The Issue The issue to be determined is whether Petitioner’s application for licensure by endorsement as a licensed practical nurse in the State of Florida should be granted or denied.
Findings Of Fact Petitioner was licensed as a practical nurse by examination in the State of Ohio, having received her license in Ohio in August of 1994. She practiced in Ohio, generally in long-term care settings, from 1994 to approximately 2009. She was subsequently licensed by endorsement in Virginia on March 17, 2009, and in North Carolina on May 18, 2011. On February 23, 2011, Petitioner received a reprimand against her license in the State of Virginia. The reprimand was issued as a result of a Consent Order in which Petitioner neither admitted nor denied the findings of fact in the Virginia Board of Nursing’s Final Order. Petitioner applied for licensure in North Carolina a few months after the entry of the Virginia Final Order. Her testimony that she disclosed the reprimand in her application for licensure in North Carolina is undisputed and accepted. The application submitted in North Carolina was a paper application. On or about April 27, 2015, Petitioner submitted an electronic application for licensure by endorsement in Florida. The application contains the following question, which Petitioner answered “no”: Have you ever had disciplinary action taken against your license to practice a health care-related profession by the licensing authority in Florida, or any other state, jurisdiction or country? In submitting her application, Petitioner also checked an Affirmation Statement, which includes the following statement: I, the undersigned, state that I am the person referred to in this application for licensure in the State of Florida. I affirm these statements are true and correct and recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084, Florida Statutes. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I furnish any false information in this application I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or a Licensed Practical Nurse in the State of Florida. Petitioner did not complete her on-line application in one sitting. She filled it out over several sessions on the computer, because she had to complete the continuing education required for Florida and had to wait for funds to pay the application fee. Because of the way she completed the application, she did not check her application as carefully as she should have and did not realize that she had answered the question regarding discipline in another state incorrectly. Petitioner had notified North Carolina of her previous discipline when applying in that state. There was no basis presented to indicate that she was affirmatively attempting to conceal her prior discipline, as opposed to being negligent in the completion of her application. Petitioner did not realize the error on her application until she inquired about the status of her application after the Board considered it at its June 2015 meeting. After her inquiry, but before receiving the Notice of Intent to Deny, Ms. Walker wrote to the Executive Director of the Board to inquire what she needed to do to correct her error, stating, “it was an honest mistake of marking the wrong box on the question. I had started and stopped the application several times while gathering all of the information needed.” She provided information regarding the Virginia discipline, and a printout of the documents on file with the Virginia Board of Nursing with respect to the reprimand. Petitioner has been a nurse for over 22 years. She loves her job. She was candid and forthright in acknowledging that it was her error and no one else’s with respect to the answers given on the application. While Petitioner clearly needed to be more careful in preparing her application, no deliberate attempt to deceive was demonstrated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Nursing enter a final order granting Petitioner’s application for licensure by endorsement as a licensed practical nurse. DONE AND ENTERED this 8th day of March, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2016. COPIES FURNISHED: Tara Danielle Walker 146 Smoky Crossing Way Seymour, Tennessee 37865 (eServed) Lynette Norr, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 (eServed) Ann-Lynn Denker, PhD, ARNP Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue The issue in this case is whether the nursing home facility previously owned and operated by Beverly Health and Rehab Fort Pierce, and later owned and operated by Fort Pierce Health Care, ("Nursing Home") was entitled to a standard license during a period in which the Agency for Health Care Administration ("AHCA") assigned it a conditional license.
Findings Of Fact Stipulated and admitted facts Beverly Health and Rehab Fort Pierce operated a skilled nursing facility located at 611 S. 13th Street, Fort Pierce Florida, until November 30, 2001. Fort Pierce Health Care is an entity unrelated to Beverly Health and Rehab Fort Pierce that purchased the facility on November 30, 2001, and has operated it since that date. At all times material to this case, both Beverly Health and Rehab Fort Pierce and Fort Pierce Health Care have been licensed by the State of Florida to operate the subject nursing home pursuant to Chapter 400, Part II, Florida Statutes. The AHCA completed a survey of the nursing home on November 8, 2001. At the conclusion of the survey, the ACHA alleged, relevant to the matters at issue in this case, that there were three separate Class II violations of 42 Code of Federal Regulations Sections 483.15(e)(i), 483.20(k)(3)(i), and 483.25(c). The AHCA filed an Administrative Complaint in this matter which sets forth the factual allegations upon which the ACHA reached the conclusion that there were three Class II deficiencies. Based upon the identification of the Class II deficiencies, the AHCA issued a Notice of Intent to Change Beverly Health and Rehab Fort Pierce's licensure rating from Standard to Conditional, effective November 8, 2001. The AHCA issued Fort Pierce Health Care a Conditional license rating on November 30, 2001, when operation of the facility was transferred. Fort Pierce Health Care timely filed a petition challenging AHCA's intent to assign it a Conditional rating. AHCA changed Fort Pierce Health Care's Conditional licensure rating to Standard, effective December 13, 2001. Facts about call bells During the survey of the subject nursing home facility in November of 2001, a group interview of residents was held on November 6, 2001. Eleven residents participated in the group interview. Nine of the eleven residents participating in the group interview reported to the surveyors that sometimes it can take more than one hour for call bells to be answered. Five of the residents participating in the group interview said that on some occasions they had been incontinent because they could not wait an hour to be helped into the bathroom. One of the residents participating in the group interview has a roommate who has a colostomy. The bag sometimes breaks and comes away from the stoma. On such occasions both roommates will ring their call bells. On several occasions it has taken more than an hour for help to come. During that same group interview, nine of eleven residents participating in the interview stated that their call bells are often not in reach. This can be because the nursing home staff fails to put the call bells within reach, or because the call bells fall on the floor or fall behind the bed. During a tour of the nursing home facility on November 5, 2001, it was observed that the call bells were either on the floor, behind the bed, and/or out of reach of the residents in sixteen of the rooms inspected. Facts about long toenails During the survey of the subject facility during November of 2001, Resident 15 told one of the surveyors that upon admission to the subject facility the resident had requested the staff of the nursing home to arrange for a podiatrist to come cut the resident's toenails. The resident's toenails are all very long and needed to be cut. The resident's physical condition was such that he/she could not cut his/her toenails, and because the resident suffered from diabetes, it was necessary to have the toenails cut by a podiatrist. During the course of the survey the records of the facility did not document any effort to obtain the services of a podiatrist for Resident 15. At the time of the survey in November of 2001, all of Resident 15's toenails were thick, were approximately two inches long (measuring for where the nail changes color from pink to white), and were curving around the tips of the toes. The evidence was inconclusive as to whether the length and shape of the toenails interfered with Resident 15's ability to walk or to perform any other activities of daily life. Facts about order for oxygen On October 30, 2001, a physician wrote an order for oxygen to be delivered through a tracheal collar to Resident 23. On November 5, 2001, during the AHCA survey of the subject nursing home, one of the survey team members observed that for a period of approximately ten or fifteen minutes Resident 23 was not wearing his tracheal collar and, therefore, was not receiving the oxygen ordered by his physician. When the matter was brought to the attention of nursing home staff, the tracheal collar was placed on Resident 23 and he once again received the oxygen ordered by his physician. There is no persuasive evidence in the record as to whether Resident 23 did or did not suffer any harm as a result of not having his oxygen equipment in place during the time period observed by the survey team member. Similarly, there is no persuasive evidence in the record as to why Resident 23 was not wearing his tracheal collar when he was first observed by a member of the survey team. Facts about physician order for Foley catheter Resident 18 suffered from, among other things, urinary and bowel incontinence. Because of those conditions he wore incontinence briefs. On October 17, 2001, his physician wrote an order for a Foley catheter to be inserted in Resident 18. The purpose of the Foley catheter was preventative--to reduce the risks of infection and to prevent or reduce the likelihood of the development of pressure sores. At the time the order for the Foley catheter was written, Resident 18 did not have any pressure sores.3 Upon receipt of the physician's order for a Foley catheter for Resident 18, a facility nurse attempted to insert the catheter into Resident 18. The nurse was unsuccessful in her efforts because Resident 18 appeared to have an obstruction that made it impossible for her to complete the task. In that situation, good nursing practice requires the nurse to cease efforts to insert the catheter and to contact the Resident's physician, which she did. The physician then directed the nurse to schedule an appointment with a urologist so that the urologist could insert the Foley catheter. Following some delays due to the unavailability of the urologist originally suggested by the resident's physician, an appointment was made to have a urologist insert the Foley catheter in Resident 18. The urologist was unsuccessful the first time he saw Resident 18, but a few days later, on November 12, 2001, the urologist successful inserted the catheter. The physician who originally ordered the insertion of the catheter was kept advised of the status of efforts to accomplish what he had ordered. The physician clarified that the insertion of the Foley catheter was not an emergency matter and that there was no urgency in having the catheter inserted. The physician was satisfied with the action taken by the nursing home staff in response to his order regarding the catheter and was of the opinion that the action taken by the nursing home staff in that regard constituted a timely and appropriate response to what he had ordered. Resident 18 did not suffer any harm as a result of the delays in inserting the Foley catheter. Facts about pressure sores During the course of the survey of the nursing home facility in November of 2001, one of the survey team members observed that Resident 18 had what appeared to the survey team member to be pressure sores high on the back of each thigh, at about the area where the upper thighs meet the lower part of the buttocks. These sores were at approximately the location where the resident's upper thighs would rub against the edges of the incontinent briefs worn by the resident. Wound care notes maintained by the nursing home facility stated that Resident 18 developed a Stage II pressure sore on the right back thigh on October 24, 2001, and a Stage II pressure sore on the left back thigh on October 30, 2001. The wound care notes also indicated that Resident 18 did not have any similar wounds prior to October 24, 2001. The wound care nurse who prepared the notes regarding the two Stage II pressure sores has since had second thoughts about the matter. The wound care nurse is now of the view that the wounds she saw on October 24 and 30 of 2001 and described at that time as pressure sores were in fact bullous pemphigoid sores. At certain stages of the development of bullous pemphigoid sores and pressure sores, it is easy to mistake one for the other. The wound care nurse also clarified in her testimony that the two wounds she observed on the backs of Resident 18's thighs were not located over a bony prominence. Review of the clinical record for Resident 18 reveals that the resident was admitted to the facility with the following diagnoses: Alzheimer's Disease, hypertension, and bullous pemphigoid. Physician notes regarding Resident 18 prepared on October 17, 2001, note the presence of "decubitus ulcers to perineal groin and genital areas." The physician who prepared the notes regarding the "decubitus ulcers" also has since had second thoughts about the matter. The physician is now of the view that the wounds he saw on October 17, 2001, and described as "decubitus ulcers" were in fact bullous pemphigoid sores. The physician agrees with the wound care nurse that at certain stages of the development of bullous pemphigoid sores and pressure sores, it is easy to mistake one for the other. The physician also clarified in his testimony that the two wounds he observed on October 17, 2001, were not located over a bony prominence. The AHCA has prepared a manual to be used when its employees are conducting surveys of nursing home facilities. That manual includes the following definition: "Pressure sore" means ischemic ulceration and/or necrosis of tissue overlying a bony prominence that has been subjected to pressure, friction or shear. The staging system presented below is one method of describing the extent of tissue damage in the pressure sore.
