The Issue Whether Responded violated Subsections 464.018(1)(n) and 464.204(1)(b), Florida Statutes (2002), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating the practice of certified nursing assistants pursuant to Section 20.43 and Chapters 456 and 464, Florida Statutes (2004). Bonhomme is a certified nursing assistant (C.N.A.) licensed by the Department under Certificate No. CX 1100000012785. The incident at issue in this proceeding took place on April 21, 2003, when Bonhomme was employed as a C.N.A. at Imperial Health Care Center (Imperial), where E.O. was a resident. Nicole Joseph (Joseph), a C.N.A., was assigned to care for E.O. E.O. spends a good deal of her time sitting in a wheelchair at the nurses' station in "A" Hall. E.O. speaks very little English, and communicates mostly in German. When she needs to go to the restroom, she will usually yell, "Hello," and the C.N.A. will come and get her, take her to the restroom, and assist her in using the facilities. On April 21, 2003, E.O. indicated that she needed to use the restroom, and a nurse paged Joseph to come and get E.O. Joseph was busy assisting another resident when the page was made, and Bonhomme took up the task of taking E.O. to the restroom. Bonhomme began to wheel E.O. down the hall towards E.O.'s room. Joseph came out of the other resident's room and followed Bonhomme and E.O. into E.O.'s room. While Bonhomme was taking E.O. to her room, Bonhomme would shake E.O.'s wheelchair from side to side, upsetting E.O. and causing her to scream in German. When they were inside E.O.'s room, Joseph began to remove the foot plates from the wheelchair so that E.O. could access the toilet from the wheelchair. E.O., still upset, began to kick Joseph. E.O. carries a small red pocketbook containing pens, pencils, and paper. She uses the writing materials to assist in communicating with others who do not speak German. E.O. becomes very upset when anyone touches her pocketbook. Joseph wheeled E.O. into the bathroom and placed E.O.'s pocketbook on top of the toilet. Bonhomme took the pocketbook and threw it on the floor. Her actions upset E.O., who began to scream. Joseph took the pocketbook and replaced it on the toilet tank top. Again Bonhomme took the pocketbook and threw it on the floor. Joseph picked up the pocketbook and placed it on E.O.'s bed within E.O.'s sight. After Joseph placed the pocketbook on the bed, E.O. began to calm down. Joseph got E.O. situated on the toilet and returned to another resident's room to assist that resident, leaving Bonhomme in the bathroom with E.O. Finemy Cange (Cange), a C.N.A. employed by Imperial, was caring for a resident in the room across the hall from E.O.'s room. Cange saw Bonhomme take E.O. into her room and later heard E.O. screaming in her bathroom. Cange went to the storage room to get a nightgown for a resident. On returning from the storage room, she continued to hear E.O. yelling. Cange, carrying the nightgown, and another C.N.A., Catherine George, went into E.O.'s room. Cange found Bonhomme standing in front of E.O. in the bathroom, making faces at E.O. This was upsetting to E.O. Bonhomme took a rubber glove that was in the bathroom, filled it with water, and bounced it on E.O.'s head. E.O., still seated on the toilet, became more upset and continued to yell. Cange told Bonhomme that placing the glove on E.O.'s head was not funny. Bonhomme quit bouncing the glove on E.O.'s head and placed the glove in the sink. Joseph, who was assisting another resident, heard E.O.'s continued screaming. She left the other resident and returned to E.O.'s room. She saw Bonhomme with the water-filled glove, but did not know that Bonhomme had bounced it on E.O.'s head. Next Bonhomme took the nightgown from Cange, threw it on E.O.'s head and turned out the lights. Cange turned the lights back on. At this juncture, Joseph told Bonhomme to leave. Joseph got E.O. off the toilet, dressed her and returned her to the nurses' station, where she left her. E.O. was visibly upset. She was pointing to her head, crying, and talking in German. The nurse at the nurses' station contacted Suzanne Salyer (Salyer), the director of nursing at Imperial. Salyer questioned Bonhomme and Joseph, but they denied anything happened. Both C.N.A.'s were suspended pending an investigation. The following morning Joseph went to Salyer and told her what happened. Salyer is a registered nurse and is qualified as an expert in nursing and the duties and responsibilities of C.N.A.'s. It is her expert opinion that C.N.A.'s should take care of the residents as if they were family and that placing a nightgown on a resident's head, placing a water-filled glove on a resident's head, and turning off the light after placing the nightgown on the resident's head are actions which fall below the minimal standards of acceptable and prevailing nursing practices. Bonhomme was aware that the actions were prohibited. When she began working at Imperial, she signed a Resident's Rights Agreement that provided that a resident has the right "[t]o be free from verbal, physical or mental abuse, corporal punishment and involuntary seclusion." Bonhomme has not had her certificate disciplined prior to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Louvedor Bonhomme violated Subsection 464.204(1)(b), Florida Statutes (2002), by violating Subsection 464.018(1)(n), Florida Statutes (2002); imposing an administrative fine of $100; requiring Louvedor to attend continuing education classes as specified by the Board of Nursing; and placing Respondent on probation for two years under conditions as specified by the Board of Nursing. DONE AND ENTERED this 6th day of December, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 6th day of December, 2004.
