The Issue The issue is whether Petitioner lawfully reduced Respondent's certificate to operate a nursing home from Superior to Conditional.
Findings Of Fact Respondent is licensed to operate a nursing home known as Sunshine Manor in Sarasota. Petitioner conducted an annual relicensure survey of Sunshine Manor on March 1-3, 1999. Two tags arising out of that survey are the subject of this case. Tag F 224 states that Respondent's staff neglected Resident 2 by failing to document a condition in which he suddenly developed five small blisters on his right hand. Tag F 224 states that the staff left Resident 2 unattended with the catheter tubing wrapped around his right ring finger while his right hand was under his right leg and that this caused the blisters. Tag F 224 alleges that the staff first documented this injury on December 17, 1998. Tag F 224 concludes by stating that the staff left Resident 2 lying for 12 hours without assessing his catheter or turning him. Resident 2, who weighed over 200 pounds, was admitted to Sunshine Manor in October 1998 with diagnoses of coronary artery disease, hypertension, and diabetes. He was fed by a gastrostomy tube and required a urinary foley catheter. He needed assistance to get into and out of bed and had limited ability to move even while in bed. On the morning of December 7, 1998, a nurse discovered that Resident 2 had developed five blisters on the top of his right hand sometime during the night. The nurse reported this discovery to her supervisor, who joined her in treating and dressing the hand. The nurse supervisor then prepared an incident report and an unusual circumstances report and notified Resident 2's physician. The nurse supervisor also arranged for the wound care center to treat the wound at Resident 2's regularly scheduled appointment the following day. The wound care center treated the hand wound the following day, and it healed unremarkably. It is unclear how the blisters developed on Resident 2's hand. Respondent's staff cared for him throughout the night and early morning hours of December 6 and 7. Petitioner has failed to prove that Respondent's staff neglected Resident 2, or that any neglect caused the injury. Tag F 325 states that Resident's staff failed to maintain acceptable nutrition for Resident 12. Tag F 325 states that Resident 12 was admitted to Sunshine Manor on January 8, 1999, with the primary diagnoses of chronic obstructive pulmonary disease (COPD), Congestive Heart Failure (CHF), and weight loss. Tag F 325 states that Resident 12 weighed at admission 115.8 pounds, which was at least 18 pounds below ideal body weight. Tag F 325 states that he weighed 119 pounds on February 1, 1999, but only weighed 102 pounds on March 2, 1999. Tag F 325 then asserts the details of allegations that generally state that Respondent failed to design and implement an adequate nutrition plan for Resident 12, failed to monitor his weight adequately, and erroneously described a physician's order to the frequency of supplemental milkshakes. In fact, on admission, Resident 12's diagnoses were end-stage COPD, end-stage cardiomyopathy with CHF, weight loss secondary to the COPD and CHF, and gastroesophageal reflux disease. In combination, these conditions make it likely that Respondent would lose weight as he died from one or more of these diseases. The failure to reweigh Resident 12 was intentional and compassionate, as the weighing process itself was physically painful for the easily exerted resident. It was obvious to Respondent's staff, including an independent nutritional consultant, that Resident 12 was losing weight rapidly. Likewise, the short-lived (one day) mistranscription of the physician's orders concerning number of shakes was also immaterial under the circumstances, including Resident 12's inability to consume all of the milkshakes offered to him. Resident 12 died on March 16, 1999. His death was not attributable to any nutritional deficiencies caused by Respondent. At the time of the March 1999 survey, Respondent's license was rated Superior. Respondent's license had been rated Superior for the preceding ten years. Respondent reduced the rating from Superior due to the two tags, which have already been discussed, and the failure of Respondent to meet the minimum score. The record is relatively undeveloped to address whether Petitioner should have given Respondent the minimum score necessary to achieve a Superior rating. Petitioner objected to evidence on this point on the ground that Respondent had not raised the issue, but Respondent's petition clearly requests the restoration of its Superior rating. Thus, the Administrative Law Judge overruled the objection. Respondent's strategy was to introduce evidence showing that the conditions that earned the points necessary for a Superior rating in the 1998 survey were the same in March 1999, even though Petitioner's surveyors did not award the points in 1999. However, nothing in the record indicates whether Petitioner had legitimately chosen to make more rigorous the scoring and its surveys.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order restoring Respondent's license to Superior from the date of the March 1999 survey. DONE AND ENTERED this 7th day of September, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of September, 1999. COPIES FURNISHED: Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Karel L. Baarslag Senior Attorney Agency for Health Care Administration Post Office Box 60127 Fort Myers, Florida 33906-0127 Alfred W. Clark Attorney Post Office Box 623 Tallahassee, Florida 32302-0623