Recommendation On the basis of the foregoing findings of fact and and conclusions of law, it is RECOMMENDED that the AHCA issue a Final Order in this case to the following effect: Concluding that the violations alleged in Count I regarding the location of and the responses to call bells have been proved by the preponderance of the competent substantial evidence and that those violations are Class II deficiencies; Concluding that the violation alleged in Count I regarding long toenails is, at most, a Class III deficiency; Concluding that the violation alleged in Count II regarding providing oxygen to a resident is, at most, a Class III deficiency; Concluding that the violation alleged in Count II regarding insertion of a Foley catheter should be dismissed for lack of persuasive competent substantial evidence; Concluding that the violation alleged in Count III regarding pressure sores on a resident should be dismissed for lack of persuasive competent substantial evidence; and Concluding that the violations described in subparagraph (a), above, provide a sufficient basis for the issuance of a Conditional license to the Nursing Home from November 8, 2001, until December 13, 2001. DONE AND ENTERED this 3rd day of March, 2003, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 March, 2003.
Findings Of Fact Petitioner attended a two year training program for physician's assistants at the State University of New York in Stonybrook. In the course of this program, petitioner spent ten weeks in an obstetrics rotation. During this ten week period, she delivered at least fifteen babies. She also attended mothers post partum. After moving to Florida, petitioner applied to respondent for a license as a lay midwife. Although she has approached more than ten obstetricians practicing in Florida, she found none willing to supervise her work as a midwife. In support of her second application for license as a lay midwife, petitioner attached a letter signed by Elspeth Reagan, M.D., and another, reciting that petitioner "performed approximately 15-20 normal, spontaneous deliveries under physician supervision and assisted with numerous others." Dr. Reagan's signature had been acknowledged before a notary public. Dr. Reagan is licensed as a physician in New York but is not licensed in Florida. Petitioner did not furnish respondent a list of the names, home addresses or delivery dates of any of the deliveries she performed. On December 4, 1978, respondent denied petitioner's second application on the grounds that it did "not conform to the requirements of . . . Chapter 10D-36.21(2) . . . . [or of] Chapter 10D-36.22(1)(a)2.
Findings Of Fact On November 17, 1987, Petitioner was awarded CON 3746 to construct a 60-bed addition to its existing facility, Suwannee Health Care Center, in Live Oak, Florida. On July 14, 1988, Petitioner filed the application in the instant case. Petitioner proposes to transfer the 60 beds authorized by CON 3746 to Florida Land Trust Number Seven (the Land Trust). The Land Trust is the owner of a 60-bed nursing home in Live Oak, Florida, called Surrey Place Nursing Center of Live Oak (Surrey Place). Surrey Place is operated by Health Care Associates (HCA), which is owned by the beneficiaries of the Land Trust. The construction of Surrey Place was authorized by CON 3395 and Surrey Place opened in January, 1988. The application for CON 3395 was filed on July 16, 1984. Petitioner's proposal is for the 60 beds to be constructed as a 60-bed addition to Surrey Place. By letter dated August 11, 1988, HRS returned the application for expedited review of the transfer to Petitioner. The letter states that the proposal by Petitioner "is not merely a transfer of a CON, but rather an addition of beds to an existing facility which would change the scope and operation of the existing nursing home. Therefore, the addition of beds requires a full batched review." Petitioner's Exhibit 3. HRS did not review the application on its merits prior to issuing the August 11, 1988 letter. Suwannee Health Care Center and Surrey Place are both located in the same planning subdistrict and are located within one-half mile of each other. Transfer It is HRS's policy that a "transfer" occurs only when a new owner agrees to take over a project and implement it exactly as originally approved. Also, it is HRS's policy that the transferee should be the applicant for a transfer. In the past, however, HRS has accepted for review and approved transfers where the application was filed by the transferrer. Also, HRS in the past has approved transfers which involved more than just a mere change of ownership. These transfers resulted in the combination of the beds approved by the CON to be transferred with the beds approved by other CONs with the end result being the construction of a larger nursing home facility than was contemplated under either CON. Combination During the 1988 Session of the Florida Legislature, Health Quest Corporation (Health Quest) advocated to the Legislature that certain legislation amending Chapter 381, Florida Statutes, be enacted. Health Quest drafted the proposed legislation and lobbied for its enactment. Health Quest wanted the amendment because it had a CON for a 180-bed nursing home to be built in Sarasota County which it wanted to divide into a 120-bed freestanding facility and a 60-bed addition to an existing facility in Sarasota County. During the 1988 Legislative Session, HRS and Health Quest entered into an Agreement. The entire Agreement provides that: AGREEMENT This Agreement is made between Health Quest Corporation ("Health Quest") and the Department of Health and Rehabilitative Services ("HRS") this 31st day of May, 1988. RECITALS Health Quest holds CON No. 3278 ("the CON") authorizing a 180-bed nursing home in Sarasota County. Health Quest operates a 53-bed nursing home ("the Facility") adjacent to the Lake Pointe Woods retirement complex in Sarasota. On September 29, 1987, Health Quest filed with HRS an application seeking expedited review for its proposal to divide the CON into a 60-bed component and a 120-bed component. As set forth in the application, the 60-bed component is for an addition to the Facility and the 120-bed component is for a freestanding facility. Since on or before September 4, 1987, it has been the Department's position that such division or consolidation could be accomplished only through batched comparative review. Currently pending before the Division of Administrative Hearings ("DOAH") is a Section 120.57(1) petition filed by Health Quest contesting the refusal of HRS to review Health Quest's September 29, 1987 application as a project subject to expedited review. The Florida Legislature is considering the enactment of the Affordable Health Care Assurance Act of 1988 ("the Act"). The Act would amend Section 381.706(2), Florida Statutes, to add subsections (j) and (k), providing for expedited review of applications to divide a single approved facility or to consolidate two or more approved certificates of need into a single facility. The Act would also add Section 381.705(3) to limit the criteria for review of certain applications filed under Section 381.706(2)(j) or 381.706(2)(k) and would add Section 381.710(2)(d) providing for extension of the validity period of CONs for which applications under Section 381.706(2)(j) or 381.706(2)(k) are filed. Contingent upon passage of the Act, HRS and Health Quest wish to settle the DOAH proceeding and other litigation involving the September 29, 1987 application to divide CON 3278. TERMS HRS acknowledges that an applicant would be entitled, under the Act, to expedited review of applications not only to divide or consolidate CONs but to do both at the same time, e.g., divide 60 beds from CON 3278 and consolidate these beds into the existing beds at the Facility now operated by Health Quest. At such time as the Act becomes law and Health Quest files an application substantially similar to its September 29, 1987 application, HRS agrees that the validity period of CON 3278 shall, due to litigation involving the division and consolidation of CON 3278 commenced on February 17, 1988, be extended 168 days to January 17, 1989. This Agreement does not constitute a waiver on the part of Health Quest of any right to additional extension of the validity period after August 2, 1988 if the Department fails to approve the application on or before said date. Upon approval of the application, Health Quest shall dismiss the DOAH proceeding and the District Court of Appeals proceeding involving the division of CON 3278. The Agreement was signed by J. Robert Griffin, M.A., J.D., HRS's Deputy Assistant Secretary for Regulation and Health Facilities, and Charles M. Loeser, Health Quest's Vice President and General Counsel. The amendments referred to in the Agreement were enacted by the Legislature and are now codified in Sections 381.706(2)(j) and (k), 381.705(3) and 381.710(2)(d), Florida Statutes (1988 Supp.). On July 1, 1988, Health Quest submitted to HRS a second application for expedited review of its proposal to divide 60 beds from a 180-bed CON and add the 60 beds to an existing 53-bed facility which it owned. HRS reviewed the application using the review criteria set forth in Section 381.705(3), Florida Statutes (1988 Supp.), approved it, and issued CON 5655 on August 5, 1988. Notwithstanding the passage of the 1988 Amendments, the Agreement, and the issuance of CON 5655, HRS's interpretation of Section 381.706, Florida Statutes (1988 Supp.), is that the addition of beds to an existing facility requires full comparative batched review and, therefore, cannot be approved by expedited review. HRS interprets the provisions of Section 381.706(2)(j) as requiring that at least two CONs be in existence at the time of the proposed combination. In HRS's view two CONs can only exist if the two facilities approved by the CONs have not been built, since it is HRS's policy that a CON ceases to exist when a license is issued for the facility to begin operation. Review Criteria The proposed addition of 60 beds to Surrey Place is financially feasible. The Land Trust and its principals have the financial resources to complete the project and are capable of developing and managing the project. The Land Trust and its principals have previous experience successfully operating nursing homes in Florida and have a history of providing quality care. Surrey Place was built with the expectation that it would eventually consist of 120 beds. Except for the addition of the 60 beds, the scope and operation of Surrey Place will not change.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services issue a Final Order approving Petitioner's application. DONE and ENTERED this 14th day of March, 1989, in Tallahassee, Leon County, Florida. JOSE DIEZ-ARGUELLES 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 14th day of March, 1989. APPENDIX Rulings on Petitioner's Proposed Findings of Fact 1.-10. Accepted. Some of these proposed findings of fact are subordinate to facts found. 11. Irrelevant. 12.-27. Accepted. Some of the proposed findings of fact are subordinate to facts found. 28.-30. Accepted, except to the extent they imply that the approval was for the addition of beds to an existing facility. 31-34. Rejected as irrelevant; what final action HRS would have taken is unknown. Irrelevant. True but irrelevant; HRS is free to change its policy if it can explicate it at hearing. 37.-39. Accepted. 40.-42. Accepted, except last sentence of 42 which is rejected. The Careage transfer was for an addition of beds to a facility not yet built. 43.-47. Rejected as irrelevant. 48-54. Accepted. 55.-59. Accepted. 60.-61. Accepted, but the policy manual describes HRS's past unwritten policy. 62. Rejected as argument. Rulings on HRS'S Proposed Findings of Fact Accepted. Accepted, but subordinate to facts found. Accepted. However, there is sufficient evidence to conclude that the Land Trust through its trustee and beneficiaries will be able to fund the project. Accepted. 5.-6. Accepted that this is HRS's policy and interpretation of the statutes. However, see Conclusions of Law. Accepted. Accepted that this is HRS's basis for its interpretation. However, in this case, the competitive environment is not changed. Rejected. The Department was directed to issue the CON because there was need in the area and not because of the uniqueness of the facility. First sentence accepted to the extent that Petitioner did not specifically mention Section 351.706 in its application. However, by the time of hearing the applicability of the statute was not in question and an issue in the case was whether the proposal met the language of the statute. Rest of paragraph accepted as HRS's policy. 11.-14. Accepted as HRS's policy. True, but irrelevant. Rejected as argument. Irrelevant, since no final action on the merits was taken. Accepted that this is HRS's policy, but see Conclusions of Law. Accepted that this is HRS's current policy. However, HRS has in the recent past accepted and approved transfer applications filed by the transferee. First two sentences accepted. Last sentence rejected; HRS knew enough to enter into the agreement and failed to present any evidence that what it knew then somehow changed. Accepted. Rejected as irrelevant and argument. Rejected as argument. COPIES FURNISHED: Boone, Boone, Klingbeil and Boone, P.A. Stephen K. Boone, Esquire 1001 Avenida del Circle Venice, Florida 34284 Lesley Mendelson, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue Whether Rule 64B8-9.009(6)(b)1.a., Florida Administrative Code, is an invalid exercise of delegated legislative authority pursuant to Section 120.52(8), Florida Statutes.