Findings Of Fact The Respondent, Betty Jean Dempsey Hatton, L. P. N., holds License No. 29095-1. She was employed as a licensed practical nurse at Riverside Convalescent Center in Jacksonville, Florida, during the month of January, 1979. An Administrative Complaint was issued against Respondent Hatton on April 20, 1979, alleging that she was guilty of unprofessional conduct. The Respondent requested an administrative hearing. On or about January 27, 1979, Respondent Hatton had become unhappy with her work at the convalescent center and had decided to resign. She was requested to work 11:00 o'clock p.m. to 7:00 o'clock a.m. shift beginning the night of January 27, 1979. The Respondent agreed to work that shift, although she informed Eleanor L. Hennessey, the evening supervisor, that she intended to resign. The Respondent had not submitted a written resignation at that time. Ms. Hennessey finished her work at 11:00 o'clock p.m. and expected the Respondent to begin work at that time pursuant to her work schedule and pursuant to her agreement. The Respondent did in fact report to work at the convalescent center as agreed on the night of January 27, 1979. Fiona M. Morris, R. N., the Director of Nursing at Riverside Convalescent Center, was notified by Ms. Hennessey that Respondent Hatton had quit work, but Ms. Morris did not receive either an oral or a written resignation from the Respondent. Introduced into evidence was a copy of an official time and signature sheet for the month of January, 1979, for the employee, Respondent Hatton. The Respondent signed in for work on the night of January 27, 1979, at 10:45 o'clock p.m. and signed out at 4:00 o'clock a.m. January 28, 1979. The Respondent had previously agreed by conversation with Ms. Hennessey that evening to work the 11:00 p.m. to 7:00 a.m. shift for which she had been employed and from which she had not resigned. Respondent Hatton in fact did not work all of said shift, leaving some three (3) hours early. She left without informing her supervisor, Ms. Hennessey, and left her floor unattended. In mitigation of leaving her night shift early, Respondent Hatton contended that she told someone on the floor she was leaving, and that she had injured herself the day before and was suffering pain from her back. The Respondent also said she had informed several people that she was resigning as of January 27, 1979. Neither party submitted proposed findings of fact, memoranda of law or proposed recommended orders.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner Board reprimand the Respondent, Betty Jean Dempsey Hatton. DONE and ORDERED this 16th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Betty Jean Dempsey Hatton 8201 Styers Court Jacksonville, Florida 32221 Geraldine B. Johnson, R. N. Board of Nursing Ill Coastline Drive East, Suite 504 Jacksonville, Florida 32202
Recommendation Based on the foregoing facts and conclusions of law, the Hearing Officer recommends that the Board take no action against the license of Marie Novak, L.P.N. DONE and ORDERED this 16th day of December, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 218 East Forsyth Street Jacksonville, Florida 32202 Robert T. Westman, Esquire Post Office Box 1888 Cocoa, Florida 32922
The Issue As stated in the Prehearing Stipulation filed by the parties, the "issue to be litigated is whether Petitioner is entitled to a Superior or Standard rating on its license for the period September 1, 1986 through August 31, 1987"?
