The Issue DOAH Case No. 01-3072: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 01-3616: Whether Respondent committed the violations alleged in the Administrative Complaint dated August 23, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Jacaranda Manor operates a 299-bed licensed nursing home at 4250 66th Street, North, St. Petersburg, Florida. The facility has a staff of approximately 225 persons, including 15 registered nurses ("RNs"), 25 licensed practical nurses ("LPNs"), and 100-125 certified nursing assistants ("CNAs"). Contract nurses also work at the facility on a daily basis. Jacaranda Manor accepts residents from throughout the United States. It is known as a facility that accepts residents with psychiatric or behavioral idiosyncrasies that other nursing homes might be unwilling to handle. Jacaranda Manor residents are admitted from state mental hospitals, the psychiatric units of general hospitals, assisted living facilities, group homes, and other nursing homes. Jacaranda Manor also accepts admissions from the Pinellas County Jail, mostly homeless persons whose mental condition makes them inappropriate for a jail setting. While all of Jacaranda Manor's residents have a primary diagnosis relating to a need for nursing home care, almost 90 percent of its residents have a specific mental illness as a secondary diagnosis. All of the residents cited in the AHCA survey deficiencies suffered from mental disorders. One hundred percent of Jacaranda Manor's residents receive services related to mental illness or retardation, compared to a statewide average of 2.6 percent. Jacaranda Manor's population includes residents with Alzheimer's disease, schizophrenia, dementia, multiple sclerosis, cerebral palsy, muscular dystrophy, Huntington's chorea, spinal cord injuries and closed head injuries. Over 97 percent of Jacaranda Manor's residents are expected never to be discharged. More than 40 of Jacaranda Manor's residents have lived there for at least 25 years. Statewide, 59.2 percent of nursing home residents are never expected to be discharged. Two-thirds of Jacaranda Manor's residents are male, as opposed to a statewide average of 31.3 percent. Thirty- five percent of Jacaranda Manor's population is under age 50. Ninety-one percent of Jacaranda Manor's residents are Medicaid recipients, as opposed to a statewide average of 64 percent. Jacaranda Manor also operates the HCR Training Center, a licensed vocational school for CNAs, located across the street from the main nursing home. The center provides free training for prospective CNAs, and Jacaranda Manor employs the trainees and graduates. The course of study lasts six weeks, and each class usually has 20-25 students. The school day consists of four hours of classes followed by paid on-the-job training at Jacaranda Manor. Students generally work 30 hours per week at Jacaranda Manor. As part of its effort to create a home-like atmosphere for residents, Jacaranda Manor does not require staff to wear uniforms. The facility has no particular dress code for employees, aside from a requirement that they wear safe, protective shoes. Some of the administrative personnel wear name tags, but are otherwise indistinguishable from other employees. Thus, an outside observer could not be certain, without further inquiry, whether the "staff person" she sees in the facility is a nurse, a CNA, a CNA trainee, or a maintenance worker. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On April 3 through 6, 2001, AHCA conducted a licensure and certification survey of Jacaranda Manor, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey noted one deficiency related to difficulty in opening two exit doors at the facility, but noted no deficiencies as to resident care. AHCA found Jacaranda Manor to be in substantial compliance with 42 C.F.R., Part 483, Requirements for Long Term Care Facilities. Pursuant to the mandate of the federal Centers for Medicare and Medicaid Services ("CMS") (formerly the Health Care Financing Administration, or "HCFA"), AHCA maintains a "survey integrity and support branch," also known as the "validation team." To ensure the quality and consistency of its survey process, AHCA sends the validation team to re- survey facilities that have received deficiency-free initial surveys. Because its April 2001 survey revealed no deficiencies related to resident care, Jacaranda Manor was considered deficiency-free. On May 8 through 11, 2001, AHCA's validation team conducted a second survey at Jacaranda Manor. The validation team alleged a total of thirteen deficiencies during the May 2001 survey. At issue in these proceedings were deficiencies identified as Tag F241 (violation of 42 C.F.R. Section 483.15(a), relating to resident dignity); Tag F250 (violation of 42 C.F.R. Section 483.15(g), relating to social services); and Tag F272 (violation of 42 C.F.R. Section 483.20(b)(1), relating to resident assessment). All of the deficiencies alleged in the May 2001 survey were classified as Class III under the Florida classification system for nursing homes. At the time of the survey, Class III deficiencies were defined as those having "an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than Class I or Class II deficiencies." Section 400.23(8)(c), Florida Statutes (2001). Jacaranda Manor disputed the deficiencies alleged in the May 2001 survey and elected to go through the federally authorized Informal Dispute Resolution ("IDR") process. See 42 C.F.R. Section 488.331. The IDR process allows the facility to present information to an AHCA panel, which may recommend that the deficiencies alleged in the survey be deleted, sustained, or modified. Under AHCA's application of the process, the three-member AHCA panel considers the facility's information and then makes a recommendation to Susan Acker, the director of AHCA's health standards and quality unit, who makes the final decision. The IDR meeting was held via teleconference on June 11, 2001. The IDR resulted in AHCA's upholding all the deficiencies alleged in the May 2001 survey. AHCA modified the state level classification of Tag F241 from Class III to Class II. At the time of the survey, Class II deficiencies were defined as "those which the Agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than class I deficiencies." Section 400.23(8)(b), Florida Statutes (2000). This change in classification was recommended by the IDR panel and approved by Ms. Acker. The IDR meeting also resulted in AHCA's changing Tag F272 to Tag F309 (violation of 42 C.F.R. Section 483.25, relating to quality of care) and to classify the alleged Tag F309 deficiency as Class II. This change was made by Ms. Acker alone. The IDR panel recommended upholding the original Class III, Tag F272 findings, but increasing the federal scope and severity rating from D (no actual harm but with potential for more than minimal harm) to G (actual harm that is not immediate jeopardy). Ms. Acker overruled that recommendation and imposed the change to Tag F309. Based on the increased severity of the alleged deficiencies in Tags F241 and F309, from Class III to Class II, AHCA imposed a conditional license on Jacaranda Manor, effective May 15, 2001. The license expiration date was February 28, 2002. On June 19 and 20, 2001, AHCA conducted a follow-up survey of Jacaranda Manor to determine whether the deficiencies alleged in the May 2001 survey had been corrected. The survey team determined that Tags F241 and F250 were uncorrected Class III deficiencies. This determination resulted in the filing of an Administrative Complaint seeking imposition of a $2,000 civil penalty. May 2001 Survey A. Tag F241 The May 2001 validation survey allegedly found violations of 42 C.F.R. Section 483.15(a), which states that a facility must "promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality." In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F241." Tag F241 is commonly referred to as the "quality of life" or "dignity" tag. For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of E for Tag F241. A rating of E indicates that there is a pattern of deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. After the IDR process, the federal scope and severity rating for Tag F241 was increased to H, meaning that there is a pattern of deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The increase of the federal scope and severity rating from E to H corresponded to the increase of the state level classification from Class III to Class II. The Form 2567 for the May 2001 survey listed nine separate incidents under Tag F241, the dignity tag. The first surveyor observation involved Resident 31, or "R-31": On 5/11/01 at 8:30 a.m., R-31 was observed in a 4 bed room, sitting on his/her bed eating breakfast. The resident had no clothes on, had a colostomy bag and foley catheter visible to anyone walking by in the hallway. A staff member went into the room to another resident but did not cover R-31. A second staff member came to the doorway of the room to talk to the first staff member and also did not attempt to cover the resident. Marsha Lisk was the AHCA team coordinator for the May 2001 survey and was the team member who recorded the observation of R-31. Ms. Lisk stated that this was a random observation, made without benefit of reviewing R-31's records. Ms. Lisk could not identify the two staff members who failed to cover R-31, aside from a recollection that one of them was a CNA. She was "astounded" that the staff persons did not intervene to cover the naked resident, especially because they could see that Ms. Lisk was standing in the doorway taking notes. Ms. Lisk would have thought nothing more of the incident had the staff members done anything to obscure the view of the resident from the hallway. Ms. Lisk admitted that R-31 appeared to be in no distress, and that no other resident complained about his nudity. Twenty minutes after this observation, Ms. Lisk saw R-31 fully clothed and being pushed in a wheelchair down the hall. Ms. Lisk noted this incident as a deficiency because she believed nudity cannot be considered to meet community standards under any circumstances. Even if the resident consciously preferred nudity, or was so mentally incapacitated as to be unaware he was nude, it was staff's responsibility to cover the resident, pull a curtain around him, or move his bed to a place where it could not be seen from the hall. At the hearing, it was established that R-31 was a 59-year-old male with multiple medical and psychiatric diagnoses, including schizophrenia and dementia due to organic brain syndrome. He preferred to sleep in the nude and to dress himself, though he required some assistance to do so properly. He was able to close his own privacy curtain. R-31 was very resistant when staff approached to dress him, to the point of physically lashing out. R-31 would refuse to eat if he was pushed to clothe himself near meal time. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, stated that the main goal was to get R-31 to eat his breakfast, and that staff was concerned that any effort to dress him would disrupt his meal. Ms. Heintz offered no reason why the door could not be closed or the privacy curtain drawn while R-31 ate his breakfast in the nude. R-31 also preferred to keep his colostomy uncovered. Staff would cover it and encourage him to keep it covered, but he would refuse to do so. Ms. Lisk, the surveyor, admitted that she did not review R-31's record even after her observation. She made no attempt to interview R-31 and admitted that she was unaware of his habits and preferences. The second surveyor observation on Tag F241 concerned Resident 21,1 or "R-21", and stated: During the tour on 5/08/01, at approximately 10 a.m., a staff member invited the surveyor into a room to meet [R-21]. He/she was in adult briefs uncovered lying on his/her bed. There was no attempt to cover the resident to insure privacy. At approximately 4:40 p.m. [R-21] was observed from the hallway lying in bed in his/her adult brief with no pants on and the privacy curtain not drawn. Kriste Mennella was the survey team member who recorded the observation of R-21, identified only as a male resident. She did not review the facility's records relating to R-21, and offered no testimonial details beyond the facts set forth in her observation. She did not interview the resident and did not know whether the resident was able to respond to questions. Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-21 uncovered in his bed. The third surveyor observation on Tag F241 concerned Resident 8, or "R-8," and stated: [R-8] was observed on 5/8/01 wheeling out of the dining area with several staff present. He had a black polo shirt on inside out and his Khaki pants, along with his adult brief, were down to his knee's [sic] exposing his right lower side and hip. There was no intervention by staff. He was unshaven and had dirty hand [sic] and his fingernails were ragged and dirty. His hair was unkempt. On 5/9/01 through out [sic] the day [R-8] was observed to have on two different shoes. One was a tennis shoe with his name written across the top and the other a brown loafer. Ms. Mennella recorded the observations of R-8. Ms. Mennella identified the unnamed staff persons as "management folks" who were following the surveyors around the facility, and the person in charge of the dining room. These staff persons told Ms. Mennella on May 8 that they did not intervene because R-8 was "resistive to care." Ms. Mennella subsequently discussed R-8 with a CNA, who told her that the resident may or may not be combative, depending on how he is approached. Ms. Mennella believed that some intervention should have occurred even with a combative resident, if only verbal prompting to tell the resident that his pants were down and he should pull them up. She observed R-8 throughout the three days of the survey, but did not see him with his pants down again after the May 8 observation. On May 9, when she saw R-8 wearing unmatched shoes, Ms. Mennella went to the resident's room and confirmed that he did have matching shoes. R-8 was a 46-year-old male with multiple medical and psychiatric diagnoses, among them paranoid schizophrenia. R-8 saw a variety of mental health professionals, including a psychiatrist, a psychiatric ARNP for medication management, a psychologist for individual therapy, and a licensed clinical social worker for group therapy. R-8 was classified as an elopement risk, paranoid and suspicious with a history of aggression. R-8 did not require a wheelchair to ambulate. R-8 habitually carried his "things" (e.g., a radio, or a box containing items sent him by a relative) with him as he moved about the facility. He liked to use a wheelchair to more easily carry his possessions. R-8 dressed himself, usually with some assistance in the morning. He changed clothes five or six times a day. Sometimes he would wear two different outfits in layers, or wear unmatched shoes. Jacaranda Manor staff uniformly noted that there was nothing unusual in R-8 having his shirt on inside-out or backwards, because he was constantly taking his clothes off and on. R-8 liked to wear his pants unbuttoned. He often moved about the facility holding his pants up with one hand, and his pants would often droop down to his knees. Jacaranda Manor staff constantly intervened in an effort to keep R-8 properly clothed. He was sometimes compliant, but other times would resist pulling up his pants. He would curse and run out of the room, or threaten to tell the President of the United States about his treatment. R-8 was indifferent to his appearance, displaying anxiety about his clothing only when staff attempted to change it. He would muss his hair as soon as it was brushed. His hands would get dirty because R-8 had a habit of rooting on the ground or through ashtrays for cigarette butts to smoke. Since the survey, Jacaranda Manor has addressed this problem by installing ashtrays that the residents cannot reach into. Ms. Mennella testified that she knew nothing about R-8's preferences or behaviors regarding clothing. She did not know he had a habit of tousling his own hair. She did not know he had a habit of rooting for cigarettes. She did not ask who wrote R-8's name on his shoe. Jacaranda Manor has a policy of not marking residents' clothing, for privacy reasons. However, R-8 would write his own name on his shoes and other items he received from his family because he was proud of them. The fourth surveyor observation on Tag F241 concerned an unnamed resident: During an observation on 5/9/01, outside in the lifestyles patio area, at approximately 9:10 a.m., a staff person who was on break under the pavilion shouted across the courtyard to a resident in a loud voice, "MR. (name) PULL UP YOUR PANTS." There was [sic] several staff on break and at least 15 other residents out side [sic] in the patio area at the time. Ms. Mennella recorded this observation. She testified that the staff person who yelled was an aide. By the time she looked to see whom the staff person was calling to, Ms. Mennella could see no resident with his or her pants down. Not having seen the resident, Ms. Mennella was unable to say whether the staff person could have reached the resident before his or her pants came down. Her concern was the tone and manner in which the instruction was given, and the embarrassment it could have caused the resident. Despite not having seen the resident, Ms. Mennella was certain that the staff person was addressing a male. Rosa Redmond, the director of nursing at Jacaranda Manor, testified that she learned of the incident shortly after it happened. A CNA and a trainee from the HCR Training Center told her of the incident. It was the trainee who called out to the resident. The trainee told Ms. Redmond that a female resident's slacks were starting to fall. The trainee was concerned that the resident would fall, and could not reach the resident in time to pull up her slacks, so the trainee called out to the resident. The fifth surveyor observation on Tag F241 was a general statement: Residents were observed during numerous random observations out in the patio area during all three days of the survey to have on only socks, no shoes on their feet. As a result the socks were black on the bottom. These general observations were made by surveyors Mary Maloney and Kriste Mennella. Ms. Maloney testified that she has surveyed nursing homes from Pensacola to Key West, including homes that accept mental health residents and have secured units, but that she has never seen another facility in which residents are allowed to walk around barefoot or only in dirty socks. In her experience, staff would intervene and redirect the residents to put on shoes or change their socks. Ms. Maloney testified that she asked one resident why he was not wearing shoes. The resident told her that he did not want to wear shoes, and showed Ms. Maloney several pairs of shoes in his closet. Ms. Maloney did not cite this instance as a deficiency. However, she noted other shoeless residents who appeared confused or cognitively impaired, and did cite these instances as deficiencies because of staff's failure to intervene or to assess why the residents resisted