Findings Of Fact Marlene Johnson sat for the Nursing Home Administrators licensure examination administered by the Department of Professional Regulation on October 13, 1986. Petitioner had been notified by Respondent that the Nursing Home Administrator licensure examination would consist of one hundred fifty (150) questions. The national testing service with whom the Department contracts for preparation of such examinations determined the need for including fifteen (15) additional questions on the examination for the sole purpose of evaluating such questions for use in future examinations. The additional fifteen (15) questions were not to be used in scoring the examination, nor were they. Candidates for examinations are normally notified in advance by Respondent when such test question evaluation procedures are to be used. But in this instance, Respondent was not notified by its contract testing service that additional questions would be on the exam for statistical purposes, and notice was provided to candidates only on the day of the examination during the instructions to candidates. Mrs. Johnson was surprised and upset that the examination consisted of one hundred sixty-five (165) questions, instead of one hundred and fifty (150) questions as she had been notified. But she was unable to prove quantitatively how this affected her examination results. Mrs. Johnson completed the examination within the time period allotted and answered all questions. Mrs. Johnson did not answer a sufficient number of the graded (that is, 150) questions correctly to receive a passing score on the examination. 75 percent was passing; her grade was 74.7 percent. Petitioner was notified by the Respondent that she had failed the examination. Mrs. Johnson personally reviewed her examination, including questions, key or correct answers, and her own questions, under supervision of Department of Professional Regulation personnel on January 22, 1987. She filed no objections to her incorrect score for any questions for which she was not given credit. On Respondent's advice, Petitioner re-took the examination on February 2, 1987.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Professional Regulation, Board of Nursing Home Administrators enter a final order: confirming that Petitioner's grade on the October 13, 1986, examination is a failing 74.7 percent; and denying licensure at this time; and denying Petitioner's other requested relief. RECOMMENDED this 12th day of March, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 12th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4903 Section 120.59(2), Florida Statutes (1985) Rulings Petitioner filed no proposed findings of fact. Respondent's proposed finding 9 is cumulative and the last sentence of 8 is subordinate. Otherwise, Respondent's proposed findings of fact are accepted and incorporated. COPIES FURNISHED: Marlene Johnson 5750 Bahia Vista Sarasota, Florida 33582 Jeffrey H. Barker, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mildred Gardner Executive Director Board of Nursing Home Administrators Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent, a nursing home, committed the offenses alleged in the three-count administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent operates a skilled nursing home in Stuart, Florida, and is licensed by the State of Florida pursuant to the provisions of Part I of Chapter 400, Florida Statutes. Petitioner is the agency of the State of Florida with the responsibility to license and regulate nursing home facilities in Florida. V.S. is a female born July 13, 1963, who was admitted to Respondent's nursing home with the diagnoses "osteomyelitis to hip and pelvis" and "quadriplegic" [sic]. V.S. was a patient at Respondent's nursing home between March 29, 2002, and April 26, 2002. On April 27, 2002, Mary Kristen Morris, a registered nurse employed by a home health care agency, examined V.S. and filled out a form styled Skin Assessment and Care on which she charted the areas on the patient's body that contained wounds and described each wound. At issue in this proceeding is what Ms. Morris referred to as wound "B", and which she described as being a "tunnel wound" that was one and a half centimeters long, one tenth centimeter wide, and four to five centimeters deep. Ms. Morris testified that she used the term "tunnel" because the wound had a very small opening on the surface of the skin, but it had more depth than one can see without probing the wound. Ms. Morris believed the wound was consistent with a prior surgical procedure that occurred before the patient was admitted to Respondent's nursing home. Ms. Morris did not describe the wound as being a pressure sore or as a bed sore. While it was clear that Ms. Morris did not think this