Findings Of Fact The Petitioner, The Magnolias Nursing and Convalescent Center, is a 210-bed nursing home located in a four-story building in Pensacola, Florida. It is licensed as a nursing home by the State of Florida pursuant to Chapter 400, Florida Statutes. Howard Bennett and his wife have been the owners of the Petitioner since it was built in 1978. On April 28-30, 1986, and May 1-2, 1986, the Department conducted an annual Licensure and Certification survey (hereinafter referred to as the "Annual Survey") of the Petitioner's nursing home as required by Section 400.23, Florida Statutes. Based upon the Annual Survey conducted by the Department, the Department determined that the Petitioner's facility failed to meet nursing home licensure requirement numbers (NH) 100 and 102, as identified on the Department's Nursing Home Licensure Survey Report, DHRS exhibit 2. The deficiencies found by the Department and which in fact existed during the Annual Survey relating to NH 100 and 102 were as follows: The charge nurse for each shift on each of the four floors of the facility is responsible, under direction from Director of Nursing, for the total nursing activities in the facility during each tour of duty. The charge nurses are thus responsible for ensuring that nursing personnel carry out the direct nursing care needs of specific patients and assist in carrying out these nursing care needs. This responsibility is not always met in that: On the day of the survey, there were urine odors noted on the halls, rooms of fourth and third floors, indicating lack of attention by nursing. Other instances of lack of personal attention by nursing on the above mentioned floor in that: One patient required oral hygiene. Fourteen residents required fingernail care, one resident's fingernails were long, thick, and black indicating a need for attention. Two residents had redden buttocks, three residents were wet, three residents needed shaving, three residents needed hair cuts. One resident needed colostomy bag changed. One resident had a small amount of feces on backside, and was not properly cleaned around the rectum and scrotum. Several residents had on clothing that was too tight, zippers open, buttons not fasten, soil wrinkled and threads hanging around the bottom. It is also noted, that there are 116 total care, and 17 self care residents in the facility indicating a need for constant intensive nursing care to the residents. Ref. 10D-29.108(3)(d)(1) Based upon the totality of these deficiencies, it was concluded that the Petitioner failed to comply with the standard of care to be provided by the charge nurse. The deficiencies cited by the Department during the Annual Survey were classified as Class III deficiencies. The Annual Survey was conducted by Christine Denson. Ms. Denson had conducted nine to ten annual surveys of the Petitioner prior to the survey which is the subject of this proceeding. During Ms. Denson's inspection of the Petitioner's nursing home, Ms. Denson pointed out the deficiencies which are noted above to the director of nursing who accompanied Ms. Denson during her inspection. Ms. Denson normally records in some manner the identity of a resident to whom a deficiency relates; by noting the room number or bed number. Ms. Denson did not follow this procedure during the Annual Survey. Ms. Denson met with Howard Bennett, the owner of the Petitioner, at the conclusion of the Annual Survey. After Ms. Denson had explained the deficiencies she had found during her inspection, Judge Bennett stated to Ms. Denson: "I know the place is going down hill. We are letting it slide. Judge Bennett did not ask Ms. Denson for any information concerning the identity of the residents to which deficiencies related. The Petitioner had policies in effect at the time of the Annual Survey which addressed each of the deficiencies cited by the Department. Those policies were not, however, followed. Ms. Denson did not know when the residents to which the deficiencies she found related had been admitted to the Petitioner, their medical condition, how long the fingernail problems had existed or how long the residents had resided at the Petitioner. Ms. Denson did not speak to the residents about the problems she noted, review their medical or dental records or talk to any residents' physician. Finally, Ms. Denson did not remember whether any of the residents were continent or incontinent. On August 13, 1986, a letter was issued by the Department informing the Petitioner that its license rating was being converted from a superior rating to a standard rating. The August 13, 1986, letter from the Department also indicated that the deficiencies noted in the Annual Survey had been corrected based upon a July 31, 1986, follow-up inspection conducted by the Department. The Petitioner requested an administrative hearing challenging the proposed rating of its license by letter dated September 24, 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued assigning a standard rating on the Petitioner's license for the period September 1, 1986, through August 31, 1987. DONE and ENTERED this 19th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4182 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Accentance or Reason for Rejection 1-3, 6-7, 81 These are matters included in the Prehearing Stipulation. They are hereby accepted. 4-5 Statement of the issue in this case 8 Not supported by the weight of the evidence. Ms. Denson testified at pages 48-49 of the transcript that whether a nursing home was considered to be out of compliance depended on the totality of the deficiencies and that she considered all of the deficiencies she found at the Petitioner's facility. 9 12. 10-11 10. 12-13 7. 14 Irrelevant. 15-16, 19-20, 22-23, 25, 29-31 10. 17 Hearsay. 18, 28, 33-34, 36-37, 39, 41-43, 45 Hereby accepted. 21, 24, 26-27, 32, 48, 54-66, 71, 73-77 These proposed findings of fact are generally true. They all involve, however, possible explanations for the deficiencies found at the Petitioner's facility. In order for these proposed findings of fact to be relevant it would have to be concluded that the Department had the burden of dispelling any and all possible explanations for the deficiencies. Such a conclusion would not be reasonable in this case. The Department presented testimony that the deficiencies cited existed and that, taken as a whole, they supported a conclusion that the Petitioner was not providing minimum nursing care. This evidence was credible and sufficient to meet the Department's burden of proof and to shift the burden to the Petitioner to provide proof of any explanations for the deficiencies. 35 9. 