Findings Of Fact Stipulated Facts Section 458.331(1)(v), Florida Statutes, authorizes the Board to adopt rules establishing the standards of practice and care for particular physician practice settings. The Board is the agency that adopted Rule 64B8-9.009, Florida Administrative Code, regarding standards of care for office surgery. Petitioner, Victor Ortiz, is a Certified Registered Nurse Anesthetist (CRNA), and is licensed by the Board of Nursing pursuant to Chapter 464, Florida Statutes. Mr. Ortiz is not a member of the Florida Association of Nurse Anesthetists or the Florida Nurses Association. Mr. Ortiz provides anesthesia care to patients in various settings under the supervision of physicians licensed pursuant to Chapters 458 and 459, Florida Statutes. Among other functions, Mr. Ortiz orders preanesthetic medications; administers regional, spinal, and general anesthesia under protocol and the supervision of a physician; provides life support functions; and monitors patient condition during surgery and in the recovery room. Prior to April 15, 2002, the effective date of Rule 64B8-9.009(6)(b)1.a., Florida Administrative Code (the Rule), Mr. Ortiz administered anesthesia under the supervision of operating physicians for all types of office surgeries, including surgical procedures classified by the Board of Medicine as "level III." Mr. Ortiz provided anesthesia services to patients in level III office surgeries under the supervision of M.D. or D.O. operating physicians four or five days per week on average. The Rule requires that if the anesthesia provider is a CRNA, there must be a licensed M.D. or D.O. anesthesiologist, other than the surgeon, to provide direct supervision of the administration and maintenance of the anesthesia in level III office surgeries. Since the adoption of the Rule, the physicians for whom Mr. Ortiz previously provided anesthesia services will no longer employ him for level III office surgeries because they believe that it is unnecessary and cost-prohibitive to pay Mr. Ortiz to provide the actual anesthesia services and an anesthesiologist to directly supervise him. Consequently, Mr. Ortiz' revenues have been reduced and his office practice has been substantially and adversely affected.
Findings Of Fact The Respondent, Jo Ann Murphy, is a licensed registered nurse in the State of Florida, holding license number 69367-2. The Respondent received her nursing education and training in Albany, Georgia, and became a registered nurse in Florida in 1973. In 1977 she became certified by the American College of Obstetrics and Gynecology as a nurse clinician. In 1981 she was certified as a clinical nurse practitioner in ambulatory gynecology and obstetric care. Until 1979, the Respondent was head nurse of OB/GYN Labor and Delivery, Postpartum Unit, at West Florida Hospital in Pensacola. From 1979 to 1983 she was office nurse and nurse practitioner in the office of Thomas H. Wyatt, M.D., in Pensacola. The Respondent became employed at University Hospital in Pensacola on April 25, 1983, primarily because of her knowledge in the field of Caesarian Sections. She was terminated less than one month later, on May 23, 1983, while still in her probationary period, for unsatisfactory nursing performance. On May 18, 1983, another registered nurse on the morning shift with the Respondent, testified that she smelled alcohol on the Respondent's breath at 7:30 A.M. Although this witness worked with the Respondent each day, this is the only time she contends that she smelled alcohol on her breath, and this witness did not see the Respondent stagger or exhibit any other symptom of alcohol use. This witness testified that the Respondent showed a lack of initiative, but that when the Respondent was told to do something she would do it well, and that she never had any concern regarding the Respondent's ability to function as a nurse. Two other hospital employees, a Licensed Practical Nurse (LPN) and a nurses aide, testified that they smelled alcohol on the Respondent's breath on a date unknown. The nurses aide, however, never saw the Respondent stagger, or exhibit any other sign of intoxication, and she says she only smelled alcohol on the Respondent's breath on one occasion. The LPN testified that she also saw the Respondent sitting at her desk in a daze or stupor, but this symptom was not observed or described by any other witness. Both of these witnesses worked with the Respondent each day, but only claimed to have smelled alcohol on her breath on one occasion. The Respondent denied having any alcohol to drink on or before any shift that she worked while employed at University Hospital. Her husband and her daughter confirmed that the Respondent had not consumed alcohol on the morning of May 18, 1983, before going to work. Another witness, a physician who was in the residency program at University Hospital while the Respondent worked there, had the opportunity to work in close contact with the Respondent on five or six occasions in the labor and delivery suite, and never smelled alcohol on her breath, or saw her stagger or exhibit any other sign of intoxication. This doctor found her to be alert, she performed her functions with no problems, and he had no complaints with her. The nursing director at University Hospital, who conducted the termination interview of the Respondent, observed what she characterized as red, blotchy skim on the Respondent, and the Respondent appeared to be nervous. However, this witness did not smell alcohol on the Respondent's breath, and she saw no other symptoms of alcohol use. Both the Respondent and the physician who employed her for four years confirmed the Respondent's skin blotches, but this is an inherited tendency having nothing to do with medical problems or alcohol use. The nursing director and the patient care coordinator both testified that the Respondent stated at her termination interview that she used to have an alcohol problem, but that she had been rehabilitated. The Respondent denies having made such a statement. Another physician, in addition to the one mentioned in paragraph 7 above, who was in labor and delivery with the Respondent more than ten times, and probably every day she worked at University Hospital, did not smell alcohol on her breath although they worked together closely. This witness found the Respondent's nursing abilities to be competent and very professional. Likewise, the physician who employed the Respondent for four years had no problems with her or her work, he found her prompt and attentive in her duties, and an excellent nurse. On another occasion, not specifically dated, but separate from the instances of the alleged alcohol breath, the Respondent is charged with having "defied an order to stay with a critically ill patient". The evidence is completely devoid of any explicit order given to the Respondent to stay with any patient during the time she worked at University Hospital. Instead, it is contended that the Respondent violated what are characterized as "standing orders" that a nurse should not leave a patient who has been assigned to her. These "standing orders" are supposed to have been set forth in policy manuals given to employees of the hospital, but no such manual was offered in evidence; nor was the nature of the "standing orders" explicitly described by the witnesses. On the one occasion when the Respondent is charged with defying orders to stay with a patient, the patient was being attended also by an LPN when the Respondent left to telephone the patient's physician. In the same general area, but behind the curtains of an adjoining cubicle, another registered nurse was attending a patient there. The patient whom the Respondent and the LPN attended went into deceleration after the Respondent had left to telephone her physician. The LPN needed help with the oxygen and to turn the patient. The other registered nurse in the adjoining cubicle came in and the patient was stabilized. The Respondent returned in a few minutes. It is below minimum standards of acceptable and prevailing nursing practice for a registered nurse to leave a patient, whose condition is considered critical, in the care of an LPN. Yet the patient was not in critical condition when the Respondent left to call the physician, and there was another registered nurse in close proximity who responded when the need for her arose. Thus, there is not sufficient competent evidence to support a finding of fact (1) that the Respondent either had alcohol on her breath or was in a drunken condition while on duty; (2) that the Respondent defied an order to stay with a critically ill patient; or (3) that the Respondent left a patient whose condition is considered critical in the care of an LPN. The competent evidence in the record supports a finding of fact (1) that the Respondent did not have alcohol on her breath at any time while employed at University Hospital; (2) that the Respondent did not defy an order to stay with a critically ill patient; and (3) that the Respondent did not leave a patient whose condition is considered critical in the care of an LPN.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against the Respondent, Jo Ann Murphy, be dismissed. THIS RECOMMENDED ORDER entered this 10th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 10th day of January, 1985. COPIES FURNISHED: Julia P. Forrester, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Thomas C. Staples, Esquire P. O. Box 12786 Pensacola, Florida 32575 Ms. Helen P. Keefe Executive Director, Board of Nursing Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Pursuant to its Administrative Complaint filed July 12, 1982, the Department of Professional Regulation, Board of Medical Examiners, seeks to revoke, suspend or take other disciplinary action against the Respondent as a licensed physician in the State of Florida. It was stipulated by the parties that the Respondent is a physician licensed by the State of Florida. The petitioner is an agency charged with the licensure and regulation of licensure status, professional practice and discipline of physicians licensed in Florida. The Respondent is licensed to practice medicine also in the states of Virginia and North Carolina. He graduated from medical school at the University of Virginia in 1949 and has been in active practice in Florida since 1959, when he began practice at Fernandina, Nassau County, Florida. The Respondent maintains an office at Fernandina, as well as one in Jacksonville. He is 63 years of age and practices in the area of family practice. He has been a member of the American Academy of Family practice since 1973. He is also a member of the Duval County Academy of Family Practice and has served as an officer of that organization and an active participant. The Respondent has been on probation pursuant to a stipulation entered into with the Board of Medical Examiners in December, 1981. The Respondent was placed on probation for a period of two years, effective January 4, 1982, after having admitted, by stipulation, that he issued a pre-signed prescription for Sultrin Creme for use by a nurse midwife in 1980; and that he prescribed Percocet and Percodan inappropriately to a patient in 1980. The Respondent's practice is primarily an office practice with practice at clinics around the state to which he devotes a certain number of days per month. The St. Augustine Maternity Clinic, Inc., apparently owned and operated by Carolle Baya (the evidence does not establish her precise relationship to the clinic) is one type of such clinic. Carolle Baya is a lay midwife, who at times pertinent hereto was not licensed to practice lay midwifery in the State of Florida. Because of her continuation in the practice of lay midwifery in St. Johns County, she was prosecuted in 1979 by the State Attorney for St. Johns County, which criminal charges were later dropped. She was then sued by the Department of Health and Rehabilitative Services in an attempt by that Department to enjoin her from practicing lay midwifery without a license. Carolle Baya obtained a favorable judgment in that civil action when the lay midwifery statute, then in effect, was declared unconstitutional by the Circuit Court in and for St. Johns County, Florida. Thus, Carolle Baya, at times pertinent hereto, was practicing lay midwifery, although without a license, under the legal aegis of the Circuit Court of the 7th Judicial Circuit, pursuant to that final judgment entered on October 10, 1979, in Case No. 79-313 (Respondent's Exhibit 4). Under the law as it existed at times pertinent to this case, the Department of Health and Rehabilitative Services required lay midwives to associate themselves with physicians, at least for purposes of providing examination of their patients prior to home births. (Rule 10D-36.25(a), Florida Administrative Code, "Supervision") Nevertheless, no physician in St. Johns County undertook to provide an association or "backup" to Carolle Baya for examination or backup care for her patients. Indeed, as established by Dr. Mussallem (for the Petitioner), the obstetricians in St. Johns County were responsible in general and Dr. Mussallem in particular, for the complaint lodged against Carolle Baya regarding her practice as a lay midwife. Thus, it was that Carolle Baya formed some sort of "backup" examination arrangement for her patients with the Respondent. On or about January 25, 1982, a newspaper advertisement was placed in the St. Augustine Record, stating that the Respondent was associated with the St. Augustine Maternity Center, Inc. The Respondent's name at the time of the filing of the Administrative Complaint on July 12, 1982, apparently appeared on the front of the St. Augustine Maternity Center, Inc., on a sign, although no evidence established that it was present on that facility at any earlier pertinent date. It was not established how the newspaper advertisement came to be published in the newspaper, and it was not shown for what purpose the Respondent's name appeared on the sign on the front of the St. Augustine Maternity Center, Inc. (either owned or operated by Carolle Baya) At the time the Administrative Complaint was filed, the Respondent was visiting that maternity clinic once a month for purposes of