was a new wound, her testimony fails to establish that the wound was visible to caregivers during the time V.S. was a patient in Respondent's nursing home. A copy of the Skin Assessment and Care form completed by Ms. Morris on April 27, 2002, was provided Respondent and became a part of the medical chart for V.S. James Eric Johnson is a registered nurse specialist employed by Petitioner to conduct surveys of nursing homes. Mr. Johnson, on behalf of Petitioner, conducted a survey of Respondent's nursing home on May 8, 2002. Mr. Johnson reviewed the medical chart for V.S., which included the Skin Assessment and Care form prepared by Ms. Morris. Mr. Johnson noted that there was no reference to what Ms. Morris charted as wound "B" in the medical records prepared by Respondent's staff. Based on that failure and his assumption that the wound observed by Ms. Morris on April 27, 2002, existed and should have been observable to Respondent's staff prior to the patient's discharge, Mr. Johnson prepared the survey report containing the alleged violations at issue in this proceeding. Mr. Morris did not talk to any of Respondent's staff that had provided care to V.S. prior to her discharge on April 26, 2002. Nancy Calise, a registered nurse employed by Respondent's nursing home during the 7:00 a.m. to 3:00 p.m. shift, observed the patient's buttocks on April 24 and 25, 2002, during her shift. Following the patient's bath, Ms. Calise applied a barrier cream to the patient's buttocks. Ms. Calise testified, credibly, that V.S. did not have a wound on her buttocks on either April 24 or April 25, 2002. Elizabeth McConnell, a licensed practical nurse employed by Respondent's nursing home during the 3:00 p.m. to 11:00 p.m. shift, observed the patient's buttocks on April 25, 2002. Ms. McConnell testified, credibly, that V.S. did not have a wound on her buttocks on April 25, 2002. Elma Callaway, a certified nursing assistant, employed by Respondent's nursing home during the 7:00 a.m. to 3:00 p.m. shift, bathed the patient on April 26, 2002, the date she was discharged. Ms. Callaway testified, credibly, that V.S. did not have a wound on her buttocks on April 26, 2002.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 2nd day of April, 2003, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2nd day of April, 2003. COPIES FURNISHED: Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Nelson Rodney, Esquire Agency for Health Care Administration 8355 Northwest 53rd Street Miami, Florida 33166 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308
Findings Of Fact The Department, a state agency, initiated the underlying proceeding when Redi-Care's request for payment as a Medicaid provider was denied on September 19, 1989. Redi-Care was required to seek review of this governmental action through an administrative proceeding on September 28, 1989. Petitioner, Redi-Care Home Services, Inc. is a corporation which has its principal office in this state. At the time the administrative proceeding was initiated, the corporation had less than 25 full-time employees and a net worth of less than two million dollars. The assets of Redi-Care were sold to Lorinda Crowley on July 31, 1990. The shares of corporate stock and the liability were not transferred. Redi-Care authorized its President, Ms. Ingeborg G. Mausch, Ph.D., to proceed with the corporation's attempts to collect the Medicare claims at issue in the underlying proceeding. A Final Order was entered by the Department in the underlying proceeding on October 4, 1991. This order resolved the dispute in Redi-Care's favor. The claim for reimbursement for services rendered as a Medicaid Provider were to be paid upon the resubmission of the claims. The time for seeking judicial review of that order has expired and the order has become final agency action as a matter of law. Redi-Care timely filed its Petition for Attorney's Fees in this proceeding. The Department disputes portions of the application for fees relating to entitlement and to requested amounts of reimbursement for fees and costs. The underlying proceedings were initiated when the Department denied Redi-Care's claims for reimbursement for home health care services rendered to Richard Mow and Claire Jester beginning February 8, 1989. The reason given by the Department for its denial of the claims on September 9, 1989, was that Redi- Care's "Medicaid Provider" number could be used only for services rendered on or after May 4, 1989 because its certification survey was not completed until then. Although the agency's determination of ineligibility for payment due to the lack of certification would be proper in most cases under Rule 10C- 7.044(3)(a), Florida Administrative Code, it is not appropriate in this case. The Department was supposed to complete the requested survey in November 1988. The survey was not actually completed until May 4, 1989 because the Department's representative confused this entity with a similarly named entity located next door in November 1988. When Redi-Care received the documentation from Consultec assigning it a "Medicaid Provider" number in December 1988, the applicant reasonably believed the certification process