38, 40, 49-51, 53, 82-83, 86-87 Irrelevant and/or argument. 43-44 1. 46-47, 51, 56, 66-67, 71-71 These proposed findings of fact are true. They are not relevant to this proceeding, however, because they involve situations at the Petitioner's facility which may explain the deficiencies. The Petitioner failed to prove that they actually were the cause of any of the deficiencies. 70, 78-80, 84-85 Conclusions of law. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2-3. 2 11-12. 3 4 and 6. 4 4. 5-7 Irrelevant, summary of testimony, conclusion of law. 8 9. 9 8. 10 Irrelevant. 11 8. 12 Summary of testimony and facts relating to the weight of Ms. Mayo's testimony. 13-14 Hereby accepted. 15 Argument. 16-17 Conclusions of law. 18 4. 19-20 Conclusions of law, argument and irrelevant. COPIES FURNISHED: Jonathan S. Grout, Esquire Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32302 Michael O. Mathis Staff Attorney Office of Licensure and Certification Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On 22 June 1982 DHRS, Office of Licensure and Certification, conducted an inspection of Respondent's facility known as Regency Oaks at Gainesville, Florida. During this inspection the nurses' schedule was not produced and the inspector, with the assistance of Respondent's staff, attempted to reconstruct the nurses' schedule for the month of June, 1982, up to the date of the inspection. From the data received it was determined that on the 7:00 a.m. to 3:00 p.m. shift on June 5, 1982, Respondent was staffed with one registered nurse (RN) and three licensed practical nurses (LPN) on June 6 there were two RN's and two LPNs; on June 12 there were three RNs and one LPN; and on June 19 there were three RNs and one LPN. Staffing requirements for nursing homes are determined by the shift and census of the nursing home. All of the shortages here involved the day shift. On each of the days of 5, 6, 12, and 19 June the regulations required two RNs and three LPNs on the day shift. The regulations also permit the substitution of an RN for an LPN. Accordingly, from the evidence gathered bv Petitioner's evaluation at the June 22 inspection, Respondent was short one RN on June 5 and one LPN on June 6, 12, and 19. Respondent presented time cards for the periods here involved. These time cards, which were accepted in evidence as business records of Respondent, show that on June 12 Respondent had two RNs and three LPNs on duty on the day shift. Respondent's one witness admitted the nursing home was understaffed one RN on June 5 and one LPN on June 6 and 19.
The Issue The issues in this case are as established through an administrative complaint alleging misconduct by the Respondent when he was employed in his capacity as a licensed practical nurse at the Arlington Manor Care Center, Jacksonville, Florida. The charges are brought under the authority of Chapters 20, 455, and 464, Florida statutes. The details of the administrative complaint are more completely described in the conclusions of law.
Findings Of Fact Petitioner, State of Florida, Department of Professional Regulation, is charged with the regulation of the practice of nursing in Florida. This is in keeping with the authority expressed in Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 464, Florida Statutes. At all times relevant to the inquiry, Respondent, Christopher Allen Fitchett, has been a licensed practical nurse in the state of Florida, having been issued license number 0608751. At times relevant to the underlying administrative complaint, Respondent was employed at Arlington Manor Care Center, Jacksonville, Florida. On the night of March 21, 1984, commencing at 11:00 p.m. and continuing through 7:00 a.m., March 22, 1984, Respondent was acting as a charge nurse in the Arlington Manor Care Center. In this capacity, it was his responsibility to see that the residents of the facility were well cared for; that nursing practices were maintained; that the patients in the facility got their medicines and treatments; that doctors' orders were carried out; and that these duties were performed on time. Around 5:30 on the morning of March 22, 1984, Marilyn R. Funk, registered nurse, who was the director of nursing at Arlington Manor Care Center, arrived at the facility. She came in the back door and approached the left-hand side of the nursing station. Respondent was sitting in a chair with his head resting on the desk in the nursing station area. When the door which she had entered through closed, Mr. Fitchett did not respond. Funk stood by Fitchett for a period of two or three minutes, and Fitchett did not respond. At that time, Della, one of the residents of the facility, started to leave the facility and a nursing assistant, seeing the resident exiting the facility, called out to the resident to not go out. Respondent did not react to the circumstance of the patient's leaving and the nursing assistant's calling the resident back. During this time frame, one of the employees at the nursing home who worked in the kitchen dropped a Vaseline jar with a metal lid onto the floor in the nursing station area, making a loud noise. Fitchett did not react to that activity. All told, Ms. Funk observed the Respondent with his head down on the desk for a period of approximately fifteen minutes, during which time Respondent did not stir and his eyes were closed. A fair inference can be drawn that Fitchett was asleep during this time. As described by Nurse Funk and another licensed Florida registered nurse, Carolyn Hoffman, both of whom were accepted as experts in the nursing field, Respondent, by being asleep on duty and failing to be alert to the needs of the residents and his surroundings, was involved in unprofessional conduct which departs from the minimum standards of acceptable and prevailing nursing practice. Ms. Funk identifies the fact that Respondent should have told the other charge nurse who was in the building at the time that he was tired and wished to be relieved from his duties for a period. He could then have gone into the lounge area to rest for a short while. Problems that can occur when the Respondent is not alert would include a circumstance as seen with the resident Della who was about to leave the facility and be without supervision. In addition, Respondent's inattentiveness placed all the residents within the nursing home at general risk related to their health care. In this connection, on the date of the incident Respondent had not signed in or out for narcotics located in the nursing home. Moreover, when the director of nurses took the keys from the Respondent that morning, she discovered that the medicine room was open and the medicine cart was unlocked.