wearing shoes. Ms. Maloney admitted that the survey team discussed the issue of residents not having proper footwear, and determined that it caused no actual harm to the residents. Jacaranda Manor did not contest the fact that residents often go barefoot or wear only socks. Through various sources, the facility maintains an ample supply of shoes and socks for the residents, and attempts to keep the residents properly shod. However, the facility also tolerates residents' preferences in clothing and footwear, and does not consider the question of footwear a pressing issue. Some residents simply do not want to wear shoes. Some residents feel steadier when they can feel the floor against their bare feet. Carol Heintz, Jacaranda Manor's psychiatric nurse manager, testified that neither therapists nor family members have ever expressed concerns over the issue. No evidence was presented that going barefoot or wearing socks posed a safety risk to the residents. The alleged harm was simply that some of the residents had dirty feet, or dirty socks on their feet. The sixth surveyor observation on Tag F241 offered more specific information on the question of resident footwear: The facility did not assist residents to wear appropriate footwear, in that some of the residents who resided on 1 West, the secure unit, were observed wearing socks without shoes or were barefoot throughout the survey. During the initial tour on 5/08/0 [sic], it was observed that several residents were pacing and walking throughout 1 West, with only socks on. Some of these residents walked outside on a sidewalk. The soles of these resident's [sic] white socks were soiled dark gray. On 05/08/01, at 6:50 p.m., there were three male residents observed to walk around the unit with white socks on. One of these residents had holes in the socks. On 05/09/01 at 10:15 a.m., there was one male resident walking outside in the enclosed courtyard wearing white socks, as well as a female resident who was pacing back and forth on the side walk wearing socks only. On the morning of 05/10/01 at 7:45 a.m., there was a male resident sitting in a chair outside who was barefoot. On 05/11/01, at 9:30 a.m., during the resident's [sic] arranged smoking time on the enclosed courtyard on 1 West, there were several residents walking around wearing only socks on their feet. One male resident was wearing black shoes, but they were different style shoes. This was shown to the direct care staff who were not aware. They were not sure if these shoes belonged to this resident. The staff also stated that some of the resident's [sic] shoes were missing or the residents chose not to wear their shoes. Resident #16 was observed walking around in loose-fitting cloth slippers with rubber soles on 05/09/01, on 05/10/01. The resident showed that she/he had one black dress shoe, because the other shoe was missing. On 05/11/01, the resident was wearing open- toed bedroom slippers. This resident was identified as a fall risk due to akinesia (involuntary movement of the body). The resident's current care plan included an approach "to wear proper fitting shoes with non-skid soles." The resident was observed with a shuffling gait. Resident 16, or "R-16," was a 39-year-old male with HIV, cerebral atrophy, and a history of AIDS-related dementia with delusions. He suffered from depression, anxiety, psychosis, paranoia, and bipolar disorder. He was childlike and possessed poor judgment, forming unrealistic plans to get a job and live on his own outside a clinical setting. R-16 was an elopement risk, which caused a community-based HIV program to reject him for participation. Jacaranda Manor tried placing R-16 in its open unit, but he tried to leave without telling anyone, which necessitated placing him in the facility's secure unit. R-16 abused alcohol, liked to smoke and drink coffee constantly, and was prone to giving away his clothes. R-16 had pronounced preferences as to footwear. While he would occasionally wear regular shoes, he most often wore a pair of fuzzy, open-toed slippers. He would have a temper tantrum if not allowed to wear his slippers. R-16 was at risk of slipping and falling due to akinesia, and staff explained to him the potential safety problems in wearing slippers. R-16 had a peculiar gait, described by Jacaranda Manor personnel as "shuffling" or as a "sashay." His slippers had rubber soles to help prevent slipping. The seventh surveyor observation on Tag F241 concerned Resident 32, or "R-32", and an unnamed resident: On 05/08/01, at 6:50 p.m., during the evening meal, [R-32] was observed from the hallway, sitting in a chair in his room wearing only a t-shirt and an incontinent brief. Several staff were observed to walk past this resident's room and did not attempt to intervene. On 05/09/01, at 10:15 a.m., during a random observation, there was a confused male resident walking outside in the enclosed courtyard, who was removed his pants [sic] and exposed his incontinent brief. There was a female resident pacing back and forth nearby. A direct care staff person who was escorting another resident, walked past this resident without intervening. The surveyor went inside to inform the medication nurse of the situation. Mary Maloney was the surveyor who recorded the observation of R-32 and the unnamed resident. R-32 was a male resident who preferred not to wear trousers. Jacaranda Manor staff tried to convince R-32 to wear trousers. Staff tried different kinds of pants, such as pull-ups, zippered pants, and shorts. R-32 would occasionally accede to wearing the shorts, but while in his room always dressed in his brief and a t-shirt. Jacaranda Manor did not dispute Ms. Maloney's observation of R-32. Jacaranda Manor was unable to address Ms. Maloney's subsequent observation, as she was unable to name the "confused male resident," the pacing female resident, or the staff person who allegedly failed to intervene. Ms. Maloney's observation implies that the unnamed staff person should have intervened, but offers no information as to whether the staff person could have safely abandoned the other resident he or she was escorting at the time. The eighth surveyor observation on Tag F241 concerned Resident 4, or "R-4," and stated: During the breakfast meal observation on 05/09/01 and 05/10/01 at about 9:30 a.m., [R-4] was observed to be fed her/his breakfast at the nurse's station. The staff person was observed to be standing and feeding the resident who was seated in a reclining chair. The resident's meal tray was placed on the counter of the nurse's station, where the resident could not see her/his food. There was a high level of staff activity and residents walking around the area. Ms. Maloney was the surveyor who recorded this observation. Both Alma Hirsch, Jacaranda Manor's chief administrator, and Carol Heintz, the psychiatric nurse manager, testified that R-4 is fed entirely by means of a gastrointestinal tube and thus could not have been eating breakfast at the nurses' station. At the hearing, Ms. Maloney conceded that she might have misidentified the resident on the Form 2567, but was certain that she saw a particular male resident being fed breakfast at the nurses' station on May 9 and 10. Jacaranda Manor did not contest the fact that residents are often fed at the nurses' station. AHCA cited this incident as a deficiency because feeding the resident at a busy nurses' station does not promote his dignity. Ms. Maloney inquired and learned that the resident could not be fed in his room because it was being painted. She acknowledged that the resident in question was difficult to feed, and so prone to violent outbursts that Jacaranda Manor had removed all the furniture from his room for his safety. Ms. Maloney nonetheless thought that Jacaranda Manor staff should have chosen a quieter, less stimulative environment in which to feed the resident. The ninth surveyor observation on Tag F241 concerned Resident 16, or "R-16," and stated: On 05/10/01, at about 3:30 p.m., [R-16] approached the nurse's station and asked the medication nurse for some coffee. (The resident had his/her own personal jar of instant coffee.) The nurse denied the resident the coffee. The nurse stated that the resident's coffee was being rationed to several times per day. According to the nurse, the resident's coffee consumption was restricted because the resident prefers the coffee extra strong, and the resident exhibits effects from the excessive caffeine, described as "bouncing off the walls." From review of the clinical record, there was no physician's order for a caffeine restriction. According to facility policy, the coffee served to the residents is decaffeinated, the nurse reported. Ms. Maloney recorded this observation. R-16 is the same resident cited in the sixth surveyor observation for wearing open-toed slippers. Jacaranda Manor serves only decaffeinated coffee to all residents. R-16 had a personal, "special" jar of instant decaffeinated coffee that was in fact provided by Ms. Hirsch, at her own expense. R-16 was allowed to believe that his "special" coffee was caffeinated. R-16 was incapable of making his own coffee. His jar of coffee was kept in the medicine room near the nurses' station, and R-16 had to ask a nurse to prepare his coffee. The nurse would go to the kitchen for hot water, then prepare the coffee. R-16 drank coffee all day, every day. There were no medical restrictions on how much coffee he could drink. He carried a large mug, and would ask the nurses to prepare his coffee as many as thirty times a day. R-16 would ask insistently until his coffee was made. If the nurses were not busy, they would make the coffee immediately. If they were in the middle of a procedure, they would ask R-16 to wait until they were finished. Elaine Teller was the nurse referenced in the ninth observation. She was the charge nurse at the time of the incident. Ms. Teller was passing medications and speaking to Ms. Maloney when R-16 approached and demanded his coffee. Ms. Teller told R-16 that she was busy and would get his coffee in a few minutes. Ms. Maloney testified that Ms. Teller's response was "inappropriate," in that it had the potential to embarrass R- 16 in front of the people at the nurses' station. Ms. Maloney believed it would have been more appropriate to take R-16 aside and speak with him. Ms. Teller denied treating R-16 rudely or disrespectfully. She was "firm" with R-16 "because that's what [he] needs." Ms. Teller was close to R-16, such that he referred to her as his "second mom." At the time, Ms. Maloney voiced no concern over Ms. Teller's treatment of R-16. Ms. Teller testified that she had delayed but never "denied" coffee to R-16. She had on occasion lectured R-16 that he drank too much coffee, but never stated that R-16's coffee intake was restricted. Surveyors employ a "Guidance to Surveyors" document for long-term care facilities contained in the "State Operations Manual" promulgated by the federal CMS. The guidelines for Tag F241 state: "Dignity" means that in their interactions with residents, staff carries out activities that assist the resident to maintain and enhance his/her self-esteem and self-worth. For example: Grooming residents as they wish to be groomed (e.g., hair combed and styled, beards shaved/trimmed, nails clean and clipped); Assisting residents to dress in their own clothes appropriate to the time of day and individual preferences; Assisting residents to attend activities of their own choosing; Labeling each resident's clothing in a way that respects his or her dignity; Promoting resident independence and dignity in dining (such as avoidance of day-to-day use of plastic cutlery and paper/plastic dishware, bibs instead of napkins, dining room conducive to pleasant dining, aides not yelling); Respecting resident's private space and property (e.g., not changing radio or television station without resident's permission, knocking on doors and requesting permission to enter, closing doors as requested by the resident, not moving or inspecting resident's personal possessions without permission); Respecting resident's social status, speaking respectfully, listening carefully, treating residents with respect (e.g., addressing the resident with a name of the resident's choice, not excluding residents from conversations or discussing residents in community setting); and Focusing on residents as individuals when they talk to them and addressing residents as individuals when providing care and services. The same document sets forth survey procedures, and emphasizes examining the context of staff's actions: . . . As part of the team's information gathering and decision-making, look at the actions and omissions of staff and the uniqueness of the individual sampled resident and on the needs and preferences of the resident, not on the actions and omissions themselves. The issue of patient dignity was the subject of extensive testimony at the hearing. Ann Sarantos, survey integrity and support manager for AHCA and an expert in long- term care nursing practice, testified that the surveyors understood that residents will remove their shoes and clothing, particularly in a facility with the resident population of Jacaranda Manor. The survey team acknowledged that Jacaranda Manor's population was unique in terms of the number of mentally ill residents. Ms. Sarantos stated that AHCA's central concern was staff's lack of sensitivity. The surveyors repeatedly saw staff making no effort to cover the residents or get them into shoes, even when the surveyors pointed out the problems. Ms. Sarantos stated that AHCA does not set a different dignity standard for patients with psychiatric or organic conditions. She noted that a high percentage of residents in any nursing home will have some form of dementia or behavioral problem, and that the facility must plan its care to manage these problems. She stated that AHCA employs the same survey procedures for all facilities, regardless of the patient population. Patricia Reid Caufman, an expert in social work, opined that the residents are nursing home patients regardless of their diagnoses. When the facility accepts these patients, it does so on the basis that it can meet their needs, including their dignity needs. Susan Acker is the nursing services director of AHCA's health standards and quality unit. She is an expert in long-term care and was the person who made the final decision as to the classification of Jacaranda Manor's deficiencies. Ms. Acker stated that the provision of adequate clothing and footwear is a "fundamental level of compliance." The individuals listed under the Tag F241 deficiencies had portions of their bodies exposed in a way that does not conform to the community standard of a nursing home. The "community standard" for a nursing home includes an expectation that a resident will be dressed in his or her own clothes and assisted in dressing and making appropriate selections, or, if the resident's judgment is impaired, will be provided with selections allowing them to appear in a dignified manner. Ms. Mennella offered the common sense view that, in applying a "community standard," the surveyor should ask herself whether a mentally impaired resident would be embarrassed under normal circumstances. The exposure of these residents demonstrated noncompliance with the requirement that the facility maintain or enhance the self-esteem and dignity of the residents. Ms. Acker acknowledged the right of the residents to select their own clothing or to be undressed within the confines of their rooms. However, the facility must continually provide these residents with encouragement or assistance in dressing. Staff must act if the residents lack the ability to make their own judgments. The issue was not that the facility should deny choice to the residents, but that a therapeutic environment should be established that maintained and enhanced resident dignity. Ms. Acker found that the "key point" in the deficiencies was the proximity of staff to the cited residents. In each instance involving nudity or improper dress in a resident's room, staff was available to pull the privacy curtain or to assist the resident in redressing. The staff person may not have minded the resident's dress, but should have acted to protect the resident's dignity when a stranger walked into or past the room. Staff could have re- established the community standard by clothing the resident or providing the privacy that would protect the resident's dignity, but failed to do so. Ms. Acker characterized these incidents as staff's failure to provide services to the community standard for residents who were unable to exercise their own judgment to maintain their own dignity. Ms. Acker testified that, to change the scope and severity of Tag F241 from E to H, the IDR panel members would have to believe that the situation resulted in a negative outcome that compromised the ability of the resident to maintain or reach the highest practicable physical, mental or psychosocial well-being, as defined in the Resident Assessment Protocol ("RAP"). She concurred with upgrading Tag F241 to a Class II deficiency because there was a direct impact on the residents observed and on those residents who witnessed the failure to deliver adequate care. Carol Heintz, the psychiatric nurse manager and an expert in psychiatric nursing care, opined that Jacaranda Manor is not below community standards in terms of patient dignity. She agreed that "it would be nice" if more than 200 residents with physical and mental health issues wanted to wear appropriate clothing, shoes and socks every day, but for these people "things like that may not be the priority that it is to you or [me]." Clothing issues can be difficult with some residents, because they do not perceive their unorthodox dress or even nudity as an issue. If a resident resists wearing proper clothing or using a privacy curtain, the staff just keeps trying to reinforce proper dress and modesty. Ms. Heintz acknowledged the facility's responsibility to respect the rights of others not to be subjected to the improper dress of residents. However, she also stated that residents' modes of dress have had no adverse impact on them, and that no therapist or any resident's family has ever complained about the facility's methods of dealing with clothing and footwear issues. In light of all the factual and expert testimony, it is found that the IDR panel's decision to upgrade Tag F241 from Class III, with a scope and severity rating of E, to Class II, with a scope and severity rating of H, was supported by the evidence presented, though not as to all nine observations made under Tag F241. The first observation, for R-31, supports the Agency's finding a Class II deficiency. R-31 was sitting on his bed eating breakfast in the nude and was plainly observable from the hallway. Staff persons were present but did nothing to remedy the situation. Granting that it may have been counterproductive to attempt to dress R-31 while he was eating, no evidence was presented to show that pulling the privacy curtain or closing the door would have disturbed R- 31's meal. Even if, as Jacaranda Manor implied, these staff persons may not have been direct care employees, they should have alerted the nursing staff to the situation. The dignity of R-31 and of any other resident who happened to pass his room were directly affected by this incident. The second observation, for R-21, supports the Agency's finding a Class II deficiency. R-21 was seen twice lying in bed wearing uncovered adult briefs. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-21 and of any other resident who happened to pass his room were directly affected by this incident. The third observation, for R-8, does not support the Agency's finding a Class II deficiency. The initial rating of this as a Class III deficiency was supported by the evidence. While the bare facts set forth in the observation were concededly accurate, the surveyor focused entirely "on the actions and omissions themselves," and made no effort to assess the "uniqueness of the individual sampled resident" or "the needs and preferences of the resident." The facts established that R-8 was subject to unbuttoning his pants and allowing them to droop. In three days of constant observation, Ms. Mennella witnessed one such brief incident. R-8 was also subject to digging for cigarette butts and tousling his own hair, making it very likely that at some point over a three-day period he could be observed with dirty hands and unkempt hair. R-8 wrote his own name on his shoes, because he was proud of them. Testimony established that staff of Jacaranda Manor conscientiously cared for R-8, but that it was impossible to maintain appropriate appearance for this resident all day, every day. There was no evidence of any impact on this resident's dignity or self-esteem. The fourth observation was of the staff member shouting to a resident to pull up her pants. This observation does not support the Agency's finding a Class II or a Class III deficiency. Had the surveyor made inquiry into the circumstances of the incident, she would have learned that it involved a sudden reaction to a potentially critical situation. The trainee called out to the resident because she couldn't reach the resident in time to keep her pants from falling, which in turn could have caused the resident to fall. Concern for the resident's possible embarrassment cannot be held more important than the resident's physical safety when an emergency arises. The fifth and sixth observations involved residents walking around barefoot, in only socks, or, in the case of R- 16, in slippers. The deficiencies noted for these observations do not support the Agency's finding a Class II or a Class III deficiency. The only harm alleged by the Agency was that the residents' dignity is impaired by their having dirty feet. It is found that Jacaranda Manor was acceding to the wishes of its residents regarding footwear, and that dirty feet or socks are a necessary and essentially harmless incident of choosing not to wear shoes. The seventh observation, of R-32 and an unnamed resident, supports the Agency's finding a Class II deficiency. As to the unnamed resident observed in the courtyard with his brief exposed, the surveyor could not provide enough information to allow Jacaranda Manor to defend itself. The surveyor could not name the resident, the female resident allegedly in the vicinity, or the staff person who allegedly walked past. This portion of the deficiency was unproven. However, the surveyor adequately stated her observation of R- 32, who was seen from the hallway sitting in a chair in his room, wearing only a t-shirt and adult brief. Several staff members walked past the room and did not intervene. Jacaranda Manor offered no reason why the resident could not be covered or why the view from the hallway could not be obscured. The dignity of R-32 and of any other resident who happened to pass his room were directly affected by this incident. The eighth observation, of a resident initially identified as R-4, supports the Agency's finding a Class II deficiency. The surveyor guidelines expressly describe promoting "dignity in dining." While the underlying facts explained why Jacaranda Manor could not feed the resident in his room, they did not explain why the resident was being fed at the busy, noisy nurses' station rather than in the dining room or some other, quieter location. The resident was difficult to feed and subject to violent outbursts, but these facts do not explain the choice of feeding the resident at the nurses' station, leading to the inference that this choice was likely made for the convenience of the nurses. The dignity of this resident was directly affected by this incident. The ninth observation, of R-16, does not support the Agency's finding a Class II or a Class III deficiency. The facts established that Ms. Teller, the nurse in question, had a close relationship with R-16 and could speak somewhat sternly to him without affecting his dignity or self-esteem. Ms. Teller's version of the incident is credited. Requiring R-16 to wait a few minutes for his coffee while Ms. Teller finished passing medications caused the resident no harm whatever. In summary, of the nine observations listed under Tag F241, four supported the Agency's finding of a Class II deficiency; one supported the initial finding of a Class III deficiency; and four supported a finding of neither a Class II or a Class III deficiency. Thus, the Agency's overall finding of a Class II deficiency for Tag F241 is supported by the record evidence. Tag F250 The May 2001 validation survey allegedly found a violation of 42 C.F.R. Section 483.15(g), which states that a facility must "provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident," and sets forth the standards for resident social services. This requirement is referenced on Form 2567 as "Tag F250," or the "social services tag." For purposes of the Form 2567, the validation team gave the alleged deficiency on the May 2001 survey a federal scope and severity rating of D for Tag F250. A rating of D indicates that there is an isolated deficiency causing no actual harm to the resident but with potential to cause more than minimal harm. This alleged deficiency was rated Class III, and was not part of the basis for imposing a conditional license on Jacaranda Manor. Its significance is that it was determined to be an uncorrected deficiency in the June 2001 return survey, and thus formed part of the basis for the civil penalty imposed after the return survey. The May 2001 survey found one instance in which Jacaranda Manor allegedly failed to provide medically related social services. The surveyor's observation on Form 2567 concerned R-16, the same resident discussed above in the sixth and ninth observations under Tag F241: [R-16] was admitted to the facility on 09/29/00, and the resident's comprehensive assessment of [10/05/00]2 indicated that the resident had dental caries. The care plan stated that the resident's "teeth will be clean and oral mucosa will be free of signs and symptoms of infection at all times." One of the approaches on the care plan was for the "resident to see the Dentist as needed." The resident revealed that she/he had not seen a dentist since admission and desired dental services. Observation of the resident's teeth and gums, indicated that there was evidence of abnormal oral mucosa. There was no documentation in the resident's clinical record to indicate that the resident had seen the dentist since admission. The nursing management staff person was asked on 05/11/01, if there was any information to show that the resident had seen the dentist. Later that day, the nursing management staff indicated that the resident now has a dental appointment scheduled on 05/23/01. The lack of dental services can lead to dental problems, oral infection, changes in food consistency, and decrease resident's self-esteem. Ms. Maloney observed R-16 and noted that the edge of his gums was black, perhaps indicating periodontal disease. R-16 showed no evidence of pain and was eating normally. Ms. Maloney interviewed R-16, who told her he wanted to see a dentist. On May 11, 2001, Ms. Maloney told the director of nursing that she could find no indication in the record that R-16 had ever seen a dentist, and asked for any information not apparent in the record. Later that day, the director of nursing told Ms. Maloney that R-16 now had a dental appointment scheduled for May 23. Ms. Maloney was left with the understanding that nothing had been done for R-16 up to that time, and that his appointment was made only in response to her inquiry. The evidence established that R-16's dental appointment for May 23 had actually been scheduled by the facility on May 7, prior to the survey. The appointment was scheduled because R-16 had expressed to Ms. Hirsch a desire to have his teeth cleaned and whitened. The only complaint R-16 voiced about his teeth was that they were discolored. The key to Ms. Maloney's finding a deficiency was her impression that the facility did not respond to R-16's request to see a dentist until Ms. Maloney herself inquired and pressed the issue. In fact, the appointment had been made before the AHCA survey team arrived at Jacaranda Manor. The nurse manager to whom Ms. Maloney spoke was apparently unaware the appointment had been made. The evidence does not support the finding of a deficiency under Tag F250. Tag F309 As noted above, the deficiencies alleged under Tag F309 were originally placed under Tag F272. Tag F272 is the Form 2567 reference to violations of 42 C.F.R. Section 483.20(b), which states that a facility "must conduct initially and periodically a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity," and sets forth at length the standards that must be observed in performing these comprehensive assessments. Tag F309 references 42 C.F.R. Section 483.25, which states that each resident "must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care," and sets forth at length the standards by which a facility's quality of care is measured. The significance of the change from Tag F272 to Tag F309 is that Tag F272 merely alleges a failure to conduct or update the assessment of the resident. Tag F309 alleges a deficiency in the quality of care provided to the resident, inherently a more serious violation. For purposes of the Form 2567, the validation team gave the alleged deficiencies on the May 2001 survey a federal scope and severity rating of D for Tag F272. A rating of D indicates that there are isolated deficiencies causing no actual harm to the residents but with potential to cause more than minimal harm. The IDR panel recommended upholding the deficiencies as cited by the survey team. However, Ms. Acker believed that the presence of a negative outcome for Resident 7, discussed below, merited changing the tag from F272 to F309 and making it a Class II deficiency with a federal scope and severity rating of G, meaning that there are isolated deficiencies causing actual harm that is less than immediate jeopardy to the health or safety of the residents. The May 2001 survey, as modified by the IDR process, set forth two alleged deficiencies under Tag F309. The first alleged deficiency concerned Resident 7, or "R-7:" [R-7] triggered on the Resident Assessment Protocol (RAP) Summary for behavior. On the 06/02/00 Minimum Data Set (MDS) this resident was coded as having moderate daily pain. Subsequently on the 02/22/01 MDS this resident was coded as having daily pain which was sometimes severe. During the initial tour at 9:30 a.m. on 05/08/01, the resident was described as refusing to get out of bed and refusing showers due to pain. Clinical record review and staff interview revealed there was no documentation of an ongoing evaluation of this resident's pain since 1999. The behavior assessment identified pain and chronic illness but did not reflect the increase in pain or an evaluation of the resident refusing care. R-7 was admitted to Jacaranda Manor on March 23, 1999. She received a comprehensive psychiatric evaluation upon admission. R-7 was a 41-year-old female, bipolar with a history of psychosis, dementia, and manic episodes. She was a hermaphrodite. Her physical illnesses included pickwickian syndrome, a condition characterized by obesity, decreased pulmonary function and somnolence. R-7 also suffered from psoriatic arthritis, a condition that caused her chronic pain and limited her movement. She complained of pain when being moved. When she was in bed and not moving, she did not complain of pain. Jacaranda Manor prepared a formal pain assessment of R-7 upon her admission. She was seen weekly by her attending physician, psychiatrists, and therapists, and was seen several times a day by the nursing staff. All of the medical professionals who saw her entered written notes into her medical record. AHCA's observation accurately notes that R-7's medical record lacks a document formally titled "evaluation" or "assessment" of R-7's pain, but testimony and documentary evidence at the hearing established that R-7's condition, including her pain, was consistently monitored and noted by Jacaranda Manor staff. Franklin May, a senior pharmacist, was the AHCA surveyor who made the observation of R-7. Mr. May interviewed R-7 and the treating nursing staff, and he reviewed the available medical records. Mr. May testified that he had "no problems with the way they were treating this lady." Mr. May's concern was that R-7's pain had apparently increased, and her condition deteriorated, but the facility could provide him with no documentation of a formal assessment or evaluation of her pain subsequent to her admission in 1999. Jacaranda Manor did not dispute Mr. May's contention as to documentation of formal assessments, but contended that medical staff "assessed" R-7 on a daily basis and that their chart notes constituted documentation of those assessments. This contention is credited to the extent that Jacaranda Manor established that nothing was lacking in the actual care provided to R-7, and that staff of Jacaranda Manor possessed a nuanced understanding of R-7's condition and of her somewhat mercurial personality as it affected her complaints of pain. It is not credited to the extent that Jacaranda Manor contends that ongoing, formal assessments of R-7's pain were superfluous. Mr. May's impression was that R-7's refusal to get out of bed and to take showers was a recent phenomenon indicating an increase in pain. In fact, R-7 was mostly bed- bound throughout her stay at Jacaranda Manor, and even before her admission. Her reported pain fluctuated from time to time, as did her amenability to taking her prescribed pain medications. The totality of the evidence established that R- 7's condition was at least stable, if not markedly improved, throughout her stay at Jacaranda Manor. In conclusion, the evidence supported Mr. May's contention that Jacaranda Manor's documentation of the care provided to R-7 was insufficient to permit a surveyor to obtain an accurate picture of her condition and treatment, and therefore supported the initial classification of Tag F272 in that R-7's formal assessment instruments were insufficiently updated. However, the evidence did not support changing the classification to Tag F309, because no actual deficiencies in R-7's care were proven or even alleged prior to Ms. Acker's review of the IDR process. The second alleged deficiency under Tag F309 concerned Resident 25, or "R-25:" [R-25] was admitted on 04/10/01 directly to the secure unit upon admission to the facility. The Resident had a primary diagnosis of Cancer of the lung and paranoid schizophrenia. The Resident was receiving Hospice in another skilled nursing facility in Tampa before he/she was sent to the hospital for violent outburst of behavior. Transfer social services document from the hospital indicate [sic] that resident is to be admitted to Jacaranda Manor with Hospice services. Monthly orders for this resident for April and May, 2001 reflected orders for Hospice. Interview of facility social services' staff, state [sic] that Resident was discontinued from Hospice due to "residents [sic] condition being stable" according to hospice. Contact was conducted with Life Path [the Tampa hospice] who confirm that this resident did meet Hospice criteria and that they do not service the St. Petersburg area and that was the only reason they had to discharge the resident. Hospice staff said that Jacaranda admissions person was told that they were responsible to secure the services of the Hospice covering the St. Petersburg area and they would then share their records with that Hospice. This resident was documented to be ambulatory throughout the secure unit and sociable with staff. Resident had episodes of shortness of breath and occasional use of oxygen. On 05/10/01 the resident developed cardiac arrest and was sent to the hospital by EMS where he/she was pronounced dead. The facility did not meet the needs of this resident for his/her terminal care needs. R-25 was a large, heavy-set 67-year-old male who had been diagnosed with lung cancer, chronic obstructive pulmonary disease ("COPD"), paranoid schizophrenia, and seizure disorder. R-25 had been a resident of a Tampa nursing home until a behavioral outburst caused his admission to the psychiatric unit of Tampa General Hospital for an adjustment of his medications. While in the Tampa nursing home, R-25 had received services from Life Path Hospice, which served patients in Hillsborough County, due to his lung cancer diagnosis. The decision had been made not to treat the cancer, and R-25 had been receiving hospice services for over one year. R-25 was an elopement risk and subject to violent outbursts, such that the Tampa nursing home declined to re- admit him after his hospital admission. Staff of Life Path Hospice knew of Jacaranda Manor's reputation for accepting this kind of difficult resident. Grizier Cruz, a mental health counselor at Life Path, contacted Sharon Laird, Jacaranda Manor's admissions director. Ms. Laird agreed to evaluate R-25 for admission, and Jacaranda Manor admitted R-25 on April 10, 2001. Ms. Laird testified that she initially asked Ms. Cruz whether Life Path would continue to provide services to R-25 at Jacaranda Manor, or whether Life Path would transfer the case to the hospice serving Pinellas County. Ms. Laird testified that Ms. Cruz told her that R-25 was stable and no longer in need of hospice services. Ms. Cruz denied telling anyone at Jacaranda Manor that R-25 was stable and not in need of hospice services. Ms. Cruz stated that she informed Jacaranda Manor that Life Path would be withdrawing services from R-25 because he was leaving Hillsborough County, Life Path's area of coverage. She testified that Jacaranda Manor would have to establish a physician for R-25 at the facility. The physician would have to write an order for hospice, at which time Life Path would make the referral to the Pinellas County hospice that would then come to Jacaranda Manor to evaluate R-25 for its program. When R-25 was admitted, Jacaranda Manor followed its standard assessment and care planning procedures, noting his diagnosis of lung cancer and the need to contact hospice. Linnea Gleason, social services director at Jacaranda Manor, testified that she contacted Life Path twice during the care planning process, and was told both times