had been completed and eligibility granted. The Department has been aware of its error in failing to provide the survey since at least April 18, 1989. Yet, no attempt was made to address this error as it related to the pending reimbursement claims beginning on February 8, 1989. Instead, the agency's involvement in the series of events that operated to prevent the proper application processing was ignored and Redi-Care was expected to suffer the consequences of the confusion created by all of the parties. One very reasonable way the Department could have cured its error would have been to submit Redi-Care's application for certification to Consultec on the day it discovered the error. This would have allowed Consultec to process claims from 90 days prior to the application under the Medical Home Health Agency Services Manual in effect at that time. This action was not taken by agency personnel who knew or should have known of this potential solution to the certification and reimbursement issues. The Department's letter advising Redi-Care of the Medicaid Program's decision to deny payment for services provided before May 4, 1989 was unreasonable governmental action. The possible affect of the agency's errors and the unrelated errors of its successive Medicaid agents for the Florida Medicaid Program on Redi-Care's pending claims were never addressed in spite of the Department's awareness of their existence. Redi-Care was required to pursue its claims through administrative proceeding's in order to prevent the denial of the reimbursement request.
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration ("the Agency"), which finds and concludes as follows: The Agency issued the Petitioner ("the Applicant") the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1). Petitioner requested a formal hearing (Ex. 2). Petitioner withdrew its Petition for formal hearing on January 4, 2010 (Ex. 3). The Agency's Notice oflntent is upheld. The parties shall bear their own costs and attorney's fees. This matter is closed. 010. old, Secretary Ith Care Administration
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of ARCA, and a second copy, 1 Filed January 20, 2010 8:00 AM Division of Administrative Hearings. along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days ofrendition of the order to be reviewed. CERTIFICATE OF SERVICE Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 922-5873 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Anne Menard, Manager Home Care Unit Agency for Health Care Administration (Interoffice Mail) Carlton Enfinger, II Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Christopher A. Parrella Law Center at Brickell Bay 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (U.S. Mail) 2
The Issue The issue is whether Respondent properly denied Petitioner's application for a change of ownership license to operate an assisted living facility.
Findings Of Fact On or about January 13, 1998, Petitioner filed an application for a change of ownership license to operate an existing six-bed ALF. At that time, the ALF was licensed as Kam Home ALF. By letter dated January 22, 1998, Respondent requested Petitioner to furnish additional information and documentation to complete the application. Respondent's letter dated February 27, 1998, again requested Petitioner to provide certain documentation to complete the application process. On or about June 9, 1998, Respondent issued a provisional license to Petitioner. This license was effective retroactively to February 15, 1998, and prospectively through August 14, 1998. Petitioner was advised that failure to obtain a satisfactory survey could result in a denial of a standard license. Respondent conducted an ALF change of ownership site survey of the subject facility on June 17, 1998. The survey resulted in a finding of thirty-one deficiencies, totaling 37 pages in the official written report. These deficiencies were in the following areas: (a) general licensure standards [A-003]; (b) fiscal standards [A-100, A-108]; (c) facility record standards [A-202, A-203, A-208, A-209, A-210, A-213], resident record standards [A-301, A302, A-307, A-308]; admission criteria standards [A-401, A-404, A-406]; (f) staffing standards [A-504, A-505, A-508, A-511, A-512, A-513]; (g) medication standards [A-602, A-606]; (h) resident care standards [A-703]; (i) nutrition and dietary standards [A-803, A-806, A-809, A-810, A-811]; and (j) physical plant standards [A-1024]. A letter dated June 24, 1998, advised Petitioner that failure to correct all deficiencies by the date of the next visit would result in a recommendation for denial of licensure. On July 24, 1998, Respondent conducted a follow-up site survey at the subject facility. Respondent found that eight of the deficiencies had not been corrected. These eight deficiencies included the following: (a) one of five residents did not have a signed contract with the facility (resident record standards [A-302]); (b) the facility did not have a prepared admission packet for residents or the responsible party (resident record standards [A-308]); (c) two residents did not have a health assessment on-file (admission criteria