The Issue The issue in this case is whether disciplinary action should be taken against the Respondent for violation of statutory provisions regarding the practice of nursing. By Administrative Complaint the Respondent was charged with unprofessional conduct and with being unable to practice nursing with reasonable skill and safety to patients.
Findings Of Fact At all times material hereto, the Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0711261. Respondent was employed at Humana Hospital Cypress in Pompano Beach from on or about October 10, 1988, until on or about March 10, 1989. During her employment at Humana Hospital Cypress, Respondent was absent from her duties without giving notice on four occasions, was absent with notice on one occasion, and was on sick leave on five different occasions. These absences constitute an excessive number of absences. The pattern of the absences also raises concerns as to whether the absences are caused by behavioral problems. During her employment at Humana Hospital Cypress, Respondent was observed while on duty by several Charge Nurses (Dysen, Fabella, and Keough) to be extremely nervous; jumpy; on the verge of tears or crying when asked what was wrong; to be constantly complaining about being tired and hungry; to be frequently looking very tired, taking naps during lunch break, and not waking up in time for duty; to be frequently flailing her arms around, talking verbosely in high volumes, and speaking about subject matter inappropriate at a nurse's station; and exhibiting generally unpredictable and worrisome behavior. Lynn Whitehead, R.N., has been a staff nurse on the Substance Abuse floor of Humana Hospital Cypress for approximately six years. During February of 1989, Nurse Whitehead spoke to Respondent after Respondent had a hysterical crying reaction to learning that she failed the Telemetry Nursing course. During Nurse Whitehead's discussion with Respondent, Respondent admitted to Nurse Whitehead that Respondent used drugs and had been to some rehabilitation group meetings in the past. Respondent's behavior in her discussions with Nurse Whitehead - extreme anxiety, pacing, upset, complaints of hunger and exhaustion - along with Respondent's excessive absences, were consistent with drug abuse behavior based on Nurse Whitehead's knowledge and experience. On or about February 28, 1990, Respondent was asked by Nurse Fabella to submit to a urinalysis based on Fabella's observation of Respondent's erratic and unusual behavior which led Nurse Fabella to suspect that drug use might be involved. Respondent refused to submit to a urinalysis and stated the reason was because she knew marijuana would show in her urine. Nurse Fabella counseled Respondent about her erratic behavior, excessive absences, refusal to submit to a urinalysis, and unprofessional nursing conduct, on or about February 28, 1989. Subsequent to the counseling by Nurse Fabella, Respondent failed to keep an appointment with Nurse Cruickshank to discuss her situation and the decision was made to terminate Respondent. Amy Mursten, Investigative Specialist for the Department of Professional Regulation, interviewed Respondent for the purpose of conducting an investigation into her behavior and suspected drug abuse. Ms. Mursten discussed the Intervention Project for Nurses which could help rehabilitate the Respondent and save her nursing practice, but Respondent refused this help and denied having a problem. On at least two occasion, Respondent failed to act professionally or responsibly towards a patient and would have given inappropriate dosages or types of medications to the patients had someone not intervened. The Respondent's behavior patterns described above constitute a departure from minimal standards of acceptable and prevailing nursing practice. The Respondent's behavior patterns described above demonstrate an inability to practice nursing with reasonable skill and safety to patients by reason of use of drugs or narcotics or as a result of her mental condition.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Nursing enter a final order in this case concluding that Respondent has violated Section 464.018(1)(h), Florida Statutes, by engaging in unprofessional conduct, and has violated Section 464.018(1)(j), Florida Statutes, by being unable to practice nursing with reasonable skill and safety to patients. It is further recommended that the Board's final order suspend Respondent's license until Respondent has demonstrated to the Board that Respondent is able to practice nursing with reasonable skill and safety to patients and, once Respondent has demonstrated her ability to so practice, place Respondent on probation for a period of one year subject to such requirements as may appear to the Board to be necessary to assure that Respondent continues to practice with reasonable skill and safety to patients. DONE and ENTERED in Tallahassee, Leon County, Florida, this 30 day of April 1990. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30 day of April 1990.
The Issue Was Petitioner's license rating lawfully changed from Standard to Conditional.