that R-25 was stable and in no need of hospice. Ms. Gleason's contemporaneous notes in R-25's chart are consistent with her testimony. Dr. Gabriel Decandido was R-25's physician at Jacaranda Manor. His examination revealed that R-25's cancer was apparently slow growing, because he was relatively pain free and did not appear to be at the end stage of life. Dr. Decandido was not surprised to learn that R-25 had lasted over one year on hospice; he was surprised that R-25 had been receiving hospice services at all. Dr. Decandido did not believe that R-25 needed hospice services. R-25 was stable, comfortable, not in pain, happy and smiling. At times, he used oxygen due to his COPD and continued smoking. He kidded with the nurses and went outside to smoke throughout the day. Dr. Decandido noted that R-25's schizophrenia made him a poor patient with whom to discuss death because such discussions could increase his psychosis and paranoia. Given R-25's entire situation, Dr. Decandido thought it best to allow R-25 to live out his life at Jacaranda Manor, walking around, talking to people, eating, drinking, and smoking. Another factor influencing Dr. Decandido's opinion was that x-rays taken of R-25 at Jacaranda Manor did not indicate lung cancer. Dr. Decandido did not dispute the diagnosis of lung cancer, but did dispute that R-25 was a man about to die from lung cancer. His findings from the x-rays were that R-25 suffered from congestive heart failure and possibly pneumonia. Ms. Gleason testified that she and her social services staff visited R-25 three times a week to offer counseling, but that R-25 showed no anxiety about his lung cancer and declined services. Elaine Teller was the charge nurse at Jacaranda Manor during R-25's admission. She directly asked R-25 on several occasions whether he wanted hospice. She explained the advantages of hospice care in managing his medications. On each occasion, R-25 declined hospice. Ms. Teller failed to note these declinations in R-25's chart. However, given that there was no physician's order for hospice and that R-25's capacity to consent was questionable at best, Ms. Teller's notations would have been superfluous in any event. Life Path Hospice informed Jacaranda Manor that it would be necessary to obtain the consent of R-25's only known relative, a daughter in Jacksonville, to commence hospice services in the event they were ordered by a physician. Ms. Laird of Jacaranda Manor contacted the daughter by telephone and sent her an admissions package by certified mail. The daughter did not accept delivery of the package. Thus, Jacaranda Manor never received signed admission documents from R-25's family, which would have included advance directives such as hospice. AHCA's contention that "[m]onthly orders for this resident for April and May, 2001 reflected orders for Hospice" is simply a misreading of R-25's record. The notation "hospice" appears under the term "advance directives" on a record document with the title "physicians orders and administration record." Despite its title, this sheet was used by Jacaranda Manor as a medication sheet. A notation of an advance directive for hospice was not a physician's order for hospice. Jacaranda Manor staff was fully aware that a physician's order for hospice would have been indicated by a special sticker on the sheet and by accompanying paperwork. Ms. Gleason explained this procedure to AHCA surveyors, who nonetheless cited these "orders" as deficiencies. R-25 died on May 10, 2001, one month after his admission to Jacaranda Manor. His death was caused by cardiac arrest, unrelated to his lung cancer diagnosis. Jacaranda Manor's version of events involving R-25 is credited. Other residents at the facility receive hospice services, and there is no reason to conclude that the facility would fail to implement a physician's order for hospice services for R-25. The evidence does not support the deficiency cited by AHCA, either under F272 or F309. In summary, the evidence did not support the change of Tag F272 to Tag F309. The evidence did support a Class III deficiency under Tag F272 as to the documentation of Jacaranda Manor's treatment of R-7. II. June 2001 Survey A. Tag F241 The June 2001 survey allegedly found two Class III violations of Tag F241, the "dignity tag," both from observations made on June 19, 2001, at 3:05 p.m. by surveyor Patricia Reid Caufman. The first observation involved Resident 19, or "R-19": [R-19] was lying in bed (mattress) on the floor and receiving one to one supervision from the Certified Nursing Assistant (CNA). The resident was sleeping with the door open and the privacy curtain was not pulled around the resident. The resident faced toward the window with his adult briefs exposed to the hallway. The CNA was sitting on a chair in the hallway observing the resident. The CNA did not attempt to cover the resident to maintain his/her dignity. R-19 was a 60-year-old male with a history of dementia and a propensity for violent outbursts. R-19 had no safety awareness, and had done such things as pull his room air conditioning unit out of the wall and attempt to walk it out into the hallway. He had a great deal of psychomotor agitation, and persistently pulled at things. He was prone to falling into chairs or his bed, pulling down curtains and curtain rods. If approached abruptly, he might strike out. Three or four people could be needed to give him a bath. The medical staff constantly adjusted his medications in an effort to manage his behavior without over-sedating him. R-19 was very resistant to dressing, and could undress himself very quickly. Staff of Jacaranda Manor tried various strategies to keep him dressed, including one-piece outfits, clothing that zipped in the back, and hospital gowns with pajama bottoms, but nothing was entirely successful. Jacaranda Manor had taken steps to ensure his safety. R-19 had been placed in a private room at the back of his hallway to minimize his interactions with other residents. All furnishings had been removed from the room, save for a mattress on the floor. Padding was placed around the mattress to minimize his thrashing. The windowsills were padded, and the air conditioner protected. At the time of the June 2001 survey, R-19 was receiving 24-hour one-on-one care, for his own safety and that of the other residents. When R-19 slept, the CNA assigned to him was instructed to sit in the doorway to his room. A Dutch door was installed to his room. Once R-19 fell asleep, the bottom part of the door could be closed to obscure the view of passersby but still allow the CNA to peek over the top to check on him. Jacaranda Manor conceded the accuracy of Ms. Caufman's observation, but contended there was no alternative plan of care for R-19. The door could not be closed completely, because the resident then could not be observed by the CNA. Placing the CNA on a chair inside the room would defeat the purpose of removing all the furnishings for safety, and would have placed the CNA in jeopardy. The privacy curtain would obscure the CNA's view of the resident. R-19 was easily disturbed. Ms. Redmond, the director of nursing, testified that R-19 "needs to sleep when he wants to, because otherwise he is just up and going all the time." Ms. Redmond believed that any attempt to cover R-19 with a sheet would have awakened him, "and then he would have been up and going again and wouldn't have gotten any rest." Based upon the unique characteristics of this resident, and the extensive steps taken by Jacaranda Manor to ensure R-19's safety with some level of privacy, it is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241. Ms. Caufman's second observation under Tag F241 involved Resident 20, or "R-20": [R-20] was observed from the hallway lying in bed with the door open and the privacy curtains not pulled around the resident. The resident was wearing adult briefs and the front half of the resident was exposed. Two staff members passed by the open door and failed to intervene so as to protect resident dignity. R-20 was a male resident suffering from dementia. He would take off his gown or shirt while lying in bed. He was capable of opening and closing his own privacy curtain. Ms. Caufman could not identify the two staff members who passed the open door. Ms. Caufman's handwritten notes state that she observed R-20 uncovered at 3:05 p.m., but that staff had covered him when she next went past the room at 3:09 p.m. She did not explain why her formal statement omitted the fact that the resident was covered no more than four minutes after her observation. Jacaranda Manor offered no explanation as to why the door could not have been closed or the privacy curtain drawn to prevent passersby from seeing R-20 uncovered in his bed. On the other hand, Ms. Caufman's brief description of the incident, her failure to identify the staff members who allegedly ignored R-20, and her omission of a relevant fact render the situation ambiguous. As noted above, staff at Jacaranda Manor do not wear uniforms. Only direct care staff are allowed to approach patients to dress or cover them. Other staff, such as maintenance or cafeteria workers, are directed to be alert to residents' dress and to go get a direct care staff person when they see a problem. Based on Ms. Caufman's narrative and on the fact that the resident was covered within four minutes of her observation, it is as likely as not that the two people she saw pass the room were not direct care staff, and that they alerted the direct care staff, who then covered the resident. It is found that the evidence failed to establish that the observation of R-19 constituted a deficiency under Tag F241. B. Tag F250 The June 2001 survey allegedly found one violation of Tag F250, the "social services tag," involving Resident 14, or "R-14": [R-14] was admitted to the facility on 7/2/98 with diagnoses that include organic brain syndrome, traumatic brain injury and dysphagia. The resident's minimum data set (MDS) of 7/3/00 indicated that the resident had broken, loose teeth and dental caries. The most recent MDS, dated 3/8/01, indicated that the resident had some or all natural teeth and needed daily cleaning. It did not document broken, loose teeth with dental caries. The resident assessment protocol (RAP) for Dental, dated 3/8/01, documented that the resident was missing several teeth, had no dentures and the remaining teeth were discolored, but no gross caries or other problems. The status was documented as no oral hygiene problem, no problem that would benefit from a dental evaluation, but the patient was determined to be at risk for developing an oral/dental problem. The staff was to assist the resident with oral care and monitor for problems. The care plan, dated 3/14/01, documented that the resident had dental caries (in conflict with the RAP assessment) along with missing teeth and the goal was to assist with oral care at least twice daily and obtain a dental consult as needed. A dental evaluation had been done on 8/18/98 (three years prior to the survey), and the evaluation (obtained from the thinned record) revealed that this was an initial oral examination and the resident had several missing teeth, heavy calculus and plaque noted. His teeth were documented as stable with no swelling or fractures noted and the resident was determined not to be a good candidate for routine dental care. During the initial tour with the 7-3 Supervisor, on 6/19/01, at about 9:30 a.m., the resident's teeth were observed. A front tooth was missing and a very large amount of plaque was noted, especially on the lower teeth. The supervisor commented that she observed dental caries. On 6/20/01, at 11:10 a.m., observations of the patient's teeth were made with the director of nursing (DON). The resident was seated in a recliner, sleeping with his mouth wide open. The left front tooth was broken and multiple dark areas in the back teeth were observed. There was a large amount of built up plaque on upper and lower teeth and on the upper and lower gum lines. An unpleasant mouth odor was detected at that time. Review of the social service notes from 7/15/98 through 5/16/01, revealed no documentation that the patient had dental needs. The current record did not contain a recent dental evaluation and the DON stated that she would review the thinned record. The initial dental evaluation, dated 8/18/98 mentioned above, was the only documented dental evaluation provided by the facility for review. Interview with the DON, on 6/20/01, at 1:50 p.m., revealed that the resident had refused dental work as documented on the care plan, dated 2/12/01. The nurses notes did not document that a dental appointment had been made and the resident refused examination. The facility was asked to provide any documentation that the resident had been sent to a dentist and refused care. No other documentation was provided. In addition, the resident was coded as severely cognitively impaired on the MDS of 7/3/00, 2/5/01 and 3/8/01. There was no evaluation of the resident's capacity to provide or deny consent for treatment in the record. The resident's wife was documented as the decision maker on the MDS, but according to the DON she was unable to be contacted for a "long time" and there was no documentation that she had been involved in any decision making. The resident had no other legal representative. On 6/20/01, at 1:50 p.m., the DON stated that a doctor's order had been obtained for a dental appointment and the appointment was made. Lack of appropriate dental care may result in infections and diminish the resident's health status. Patricia Procissi was the surveyor who recorded the observation of R-14. She found a conflict between the July 3, 2000, MDS, which documented broken, loose teeth with dental caries, and the March 8, 2001, MDS, which did not document the tooth problems. However, a RAP prepared on the same date did document dental problems for R-14. Ms. Procissi interpreted the March 8, 2001, RAP as indicating improvement in R-14's condition without any documented dental intervention. She believed that this RAP conflicted with a care plan dated March 14, 2001, that indicated dental caries. In fact, the March 8 RAP stated "no gross caries," which is not necessarily in conflict with a finding that R-14 had some dental caries. Ms. Procissi noted that the director of nursing, Ms. Redmond, had told her that R-14 refused dental care, but Ms. Procissi could find nothing in Jacaranda Manor's records documenting that R-14 had been sent to a dentist and refused care. Ms. Gleason, the social services director, testified that she asked R-14 if he would like to see a dentist, and he had refused dental care. Ms. Gleason testified that she documented this refusal in R-14's care plan, along with a notation that staff should continue to encourage him to accept dental services. Ms. Procissi saw Ms. Gleason's note reflecting R- 14's refusal to see a dentist. However, she believed that this documentation raised the question of why there was no doctor's order that R-14 should be seen by a dentist. She stated that in most cases, there is a doctor's order followed by a nurse's note documenting why the order could not be carried out. Here, there was nothing in the record explaining the circumstances of R-14's refusal. Ms. Procissi also found it "odd" that R-14's refusal was documented in the social services care plan rather than the medical notes. At the hearing, Ms. Gleason and Ms. Hirsch testified as to the general difficulty of obtaining dental services for Medicaid patients. Few dentists are willing to accept adult Medicaid patients. At the time of the survey, Jacaranda Manor had two dentists and an oral surgeon who would see its residents, but even these dentists limited the number of residents they would accept in a given month. If a Medicaid resident needs dental work, the doctor or a nurse will write a note to the social services office, which phones the dentist's office and provides the resident's Medicaid information and the nature of the dental needs. The dentist's office calls back to inform social services whether the resident is eligible under the "medically necessary" criteria for Medicaid reimbursement. If the resident is eligible, social services makes the appointment, arranges transportation for the resident, and accompanies the resident to the appointment, if necessary. Jacaranda Manor also schedules routine appointments several months in advance. R-14 was a 47-year-old cognitively impaired male. He was a Medicaid recipient. R-14 could be verbally and physically abusive when approached. At the time of his admission to Jacaranda Manor, and at all times subsequent, R- was fed exclusively via gastrointestinal tube, meaning that any dental problems would not affect his nutrition. Dr. Stuart Strikowsky, Jacaranda Manor's medical director, opined that R-14 was in no pain or discomfort, had loudly and adamantly stated that he wanted no dental work, and would require complete sedation to undergo a dental evaluation. Dr. Strikowsky believed that a dental examination was medically unnecessary for this resident. Kevin Mulligan, AHCA's Medicaid dental specialist, testified that Medicaid covers only medically necessary dental services, and that a dental examination for a nursing home patient must be requested by the attending physician and the nursing director. Dr. Strikowsky plainly believed that such a request was unnecessary for this resident. It is found that the evidence was at best ambiguous that the observation of R-14 constituted a deficiency under Tag F250. Jacaranda Manor conscientiously monitored and documented R-14's dental condition. R-14's physician believed that a dental examination was medically unnecessary, somewhat mooting Ms. Procissi's concerns regarding the lack of a doctor's order for dental services.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding a Class II deficiency for Tag F241, a Class III deficiency for Tag F272, and assigning conditional licensure status to Jacaranda Manor for the time period from May 15, 2001 to February 28, 2002. It is further recommended that the Administrative Complaint be dismissed and no civil penalty assessed against Jacaranda Manor. DONE AND ENTERED this 25th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings 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 this 25th day of July, 2002.
