained by the facility which indicate that subsequent to the healing of the pressure sore on January 10, 2002, another pressure sore developed on Resident 12's coccyx. Nurse Brown was an expert on pressure sores and she saw the area on the coccyx and determined it was a Stage II pressure sore. Thomas Hulsey, also a nurse and also an expert in nursing, observed the wound and concluded that it was merely a skin split or excoriation likely caused by the resident's urinary incontinence. He also observed that after a short passage of time the wound disappeared, which is inconsistent with a pressure sore. Considering the evidence as a whole, it is determined that the redness described subsequent to January 20, 2002, was something other than a pressure sore. The absence of a pressure sore tends, moreover, to indicate that what Nurse Brown observed was not indicative of the general care Resident 12 was typically receiving. Resident 10 Resident 10, a woman 64 years of age, suffered from cardiovascular accident, dysphasia, decubitus ulcers, urinary tract infections, sclera derma, and seizures. She was unable to move any part of her body except for her left arm. Two to three caregivers were required to accomplish transfers. On December 16, 2001, at about 9:45 in the morning, Lula Andrews, a certified nursing assistant, reported finding Resident 10 lying on her side or back on the floor of her room. At 9:10 a.m. Resident 10 had been seen in her bed so she could have been residing on the floor for as long as 35 minutes. Ms. Andrews and two other certified nursing assistants put her back in her bed. Resident 10 weighed about 150 pounds. Ms. Andrews inquired of Resident 10 as to how she came to be resting on the floor and she replied she had, "blackened out." Resident 10 did not receive injuries in connection with this event. The bed was three to four feet above the floor. Ms. Andrews was suspended during an investigation of this incident. Based on the evidence of record it could be deduced that Resident 10 fell from her bed or it could be deduced that Ms. Andrews attempted to transfer Resident 10 without assistance with the result that Resident 10 was dropped or deposited on the floor due to Ms. Andrews' inability to cope with Resident 10's bulk. The evidence of record fails to provide a basis for resolving this question. Neither scenario demands a finding that there was a failure to provide adequate supervision. Resident 16 Resident 16 had a diagnosis of schizophrenia. She also had a seizure disorder, osteoarthritis, and hypothyroidism. She had a care plan addressing her potential to suffer falls. On May 4, 2001, Resident 16 had a grand mal seizure while sitting on a piano stool. The 72-hour report generated by this event noted that she was not injured and refused all medications. On September 29, 2001, Resident 16 had a seizure while sitting on a piano bench. She was playing the piano prior to suffering the seizure. As a result of the seizure she fell backward and bumped her head. She denied experiencing pain from this event. On October 3, 2001, Resident 16 was in the visitor's bathroom, alone, washing her hands. She was upright before the lavatory and when she attempted to sit down in her wheelchair she did not notice that it was not directly behind her. Therefore she missed the seat of the wheelchair and landed on the floor. She sustained no injuries. Nurse Brown opined that had Resident 16 been supervised properly this fall would not have occurred. On December 17, 2001, Resident 16 was sitting on a piano bench when it appeared that she was fainting. One of the staff prevented her from actually falling over. The resident insisted that she was fine. On January 18, 2002, a facility staff person saw Resident 16 about to fall forward from her wheelchair and attempted to catch her before she reached the floor. The staff member was unsuccessful and the resident struck her head on the floor, which resulted in a four-centimeter by four-centimeter bump on her head. Resident 16's care plan required that facility staff closely supervise the resident. Although not an issue involving supervision, it is noted that the facility failed to ensure that she received adequate doses, and properly prepared doses of her anti-seizure medicine. Resident 20 Resident 20, during times pertinent, was a man of 96 years of age. He had a history of seizure disorder, depression, vascular dementia, gastro esophageal reflux disease, peptic ulcer disease, chronic obstructive pulmonary disease, coronary artery disease, and osteoporosis. He entered the facility on January 22, 1995. On September 7, 2001, Resident 20 had a physical encounter with Resident 1A, who was his roommate. Resident 20 was found holding Resident 1A in a headlock and was pounding Resident 1A with a metal seat spine. As a result, Resident 1A received cuts and bruises. The facility staff determined that Resident 20 was very territorial and that the appropriate solution would be to assign him a room so that he could be alone. Nevertheless, on November 10, 2001, a roommate was assigned to Resident 20. The resident complained and the new roommate was moved to another room. Resident 20's care plan was not revised to reflect his territorial nature. On December 28, 2001, another resident was moved into Resident 20's room. On January 2, 2002, Resident 20 told a nursing assistant that the new roommate was wearing his, Resident 20's, clothes. The nursing assistant pacified Resident 20 and left the room. Shortly thereafter Resident 20 attacked his new roommate with a reach/grab device causing the new roommate to receive a cut. One of the surveyors, Nurse Salpetr opined that the nursing assistant was derelict in leaving Resident 20 alone with his new roommate. This opinion based on all of the facts and circumstances, is rejected. As a result of this incident Resident 20, pursuant to the Baker Act, was sent to a psychiatric hospital for evaluation.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing, DOAH Case Nos. 02-1421, 02-1905, and 02-4040. DONE AND ENTERED this 8th day of January, 2003, 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 8th day of January, 2003. COPIES FURNISHED: Lori C. Desnick, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building, III Tallahassee, Florida 32308 R. Davis Thomas, Jr., Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Fort Knox Building III Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
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