Findings Of Fact Cross Creek is a nursing home located in Pensacola, Florida, which is duly licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency which licenses and regulates nursing homes in the state. As such, it is required to evaluate nursing homes in Florida, pursuant to Section 400.23(7), 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 which receive Medicaid or Medicare funds. On March 8, 2001, an AHCA team completed a survey of the facility. The surveyors included Jackie Klug, Paula Faulkner, Norma Endress, and Sandra Corcoran. All of the surveyors are trained in the business of surveying nursing homes. Ms. Klug is a registered and licensed dietician. Ms. Faulkner is trained in social work. Norma Endress and Sandra Corcoran are registered nurse specialists. Nurse Corcoran was the team leader. Resident 1 Ms. Corcoran observed that Resident 1 had experienced weight loss. This resident was admitted to the facility on July 7, 2000. On October 9, 2000, the resident weighed 115 pounds. In a care planning meeting it was noted that the resident was combative and was refusing to eat. A care plan was not formulated but it was decided that the resident was to be provided a dietary supplement. On January 4, 2001, the resident's weight was 97 pounds. Eventually a care plan was devised which provided for dietary supplements in the form of "shakes." The resident was to consume shakes with meals. On multiple occasions during the survey the facility failed to provide dietary supplements to the resident. This resident could not feed himself and could only consume food which was pureed. The resident could only minimally engage in activities of daily living. Resident 1 had a lung lesion and was expected to lose weight. Despite this expectation, during January, records revealed the resident weighed 103 pounds, in February he weighed 102.3 pounds, and in March he weighed 107.2 pounds. Resident 1 was terminally ill and was being provided what was essentially hospice care. Upon considering all of the circumstances, the resident's weight was satisfactory. Resident 2 Ms. Faulkner observed Resident 2 on two occasions. This resident was totally dependent on the facility staff for feeding. On one occasion during the survey, the resident was provided potatoes which were cold and too hard for her to masticate. On two occasions during the survey, the resident's dentures were not put in her mouth. Ms. Faulkner was concerned with the resident's weight. Interventions which were on the care plan were not consistently provided. For instance, the resident's preferences for various types of food were not considered. Resident 2 was a dialysis patient. Dialysis affects a patient's weight. Patients are typically weighed prior to the administration of dialysis and then are weighed subsequently. In the usual case a weight loss is expected subsequent to dialysis. With regard to this resident, no credible evidence was adduced as to what the resident weighed at any given time. No credible evidence was adduced which would indicate that the resident experienced a weight loss, despite Ms. Faulkner's concerns. Resident 3 Resident 3 was receiving a pureed diet when observed by Ms. Faulkner. The resident ate between 75 and 100 percent of this food. The resident weighed only 87 pounds at this time. The resident was supposed to be fed two "206 shakes" which are supplements designed to promote weight gain. On at least two occasions during the survey, the resident was not provided with these supplements. On March 6, 2001, at 6:35 p.m., Ms. Faulkner observed the resident eating and the resident had not been provided the supplements. Ms. Faulkner informed LPN Pat Nelson, of the facility staff, of the absence of supplements. Nurse Nelson commented that the supplements should have been on the resident's tray. Resident 3 had dirty fingernails and generally was not clean. Moreover, she had multiple bruises and skin tears to the outer ankles. The resident's upper arm had a four centimeter bruise that was reddish brown. This resident was totally dependent on the staff for care. Consequently, Ms. Faulkner concluded that facility staff had caused or permitted the acquisition of these wounds and bruises. Nurse Corcoran observed a wound on the resident's right ankle. She also observed multiple skin tears and bruises on both legs. She also observed an open area on the resident's coccyx. She did not, however, believe that these were pressure sores. Patricia Powell is the assistant nursing director of the facility. She reviewed the medical records of the resident and determined that the resident had been evaluated three different times and that she suffered no skin breakdown. She noted that the resident, at the time of the survey, had been readmitted to the facility subsequent to a hospital stay and that upon readmission, the resident was afflicted with three stasis ulcers including one on her lower left extremity and one on her right lower extremity. Nurse Powell also noted that the resident had bruises on her upper and lower extremities. She stated that the hospital records reflected information from her granddaughter stating that the resident repeatedly bumped herself into the walls in the nursing home and bled from the wounds she received as a result. Nurse Powell stated that hospital records demonstrated that the resident gained weight in 2000. Records at the time of the visit noted that the resident's weight was stable. Linda Gunn is a staff member of the facility and is a LPN. She was a treatment nurse and she was responsible for the care of Resident 3 during times pertinent. She observed that the resident had abrasions and skin tears. She stated that the resident was a fragile patient who required total care. The resident had sores which were caused by vascular problems. Pressure sores were not present. Nurse Gunn checked the resident daily and each time she left the resident she made sure the resident was clean and dry and in a comfortable position. Resident 4 Ms. Faulkner observed Resident 4 during the survey and suspected that the resident might have pressure sores because the resident was not consistently found to have positioning devices which had been determined to be necessary. A record review revealed that the resident had two stage II pressure sores in January