The Issue The issue is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken against her license to practice nursing in the state of Florida.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of facts are made: At all times material to this proceeding, Respondent was licensed by the State of Florida as a practical nurse, holding license number PN0876551. At all times material to this proceeding, Respondent was employed by Arch Creek Nursing Home (Arch Creek) where she worked as a practical nurse on the 11 p.m. to 7 a.m. shift. Her direct supervisor, Ms. McDonald, R.N., worked the 7 a.m. to 3 p.m. shift. The Arch Creek Director of Nursing, Jeanette Jaffe, R.N., also worked the day shift. At all times material to this proceeding, Respondent was assigned to provide nursing care to patient E. R., a seventy-seven (77) year old female. After suffering a stroke, E. R. was admitted to North Shore Medical Center (NSMC) on November 16, 1990. She was transferred from NSMC to Arch Creek on December 7, 1990. At that time, E. R. suffered hypertension and was partially paralyzed and aphasic. Because she was incontinent of bowel and bladder, a foley catheter was used for urine drainage. A gastrostomy tube was required for nutritional feeding. At the time of admission to Arch Creek, E. R. also had a stage II sacral decubitus ulcer on her buttocks which was one and one half (1 1/2) inches by one half (1/2) inches. The decubitus ulcer was not infected at that time. On December 7, 1990, Dr. Cottler, E. R.'s physician at Arch Creek, ordered that the decubitus ulcer be treated with a DuoDerm dressing, an occlusive "sealed" treatment, which was to be changed every three (3) days. He also ordered that E. R. be turned every two (2) hours to alleviate pressure in the sacral area. On December 9, 1990, a 3:00 p.m. nurse's note reflects that E. R. had two (2) open sores with a small necrotic area on her buttocks. Dr. Cottler examined E. R. on December 11, 1990. He did not describe the ulcer in his notes or change the orders for treatment. At that time, the wound was approximately 4" by 6" inches. On December 17, 1990, a 2:45 p.m. nurse's note reflects that E. R.'s decubitus ulcer was getting worse and needed to be evaluated. Nurses' notes are inherently reliable. The presence of these notes in E. R.'s chart should have alerted Respondent to the changes in E. R.'s condition. Respondent had the opportunity to observe whether the DuoDerm dressing was intact and clean when she performed her rounds on the night shift. This was especially important after a bowel movement to ensure that fecal matter did not contaminate the wound. On December 20 and 21 at 6:00 a.m., Respondent noted on E. R.'s chart that a treatment was done to the buttocks. On neither occasion did Respondent chart information relating to the size, color, odor, or drainage of the decubitus ulcer. All of these factors needed to be documented so that a record could be developed as to any changes in the patient's condition and to facilitate an ongoing assessment of the treatment. Respondent did not contact Dr. Cottler during the night shift of December 20-21. There is no persuasive record evidence that Respondent verbally reported E. R.'s condition to the registered nurse in charge on the mornings of December 20 and December 21. On December 21 at 4:00 p.m., a nurse noted in the chart that the skin around E. R.'s sacral area was black with a fowl odor and appeared not to be responding to treatment. This same nurse noted that Dr. Cottler's new orders required E. R.'s wound to be treated with twenty-five percent (25 percent) acetic acid and wet to dry dressings every eight (8) hours. A decubitus ulcer does not change to a fowl smelling necrotic ulcer in ten (10) hours. Therefore, it is likely that the signs of decay were present when the Respondent treated E. R.'s buttocks on the night shifts of December 19- 20 and 20-21. Around noon on December 23, E. R.'s temperature was 100.8 degrees. Respondent again provided nursing care to E. R. on the night shift of December 23-24. At 3:00 a.m., she observed that E. R. was slower to respond and short of breath. However, this assessment of E. R.'s condition was incomplete. Respondent did not record the patient's vital signs or note the condition of the decubitus ulcer. She also failed to alert Dr. Cottler of the change in E. R.'s condition. Evidence that Respondent made a verbal report regarding E. R.'s condition to the registered nurse at 7:00 a.m. on the morning of December 24 is not persuasive. Because E. R. was slower to respond and short of breath at 3:00 a.m. on December 24, Respondent should have recorded the patient's vital signs and documented other relevant information, including the condition of the decubitus ulcer. Armed with all the information for a total assessment, Respondent should have immediately alerted the doctor about E. R.'s condition. At 2:00 p.m. on December 24, a nurse's note reflects that E. R. was unresponsive and short of breath. The nurse informed Dr. Cottler, who ordered a chest x-ray and oxygen for E. R. Dr. Cottler subsequently authorized transfer of E. R. to NSMC. At the time of transfer, Dr. Cottler was under the impression that E. R. had aspirated. On admission to NSMC's emergency room, E. R. was unresponsive and acutely short of breath. Her vital signs were extremely beyond her normal range: temperature, 102.8; pulse, 130; respirations, 40; and blood pressure, Additionally, E. R.'s white blood cell count of 31,000 indicated the presence of infection. Dr. Kann took care of E. R. upon her admission to NSMC on December 24. Within twenty-four (24) hours, he observed that E. R.'s wound was roughly nine (9) inches by six (6) inches by three (3) inches deep; it had greatly increased in size and had deteriorated in condition during the seventeen (17) days that E. R. had been a resident at Arch Creek. On January 8, 1991, fifteen (15) days after E. R. was discharged from Arch Creek, Respondent charted a late entry on E. R.'s Weekly Decubitus or Treatment Sheet. This entry was dated December 13, 1990, and states: I, Catherine Evanoff, L.P.N., reviewed this patient on 12/13/90. Superficial decubitus area extends 6"-7" across both left & right buttocks (Coccycx area, necrotic tissue, is deeper in depth and surrounded by red soft, tender tissue. All decubitus area is soft, mushy w/strong foul odor & drainage present.) Respondent made this late entry at the request of Jeanette Jaffe, R.N., the Director of Nursing at Arch Creek. Ms. Jaffe asked Respondent to make the record because Ms. McDonald, the registered nurse in charge of the day shift and Respondent direct supervisor, no longer worked at Arch Creek. Respondent should not have made the late entry fifteen days after the care was provided. A late entry should be made only where such information continues to be relevant and pertinent to the care being provided to a patient. After emergency room treatment, E. R. was admitted to NSMC's intensive care unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Board of Nursing enter a Final Order finding that Respondent violated Section 464.018(h), Florida Statutes (1989). Additionally, the Board of Nursing should: (1) reprimand Respondent's license; (2) place Respondent on probation for two (2) years with direct supervision; (3) require Respondent to take continuing education courses in decubitus care and charting in addition to her required continuing education credits; (4) require Respondent to pay an administrative fine in the amount of $1,000. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of November 1994. SUZANNE F. HOOD, Hearing Officer 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 28th day of November 1994.
Findings Of Fact Respondent is, and at all material times has been, a licensed physician, having been issued license number ME 0040551, by the State of Florida. Respondent is a 1979 graduate of the University of Juarez. Respondent performed an internship at Mount Sinai Hospital in Chicago, Illinois, from 1979 to 1980. Between 1980 and 1982, Respondent performed a two year internal medicine residency at Grant Hospital in Chicago, Illinois. Respondent is "Board-eligible" in the area of internal medicine. Internal medicine involves a non-surgical approach to evaluating multiple organ systems. It involves understanding diseases at a "higher" level and dealing with multiple illnesses. Respondent once has taken, but did not pass, the examination to become Board certified in internal medicine. Respondent has had no other complaints filed against his license to practice medicine in Florida, other than the one at issue in this case. On or about May 2, 1986, Respondent admitted patient L. S. to Clearwater Community Hospital in Clearwater, Florida, because of a possible cerebral vascular accident which occurred 3 days prior to admission. Patient L. S. was a 76-year old male patient who was a member of the "Gold Plus" IMC Health Maintenance Organization. At or about the time of admission of patient L. S. to Clearwater Community Hospital, Respondent obtained a patient medical history from L. S. and performed a physical examination. As a result of the stroke, patient L. S. had speech difficulties at the time of admission to Clearwater Community Hospital. Respondent's initial patient history for L. S. included the following information: With respect to the cerebral vascular accident, the patient had awakened 3 days prior to the admission and had difficulty with speech and difficulty using his right hand. The patient was able to ambulate without difficulty and had noted no improvement or worsening in symptoms in the three days prior to admission. The patient had had intestinal surgery 50 years previously, which, according to Respondent's documented history, resulted in chronic diarrhea. Additionally, the patient had been hospitalized two years earlier for "dysphagia (a difficulty in swallowing) with a negative work-up." According to the patient, the patient had no coronary artery disease, hypertension, peptic ulcer disease or diabetes. The patient's social history provided the information that the patient smoked tobacco, one-half pack per day, and did not drink alcohol. The patient provided information that he was on the following medication: Lomotil p.r.n. (as needed); Lanoxin 0.125 mg. per day; and Quinaglute 100 mg., dose schedule unknown. Respondent performed an appropriate initial physical examination on patient L. S. Of significance was Respondent's finding with respect to the patient's heart: "Irregular, irregular rhythm with no gallops or murmurs appreciated." After completing the initial history and physical examination, Respondent's impression was: Acute CVA, patient now three days post-insult and appears to be stable. He already has good use of his right upper extremities and his speech is intelligible although slurred History of cardiac arrhythmia History of chronic diarrhea secondary to intestinal surgery 50 years ago. As part of his plan for the patient, formulated after obtaining the initial history and physical, Respondent noted, "Will also consider ECHO cardiogram as the heart irregularity may provide the source of the emboli." While patient L. S. was hospitalized during the May 2, 1986, admission, Respondent ordered the following tests which were performed on the patient: a complete blood count; a prothrombin time test; an activated partial thromboplastin time test; a routine urinalysis; a portable upright chest x-ray; a bilateral duplex carotid ultrasound study; a CT scan of head - stroke routine (non contrast study); a Brain CT Scan Stroke Protocol-Post contrast series only; an electroencephalogram (EEG); a blood chemistry profile; and an electrocardiogram (EKG)(the patient was also placed on a telemetry monitor). On admission, Respondent ordered Lomotil, one tablet to be given as needed for diarrhea, Lanoxin 0.125 mg. to be given four times a day, and Quinaglute 100 mg. to be given twice a day. On the same day of admission, Respondent changed the order for Quinaglute to 325 mg. to be taken by mouth twice a day. On admission and again on May 9, 1986, Respondent ordered blood serum levels of digoxin (Lanoxin is a drug containing digoxin). These blood levels revealed that the digoxin level was low on admission (normal laboratory values were listed as between 0.5 to 2.0 - the actual value was 0.1). The repeat digoxin level reflected that the digoxin was within normal limits on May 9, 1986 (the actual value was 1.1). Quinidine levels were also obtained (to determine the level of the drug Quinaglute in the blood), pursuant to Respondent's request. The quinidine level taken on admission was below normal (normal laboratory values were listed between 2.0 and 5.0 - the actual value was .7). The repeat quinidine level performed on May 9, 1986, reflected that the quinidine levels were within normal limits (2.6). Under the circumstances, the Respondent cannot be severely criticized for the initial history he took from the patient. In ideal circumstances, an internist would attempt to get more detail on the patient's smoking history pertinent to possible chronic obstructive lung disease or possible congestive heart failure, on the patient's chronic diarrhea, and on the patient's drug dosages. But the Respondent was dealing with a 76-year old man who came to see him for symptoms of a stroke three days before. The patient had difficulty making his speech understood and had no family or friends available to help him give his medical history to the Respondent. It was within acceptable standards of care recognized by a reasonably prudent similar physician under similar circumstances for the Respondent to take as much history as the patient was capable of comfortably giving at that time. The Respondent was planning on referring the patient to the hospital's stroke team, which over the course of the hospital stay would completely evaluate the effect of the stroke on the patient. The Respondent planned to have blood serum levels done which would establish proper drug dosages. The Respondent's primary concerns were the possibility of an evolving stroke and the possibility of malignant cardiac arrhythmias. Since there were no complaints or symptoms of chronic obstructive pulmonary disease or congestive heart failure, it was not necessary to pursue the smoking details on the initial history on this admission. As for the diarrhea, the Respondent was dealing with a 76-year old man who reported chronic diarrhea for 50 years. It may have resulted from intestinal surgery 50 years ago, and it may have been exacerbated by the Quinaglute the patient had been prescribed for his heart arrhythmias. Severe malabsorption problems would show up on the blood screen and the complete blood count the Respondent was planning to have the patient undergo. Otherwise, it was acceptable under the circumstances of this case to concentrate on the two primary concerns and treat the diarrhea symptomatically with Lomotil as needed for the time being. The Respondent should have followed up on obtaining available previous hospital records, especially the local admission for dysphagia two years prior, but that information would not appear in the initial history. While L. S. was in the hospital, the Respondent appropriately and adequately evaluated the patient's heart as a possible cause of the stroke. The evidence suggests that it is fairly debatable among physicians whether to order a $500-$600 echocardiogram in a case such as this; it is not necessary to meet the standard of care. When the Respondent initially examined the patient and heard irregularly irregular heart rhythms, he initially considered an echocardiogram. Irregularly irregular heart rhythms suggest atrial fibrillation which can predispose a patient to heart clots (emboli) which can break off, travel through the circulatory system and cause a stroke. But the results of the CAT Scan indicated that the stroke was not caused by a heart embolus but by a constriction of smaller blood vessels. In addition, the results of the EKG and telemetry monitoring revealed that the patient did not have atrial fibrillation but had significant and possibly malignant premature ventricular contractions (PVCs). While this particular heart beat irregularity is serious and can be fatal, it does not predispose a patient to heart emboli and resulting strokes. With this information, the echocardiogram was no longer necessary. While L. S. was in the hospital, the Respondent appropriately and adequately evaluated his lung function. The chest x-ray and EKG which the Respondent had done for the patient enabled the Respondent to diagnose obstructive pulminary disease (C.O.P.D.) if the patient had it. Milder cases of C.O.P.D. would have required with a pulmonary function test or a blood gas level. The evidence suggests that it is fairly debatable among physicians whether to have done one of those tests in this case; it was not necessary to meet acceptable standards of care recognized by a reasonably prudent similar physician under similar circumstances. The patient had no complaint of shortness of breath with exertion that would suggest emphysema. To the contrary, he progressed well in physical therapy during the 10-day hospitalization with no indication of this symptom. Nor did the patient have cyanosis or clubbing that would be symptomatic of chronic bronchitis. Those are the two kinds of C.O.P.D. about which a physician evaluating L. S. would be concerned. Regarding the patient's chronic diarrhea, the Respondent performed some general screening tests which, while non-specific in nature, had potential to provide some information about the patient's nutritional status. The complete blood count (C.B.C.) may provide information about some deficiencies. Generally, in an isolated deficiency of vitamin B12 or folic acid, one would expect to find an elevated M.C.V. (mean corpuscular volume), which would show up on a C.B.C. In this case, however, the C.B.C. provided no real information about the nutritional status of patient L. S. The M.C.V. was only slightly elevated. A prothrombin time test can be done to evaluate vitamin K deficiencies and was done in this case. Additionally, the blood levels of several substances can provide information about malnutrition. In this case, the chemistry profile revealed malnutrition. The blood chemistry profile revealed low albumin levels, low globulin levels and low total protein levels. The possibility exists that patient L. S. suffered from diarrhea which was caused or aggravated by the Quinaglute that the patient was also taking. Quinaglute can cause diarrhea. This was not evaluated by the Respondent. It could not be evaluated by the medication history the patient was able to give (i.e., by determining how long the patient had been taking Quinaglute in relation to the period of time the patient had had diarrhea.) Besides, the Respondent made the decision to stabilize the patient's potentially life- threatening heart arrhythmias using the Quinaglute instead of withdrawing the Quinaglute in an attempt to cure the diarrhea problems with which the patient had lived for 50 years. The Respondent cannot be severely criticized for this decision. On this admission, it was acceptable to treat the patient's diarrhea symptomatically for the time being and further evaluate and treat it after the Respondent dealt with the more serious matters of the C.V.A. and the heart arrhythmias. On or about May 12, 1986, Respondent transferred patient L. S. to Druid Hills Skilled Nursing Center from Clearwater Community Hospital. As reflected in Respondent's discharge summary for patient L. S., Respondent was not able to determine the precise cause of the stroke which patient L. S. suffered prior to discharging the patient from the hospital. The discharge diagnoses reflect: (1) acute cerebral vascular accident; and (2) cardiac arrhythmias with frequent P.V.C.'s. The Respondent kept patient L. S. in Clearwater Community Hospital for ten days, from May 2 until May 12, 1986. Although the evaluation and tests were completed within five days, the Respondent did