performing examinations of Carolle Baya's patients and general gynecological consultation and/or treatment. Dr. Mussallem, the only witness with any knowledge of the contents of the newspaper advertisement and the supposed sign, could not show whether or when the unintroduced newspaper advertisement was actually placed in a newspaper, nor the person responsible for its publishing, nor did he have any direct knowledge regarding whether the sign was actually displayed on the front of the clinic, nor who might have been responsible for doing so. His testimony in this regard is thus entirely hearsay and not creditable herein. Crystal Mull was a patient of Carolle Baya's throughout the entire term of her pregnancy, with a view toward having a midwife perform home delivery of her baby. Her entire prenatal care was under the direction of Carolle Baya. The Respondent, however, did examine Crystal Mull in approximately the eighth month of her pregnancy, October, 1981, with her mother present. Crystal Mull's mother, Mrs. Luellen McNairy, was of the belief that Dr. Britton was "like a sponsor or something like that." She admittedly was not sure what his relationship was with Carolle Baya, but that she "felt" that Carolle Baya referred to him for any medical questions she was unable to answer concerning a patient. The testimony of Mrs. McNairy and the testimony of Dr. Mussallem concerning what they "understood" the relationship between Britton and Baya to be (they admittedly had no direct knowledge), is the only testimony or evidence adduced by the Petitioner to show any sort of association of the Respondent with Carolle Baya's midwifery practice. The Respondent only went to Carolle Baya's clinic one day a month to perform gynecological examinations of her patients and was not present at the clinic supervising or advising Carolle Baya as to the care of her patients on a day-to-day or even a weekly basis, particularly the patients who are the subject of the Administrative Complaint. In any event, Carolle Baya wanted the doctor to meet her patient, Crystal Mull, to examine her so he could be familiar with her medical history. When he examined her he noted that the baby was quite large and he made a statement, according to Mrs. McNairy, to the effect that she might not be able to have the baby regularly and might have to be transported to the hospital. In the words of Mrs. McNairy, the Petitioner's witness herself, "It seemed to me that he was alerting us to the possibility that she might have to go to the hospital; there might be a difficult labor." Ultimately, Crystal Mull did have to be transported to the hospital for her delivery, although she had a normal, uneventful delivery and healthy baby. On the morning of her delivery, however, after progressing with her labor to a point, she failed to progress further and ceased to dilate. At approximately 1:30 or 2:00 on the morning of November 22, 1981, Ms. Baya came to the residence of Crystal Mull and her mother Luellen McNairy. Ms. Baya did a vaginal examination and periodically checked the fetal heart rate. The fetal heart rate was closely monitored to determine if any fetal distress was indicated by the baby's heartbeat. At approximately 10:00 the following morning, Carolle Baya called an unidentified person supposedly to consult with regarding doing something to relieve her patient's discomfort and pain, after she had been in labor for approximately 10 hours. Witness McNairy "believed" that Carolle Baya called Dr. Britton, however, the witness had no direct knowledge of who was on the other end of the telephone conversation with Carolle Baya and she is unaware of the substance of that conversation. A short time after the end of the telephone conversation, Mrs. McNairy observed Carolle Baya give Crystal Mull an injection in the hip and she seemed to relax some after that. Mrs. McNairy has no knowledge of the nature of the substance which was injected (although she surmised it might be Demerol). At about 12:30 pm on November 22, the membranes were ruptured, but the patient had not yet dilated as far as 8 centimeters. Thus, it was that Carolle Baya suggested that her patient and the patient's mother decide what they wished to do, that she did not want to make the final decision herself. Accordingly, the patient was admitted to the hospital at about 1:00 that afternoon. Ultimately, Crystal Mull experienced a normal delivery and she and her baby are currently in good health. On January 2, 1982, Dr. Anthony Mussallem saw Susan Thompson at around 6:30 or 7:00 in the evening. Her sister-in-law brought her in to see him at that time, at which she had reached in essence the full term of her pregnancy with her child being due on approximately January 7 or 8, 1982. The patient reported to Dr. Mussallem that Carolle Baya had been taking care of her prenatal course of care up until that point. While Carolle Baya was examining her that day in the St. Augustine Maternity Center, Inc., the patient's amniotic fluid began leaking and, inasmuch as labor usually begins within 24 hours of such an event, but in her case did not commence within 24 hours, the patient became worried and ultimately came in to see Dr. Mussallem. Dr. Mussallem did not speak with Carolle Baya concerning the condition of Susan Thompson nor did he see any medical records which had been maintained by Carolle Baya's maternity center concerning that patient. The doctor never talked to Dr. Britton concerning this patient. The patient informed him that she was given some tablets, supposedly to stimulate her labor and did not go into labor, but the doctor could not say what type of tablets were administered to the patient and, indeed, had no direct knowledge whether they were administered and, if so, who had administered them. Neither Dr. Mussallem nor Dr. Larroude have ever met the Respondent and neither could establish in any way the Respondent's connection, if any, with the maternity center owned or operated by Carolle Baya, nor with her practice as a lay midwife as any such relationship might have related to either patients Mull or Thompson. The most Dr. Mussallem, and indeed Dr. Larroude, could establish (in a "hearsay on hearsay" fashion), was that they "understood" that Dr. Britton provided "backup" to Carolle Baya in her midwifery practice. Dr. Mussallem could not say whether Pitocin or any other drug had actually been given Susan Thompson before he saw her as a patient on January 2. In any event, there was also no demonstration that the Respondent was aware at all that any medication had been prescribed either of the above-named patients or administered to them by Carolle Baya or anyone else. If indeed the patients were administered the drugs alleged in the Administrative Complaint, the Respondent did not support this activity nor have any knowledge of it. Susan Thompson was ultimately delivered of her baby on January 2, at 11:54 p.m., and both mother and child had a normal, uneventful birth. Susan Thompson could have been delivered of her baby by a trained midwife, inasmuch as she had a normal delivery, with no problems arising. In summary, the testimony of Drs. Mussallem and Larroude was predicated in all portions related to the charges in the Administrative Complaint on hearsay and those witnesses had no direct knowledge of the care given the patients in question at Carolle Baya's clinic by Carolle Baya and no knowledge of what type medication, if any, Carolle Baya or others unknown may have administered to those patients. Further, these witnesses do not know the Respondent, have no knowledge of the character and nature of his practice and have no direct knowledge regarding his professional relationships with Carolle Baya or her clinic, if any. These frailties render it impossible to accord significant weight to the testimony of these two witnesses. Ruth Hunter, Patricia Elaine Martin and Mary Ruth Ann Arick are all owners or supervisors of various women's health clinics. Dr. Britton is employed as a contract physician at each of these clinics and works at each clinic one or more times a month. The clinics are in Gainesville, Orlando and Holly Hill. The doctor is employed to perform first trimester abortions, vasectomies, insertion of IUDs, fitting of diaphragms and to provide miscellaneous gynecological care. All three of these witnesses established that the doctor is the best of any of the physicians employed by them, competently and professionally performing such procedures with a high degree of care and interest in the patient's condition. His practice at these clinics is characterized by his spending a great deal of time conversing with his patients and generally taking an interest in their condition and problems. They have all experienced that Dr. Britton has the lowest "complication rate," that is, problems arising after he performs various procedures, of any doctor who practices at their clinics. The testimony of these three witnesses was corroborated by that of Dr. John Freeman, a full-time physician with the Gainesville Women's Health Center, who established that the Respondent easily meets the appropriate standard of practice in all the work that he has performed for the Gainesville health center and excels above that standard of practice in most cases. Dr. Freeman was aware of the charges against Respondent in a general sense and established that injudicious use of drugs is totally out of character for the Respondent and that the Respondent is very conservative in prescribing any drugs, especially pain medications. Dr. Freeman is the staff physician at the clinic who reviews all procedures performed by other physicians. Ruth Hunter is a registered nurse, employed with the Gainesville Women's Health Center, who has worked with the Respondent in the vasectomy clinic at that facility. She has been an operating room nurse for approximately 15 years, and, based upon her experience with such duties and with physicians, she demonstrated that the Respondent is very capable in performing the procedures he was retained to perform for the clinic, with a very low complication rate and a very low incidence of prescribing any drugs at all during his practice at the clinic. Dr. Willard R. Gatling testified by deposition as an expert witness on behalf of the Respondent. He has known the Respondent professionally for approximately 15 years and the two of them have regularly attended educational and other meetings of the Duval County Academy of Family Practice on numerous occasions. Dr. Gatling has practiced medicine in the Jacksonville area for over 35 years as a family practitioner and obstetrician. He has seen the Respondent's patients on a number of occasions and the Respondent has seen Dr. Gatling's patients on a number of occasions since 1967. He is aware of the Respondent's current level of care for and treatment of his patients and based upon his experience with seeing patients who have previously seen Dr. Britton, his treatment of patients appears to be appropriate and proper and complies with the standard of care of a competent medical doctor as is accepted and practiced in northeast Florida. Dr. Gatling is aware of the Respondent's current probation and his past disputes with other physicians in Fernandina which resulted in those physicians voting him off the staff of the hospital there. Neither these problems nor the current charges have changed his opinion of the Respondent's competency. Raymond Michael Eichorn was director of the Nassau County Alcohol and Drug Abuse Council from November, 1975, to November, 1979. He became acquainted with the Respondent during that time because the Respondent was on the board of directors of that council until the council was disbanded two years ago. Dr. Britton was very active during those years in the council's work with the court and school systems in the area of drug education and combating drug abuse. He performed voluntary free physicals for alcoholics who were entering the antabuse treatment program. He performed this service despite the fact that he received no compensation and that the program provided him with no malpractice insurance coverage for this work. Since 1979, witness Eichorn has been employed in the personnel department of Container Corporation at its paper mill in Fernandina. He has continued to refer mill employees with alcohol problems to the Respondent for him to perform physicals for purposes of their entering the antabuse program. He has found the Respondent to be civic-minded and to continue to be interested in and working with the current drug abuse program in Nassau County. J. Chandler McLauchlan is, by training, a psychologist. He operates a cabinet making business and also works as a sculptor. He and Charles W. Howard and their families are patients of the Respondent. The Respondent, at all times, has proven to be a compassionate, conservative physician with regard to his care and prescription of drugs for these witnesses and their families. The Respondent frequently has charged substantially lower fees than other physicians for the same services and has generally shown himself to he a competent, caring physician, more concerned with patients' welfare than financial remuneration. He is strictly conservative regarding prescriptions of medicines and, in the words of Charles Howard, "he likes us to rough it."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses of the Respondent, who testified in person, as well as the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a final order be entered dismissing the Administrative Complaint in its entirety. DONE and ENTERED this 18th day of November, 1983, 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 18th day of November, 1983. COPIES FURNISHED: Charlie L. Adams, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stephen P. Smith, Esquire Smith and Smith, P.A. 2601 University Blvd., West Jacksonville, Florida 32217 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Is Petitioner guilty of violating Section 455.227(1)(c) Florida Statutes, justifying imposition of conditional licensure as two years probation with terms listed in the Order filed September 20, 1996? The charge of violating Section 464.018(1)(b) Florida Statutes has been dropped by the Board.