of 2001, but that they had healed by the time of the survey. Ms. Faulkner stated that at the time of the survey she observed the resident to have a stage III pressure sore on the right ankle, but she relied on Nurse Corcoran's expertise to make that determination. Ms. Faulkner observed that positioning devices were not used on the resident's legs, as they should have been, on March 1, 5, and 6, 2001. Ms. Faulkner noted that, according to the resident's medical record, the resident often kicked off protective devices and padding. Nurse Powell stated that the resident's medical record reflected that the resident had excoriations on the coccyx and between her leg folds. Excoriation is a break or redness in the skin that is caused by urine or feces. It is not a pressure sore. She also noted that the resident had constant involuntary movements of the left leg against the right leg, and that she was provided padded side rails but the resident removed them. Nurse Powell stated that the resident moved her legs in a scissor-like action all day long and that she removed the side rails, pillows, and foot pads which facility staff used to attempt to ameliorate the damage caused by the leg movement. Ms. Gunn, a staff nurse, also observed the resident frequently. She noted that the resident was diabetic, incontinent of her bowel and bladder, was immobile and needed total assistance to be turned and positioned. She had to be fed and otherwise required total care for all of activities of daily living. Ms. Faulkner additionally observed the resident on March 7, 2001, and noted that during the four times she observed the resident there was no splint or other device or treatment being used to address the resident's contracted right hand. There was no care plan to address this condition. Willa Gilliam is a certified nursing assistant employed at Cross Creek. Specifically she was a restorative aide. It was her duty to provide Resident 4 with range of motion exercises. She accomplished this. After the exercises a towel roll was to be placed inside the resident's hands. Ms. Gilliam placed the towel roll inside of the resident's hands but noted that the resident often removed the towels. Resident 8 Norma Endress is a nurse specialist. She observed Resident 8. The resident was assessed on September 5, 2000, to be at high risk for skin breakdown because he was incontinent of bowel and bladder. The resident was also dependent on staff for turning. The resident had a care plan which required that the resident be removed from bed and placed in a geri chair for positioning. Nurse Endress observed on March 6, 2001, on ten different occasions during the day, that the resident was lying on the resident's left side and was not being turned or placed in the geri chair as the care plan required. On March 7, 2001, the resident was observed to have a stage I pressure area on his right foot, ankle and heel. The resident had no positioning devices or heel protectors in place, as he should. When Nurse Endress inquired as to why the resident was not being put in a geri chair, a staff nurse informed her that the facility had a shortage of geri chairs. Nurse Endress did not see this resident move during the entire four days that she was present at the facility. Nurse Gunn confirmed that the resident required total care and that he was receiving wound care to his heel. She stated that the resident was supposed to be supplied with pillows and a wedge or wedges and that his feet were required to be elevated on pillows. Resident 9 Nurse Endress observed Resident 9 for four days during the survey. This resident had a history of heart problems. The resident was capable of walking when he reached the facility and he did walk. The resident's physician ordered continued ambulation. However, during the four day survey, the resident was not ambulated. The resident reported to Nurse Endress that he had not been walked for the prior three months and stated that he wanted to walk, if facility staff would help him. Nurse Powell stated the patient had diabetes and that the sore on his right foot was a decubitus ulcer caused by vascular insufficiency. The ulcer generated pain when the resident attempted to walk. Accordingly, the staff of the facility did not provide assistance in ambulation to this resident because it would be too painful for the resident. The resident was also required to wear a splint on his right hand to deter contraction. During the survey Nurse Endress visited the resident and observed the splint resting on the foot of the resident's bed. The splint was soiled. On March 5, 2001, Nurse Endress observed the resident five times during the day and at no time was he wearing a splint. Ms. Gilliam was the staff member charged with placing the splint on the resident. She claimed that she was to install the splint at 10:00 a.m. and to remove it at 2:00 p.m. and that she had in fact accomplished this every day. Her testimony, with regard to this, upon consideration of all of the other testimony, is determined not to be credible. Nurse Endress believed that the resident had a stage I pressure sore on his right foot but she was not allowed to touch the resident to actually make a determination that the observed redness was a pressure sore or was present due to some other cause. Resident 10 Resident 10 was observed by Dietician Klug during the survey. During various times the resident was observed sitting in a geri chair which sported duct tape on both armrests. Resident 10 was cognitively impaired and required extensive to total assistance in activities of daily living. The resident could not move from bed to chair, or chair to bed. Consequently this movement was necessarily accomplished by staff. The care plan determined that a minimum of two people be employed to properly transfer the resident. The resident had very fragile skin and was prone to skin tears, bruises and abrasions. On January 22, 2001, the resident experienced a skin tear to the left lateral leg. On February 4, 2001, the resident acquired a skin tear to the right arm. On February 19, 2001, the resident manifested a blood blister to the lower back. On March 5, 2001, a large skin tear to the right lower leg was observed. Ms. Klug said there was no evidence of competency check lists or records of training of staff