not want to discharge the patient to his home where he would be by himself, but rather to a nursing home. While waiting for a nursing home bed to become available, the Respondent used the resulting extended hospital stay to continue physical therapy. At the time of transfer from the hospital to Druid Hills, patient L. S. was frail. He was 76 years old, five feet ten inches tall and weighted only 113 pounds. Having just had a stroke, he was far from the picture of health, and this was noted by some of the nursing staff upon transfer to Druid Hills Skilled Nursing Center. He looked and was ill, but he was stable. At the time of admission to Druid Hills, patient L. S. was in essentially the same condition as when admitted to Clearwater Community Hospital, ten days earlier. The patient still suffered from slurred speech and had problems with his right arm. But he was stable and anxious to begin speech and physical therapy. On May 12, 1986, at about 2:00 p.m., Judith Salyer, L.P.N., attempted to contact Respondent in order to confirm routine house orders by "beeping" Respondent. Respondent called the nursing home at 4:30 p.m. on the same day to provide the following admission orders: Lanoxin 0.125 mg. by mouth four times a day ASA by mouth four times a day Persantine 75 mg. by mouth two times a day Quinaglute 325 mg. by mouth every eight hours Lomotil by mouth three time a day for diarrhea Tylenol by mouth four times a day Restoril 15 mg. by mouth at night for sleep as needed Physical Therapy Speech Therapy In addition to slurred speech, on May 14, 1986 (two days after admission to Druid Hills), patient L. S. began to have problems with his eye which was red and draining yellow matter (inaccurately described as "pus" in the nursing notes.) When asked by nursing staff if his eye hurt, L. S. advised them that it did. In all other respects, patient L. S.'s condition seemed essentially unchanged. Respondent was not advised of the change in the patient's eye. On the following date, patient L. S. developed additional symptoms. These included coughing and a runny nose with white mucous. The patient's eyes continued to be pink tinged with a moderate amount of yellow drainage from the eye noted. At 2:20 p.m. on May 15, 1986, Judith Salyer, L.P.N., spoke with Respondent and received the routine house orders which Salyer had called about on May 12, 1986. Salyer did not advise Respondent of the minor cold symptoms. Later on the evening of May 15, 1986, it was noted that patient L. S.'s appetite was poor. On May 16, 1986, at 2:00 p.m., it was noted that L. S. was refusing to eat meals and had a inoderately unsteady gait. On May 17, 1986, it was noted that L. S. informed the nurse on duty that he had had loose stools five times. Additionally, it was noted that the patient was refusing to eat meals. At 9:00 p.m. on May 17, 1986, patient L. S. was noted to be "out of bed." No complaints of diarrhea were noted. Additionally the patient ate 80% of his meal and requested ice cream. In the early part of the day on May 18, 1986, patient L. S. was noted to have "chronic diarrhea" by nursing staff. (Throughout his nursing home stay, the patient was given Lomotil, an anti-diarrheal agent, in an effort to treat the diarrhea.) Between at least 9:30 p.m. on May 18, 1986, and the evening of May 19, 1986, patient L. S. appeared to be doing reasonably well. The patient's appetite was good. There were no complaints of diarrhea. The runny nose, coughing and eye drainage were not noted after May IS, 1986. At 2:00 p.m. on May 20, 1986, Nurse Salyer noted that patient L. S. appeared slightly confused at intervals. The patient had mild congestion and a productive cough. The patient's gait was noted to be unsteady at times. At that time, Salyer "beeped" Respondent in an attempt to advise Respondent of the patient's change in condition. Respondent did not call back on May 20, 1986. A productive cough is a cough which produces "gobs" of mucous. Such a cough can be indicative of a lower (as opposed to upper) respiratory infection or congestion in the chest. The presence of a productive cough is a cause for concern. In a later entry made on May 20, 1986, a Nurse Rooker noted that the patient had remained in bed during the shift. His appetite was 40%. It was noted that L. S. was congested, coughing up large amounts of whitish mucous. On May 21, 1986, at some time before 2:00 p.m., Respondent was notified by telephone of patient L. S.'s stable vital signs, "cold symptoms," that the patient appeared slightly confused at intervals, was refusing to eat, was mildly congested with a productive cough and had an unsteady gait at times. Given this information, Respondent determined that the patient had a "cold" or upper respiratory infection. New orders were received and transcribed. On May 21, 1986, Respondent ordered Ampicillin 250 mg. to be taken every four hours for eight days. Respondent also ordered Actifed to be taken three times a day as needed for "sinus congestion." Respondent gave patient L. S. Ampicillin, which is an antibiotic, for his symptoms as a precautionary or prophylactic measure. Antibiotics should not, as a general rule, be ordered without having a well-grounded understanding why the patient is ill. The cause of the infection should be determined. The most basic reason for not giving an antibiotic without first evaluating the source of the infection is that the antibiotic then can serve to simply hide the symptoms. The antibiotic will cause some improvement, making it appear that the patient is not quite as ill, when in fact the infection persists. Additionally, there is a theory in medicine that the antibiotic can serve to cause a resistant strain of infection. Respondent assumed that, like most other nursing home patients, patient L. S. was suffering from a cold. Respondent ordered no further tests to evaluate the patient and Respondent declined to see the patient on May 21, 1986. Under the facts and circumstances of this case, it was inappropriate for Respondent to prescribe Ampicillin, an antibiotic, without first evaluating the source of the infection. Assuming that L. S. had a "cold" or upper respiratory infection, it was appropriate for Respondent to order Actifed, an antihistamine, for L. S. on May 21, 1986. However, given the presence of a productive cough, chest congestion could have been present. With chest congestion, an antihistamine like Actifed would have been inappropriate. Actifed will dry up the chest. Mucous in the chest which needs to be expectorated, and brought up and out, will remain in the chest. A mucolytic expectorant, not an antihistamine, should be ordered when the chest is congested. Given the facts that patient L. S. was recuperating from a recent CVA, had difficulty in swallowing, and had multiple medical problems, the Respondent could have been more aggressive in either examining this patient, who had a productive cough, or ordering appropriate testing. A reasonably prudent physician, under similar conditions and circumstances, could have personally examined the patient L. S. on May 21, 1986, or soon thereafter. Alternatively, a reasonably prudent physician could have ordered a C.B.C. and a chest x-ray or some other ancillary diagnostic modalities. A C.B.C. is a method by which one can obtain a count of blood cells, particularly white blood cells, in a patient in order to determine whether there is an ongoing infection. The type of white blood cells present (lymphatic cell or a leukocytic cell) can assist in the determination of whether the infection is bacterial or viral in nature. A chest x-ray is necessary to diagnose pneumonia or obstruction in the lungs. Given the history of patient L. S.'s difficulty in swallowing, it is entirely possible that the patient aspirated food or mucous. When such a foreign substance is inhaled into the lungs, it blocks off the bronchials (the airways into the lungs) and causes an obstruction which will lead to pneumonia. Given this patient's condition and history, Respondent could have used a chest x-ray to evaluate the patient to rule out the possibility of aspiration. But it was not necessary for the Respondent to have arranged to personally examine the patient or order tests at this stage. It would be appropriate to monitor a patient with a viral infection (or "cold") or to prescribe antibiotic such as Ampicillin for a bacterial infection. On May 21, 1986, the antibiotic Ampicillin was given to patient L. S. by nursing staff at Druid Hills. This antibiotic was administered as ordered until May 29, 1986, when it was discontinued on the eighth day. On May 22, 1986, Nurse Salyer noted that patient L. S. had diarrhea. Patient L. S. told Nurse Salyer that in the past the patient had taken Ampicillin and that the Ampicillin had caused diarrhea. Salyer further noted on that date that L. S. was coughing up large amounts of yellowish phlegm. On May 22, 1986, at some time prior to 3:00 p.m., Salyer "beeped" Respondent in an attempt to advise Respondent of L. S.'s statement that the antibiotic was causing diarrhea. Respondent did not call Salyer back by the end of her shift on May 22, 1986. On the 3:00 p.m. to 11:00 p.m. shift at Druid Hills, on May 22, 1986, Kathy Rooker, L.P.N., was involved in the care of patient L. S. At 4:50 p.m., Rooker noted that Respondent had not returned the earlier telephone call. Therefore, Rooker called the answering service for Respondent again and asked the answering service to "beep" Respondent again. The Respondent did not call Rooker back. On May 23, 1986, Nurse Salyer notified Respondent of L. S.'s statement that the antibiotic that patient L. S. was taking (Ampicillin) had previously caused the patient to have diarrhea. Respondent decided not to change the antibiotic order for patient L. S. Ampicillin is known to cause diarrhea in some individuals. But so do many other antibiotics. A reasonably prudent physician, after having been advised that the patient had diarrhea and that the patient previously had had diarrhea while on the same antibiotic, could either change the antibiotic therapy or wait and see if the diarrhea continued or became a problem. On May 23, 1986, at 2:00 p.m., Salyer noted that patient L. S. continued to experience congestion and a productive cough, and continued to have a poor appetite. The same information was noted on the evening shift on May 23, 1986. This condition persisted on May 24, 1986. Additionally, the patient's temperature was 100 degrees on May 24, 1986. Previously, the patient had had an essentially normal temperature. On May 25, 1986, it was noted that patient L. S. was still congested with a productive cough. Additionally, the patient's temperature continued to be elevated. On May 26, 1986, no entry was made in the nurses' notes as to the status of the patient's congestion and cough. It was noted that the patient's friend, "John," came to request permission to take L. S. out for the day. However, L. S. indicated that he felt too weak to go. Both L. S. and his friend asked that Respondent be called for a leave of absence order in the future. It was further noted that the patient continued to have a poor appetite. In the morning on May 27, 1986, Nurse Salyer "beeped" Respondent for the leave of absence order. Respondent did not return that call during Salyer's shift on May 27, 1986. In the 2:00 p.m. entry for May 27, 1986, Salyer noted that patient L. S.: had bed rest during the shift; suffered from chronic diarrhea with mucous in the stool; was refusing to eat with poor fluid intake; had yellow mucous draining from his eyes; and had continued congestion with a productive cough. At 9:00 p.m. on May 27, 1986, it was noted that the patient's condition as described above had persisted. Additionally, it was noted that Respondent had not returned the telephone call made by Salyer that morning. In fact, it does not appear that Respondent ever returned Salyer's call made on May 27, 1986. On May 28, 1986, it appeared that patient L. S. was improving some in comparison to the patient's condition on previous dates. It was noted that the patient's respirations were "easy." However, it was also noted that the patient still had periods of confusion, still had poor appetite, still was congested and had yellowish drainage from the right eye. On May 29, 1986, the patient's condition further deteriorated. On this date, in the morning, it was noted that the patient remained congested. In the afternoon, a friend of L. S. named Sigfred Ivanicki, came to see L. S. Ivanicki had visited L. S. in Druid Hills twice a week (on Sundays and Thursdays) while L. S. was in the nursing home. When Ivanicki saw L. S. on Thursday, May 29, 1986, in the afternoon (Ivanicki usually visited between 4:00 p.m. and 6:00 p.m.), Ivanicki was very concerned about the deterioration he saw in L. S.'s condition and believed at that point that L. S. was dying. Ivanicki had had an opportunity to see patient L. S. several times before May 29, 1986. Initially, when Ivanicki saw patient L. S. shortly after the admission of the patient to Druid Hills, patient L. S. appeared cheerful and on the road to recovery. Ivanicki would, on each visit, perform tasks of a personal nature for L. S. Thereafter, the patient developed bad congestion with a productive cough and had diarrhea. None of these symptoms appeared too serious to Ivanicki. However, on May 29, 1986, Ivanicki became truly concerned about L. S. After seeing patient L. S. on May 29, 1986, Ivanicki went to see the head nurse at Druid Hills and asked that Respondent be called to come see the patient and transfer the patient to the hospital. At that time, Ivanicki was told that Respondent was very hard to reach. At 6:00 p.m. on May 29, 1986, a nurse Febbo assessed patient L. S.'s condition. Nurse Febbo noted that the patient refused to eat, complained of shortness of breath and had a flushed face. The patient's skin was warm and dry. The patient's vital signs were as follows: pulse 102 beats per minute, temperature 99.8, blood pressure 120/60 and respiration rate 28 per minute. The patient's lungs were clear with decreased breath sounds. The patient was congested and was expectorating thick clear mucous. The patient was incontinent of bowel. On May 29, 1986, at 6:00 p.m., Nurse Febbo noted that she attempted to contact Respondent at 546-5702 unsuccessfully, and had notified Respondent's answering service that she was attempting to contact Respondent. Respondent returned Nurse Febbo's call at 8:00 p.m., on May 29, 1986. The nursing staff advised the Respondent of patient L. S.'s condition as reflected in Finding 52, above. In response, the Respondent provided the following telephone order for the patient: Lomotil three times a day, discontinue betadine to the little finger, and obtain a splint for right hand. Respondent did not order a C.B.C. or a chest x-ray at that point, even though both tests would have been appropriate. Additionally, Respondent did not go see the patient when advised of the patient's condition. Regardless whether the nursing staff had placed a "STAT" call, a reasonably prudent physician, after being advised of the condition of patient L. S., would have either gone in to see the patient or promptly ordered a C.B.C. and a chest x-ray. The vital signs and physical examination results reflect a very sick individual. The decreased breath sounds indicated that pneumonia or a pneumonic process had begun in the patient's lungs. Additionally, the diarrhea had advanced to the stage where the patient was incontinent. Respondent should have either seen the patient (something he had decided not to do up to this date) or should have ordered a chest x-ray and C.B.C. The nurses' notes for 8:00 p.m. on May 29, 1986, reflect that the patient L. S. was given Actifed by mouth for congestion, consistent with Dr. Hayward's orders given on May 21, 1986, and not changed. Given the presence of a pneumonic process in L. S.'s lungs, Actifed was inappropriate. See Finding 36, above. On May 30, 1986, it was noted prior to 9:30 a.m. that the patient L. S. was growing increasingly weak and was coughing up a greenish yellow mucous. The patient's lungs were noisy and appeared to be filled with fluid. The nursing staff had begun attempts to contact Respondent, probably beginning as early as 7:30 a.m. At 9:30 a.m., the nurses' notes reflect that the nursing staff had attempted to call Respondent several times and had paged Respondent at the hospital but had received no return telephone call. At 10:00 a.m., Gold Plus called the nursing staff at Druid Hills. Mr. Ivanicki had contacted Gold Plus to complain about Respondent's failure to transfer L. S. to the hospital for treatment. Gold Plus, after talking to the nursing staff, was also to attempt to contact Respondent. At 10:15 a.m., on May 30, 1986, over two hours after the first telephone calls, Respondent finally called Druid Hills and ordered that the patient be sent to the emergency room at Clearwater Community Hospital. Confusion occurred over the transfer of the patient to the hospital, due to no fault of Respondent. As a result of this delay, the patient was not transported to Clearwater Community Hospital until about 11:45 a.m., on May 30, 1986. However, before the actual transport could occur, the patient partially "coded" or had a cardiopulmonary arrest. At the time of the arrival of patient L. S. at Clearwater Community Hospital, the patient had a cardiopulmonary arrest and resuscitation techniques were successfully used. A chest x-ray performed showed haziness in the lungs which was suspicious for aspiration pneumonia. On June 14, 1986, patient L. S. died at Clearwater Community Hospital. The patient had been in a coma since arrival at the hospital. The immediate cause of death was listed as cardiogenic shock. Respondent's final diagnoses were: (1) cardiopulmonary arrest; (2) aspiration pneumonitis; (3) possible acute myocardial infarction; (4) thrombocytopenia; (5) cardiac arrhythmia with frequent PVCs; (6) hyperkalemia; (7) status post-recent CVA; and (8) severe post-anoxic encephalopathy. It was the practice of nursing personnel at Druid Hills to identify calls to physicians as "STAT" calls when an emergency or critical situation existed. With a STAT call, an immediate response was necessary. Nursing staff at Druid Hills did not consider patient L. S.'s condition to be an emergency or critical until May 30, 1986. The calls to Respondent were not identified as "STAT" calls. It would have been inappropriate for the Respondent to delay his response to telephone calls made by Druid Hills nursing staff pertaining to patient L. S. on May 29 and 30, 1986. A reasonably prudent physician, acting under similar conditions and circumstances, would have returned such telephone calls within an hour unless other emergencies existed. But it was not proved that the Respondent received and delayed his response. The Respondent generally was good about returning telephone calls and was experiencing difficulty both with the Gold Plus switchboard and with his answering service. The Respondent's response to those calls may well have been reasonable under the circumstances. In contrast, the calls on May 20, 22 and 27 were not of any emergency nature and did not require priority response. It was not proved that the Respondent's response to' those calls were delayed unreasonably. (Gold Plus had a policy of not permitting a leave of absence, the subject of the May 27, 1986, call.) Except to the extent that the Respondent's course of treatment was inappropriate, as noted above, the Respondent's records (including the hospital and nursing home records) justify his course of treatment of L. S. Respondent, in his treatment of patient L. S., failed to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances, as a result of the deficiencies and omissions noted above.