Findings Of Fact On April 25, 1995, Petitioner pled nolo contendere to a first degree misdemeanor count of passing a worthless bank check in violation of Section 832.05(2)(a) Florida Statutes. Section 832.05(2)(a) Florida Statutes provides, in pertinent part, as follows: It is unlawful for any person, . . . to draw, make, utter, issue, or deliver to another any check, . . . knowing at the time of the drawing, making, uttering, issuing, or delivery such check or draft, . . . that the maker . . . has not sufficient funds on deposit . . . with such bank . . . with which to pay the same on presentation . . . nor does this section apply to any postdated check. As part of a court diversion program, adjudication was withheld and Petitioner was assigned to take the Florida Association for Corrective Training, Inc. (FACT) course on the criminal consequences of dishonored checks and how to avoid them. Petitioner completed the FACT course, and also paid restitution, diversion fees and court costs. This course was completed on September 12, 1995. A plea of nolo contendere is neither an admission of guilt nor a denial of charges. A plea of nolo contendere with adjudication of guilt withheld does not constitute a conviction. Petitioner made her plea as a matter of convenience. Petitioner has never been found guilty or convicted of passing a worthless bank check. The check which gave rise to Petitioner's April 25, 1995 plea of nolo contendere to a misdemeanor under Section 832.05(2)(a) Florida Statutes was written to Florida State University (FSU) on September 2, 1994 for tuition fees for courses in which Petitioner had enrolled as a nursing student. Petitioner made an error in the calculations of her check register. The check was returned to FSU as "without sufficient funds". FSU redeposited the check, which was then returned a second time to FSU as "without sufficient funds". Upon learning that the check had been returned, Petitioner contacted the FSU registrar's office. She was told that she had contacted FSU soon enough, so that she could withdraw from classes without penalty, and therefore she need not be concerned about the check. Petitioner did withdraw from classes and thought the problem was solved. However, FSU subsequently pressed criminal charges for the check with the Leon County State Attorney's Office. On March 28, 1996, Petitioner applied for a practical nursing license (L.P.N.). On her application, Petitioner answered in the affirmative the question as to whether she had ever been convicted or entered a nolo contendere or guilty plea regardless of adjudication, for any offense other than a minor traffic violation. She also provided a written explanation for the April 25, 1995 nolo contendere misdemeanor plea. Additionally, in an effort to be candid and forthcoming, Petitioner provided a written explanation for each of five other charges for passing worthless bank checks brought against her. As a result, Petitioner was invited to appear, and chose to appear, before the Board of Nursing's Credentials Committee to explain the circumstances surrounding her April 25, 1995 nolo contendere plea and the other worthless check charges she had disclosed. According to Petitioner, this meeting lasted less than five minutes and she was asked no questions. Pursuant to Section 464.002 Florida Statutes, the Board of Nursing voted to grant Petitioner an L.P.N. license subject to two years' probation with terms described in its September 20, 1996 Order based upon the Board's "finding of fact" that Petitioner "was found guilty or pled nolo contendere on various charges of passing worthless bank checks" and that there were aggravating circumstances surrounding the plea. The Board's Order concluded that Petitioner is guilty of violating Section 455.227(1)(c) Florida Statutes. Section 455.227(1)(c) Florida Statutes provides that a license may be disciplined for: Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee's profession. The Board of Nursing does not have a disciplinary guideline, a range of penalties, or a rule addressing mitigating circumstances for a misdemeanor violation of Section 832.05(2)(a) as a violation of Section 455.227(1)(c) Florida Statutes.1 The Board of Nursing issued license number 1250541 to Petitioner effective October 9, 1996 and subject to two years' probation, as described in its September 20, 1996 Order. Petitioner had an opportunity at formal hearing to present evidence concerning her nolo contendere plea and the five other charges she voluntarily reported to the Board. A "no information" is the method of dismissing a misdemeanor criminal charge. A "nolle prosequi" is the method of dismissing a felony criminal charge. The first charge occurred in 1991 or 1992. It involved a dishonored check for a mere $5.64 to Winn-Dixie. The court diversion program at that time was not very elaborate, but Petitioner attended a single February 25, 1992 lecture on the passing of bad checks, and paid restitution plus $20.00 in costs. A nolle prosequi was entered. Petitioner's check to FSU on September 2, 1994 for $199.79 resulted in two service charges being imposed on her checking account by her bank. (See Finding of Fact 5) These unilateral debits by the bank resulted in a check written September 15, 1994 by Petitioner for $56.59 to Winn-Dixie being dishonored for insufficient funds. Petitioner wrote a letter of explanation, paid restitution, and a "no information" was filed. A $49.19 check written to Wal-Mart on March 31, 1995 and a $150.48 check written to Winn-Dixie on April 5, 1995 were dishonored because Petitioner relied upon her ex-fiancé to deposit money he owed her directly into her checking account instead of Petitioner receiving payment from him in person. Petitioner did not see her ex-fiancé in person or return to their joint residence to pick up her bank statements because he had been abusive and she was fearful of him. He did not, in fact, make the deposit to her account. Petitioner paid restitution and costs for both cases. The Wal-Mart check situation resulted in a "no information." The Winn-Dixie check situation resulted in a nolle prosequi. A $99.20 check Petitioner had written to Publix on September 4, 1995 was dishonored because a car repair shop which had repaired her car did not honor an oral agreement Petitioner understood would prevent her check to the repair shop from being presented to the bank until after she had made a sufficient deposit from an insurance claim for the car repairs. This resulted in a "no information." Due to the uncertainty of the State Attorney's computer records (TR 96-98) and Petitioner's clear testimony, it is found that Petitioner was not required to undergo the diversion program for the September 15, 1994, March 31, 1995, April 5, 1995, and September 4, 1995 checks. However, it is abundantly clear she has now had two courses concerning this subject: one in 1992 and one in 1995. (See Findings of Fact 3 and 16) It is also clear she wrote her last bad check before completing the second FACT course on September 12, 1995. Two of Petitioner's bank check problems arose while she was a nursing student. Petitioner was employed as a patient care technician at Vivra Renal Care from July 1995 through October 1996. One of Petitioner's bank check problems arose while she was employed in the care of critically ill people. Dr. Evelyn Singer, Dean of the School of Nursing at FSU testified as an expert in nursing education and the practice of nursing. She opined that practical nurses are responsible for observing and documenting vital patient information and routine patient care. Other health care professionals rely upon the accuracy of practical nurses' observations and documentation. Nursing instructors stress the importance of accuracy and honesty when a practical nurse handles vital patient information. A documentation mistake by a practical nurse has the potential for resulting in a patient's death. Dr. Singer further opined that passing worthless bank checks is a crime related to the practice of nursing because the skills called into question for passing worthless bank checks are the same skills required to be an effective nurse, ie., making accurate observations, accurately recording observations and events, making accurate calculations, accurately measuring medication doses, accurately measuring and noting blood pressure and temperature of patients, appropriately changing dressings, accurately measuring and reporting patient observations, being cognizant of details, and addressing errors or omissions honestly and promptly. However, Dr. Singer further testified that if those things are accurately performed, then a nurse's ability is not affected by even a felony bad check arrest and plea. Dr. Singer believes that an inaccurate nurse is an untrustworthy nurse. In Dr. Singer's expert opinion, practical nurses should notify their nursing units if they have been arrested and convicted of writing worthless checks so as to constitute a felony (TR 124-126), so that the registered nurse under whose license they practice can be on the alert for documentation mistakes. What significance a felony arrest or conviction has as opposed to a misdemeanor arrest or conviction was not explained by Dr. Singer, but she viewed the probation imposed on Petitioner not as a judgment of personal guilt or dishonesty but as an opportunity for Petitioner's employer to be on the lookout for inaccuracies. At Petitioner's request, Judith G. Hankin, Director, School of Practical Nursing, Lively Technical Center, wrote a letter dated March 15, 1996 to the Board of Nursing. She wrote, [Petitioner] entered the Practical Nursing Program on August 23, 1993. On March 14, 1996 [Petitioner] informed me that she had an arrest record for series of worthless bank checks. . . . Her overall behavior during the time she was enrolled in school was acceptable. I feel that [Petitioner] is capable of assuming the responsibilities of a graduate practical nurse. Petitioner has worked as a licensed practical nurse at Vivra Renal Care, Tallahassee, Florida since her licensure on October 9, 1996. Her duties include assisting patients receiving kidney dialysis by setting up dialysis machines, preparation of dializers, assisting patients, and initiating treatment and discharge of patients. Charles E. Brown, R.N., is the head nurse at Vivra Renal Care. He has supervised and been involved in the evaluation of Petitioner since she began work at Vivra Renal Care in July 1995. (See Findings of Fact 22 and 29) Nurse Brown also was accepted as an expert in clinical nursing. He opined that inadvertently writing a worthless check or pleading nolo contendere does not relate to the practice of nursing or the ability to practice nursing. Mr. Brown has consistently observed, over a period of approximately 18 months, that Petitioner accurately measures medication doses, accurately measures and notes blood pressure and temperature of patients, appropriately changes dressings, accurately measures and reports patient observations and is cognizant of details. Nurse Brown described Petitioner's nursing abilities as "good" and the opposite of careless to the point that she is more than meticulous.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Nursing rescind its September 20, 1996 Order and enter a Final Order granting Petitioner an unrestricted L.P.N. license, without any probationary period. RECOMMENDED this 1st day of MAY, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1997.