in the area of transfers. However, there is no evidence in this record that Ms. Klug checked to see what, if any, evidence was available in the facility which might demonstrate that such training had occurred or that there was a deficiency in the training. Despite her belief that the injuries experienced by the resident were the result of rough or inexpert handling by staff, a causal connection was not demonstrated by the evidence. Cleanliness and grooming Ms. Klug observed resident 11 during the survey. At the time of observation the resident had long dirty fingernails and was emitting an unpleasant odor. This caused Ms. Klug to conclude that the resident needed a bath. This resident needed total assistance with the activities of daily living and this assistance was not being adequately provided. Residents F, G, M, and 14 were observed by Nurse Corcoran during the survey. Resident F was sitting in the day room in the morning with dried food smeared upon his mouth. Resident G was sitting in a wheelchair while wearing soiled pants and a soiled shirt. Resident M was seen in the main dining room during one afternoon of the survey and on that occasion the resident's fingernails were long and jagged, and a dark substance was present under the resident's nails. The resident's false teeth were caked with food. Resident 14's hair was greasy and disheveled. Ms. Faulkner observed residents number 3, 4, 21, and 22 to have dirty fingernails and noted that they were, "not clean, in general." Resident 19 Ms. Klug observed Resident 19. This resident was diagnosed with rheumatoid arthritis. Both of her hands were severely contracted. She had received physical therapy from September 26 to October 25, 2000, for the purpose of promoting comfort and preventing further contraction or deformity of her hands. Splints were applied to her hands at that time and the resident could tolerate them for four hours a day. In December 2000, the resident complained that the splints were causing more pain than she could bear. As a result, the use of splints was discontinued. Instead, the resident was to have a washcloth placed in the hands to prevent further deformity. Some members of the therapy staff informed Ms. Klug that the real reason the splints were not being used was because they had gone missing. On March 8, 2001, Ms. Klug interviewed a restorative aid who stated that the resident had not been treated for the prior month. The increase in contraction of the resident's hand resulted in the resident being unable to feed herself. The resident's record reflects that the splints were discontinued due to severe pain secondary to arthritis. A "Restorative Progress Note-Splinting" dated December 2, 2000, states that splints should be discontinued. It further states, that range of motion exercises should continue but, "We'll use washcloth for hand." Based on all of the available evidence of record, it is determined that the resident was receiving the best possible care for her hand contractions. Resident 19 was observed on March 6, 7, and 8, 2001, being fed pureed food. This was contrary to her then current diet order which called for a mechanical soft diet. The resident informed Ms. Klug that she did not like the taste of the pureed diet and claimed that she could masticate sufficiently well to subsist on a mechanically soft diet. Inquiry to the dietary manager revealed that a unit nurse had changed the diet order on December 18, 2000, because the resident had a sore mouth and missing teeth. Between January and March the resident suffered an 11-pound weight loss. The resident weighed 118 pounds in January of 2000. The resident was programmed to maintain a weight of between 113 and 118 pounds but only weighed 104 pounds at the time of the survey. Ms. Klug reviewed documentation in the resident's record which, as recently as March 2, 2001, reflected that the resident had a physician's order for a mechanically soft diet. Through observations and interviews she determined that facility staff were unaware of the discrepancy in the texture of the resident's diet. A change in a diet order, with regard to consistency, may come only from a physician. Resident 21 Ms. Faulkner observed Resident 21 in the resident's bed. She observed the head nurse attempt to do a range of motion on the resident's left hand. This resulted in the resident crying out in pain. The resident's left hand was moist and emitted an odor. Her care plan required interventions to keep her nails cleaned and trimmed and to decrease irritation through her palms. During the survey there were at least two times when the resident had no supportive devices in her hands. Ms. Faulkner discussed this with the facility occupational therapist on March 8, 2001, and the therapist stated that he was unable to splint the resident's hand. Ms. Gilliam was assigned to provide restorative assistance to Resident 21. She noted that after the motion exercises a towel roll was required to be placed in her hand. However, she stated that range of motion was impossible to conduct because of the pain and that the insertion of a towel roll into her hand might result in breaking the resident's fingers. During the time Ms. Gilliam was assigned to resident 21, she observed that her condition had worsened. Resident 22 Resident 22 also had range of motion issues. This resident had contracting of the arm, hand, leg, and foot. Ms. Faulkner sought from the facility a plan of care addressing the contracting of the resident's left hand. Facility staff informed her that none existed. The resident was admitted to the facility with contractures. No evidence was adduced as to whether or not the resident's contractures had become worse because the facility presented no documentation which would permit that determination. Staffing Staffing at the facility was in substantial compliance with AHCA requirements in terms of quantity and training.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED: That a final order be entered assigning a Conditional license to Petitioner. DONE AND ENTERED this 27th day of December, 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 27th day of December, 2001. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Stop No. 3 Tallahassee, Florida 32308-5403 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