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Medicine: (1) hold the Respondent, Edward C. Hayward, M.D., guilty of violating Section 458.331(t), Florida Statutes (1985)(Count One of the Administrative Complaint); (2) dismiss the charges in Count Two of the Administrative Complaint (alleged failure to maintain adequate medical records); (3) place the Respondent on probation for two years under such terms as the Board of Medicine deems appropriate; and (4) fine the Respondent $1,000.00. RECOMMENDED this 13th day of April, 1988, 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 13th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2568 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings Of Fact. 1.-11. Accepted and incorporated. Proposed findings regarding the milk of magnesia order, rejected. It was part of routine orders. The patient never developed constipation so it never was administered. The proposed finding is irrelevant and unnecessary. Otherwise, accepted and incorporated. Accepted and incorporated. 14.-17. Rejected as contrary to facts found. The paragraphs reciting the tests the Respondent had done are accepted and incorporated; the rest is rejected as contrary to facts found. First three sentences, accepted and incorporated; the rest is rejected as contrary to facts found. Accepted and incorporated. Rejected as contrary to facts found. Nurse's description of the patient as "acutely ill" is subordinate to facts found. It is not a diagnosis. Otherwise, accepted and incorporated. 23.-25. Accepted and incorporated. 26. Except that the use of the word "pus" is rejected as inaccurate, accepted and incorporated. 27.-36. Accepted and incorporated to the extent necessary and not subordinate. Accepted but subordinate to facts found. Accepted and incorporated to the extent necessary and not subordinate. Rejected that the Respondent made no attempt to determine the cause of the patient's illness as contrary to facts found; the rest is accepted and incorporated. Rejected, as contrary to facts found, that Actifed was "inappropriate." What was inappropriate was the failure to properly evaluate whether the patient had chest congestion. 41.-44. Accepted and incorporated to the extent necessary and not cumulative. 45. Rejected as contrary to facts found. 46.-57. Accepted and incorporated. Accepted and, to the extent not subordinate, incorporated. Accepted and incorporated. Accepted and, to the extent not subordinate, incorporated. 61.-68. Accepted and incorporated. Rejected as contrary to facts found. Accepted but subordinate to facts found. Rejected as contrary to facts found. Accepted and incorporated. Respondent's Proposed Findings Of Fact. 1.-7. Accepted and, to the extent necessary, incorporated. Penultimate sentence rejected as contrary to the greater weight of the evidence; the rest is accepted and incorporated. Accepted, as far as it goes, and incorporated. However, the proposed findings ignore the productive cough that was observed throughout the period May 20-29, 1986, and which was reported to the Respondent on May 21 and 29, 1986. Third sentence, to the extent it implies it states all the symptoms, rejected as contrary to facts found. Fourth sentence rejected as contrary to facts found--temperature was somewhat elevated and both pulse and respirations were up for a patient in bed rest. Sixth sentence rejected as contrary to facts found--the patient was awake at intervals during the night. Rest is accepted and incorporated with some additional facts. First sentence rejected as contrary to facts found--the patient's condition began to worsen seriously on May 29, 1986, and continued to worsen through the night. The nurses were alarmed at his condition on the morning of May 30, 1986, and began trying to call the Respondent at approximately 7:30 a.m. Third sentence, rejected as not proven when the Respondent received the message that the nursing staff was trying to contact him. The rest is accepted and incorporated. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard W. Payant, Esquire 2349 Sunset Point Road Clearwater, Florida 34625 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether, based upon a preponderance of the evidence, the Agency for Health Care Administration (AHCA) lawfully assigned conditional licensure status to Harbour Health Center for the period June 17, 2004, to June 29, 2004; whether, based upon clear and convincing evidence, Harbour Health Center violated 42 Code of Federal Regulations (C.F.R.) Section 483.25, as alleged by AHCA; and, if so, the amount of any fine based upon the determination of the scope and severity of the violation, as required by Subsection 400.23(8), Florida Statutes (2004).
Findings Of Fact Based upon stipulations, deposition, oral and documentary evidence presented at the final hearing, and the entire record of the proceeding, the following relevant findings of fact are made: At all times material hereto, AHCA was the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a licensure status pursuant to Subsection 400.23(7), Florida Statutes (2004). AHCA is charged with the responsibility of evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, AHCA is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288, which states that "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. §483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference." The facility is a licensed nursing facility located in Port Charlotte, Charlotte County, Florida. Pursuant to Subsection 400.23(8), Florida Statutes (2004), AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered is, also, determinative of whether the licensure status of a nursing home is "standard" or "conditional" and the amount of administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, titled "Statement Deficiencies and Plan of Correction" and which is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. To assist in identifying and interpreting deficient practices, surveyors use Guides for Information Analysis Deficiency Determination/Categorization Maps and Matrices. On, or about, June 14 through 17, 2004, AHCA conducted an annual recertification survey of the facility. As to federal compliance requirements, AHCA alleged, as a result of this survey, that the facility was not in compliance with 42 C.F.R. Section 483.25 (Tag F309) for failing to provide necessary care and services for three of 21 sampled residents to attain or maintain their respective highest practicable physical, mental, and psychosocial well-being. As to the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that the facility had failed to comply with state requirements and, under the Florida classification system, classified the Federal Tag F309 non-compliance as a state Class II deficiency. Should the facility be found to have committed any of the alleged deficient practices, the period of the conditional licensure status would extend from June 17, 2004, to June 29, 2004. Resident 8 Resident 8's attending physician ordered a protective device to protect the uninjured left ankle and lower leg from injury caused by abrasive contact with the casted right ankle and leg. Resident 8 repeatedly kicked off the protective device, leaving her uninjured ankle and leg exposed. A 2.5 cm abrasion was noted on the unprotected ankle. The surveyors noted finding the protective device in Resident 8's bed but removed from her ankle and leg. Resident 8 was an active patient and had unsupervised visits with her husband who resided in the same facility but who did not suffer from dementia. No direct evidence was received on the cause of the abrasion noted on Resident 8's ankle. Given Resident 8's demonstrated propensity to kick off the protective device, the facility should have utilized a method of affixing the protective device, which would have defeated Resident 8's inclination to remove it. The facility's failure to ensure that Resident 8 could not remove a protective device hardly rises to the level of a failure to maintain a standard of care which compromises the resident's ability to maintain or reach her highest practicable physical, mental or psychosocial well-being. The failure to ensure that the protective device could not be removed would result in no more than minimal discomfort. Resident 10 Resident 10 has terminal diagnoses which include end- stage coronary artery disease and progressive dementia and receives hospice services from a local Hospice and its staff. In the Hospice nurse's notes for Resident 10, on her weekly visit, on May 17, 2004, was the observation that the right eye has drainage consistent with a cold. On May 26, 2004, the same Hospice nurse saw Resident 10 and noted that the cold was gone. No eye drainage was noted. No eye drainage was noted between that date and June 2, 2004. On June 3, 2004, eye drainage was noted and, on June 4, 2004, a culture of the drainage was ordered. On June 7, 2004, the lab report was received and showed that Resident 10 had a bacterial eye infection with Methicillin Resistant Staphylococcus Aureus (MRSA) bacteria. On June 8, 2004, the attending physician, Dr. Brinson, referred the matter to a physician specializing in infectious disease, and Resident 10 was placed in contact isolation. The infectious disease specialist to whom Resident 10 was initially referred was not available, and, as a result, no treatment was undertaken until a second specialist prescribed Bactrim on June 14, 2004. From June 8, 2004, until June 14, 2004, Resident 10 did not demonstrate any outward manifestations of the diagnosed eye infection. A June 9, 2004, quarterly pain assessment failed to note any discomfort, eye drainage or discoloration. In addition to noting that neither infectious control specialist had seen Resident 10, the nurses notes for this period note an absence of symptoms of eye infection. Colonized MRSA is not uncommon in nursing homes. A significant percentage of nursing home employees test positive for MRSA. The lab results for Resident 10 noted "NO WBC'S SEEN," indicating that the infection was colonized or inactive. By placing Resident 10 in contact isolation on June 8, 2004, risk of the spread of the infection was reduced, in fact, no other reports of eye infection were noted during the relevant period. According to Dr. Brinson, Resident 10's attending physician, not treating Resident 10 for MRSA would have been appropriate. The infectious disease specialist, however, treated her with a bacterial static antibiotic. That is, an antibiotic which inhibits further growth, not a bactericide, which actively destroys bacteria. Had this been an active infectious process, a more aggressive treatment regimen would have been appropriate. Ann Sarantos, who testified as an expert witness in nursing, opined that there was a lack of communication and treatment coordination between the facility and Hospice and that the delay in treatment of Resident 10's MRSA presented an unacceptable risk to Resident 10 and the entire resident population. Hospice's Lynn Ann Lima, a registered nurse, testified with specificity as to the level of communication and treatment coordination between the facility and Hospice. She indicated a high level of communication and treatment coordination. Dr. Brinson, who, in addition to being Resident 10's attending physician, was the facility's medical director, opined that Resident 10 was treated appropriately. He pointed out that Resident 10 was a terminally-ill patient, not in acute pain or distress, and that no harm was done to her. The testimony of Hospice Nurse Lima and Dr. Brinson is more credible. Resident 16 Resident 16 was readmitted from the hospital to the facility on May 24, 2004, with a terminal diagnosis of chronic obstructive pulmonary disease and was receiving Hospice care. Roxanol, a morphine pain medication, had been prescribed for Resident 16 for pain on a pro re nata (p.r.n.), or as necessary, basis, based on the judgment of the registered nurse or attending physician. Roxanol was given to Resident 16 in May and on June 1 and 2, 2004. The observations of the surveyor took place on June 17, 2004. On June 17, 2004, at 9:30 a.m., Resident 16 underwent wound care treatment which required the removal of her sweater, transfer from sitting upright in a chair to the bed, and being placed on the left side for treatment. During the transfer and sweater removal, Resident 16 made noises which were variously described as "oohs and aahs" or "ows," depending on the particular witness. The noises were described as typical noises for Resident 16 or evidences of pain, depending on the observer. Nursing staff familiar with Resident 16 described that she would demonstrate pain by fidgeting with a blanket or stuffed animal, or that a tear would come to her eye, and that she would not necessarily have cried out. According to facility employees, Resident 16 did not demonstrate any of her typical behaviors indicating pain on this occasion, and she had never required pain medication for the wound cleansing procedure before. An order for pain medication available "p.r.n.," requires a formalized pain assessment by a registered nurse prior to administration. While pain assessments had been done on previous occasions, no formal pain assessment was done during the wound cleansing procedure. A pain assessment was to be performed in the late afternoon of the same day; however, Resident 16 was sleeping comfortably. The testimony on whether or not inquiry was made during the wound cleansing treatment as to whether Resident 16 was "in pain," "okay," or "comfortable," differs. Resident 16 did not receive any pain medication of any sort during the period of time she was observed by the surveyor. AHCA determined that Resident 16 had not received the requisite pain management, and, as a result, Resident 16’s pain went untreated, resulting in harm characterized as a State Class II deficiency. AHCA's determination is not supported by a preponderance of the evidence. In the context that the surveyor considered what she interpreted as Resident 16's apparent pain, deference should have been given to the caregivers who regularly administered to Resident 16 and were familiar with her observable indications of pain. Their interpretation of Resident 16's conduct and their explanation for not undertaking a formal pain assessment are logical and are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding: The facility's failure to secure the protective device to Resident 8's lower leg is not a Class II deficiency, but a Class III deficiency. The facility's care and treatment of Residents 10 and 16 did not fall below the requisite standard. The imposition of a conditional license for the period of June 17 to June 29, 2004, is unwarranted. The facility should have its standard licensure status restored for this period. No administrative fine should be levied. DONE AND ENTERED this 3rd day of June, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2005. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Eric Bredemeyer, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue in this case is whether Respondent, Eloise Dunlap, Jones, licensed registered nurse, should be disciplined on charges alleged in the Administrative Complaint filed by Petitioner, The Department of Health, Board of Nursing, (hereinafter "Agency"), in Case No. 00-04174. Essentially, the charges are that on April 25-26, 1999, during the 11:00 P.M. to 7:00 A.M. shift, while employed by Suncoasts Manor Nursing Home (hereinafter Suncoast) Respondent's residential care for patient K.M. was below the minimal standard of acceptable and prevailing nursing practice, as defined by Florida Statutes, 464.018(1)(h). Specifically, whether the conduct of RN Jones, who came on midnight duty at 10:45 p.m., was briefed by the evening duty nurse of K.M.'s condition, and upon personal evaluation observed K.M., who suffered a previous stroke and cerebrovascular accident, with protruding tongue, droopy left face, slight weak left hand grip, and normal vital signs, and who then determine to continue monitoring K.M. throughout the night rather than immediately call the resident physician, is conduct that is a departure from or, failure to conform to, the minimal standards of acceptable and prevailing nursing practice.