Findings Of Fact Petitioner is a nursing home facility located at 1900 Mercy Drive, Orlando, Florida. It is licensed by Respondent and certified to participate in the Medicaid Program. Prior to the rating at issue in this case, Petitioner was rated a "superior" nursing home by Respondent. The "standard" rating at issue in this case was for the period November 30, 1984 to February 28, 1986. The most recent rating for Petitioner, for the period after February 28, 1986, is "superior." Petitioner was deprived of increased Medicaid reimbursement due to its "standard" rating during the period in question. Additionally, Petitioner was deprived of the ability to hold itself out to the public as a "superior" nursing home for the period in question. The parties stipulated that Petitioner was qualified for a "superior" rating for the period in question, except for the factors considered by Robert Maryanski, former Director of the Office of Licensure and Certification, when he made the decision to give Petitioner a "standard" rating, effective November 30, 1984 until February 28, 1986. The factors considered by Maryanski which formed the basis of his decision were: a rating sheet and results of a survey conducted of Petitioner's facility on November 5 through 7, 1984, as well as follow-up visits on January 15 and February 1, 1985: a report of a complaint or surveillance visit conducted on February 1, 1985; a memo dated March 14, 1985 from Robert W. Smith, Area Supervisor of the Office of Licensure and Certification: concerns of the Long-Term Care Ombudsman Council as expressed by letter dated November 15, 1984 and concerns of Paul Snead, Jr., Respondent's District Administrator as expressed by memo dated November 26, 1984. In conducting its annual survey of Petitioner's facility, Respondent's surveyors, George Farrar and June Monaghan, identified seven Class III deficiencies which were corrected by the time follow-up visits were conducted on January 15 and February l, 1985. However, in conjunction with the February 1, 1985 follow-up visit, Respondent's surveyors also conducted an unannounced complaint or surveillance visit which identified eight additional deficiencies. No exit interview was conducted following this complaint or surveillance visit, and Petitioner was not informed of these additional deficiencies, or the fact they could affect their annual rating, until approximately a week later. Neither Farrar nor Monaghan, the surveyors who conducted the February 1 complaint or surveillance visit and who are still employed by Respondent, testified at the hearing. The only witnesses testifying at the hearing who were present during all or a portion of the February 1 visit were Charlotte Uhrig, Administrator of Petitioner's facility, Kathleen Wingard, Director of Operations for Petitioner's management company, and Linda Anderson, a licensed practical nurse employed by Petitioner. Uhrig and Anderson offered credible testimony to explain the deficiencies found during the complaint or surveillance visit, and their unrebutted testimony precludes any finding that the deficiencies reported by Farrar and Monaghan actually existed. To the contrary, based on the evidence presented, it is specifically found that during this visit on February 1, 1985: Petitioner did not violate a patient's right to privacy in treatment since only the patient's heel and back of the leg were exposed at the request of the surveyor; Petitioner took prompt action in terminating a Director of Nursing who violated its policies by allowing aides to do and chart dressings and treatments; Anderson's actions in attempting to give a patient two pills were reasonable and in accordance with proper nursing practice. The fact that the patient did not swallow the pills and the surveyor found them in a glass of water does not indicate any failure on the part of Petitioner to adhere to required nursing home procedures; The lock on a treatment cart was only broken for a couple of hours and was repaired as soon as possible. During the time the lock was broken, the cart was in the nurse's station and observable by nurses on duty; Stains on the walls were fully explained as the result of roof leaks which had recently been repaired and Petitioner was simply waiting for a good rain to insure the leak was fixed before repainting; There was no dust or soap residue on chair lifts, but rather a small amount of powder used on patients was identified by the surveyors; In-service training was promptly given to all aides about washing their hands after treating each patient; An unidentified cart noticed in the new linen room was simply the cart used to carry new linen to the laundry for washing before use; An unidentified, undated bottle of liquid on the medication cart was apple juice given to patients to assist them in taking their medication; The door to the janitor's closet was not left open, but rather the door had been closed but the lock had not engaged; In service training was promptly given to aides concerning leaving unattended bottles of germicide and cups of liquid soap in patients' bathrooms. In his memo dated March 14, 1985, Robert W. Smith recommended that Petitioner be given a "superior" rating for the time in question. Smith supervised nursing home surveyors including Farrar and Monaghan. Robert Maryanski was Smith's superior and had the final authority on rating decisions. Yvonne Opfell, Vice Chairperson of the Long-Term Care Ombudsman Council, testified that one-fourth of all complaints in the Orlando area the Council received in 1984 involved Petitioner's facility. The Council investigates every complaint received and found most complaints against Petitioner to be "not substantiated." However, several were found to be "substantiated" including one which was substantiated by Adult Protective Services involving an incident in August, 1984 in which a patient was allegedly dropped and suffered a broken arm. Henry McLaulin investigated this incident for Adult Protective Services and testified that Petitioner was less than cooperative with him in this investigation. However, based on the evidence received, including the testimony of Uhrig and Karen Skadering, a physical therapist who worked with this patient in August, 1984, it has not been proven that aides dropped the patient causing a broken arm. The patient was very weak and dependent, with brittle bones, and according to David Parsons, M.D., a patient in this condition could break a bone simply by turning over in bed through no fault of Petitioner's staff. As District Administrator of Respondent, Paul Snead, Jr. expressed his concerns about Petitioner's rating in a memo dated November 26, 1984. Snead testified at the hearing about these concerns and his feeling that Petitioner-should not be given a "superior" rating. He also admitted he has never visited Petitioner's facility. In addition to the incident in August, 1984 involving a patient's broken bone discussed above in Finding of Fact 9, Snead reported complaints about scabies at Petitioner's facility during 1984. Based upon the testimony of Charlotte Uhrig, Petitioner's Administrator, Bob Duncan, a pharmacist, Ruth E. Laughlin, senior community health nurse, and David Parsons, M.D., it is found that scabies did exist on several occasions during 1984 at Petitioner's facility. However, scabies is frequently found in nursing homes, even those rated "superior". It is a highly communicable parasitic condition which can be introduced into a nursing home by patients, family and staff. When the condition was diagnosed, Petitioner took action to eradicate the problem, but due to the lengthy three to six week incubation period and highly contagious nature of this condition, it did take repeated efforts to remove it from the nursing home. Petitioner's efforts were successful, and there is no evidence that the condition continued to exist after November, 1984.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order granting Petitioner a "superior" rating for the period November 30, 1984 to February 28, 1986. DONE and ENTERED this 14th day of April, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1986. COPIES FURNISHED: Karen Goldsmith, Esquire Jonathan S. Grout, Esquire Suite 500, Day Building 605 East Robinson Street Orlando, Florida 32802 Douglas Whitney, Esquire 400 West Robinson Street Suite 912 Orlando, Florida 32801 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Adopted in part in Findings of Fact 4, 5. Adopted in part in Findings of Fact 5, 7. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 5, 9, 10, 11. Adopted in part in Findings of Fact 5, 9, but otherwise rejected as irrelevant and unnecessary. Rejected as cumulative and also as a conclusion of law rather than a finding of fact. Adopted in Finding of Fact 8. Rejected as a conclusion of law rather than a finding of fact.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part Il, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $5,000. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 3. Conditional licensure status is imposed on the Respondent beginning on February 15, 2013 and ending on March 15, 2013. 1 Filed August 27, 2013 2:59 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 28-day of Arpt 2013. wie Elizabg¢th Dudek, Bery etary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and eos Final Order was served on the below-named persons by the method designated on this7S" ry of Ld / ; , 2013. ane Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 [ Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Andrea M. Lang, Senior Attorney Margaret Chamberlain, Esq. Office of the General Counsel Attorney for Respondent Agency for Health Care Administration Kitch Drutchas Wagner Valitutti & Sherbrook (Electronic Mail) 2379 Woodlake Drive, Suite 400 Okemos, Michigan 48864 (U.S. Mail) | STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case Nos. 2013002508 SA-PG - VERO BEACH LLC d/b/a PALM GARDEN OF VERO BEACH Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against SA-PG - VERO BEACH LLC d/b/a PALM GARDEN OF VERO BEACH (hereinafter “Respondent”), pursuant to Sections 120.569 and 120.57 Florida Statutes (2012), and alleges: NATURE OF THE ACTION This is an action against a skilled nursing facility to impose an administrative fine of FIVE THOUSAND DOLLARS ($5,000.00) pursuant to Section 400.23(8)(b), Florida Statutes (2012), based upon two (2) Class II deficiencies and to assign conditional licensure status beginning on February 15, 2013, and ending on March 15, 2013, pursuant to Section 400.23(7)(b), Florida Statutes (2012). The original certificate for the conditional license is attached as Exhibit A and is incorporated by reference. The original certificate for the standard license is attached as Exhibit B and is incorporated by reference. JURISDICTION AND VENUE 1. The Court has jurisdiction over the subject matter pursuant to Sections 120.569 and 120.57, Florida Statutes (2012). EXHIBIT 1 2. The Agency has jurisdiction over the Respondent pursuant to Section 20.42, Chapter 120, and Chapter 400, Part II, Florida Statutes (2012). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code. PARTIES 4. The Agency is the regulatory authority responsible for the licensure of skilled nursing facilities and the enforcement of all applicable federal and state statutes, regulations and rules governing skilled nursing facilities pursuant to Chapter 400, Part II, Florida Statutes (2012) and Chapter 59A-4, Florida Administrative Code. The Agency is authorized to deny, suspend, or revoke a license, and impose administrative fines pursuant to Sections 400.121 and 400.23, Florida Statutes (2012); assign a conditional license pursuant to Section 400.23(2), Florida Statutes (2012); and assess costs related to the investigation and prosecution of this case pursuant to Section 400.121, Florida Statutes (2012). 5. Respondent operates a 180-bed nursing home, located at 1755 37" Street, Vero Beach, Florida 32960, and is licensed as a skilled nursing facility, license number 1415096. Respondent was at all times material hereto, a licensed skilled nursing facility under the licensing authority of the Agency, and was required to comply with all applicable state rules, regulations and statutes. COUNTI The Respondent Failed To Ensure Physician Orders Shall Be Followed As Prescribed in Violation Of Rule 59A-4.107(5), Florida Administrative Code 6. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 7. Pursuant to Florida law, all physician orders shall be followed as prescribed, and if not followed, the reason shall be recorded on the resident’s medical record during that shift. Rule 59A- 4.107(5), Florida Administrative Code. 8. On or about February 11, 2013 through February 15, 2013, the Agency conducted a Licensure Survey of the Respondent’s facility. 9. Based on observation, interview and record review, it was determined the facility failed to follow physician orders for catheter placement, pain medication and skin sweeps for one (1) of twenty eight (28) residents, specifically Resident number ninety six (96), which resulted in significant pain for the resident. 10. Resident number ninety six (96) was admitted on January 7, 2013 with diagnoses to inclide urinary retention and urethral erosion. An observation was made of Resident number ninety six (96) on February 13, 2013 at 8:30 a.m. and Resident number ninety six (96) was holding his/her hands over his/her genital area. 11. A review of the medical record documented a physician order dated January 25, 2013 for Keflex 250mg by mouth four (4) times daily for seven (7) days for urethral erosion and lidocaine jelly 2% to the urethra as needed four (4) times a day. The February Physician Order Sheet documented; keep the catheter up and taped to abdomen and positioned out of top of pants. There is an order on the Physician Order Sheet for weekly skin assessment due Friday on the 3:00 p.m. to 11:00 a.m. shift. 12. Catheter care was observed on February 13, 2013 at 8:33 a.m. As the Certified Nursing Assistant started to perform the catheter care, Resident number ninety six (96) moved into the fetal position and started moaning and grunting. The Certified Nursing Assistant stated this is normal for Resident number ninety six (96). As the Certified Nursing Assistant moved the resident’s scrotum, the left groin area was noted to be bright red and patchy. Resident number ninety six (96) yelled out and tried crossing his/her legs. Resident number ninety six (96) was not asked if he/she was in pain. The Certified Nursing Assistant drew back the foreskin of the penis and it appeared to be bright red and excoriated. The resident was moaning when touched, mumbling “Oh God “. Resident number ninety six (96) kept crossing his/her legs and trying to get back into the fetal position and the Certified Nursing Assistant would reposition the resident onto his/her back to wash the catheter and genital area. At one point, Resident number ninety six (96) lifted his/her head and groaned loudly with a grimace on his/her face and his/her eyes bulging. At this point the Certified Nursing Assistant asked Resident number ninety six (96) if he/she was in pain. The resident stated “a little “. Lidocaine Jelly 2% was not applied to the urethra. The catheter was then brought out the bottom of the adult brief, not anchored to any anatomical site. 13. In. an interview with the Registered Nurse who was providing care for Resident number ninety six (96) on February 13, 2013 at 9:01 a.m., the Registered Nurse stated that she would check the catheter to make sure it is patent and positioned properly. The Registered Nurse checked for exudate on the penis and checked the indwelling catheter to make sure it was draining properly. The Registered Nurse stated that the catheter was positioned properly. The catheter was still threaded through the bottom of the adult brief and not taped to Resident number ninety six’s (96) abdomen. 14. A review of the February Medication Administration Record revealed no lidocaine jelly 2% listed. The Treatment Administration Record documented “keep Foley catheter taped to abdomen and position out of top of pants." The last skin sweep documented is February 1, 2013 and did not document anything about redness to the groin area. 15. In an interview with the Unit Manager at 9:28 a.m. on February 13, 2013, the Unit Manager acknowledged that there is an order written for lidocaine jelly 2% that was not transcribed onto the Medication Administration Record. The Unit Manager also verified that there was nothing in the chart to indicate a rash or redness to the groin of Resident number ninety six (96) nor was the weekly skin sweep done as ordered on February 8, 2013. 16. | The Unit Manager went with the surveyor to assess Resident number ninety six (96) at 9:35 a.m. The Unit Manager acknowledged that the catheter tubing was not taped to Resident number ninety six’s (96) abdomen, nor was it up and over the top of the adult brief. The Unit Manager also acknowledged excoriation in the left groin and penis. Resident number ninety six (96) would still flinch and moan when touched, and the Unit Manager stated he/she was in pain. 17. Resident number ninety six (96) was observed with the Licensed Practical Nurse on February 14, 2013 at 11:03 a.m. Resident number ninety six (96) was fidgeting in the wheelchair. When asked, Resident number ninety six (96) stated the catheter did not feel okay. The catheter was angled downwards through the leg of the brief and not taped to the abdomen as ordered. The Licensed Practical Nurse acknowledged the catheter tubing was incorrectly placed and not taped to the abdomen as ordered. 18. The Agency determined that this deficient practice 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. The Agency cited Respondent for a Class II deficiency as set forth in Section 400.23(8)(b), Florida Statutes (2012). 19. A Class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more Class I or Class Il deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine shall be levied notwithstanding the correction of the deficiency. 20. Based upon the above findings, the Respondent’s actions, inactions or conduct constituted an isolated Class II deficiency pursuant to Section 400.23(8)(b), Florida Statutes (2012). WHEREFORE, the Agency intends to impose an administrative fine in the amount of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) against the Respondent pursuant to Sections 400.23(8)(b), and 400.102, Florida Statutes (2012). COUNT IL The Respondent Failed To Ensure The Right To Receive Adequate And Appropriate Health Care in Violation of Section 400.022(1)(I), Florida Statutes (2012) 21. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 22. Pursuant to Florida law, all licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the following: The right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the Agency. Section 400.022(1)(), Florida Statutes (2012). 23. Onor about February 11, 2013 through February 15, 2013, the Agency conducted a Licensure Survey of the Respondent’s facility. 24. Based on observation, interview and record review, it was determined the facility failed to provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being for three (3) of twenty eight (28) residents, specifically Resident number ninety six (96), Resident number three hundred five (305) and Resident number two hundred forty two (242), regarding failure to assess and manage pain for a resident with an urethral erosion and two (2) residents with no medical justification for their catheters respectively. 25. Resident number ninety six (96) was admitted on January 7, 2013 with diagnoses to include urinary retention and urethral erosion. An observation was made of Resident number ninety six (96) on February 13, 2013 at 8:30 a.m. to be holding his/her hands over his/her genital area. 26. Catheter care was observed on February 13, 2013 at 8:33 a.m. As the Certified Nursing Assistant started to perform the catheter care, Resident number ninety six (96) moved into the fetal position and started moaning and grunting. The Certified Nursing Assistant stated this is normal for the resident. As the Certified Nursing Assistant moved Resident number ninety six’s (96) scrotum, the left groin area was noted to be bright red and patchy. Resident number ninety six (96) yelled out and tried crossing his/her legs. Resident number ninety six (96) was not asked if he/she was in pain. The Certified Nursing Assistant drew back the foreskin of the penis and it appeared to be bright red and excoriated. The resident was moaning when touched, mumbling “Oh God “. Resident number ninety six (96) kept crossing his/her legs and trying to get back into the fetal position and the Certified Nursing Assistant would reposition the resident to wash the catheter and genital area. At one point, Resident number ninety six (96) lifted his/her head and groaned loudly, with a grimace on his/her face and the eyes bulging. At this point the Certified Nursing Assistant asked Resident number ninety six (96) if he/she was in pain. The resident stated “a little “The catheter was then brought out the bottom of the adult brief, not anchored to any anatomical site. 27. There is a Pain Evaluation in Advanced Dementia sheet in Resident number ninety six’s (96) chart that has the residents name on it but is not filled out. Based on the criteria listed on the form, the combination of "repeated calling out, loud moaning or groaning, crying", "facial grimacing" and "rigid, fists clenched, knees pulled up, pulling or pushing away" indicates distressing pain. On February 14, 2013 at 1:13 p.m., the Director of Nursing acknowledged the form was in the chart and should have been filled out. 28. ‘In an interview with the Registered Nurse on February 13, 2013 at 9:01 a.m., the Registered Nurse stated that she would first give Resident number ninety six (96) medications, then she would check Resident number ninety six’s (96) catheter to make sure it is patent and positioned properly. The Registered Nurse checked for exudate on the penis and checked the indwelling catheter to make sure it was draining properly. The Registered Nurse stated that the catheter was positioned properly and did not assess the groin or pull back the foreskin to properly assess the penis. Resident number ninety six (96) was still moaning and the nurse asked if he/she was in pain but the resident said no. Resident number ninety six (96) appeared more relaxed in bed, not grimacing. The Registered Nurse stated the Certified Nursing Assistant was supposed to tell the nurse when the resident stated he/she is in pain. 29. A review of the medical record documented a physician order dated January 25, 2013 for Keflex 250mg by mouth four (4) times daily for seven (7) days for urethral erosion and lidocaine jelly 2% to the urethra as needed four (4) times a day. The February Physician Order Sheet documented keep the catheter up and taped to abdomen and positioned out of top of pants. 30. A review of the February Medication Administration Record revealed no lidocaine jelly 2% transcribed. The Treatment Administration Record documented “keep Foley catheter taped to abdomen and position out of top of pants. The last skin sweep found is February 1, 2013 and did not document anything about redness to the groin or penis. 31. Inan interview with the Unit Manager at 9:28 a.m. on February 13, 2013, the Unit Manager acknowledged that there is an order written for lidocaine jelly 2% that is not listed in the Medication Administration Record. The Unit Manager also verified that there was nothing in the chart to indicate a rash or redness to the groin of Resident number ninety six (96). 32. The Unit Manager went with the surveyor to assess the resident at 9:35 a.m. The Unit Manager acknowledged that the catheter tubing was not taped to Resident number ninety six’s (96) abdomen, nor was it up and over the top of the residents’ adult brief. The Unit Manager also acknowledged excoriation in the left groin and penis. The Unit Manager acknowledged Resident number ninety six (96) was acting as if he/she was in pain, groaning and guarding his/her genitals when touched. 33. In an interview with the Director of Nursing on February 13, 2013 at 2:42 p.m., the Director of Nursing stated Resident number ninety six (96) was transferred to the Reflections unit for behaviors of yelling and screaming and was given a care plan to reflect the behaviors. The Director of Nursing stated Resident number ninety six (96) is not necessarily in pain; this is just how the resident acts. In a subsequent interview with the Director of Nursing on February 14, 2013 at 1:13 p.m., she acknowledged the care plan indicates Resident number ninety six (96) had behaviors of resisting care, not yelling and screaming. The Director of Nursing also stated she was unable to find any documentation in the chart that indicates Resident number ninety six (96) had yelling behaviors. 34. — A nurse's note dated January 22, 2013 documented that Resident number ninety six (96) had pain which was manifested by fidgeting and shouting out intermittently. Routine pain medication was given and the effect was good with decreased fidgeting and decreased shouting. 