standards [A-401]); (d) a third resident did not have a health assessment on the current D.O.E.A. Form 1823 (admission criteria standards [A-404]); (e) staff had not received a minimum of two hours of training within the first 30 days of employment (staffing standards [A-504]); (f) all staff members have not received training in personal hygiene care from a nurse before providing such assistance to residents and all staff members had not received a minimum of two hours of training prior to supervising self-administered medications (staffing standards [A-505]); (g) the facility did not document that residents are provided with a minimum of planned activities, available at least five days per week, for a total of not less than 10 hours per week (resident care standards [A-703]); and (h) menus were not dated and planned at least one week in advance for regular and therapeutic diets (nutrition and dietary standards [A-810]). During this follow-up survey, Respondent's evaluator advised Petitioner's administrator that his office would revisit the facility within one month. In a letter dated July 28, 1998, Respondent's office of Health Quality Assurance indicated that it intended to recommend denial of Petitioner's license for failure to correct all deficiencies within the mandated time. The decision to deny Petitioner's application, if taken, was to be a matter of separate correspondence from Respondent's central office. In the meantime, Petitioner was directed to file a correction plan and to indicate the date of correction for each deficiency. Specifically, Petitioner's plan was to include details showing who would correct the deficiencies, when and how they would be corrected, and how they would be monitored for future compliance. Petitioner sent Respondent a letter dated August 6, 1998. The letter referenced an enclosed correction plan for the remaining eight deficiencies.1 Petitioner's administrator testified that she corrected the deficiencies before the facility's provisional license expired on August 14, 1998. This testimony is not persuasive.2 On or about September 10, 1998, Respondent advised Petitioner that its application for a change of ownership license to operate the ALF was denied based on its failure to meet minimum license standards pursuant to Section 400.414, Florida Statutes. On or about September 19, 1998, Petitioner's administrator sent Respondent a letter requesting an administrative hearing to contest the denial of licensure. In response to complaints from Petitioner's residents, Respondent's staff performed a monitoring survey at the subject facility on December 22-23, 1998. The evaluator found six deficiencies. Four of the deficiencies were repeat citations: (a) two residents had no health assessment (admission criteria standards [A-401]); (b) the facility did not post a written work schedule (staffing standards [A-508]); (c) the facility did not offer a variety of foods (nutrition and dietary standards [A-806]); (d) the facility did not follow posted menus or record food substitutions (nutrition and dietary standards [A-810]). Two deficiencies were cited for the first time: one resident's medication administration record was inaccurate (medication standard [A-605]); and (b) the facility did not timely refill one resident's medication (medication standards [A-608]). On December 23, 1998, Respondent placed a moratorium on Petitioner's admissions. The agency imposed the moratorium for two reasons. First, because Respondent had denied Petitioner's application for licensure. Second, the appraisal visit on December 22, 1998, revealed new and repeat deficiencies, demonstrating the facility's continued pattern of non-compliance. Respondent advised Petitioner to correct the deficiencies and to arrange for another appraisal visit by Respondent to verify the corrections.3 On December 29, 1998, Respondent's staff conducted an ALF moratorium monitoring visit. During that visit, the evaluator found the following three repeat violations: (a) staff providing personal hygiene care to residents did not have training to furnish that care (staffing standards [A-505]); the facility did not have at least one staff member with first aid and CPR certification on the premises at all times (staffing standards [A-511]); and (c) staff who supervise the self-administration of medication did not have training to provide that service (medication standards [A-602]). A letter dated January 5, 1999, confirmed the findings of the December 29, 1998, monitoring visit and continued the moratorium on admissions. On January 12, 1999, Respondent's evaluator conducted another monitoring visit at the facility. The evaluator discovered that the facility did not have electricity. The city had turned off the electricity because the bill had not been paid. Following the monitoring visit, Respondent advised Petitioner that the moratorium would continue in effect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order denying Petitioner's application for a change of ownership license to operate an assisted living facility. DONE AND ENTERED this 14th day of April, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 14th day of April, 1999.