Findings Of Fact Respondent admitted facts 1-6. Findings of fact 7 and thereafter are based on the evidence or the lack of evidence of record. Petitioner is a state agency charged with the regulation of the practice of nursing pursuant to Chapters 20 and 456, formerly 455, and 464, Florida Statutes. Pursuant to authority of Section 20.43(3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint investigation and prosecutorial services as required by the Division of Medical Quality Assurance, counsel or boards as appropriate, including the issuance of emergency orders of suspension or restriction. Respondent is Eloise Dunlap Jones, a licensed registered nurse in the State of Florida, having been issued license number RN 35822-2. At all times material hereto, Respondent was employed by Suncoast working only on Sundays and Mondays. On April 25 and 26, 1999, from 11:00 p.m. to 7:00 a.m., during the course of employment Respondent was responsible for the residential care of Patient K.M., (hereinafter K.M.). K.M. was admitted to Suncoast May on May 1, 1997, from Bayfront Rehabilitation following a left cerebrovascular accident, (hereinafter CVA), that left him with several problems: some right side and facial paralysis, inability to speak clearly, blindness in the right eye, and depression. K.M., at some unspecific time during the morning of April 26, 1999, experienced a second stroke and heart attack. K.M.'s observed condition was a decreased level of consciousness, weakness in his left extremity, inability to communicate, and some tongue protrusion. The resident physician and two consulting doctors confirmed that K.M. had suffered a second stroke and mild heart attack in their post-CVA evaluation reports. Rose Shaw, CNA, on the 3:00-11:00 p.m. shift, while on her 10:30 p.m. rounds found K.M. non-responsive to both her touch and verbal commands. Rose Shaw requested duty nurse, Margaret Edwards, LPN, to come observe and examine K.M. Upon arrival to K.M.'s room Margaret Edwards found K.M. initially unresponsive to her verbal commands; however, a few minutes later K.M. became somewhat more responsive. Examination revealed that K.M.'s vital signs were normal and Rose Shaw decided to monitor K.M. until the next shift arrival. Respondent arrived at K.M.'s room approximately 10:45- 10:50 p.m. to commence her 11:00 p.m.-7:00 a.m. shift. Margaret Edwards gave Respondent a verbal report on K.M.'s condition. Rose Shaw recalled that during that time period, K.M. put up his hand and made "yeh," "yeh"-like statements. When requested to squeeze Respondent's hand K.M. was able to do so. Rose Shaw overheard Respondent tell Edwards that Respondent thought K.M. had suffered a mini stroke or TIA. Respondent admits the statement to be her true diagnosis based upon her observation and examination of K.M. Respondent and Edwards discussed calling the physician and it was agreed by Margaret Edwards and Respondent that Respondent would continue to closely monitor K.M. throughout the night, and should K.M.'s condition change the resident physician would be called. Emma Ford, CNA, on the 11:00 p.m.-7:00 a.m. shift, entered K.M.'s room at approximately 11:30 p.m. and found him lying cross-wise in bed, wet from urine, and she contacted Respondent. Respondent and Emma Ford returned to K.M.'s bed and after drying him, wiping his mouth, cleaning and repositioning him in bed, Respondent advised Emma Ford of K.M.'s condition when Respondent came on duty and requested Emma Ford to monitor K.M. throughout the night. During the night, Emma Ford noticed no change in K.M.'s condition from the state she found him upon arrival on duty, except for some restlessness when sleeping. Angela Robinson, LPN, charge nurse on duty April 26, 1999, during the 11:00 p.m.-7:00 a.m. shift, was summoned by Respondent at approximately 1:45 a.m. for an examination of K.M. and for Angela Robinson to render her opinion on K.M.'s condition and status. Angela Robinson's observation and examination of K.M. found him lying on his left side, skin warm and dry, alert and responsive. Angela Robinson opined that Respondent should continue monitoring K.M. and if Respondent saw a change in K.M.'s condition, at that time Respondent should call the resident physician. Respondent believed that Angela Robinson, having worked at Suncoast for three years, was more familiar with K.M.'s normal condition than Respondent. At the hearing Respondent asked Angela Robinson if she had worked with K.M. during daylight hours and thus, did she see any change in his condition. Angela Robinson testified that she worked during the day; however, she did not work much with K.M. and did not notice any changes. Angela Robinson testified further that it was not unusual for K.M.'s tongue to protrude and his left facial drooping was always evident. Angela Robinson could not recall whether Respondent told her about any nurse's note entries. Beverly Horan, RN, director of nursing at Suncoast, testified that upon her arrival on April 26, 1999, she reviewed the daily Director of Nursing's 24-hour report which contained K.M.'s situation. Beverly Horan, RN, conducted a complete internal investigation, to include a request that Respondent prepare an hour-by-hour activity report of Respondent's observation of and actions with patient K.M. In Beverly Horan's office and presence, Respondent prepared an hour-by-hour activity report as requested by Beverly Horan (Respondent's Exhibit "A"). Beverly Horan's internal investigation included an interview of all nurses on duty during both the 3:00 p.m.- 11:00 p.m. and ll:00 p.m.-7:00 a.m. shifts; reviewed K.M.'s nurse's notes, (Petitioner's Exhibit 4), and review of Respondent's requested detailed, hour-by-hour activity account of Respondent's activities with and observations of K.M. during Respondent's time on duty,(Respondent's Exhibit "A"). Beverly Horan, qualified as Petitioner's expert on the minimum standards of acceptable and prevailing nursing practice, opined that based upon her personal interviews of all nurses having contact with K.M.; review of K.M.'s nurse's notes and review of Respondent's requested hour-by-hour written activity report notes, that K.M. had suffered difficulties on the late part of the 3:00 p.m.-11:00 p.m. shift on April 25, 1999. Additionally, Beverly Horan stated that K.M.'s change of condition should have been observed by Margaret Edwards, and because of his change of condition, Margaret Edwards should have sent K.M. out or call the resident physician. Beverly Horan opined further that because Margaret Edwards did not send K.M. out or call the physician, Beverly Horan expected Respondent to do so upon her arrival on duty for the ll:00 p.m.-7:00 a.m. shift. Beverly Horan further opined that Margaret Edwards' failure to call the resident physician or send K.M. out, after observing his protruding tongue, slow response, weakness of left extremity and loss of consciousness, was conduct that fell below the minimum standards of acceptable and prevailing nursing practice. Beverly Horan further opined that because Margaret Edwards failed to send K.M. out and failed to call the resident physician, the duty to immediately send K.M. out or immediately call the resident physician fell upon Respondent. According to Beverly Horan Respondent's failure to immediately send K.M. out or call the resident physician upon coming on shift constitutes conduct that fell below the minimum standards of acceptable and prevailing nursing practices. Respondent, at approximately 7:00-15 a.m., April 26, 1999, intercepted Dr. Backe during his morning rounds and requested that he check K.M. Upon examination by Dr. Backe, K.M. was transported from Suncoast to St. Anthony's Hospital. Dr. Backe, in the St. Anthony's Hospital admission report, found that K.M. apparently had no problem during the night of April 25, 1999; however, on the morning of April 26, 1999, there were differences noted in his condition. K.M. was nonverbal, showed a protrusion of the tongue to the right and a rather marked left-side weakness. Dr. Backe, Dr. Pyhel and Dr. Weiss agreed with the findings and suggestions that K.M.'s condition indicated a new cerebrovascular accident. The physicians' collective assessment of K.M. was: (1) acute right cerebrovascular accident on top of old cerebrovascular accident with some question whether this could be embolic, (2) acute myocardial infraction, (3) past left cerebrovascular accident with right hemiplegia and depression, and (4) new right hemispheric stroke.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it recommended that the Department of Health, Board of Nursing issue a final order finding Respondent, Eloise Dunlap Jones, RN, not guilty of violation of Section 464.018(1)(h), Florida Statutes. DONE AND ENTERED this 17th day of November, 2000, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2000. COPIES FURNISHED: Eloise Dunlap Jones 2001 Walton Street, South St. Petersburg, Florida 33712 Diane K. Kiesling, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3231 Tallahassee, Florida 32308 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Ruth R. Stiehl, Ph.D., R.N. Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714
The Issue The issue in these cases is whether Respondent failed to provide appropriate emergency care for a nursing home resident in respiratory distress in violation of 42 Code of Federal Regulation (CFR) Section 483.25 and Florida Administrative Code Rule 59A-4.1288. (All references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the State of Florida. Respondent operates a licensed nursing home at 830 West 29th Street, Orlando, Florida (the facility). Petitioner conducted a complaint survey of the facility on September 14, 2001. The survey cited the facility for a deficiency described in F309, and rated the deficiency with a scope and severity of "G" and Class II, respectively. The deficiency classifications authorized in Subsection 400.23(8) range from Class I through Class IV. Class I deficiencies are not relevant to this case. The statute defines the remaining classifications as follows: A Class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. . . . A Class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practicable physical, mental, or psychosocial well-being as defined. . . . A Class IV deficiency is a deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident. . . . Rule 59A-4.1288 requires nursing home facilities licensed by the state of Florida to adhere to federal regulations found in Section 483 of the Code of Federal Regulations (CFR). In relevant part, Rule 59A-4.1288 provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. The "G" rating adopted by Petitioner for the scope and severity rating of the deficiency alleged in F309 is a rating authorized in relevant federal regulations. A "G" rating means that the alleged deficiency was isolated. Applicable state law authorizes Petitioner to change a facility's licensure rating from standard to conditional whenever Petitioner alleges that a Class II deficiency exists. Petitioner alleged in the survey report that a Class II deficiency existed at the facility and assigned a conditional rating to the facility's license. The conditional rating was effective September 14, 2001, and continued until substantial compliance was achieved. When Petitioner proves that a Class II deficiency exists, applicable law authorizes Petitioner to impose a civil money penalty. Petitioner filed an Administrative Complaint against Respondent seeking to impose a fine of $2,500.00 and subsequently filed an Amended Administrative Complaint. The allegations on which both the change in license status to a conditional license and the proposed fine are based are set forth in F309. The deficiency alleged in F309 is set forth on CMS Form 2567, entitled "Statement of Deficiencies and Plan of Correction" (the 2567). The 2567 that Petitioner used to charge Respondent with the deficiency described in F309 involved only one resident. In order to protect this resident's privacy, the 2567, F309, the Transcript, and all pleadings refer to the resident as Resident 1. F309 alleges that the facility failed to satisfy the requirement of 42 C.F.R. Section 483.25. In relevant part, the federal regulation provides: Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, or psychosocial well-being, in accordance with the comprehensive assessment and plan of care. Use F309 for quality of care deficiencies not covered by 483.25(a)-(m). F309 alleges that the facility failed to satisfy the requirement of 42 CFR Section 483.25 because: Based on interview and record review the facility neglected to provide appropriate emergency care for [Resident 1] in respiratory distress and failure. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the Manual). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce. The facility admitted Resident 1 to the pediatric long-term care unit on November 20, 2000. The admitting diagnosis was cerebral palsy, pneumonia and convulsions, a tracheostomy, and a gastrostomy. Resident 1 could breathe on her own and was being weaned from the trach. She could breathe through her nose at times. She was not on a ventilator but could breathe room air. At all times, Resident 1 was making respiratory effort. Resident 1 was on an apnea monitor. Resident 1 had three stomas. Stomas are the openings for the tracheostomy tube. Her throat structures were very frail. She had received numerous throat reconstructions. She had significant scar tissue and a granuloma at her stoma sites. A granuloma is a tumor-like growth. The granuloma was vascular, and the blood vessels were easily broken. Resident 1 was spastic as a result of her cerebral palsy. On September 7, 2001, at 2:50 a.m., Resident 1's apnea monitor alarm sounded. Staff immediately responded to find that Resident 1 had pulled out her tracheostomy tube and was bleeding profusely. Facility staff called 911 and notified the treating physician and the parents. An ambulance was dispatched to the facility at 2:51 a.m. on September 7, 2001. While awaiting the ambulance, the Registered Nurse on duty (RN) could not detect an apical or radial pulse. The RN did not administer CPR. Rather, the RN established an airway by successfully replacing the tracheostomy tube. Securing a patent airway was the first thing that the RN should have done for Resident 1 under the circumstances. No oxygen can be given without a patent airway. It was difficult for the RN to visualize the trach opening because of the profuse bleeding. The RN was able to tactilely reinsert the tube. Vital signs taken by the RN showed that Resident 1 was alive when EMT personnel arrived on the scene. CPR is not appropriate when vital signs are present. The ambulance and EMT personnel arrived shortly after the RN reinserted the trach tube. At 2:56 a.m., EMT personnel took over the care of Resident 1. EMT personnel worked on Resident 1 for 23 minutes before transporting her to the hospital. Resident 1 died at the hospital at 3:35 a.m., 38 minutes after the EMTs took responsibility for her care. EMT personnel generated EKG strips indicating that Resident 1's heart was beating at some point after they took over. Two sets of x-rays subsequently taken at the hospital substantiate that Resident 1 was alive when EMT personnel took over her care. EMT personnel removed the trach the nurse had inserted and replaced it with an endotracheal tube. Removing the trach eliminated the airway that the RN had established for Resident 1 before EMT personnel arrived. The endotracheal tube was 22 centimeters long and significantly longer and larger than the regular trach tube used for Resident 1. The physician's order for Resident 1 stated that nothing should go past 6 centimeters into Resident 1's trach. It took the EMTs three attempts to get the endotracheal tube placed. The EMTs should have hyperventilated Resident 1 before placing the endotracheal tube. They did not do so. The x-ray taken at 3:42 a.m. in the hospital, shows that the endotracheal tube was improperly positioned in Resident 1's lung. All steps taken by the RN were appropriate for Resident 1 under the circumstances. Petitioner failed to show a nexus between any act or omission by the facility and the harm to Resident 1. The care plan for Resident 1 called for suctioning of her tracheal tube. Care plans are to be followed under normal circumstances. Emergency procedures take precedence in critical situations. Suctioning for Resident 1 was appropriate under normal circumstances when she had a patent airway. If Resident 1 did not have an airway, the first priority is to establish an airway. The RN first established a patent airway for Resident 1. It would have been inappropriate for the RN to suction Resident 1 before establishing an airway because it would have sucked out the air remaining in Resident 1's lungs. Suctioning also could have caused a vasovagal response that could stop the heart and could have caused tissue damage. After the RN opened an airway for Resident 1, the next priority would have been for the RN to check for vital signs. The RN checked Resident 1's vital signs after opening an airway, and the vital signs showed that Resident 1 was alive when EMT personnel arrived on the scene. The presence of vital signs made it inappropriate for either the RN or EMT personnel to administer CPR. CPR is appropriate only in the absence of vital signs. When EMT personnel arrived, they continued the same procedure that the RN had followed. EMT first established an airway by removing the trach tube used by the RN and replaced it with an endotracheal tube. The resident had vital signs after placement of the trach and CPR was inappropriate. F282 relates to failure to implement a care plan. Respondent was not cited under F282. Petitioner stipulated in the Prehearing Stipulation that both the conditional license and fine were based on F309 alone.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the allegations in F309 and the Administrative Complaint, dismissing the Administrative Complaint, and changing Respondent's conditional license to a standard license effective September 4, 2001. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 September, 2002. COPIES FURNISHED: Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, Room 3106 St. Petersburg, Florida 33701 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 2180 Park Avenue, North Suite 100 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3116 Tallahassee, Florida 32308
Findings Of Fact The Respondent is a nursing home licensed by the Petitioner, Department of Health and Rehabilitative Services, pursuant to Chapter 400, Part I, Florida Statutes. The Petitioner is an agency of the State of Florida charged with enforcing the provisions, as pertinent hereto, of Chapter 400, Part I, Florida statutes and section 10D-29.118(6), Florida Administrative Code. On or about July 26, 1983, an investigation was conducted by Stanley Charles Peake, a hospital consultant for the Petitioner's Office of Licensure and Certification, at the Respondent's facility. It was discovered on that date (and established by witness Peake's testimony) that Nurse Sally Albury, a nurse employed by the Respondent, had failed to properly document the administration of medication to two patients who were residents of the Respondent's nursing home, the Port St. Lucie Convalescent Center. Entries recording the administration of medications to the two patients were not made, nor was any record made of the patients' condition prior to the administration of the "prn" medications. Further, the medications were to be on the "prn" or "as-needed" basis, and yet the medications were ultimately recorded as late entries showing that the medication was administered at the same time every day, when instead it was supposed to have been a "prn" medication. Further, the late entries made by Nurse Albury not only did not reflect any explanation of the patients' conditions, but no changes in condition were recorded to justify that medication (Thorazine) and the particular amounts involved. The appropriate way to correct a nursing chart concerning medication when the entry is made "after the fact" is to clearly indicate in the record that it is a late entry, which was not done by Nurse Albury in this case. Finally, the Respondent agreed in the course of the proceeding, that Nurse Albury had failed to follow the requirements of Rule 10D-29.118(6) concerning the nurses recordkeeping responsibilities. The subject deficiencies were only noted as to two charts pertaining to two patients, and immediately upon being informed of the deficiencies caused by Nurse Albury, the facility reprimanded her and ultimately terminated her employment at the Respondent's facility.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and arguments of the parties, it is, therefore RECOMMENDED: That the Respondent, Eden Park Management Company, Inc. d/b/a Port St. Lucie Convalescent Center, be found guilty of a violation of Sections 400.141(6), Florida Statutes, 400.102(1)(a) and (c), Florida Statutes, and Rule 10D-29.118, Florida Administrative Code, for which violations a $100 fine should he imposed. DONE and ENTERED this 31st day of July, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1984. COPIES FURNISHED: K. C. Collette, Esquire Department of Health and Rehabilitative Services District IX Legal Counsel 111 Georgia Avenue 3rd floor West Palm Beach, Florida 33401 Mark W. Hoffman, Esquire HOFFMAN and BERNINI, P.A. 87 Columbia Street Albany, New York 12210 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