35. The pain assessment dated January 7, 2013 documented under the question “Does the patient/resident exhibit any non-verbal signs that would indicate pain?” Moaning is checked off. Under nursing interventions, no evidence of pain is checked off. The monthly summary dated February 12, 2013 indicated Resident number ninety six (96) is alert and confused, quiet and cooperative with a flat affect. Resident number ninety six’s (96) speech is listed as difficult. 36. A review of the fourteen (14) day Minimum Data Set assessment with an Assessment Reference Date of January 24, 2013 revealed Resident number ninety six (96) was severely impaired with cognition. No behavioral symptoms are exhibited, including screaming and disruptive sounds. The Minimum Data Set identified Resident number ninety six (96) as having pain occasionally in five (5) of the seven (7) previous days with a level of five (5) out of ten (10). 37. In an interview with Resident number ninety six (96), the Licensed Practical Nurse on February 14, 2013 at 11:03 a.m. stated the catheter is to be positioned up over the brief and taped to the abdomen to prevent further irritation to the urethra. Resident number ninety six (96) has had a catheter for a long time. Because Resident number ninety six (96) is confused, the Licensed Practical Nurse stated she would watch for grimacing or fidgeting as signs of pain and that Resident number ninety six (96) tried to stand on his/her own if the catheter is placed incorrectly. The Licensed Practical Nurse stated that the staff does not use yelling as an indicator for pain because Resident number ninety six (96) often yells. Because Resident number ninety six (96) was trying to stand up in the activity room, the Licensed Practical Nurse brought him/her back into the room to check on the catheter. The resident stated to the nurse that the catheter "does not feel ok". Resident number ninety six (96) kept crossing his/her legs and fidgeting in the chair. A Certified Nursing Assistant came into the room to assist the Licensed Practical Nurse stand up Resident number ninety six (96). Resident number ninety six (96) stood to have his/her pants pulled down and his/her brief opened. The catheter was angled down and not taped to the abdomen as ordered. This was acknowledged by the Licensed Practical Nurse. When the nurse touched Resident number ninety six (96) he/she would yell out. There was also tape tangled in the pubic hair and as the nurse tried to remove it, Resident number ninety six (96) yelled out “It hurts a lot “. Resident number ninety six (96) kept trying to grab the nurse to make her stop but the Certified Nursing Assistant held his/her hands still. The catheter was then placed correctly. Resident number ninety six (96) stated he/she felt much better when the catheter was properly positioned. 38. Anobservation on February 12, 2013 at 3:25 p.m. revealed Resident number two hundred forty two (242) lying in bed. A Foley catheter (indwelling urinary drainage devise) was observed at bedside draining. 39. A review of the record revealed Resident number two hundred forty two (242) was admitted to the facility on December 31, 2012 with diagnoses to include urinary tract infection, functional decline, hypertension, deep vein thrombosis, anemia, hyperlipidemia, and renal insufficiency. A review of the Nursing Evaluation dated December 31, 2012 documented the existence of the Foley catheter. A review of the admitting physician's orders documented, "Catheter Orders" and further documented the ordered care and treatment for the catheter. A further review of the physician orders revealed the next order related to the Foley was not until nine (9) days after admission. This order was dated January 8, 2013 for the discontinuing of the catheter. A final review of the record lacked any evidence of a diagnosis or medical justification for the Foley catheter. 40. During a review of the record and interview with the Director of Nursing on February 15, 2013 at 9:30 a.m., the Director of Nursing agreed there was no valid diagnosis or medical justification for the Foley catheter for Resident number two hundred forty two (242) upon admission to the facility. When asked the standard procedure related to catheter use the Director of Nursing stated that they try to have the catheters discontinued within a few days of admission to their facility. 41. A review of the facility policy and procedure titled "Urinary Catheters" documents, “Procedure: 1. Eliminate indwelling urinary catheters when possible. 2. Use catheters only when they must be used, and only with documented medical justification by a physician." 42. During an interview on February 11, 2013 12:37 p.m., the Registered Nurse caring for Resident number three hundred five (305) was asked if the resident had a Foley catheter and the diagnosis or medical justification for the catheter. The Registered Nurse stated, "There is no valid reason for the catheter, Resident number three hundred five (305) came with it from the hospital. I'm going to call! the doctor to see if it can be removed." 43. An observation of Resident number three hundred five (305) on February 12, 2013 at approximately 11:45 a.m. revealed the resident sitting in a wheel chair at the nurse's station. Although the bag that holds and covers the Foley catheter for dignity purposes was noted, the Foley catheter was not present. 44. A review of the record documented Resident number three hundred five (305) was admitted to the facility from an acute care hospital on January 31, 2013 having sustained a cerebral vascular accident/stroke and subdural hematoma. Admitting diagnoses included diabetes, hypertension, left ventricle thrombus, hyperlipidemia, and intermittent atrial fibrillation. The record documented the existence of the Foley catheter upon admission to the facility as per the nursing evaluation dated January 31, 2013, the plan of care and in daily nursing notes from admission through February 11, 2012. A review of the plan of care dated January 31, 2013 for the indwelling catheter specifically documented the intervention "Identify documentation in the medical record which substantiates use of indwelling catheter, if absent confer with MD". An order to discontinue the Foley catheter was obtained on February 11, 2013 after surveyor questioning. A final review of the record lacked any diagnosis or medical justification for the catheter for Resident number three hundred five (305). 45. During an Interview on February 13, 2013 at approximately 4:00 p.m., the Unit Manager for the 300 unit was asked the procedure for residents admitted to the facility with a Foley catheter. The Unit Manger stated that the normal practice is to evaluate the resident and ask the physician for an order to discontinue the catheter within a few days of admission. The Unit Manager agreed that Resident number three hundred five (305) had a Foley catheter thirteen (13) days after admission to the facility with no appropriate diagnosis or medical justification. 46. A review of the facility policy and procedure titled "Urinary Catheters" documents, "Procedure: 1. Eliminate indwelling urinary catheters when possible. 2. Use catheters only when they must be used, and only with documented medical justification by a physician." 47, The Agency determined that this deficient practice 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. The Agency cited Respondent for a Class II deficiency as set forth in Section 400.23(8)(b), Florida Statutes (2012). 48. A Class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more Class I or Class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine shall be levied notwithstanding the correction of the deficiency. 49. Based upon the above findings, the Respondent’s actions, inactions or conduct constituted an isolated Class II deficiency pursuant to Section 400.23(8)(b), Florida Statutes (2012). WHEREFORE, the Agency intends to impose an administrative fine in the amount of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) against the Respondent pursuant to Sections 400.23(8)(b), and 400.102, Florida Statutes (2012). COUNT Il Assignment Of Conditional Licensure Status Pursuant To Section 400.23(7)(b), Florida Statutes (2012) 50. The Agency re-alleges and incorporates by reference the allegations in Count I. 51. The Agency is authorized to assign a conditional licensure status to nursing home facilities pursuant to Section 400.23(7), Florida Statutes (2012). 52. Due to the presence of one (1) Class I deficiency, the Respondent was not in substantial compliance at the time of the survey with criteria established under Chapter 400, Part II, Florida Statutes (2012), or the rules adopted by the Agency. 53. The Agency assigned the Respondent conditional licensure status with an action effective date of February 15, 2013. The original certificate for the conditional license is attached as Exhibit A and is incorporated by reference. 54. The Agency assigned the Respondent standard licensure status with an action effective date of March 15, 2013. The original certificate for the standard license is attached as Exhibit B and is incorporated by reference. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to enter a final order granting the Respondent conditional licensure status for the period beginning February 15, 2013 and ending on March 15, 2013 pursuant to Section 400.23(7)(b), Florida Statutes (2012). CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to enter a final order granting the following relief against the Respondent as follows: 1. Make findings of fact and conclusions of law in favor of the Agency. 2. Impose an administrative fine against the Respondent in the amount of FIVE THOUSAND DOLLARS ($5,000.00.). 3. Assign conditional licensure status to the Respondent for the period beginning on February 15, 2013, and ending on March 15, 2013. 4. Assess costs related to the investigation and prosecution of this case. 5. Enter any other relief that this Court deems just and appropriate. Respectfully submitted this A¢-u day of ne , 2013. A ee ee cae J ‘Andrea M. Lang, Assistant General Counsel Florida Bar No. 0364568 Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 (239) 335-1253 NOTICE RESPONDENT IS NOTIFIED THAT IT/HE/SHE HAS A RIGHT TO REQUEST AN ADMINISTRATIVE HEARING PURSUANT TO SECTIONS 120.569 AND 120.57, FLORIDA STATUTES. THE RESPONDENT IS FURTHER NOTIFIED THAT IT/HE/SHE HAS THE RIGHT TO RETAIN AND BE REPRESENTED BY AN ATTORNEY IN THIS MATTER. SPECIFIC OPTIONS FOR ADMINISTRATIVE ACTION ARE SET OUT IN THE ATTACHED ELECTION OF RIGHTS. ALL REQUESTS FOR HEARING SHALL BE MADE AND DELIVERED TO THE ATTENTION OF: THE AGENCY CLERK, AGENCY FOR HEALTH CARE ADMINISTRATION, 2727 MAHAN DRIVE, BLDG #3, MS #3, TALLAHASSEE, FLORIDA 32308; TELEPHONE (850) 412-3630. THE RESPONDENT IS FURTHER NOTIFIED THAT IF A REQUEST FOR HEARING IS NOT RECEIVED BY THE AGENCY FOR HEALTH CARE ADMINISTRATION WITHIN TWENTY-ONE (21) DAYS OF THE RECEIPT OF THIS ADMINISTRATIVE COMPLAINT, A FINAL ORDER WILL BE ENTERED BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights form were served to: Anthony Brunicardi, Administrator, SA-PG - Vero Beach LLC d/b/a Palm Garden of Vero Beach, 1755 37" Street, Vero Beach, Florida 32960, by United States Certified Mail, Return Receipt No. 7011 1570 0002 1695 8511 and to Capitol Corporate Services, Inc., Registered Agent, SA-PG - Vero Beach LLC d/b/a Palm Garden of Vero Beach, 155 Office Plaza Drive, Suite A, Tallahassee, Florida 32301, by United States Certified Mail, Return Receipt No. 7011 1570 0002 1695 8528 on this ‘S &_ day of Wg , 2013. Net FP On od Andrea M. Lang, Assistant General‘Cdunsel Florida Bar No. 0364568 Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 (239) 335-1253 Copies furnished to: Anthony Brunicardi, Administrator SA-PG - Vero Beach LLC d/b/a Palm Garden of Vero Beach 1755 37" Street Vero Beach, Florida 32960 (U.S. Certified Mail) Andrea M. Lang, Assistant General Counsel Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Capitol Corporate Services, Inc. Registered Agent for SA-PG - Vero Beach LLC d/b/a Palm Garden of Vero Beach 155 Office Plaza Drive, Suite A Tallahassee, Florida 32301 (US. Certified Mail) Bernard Hudson, Health Services and Facilities Consultant Supervisor Bureau of Long Term Care Services Long Term Care Unit Agency for Health Care Administration 2727 Mahan Drive, Building #3, Room 1213B Tallahassee, Florida 32308 (Electronic Mail) Arlene Mayo-Davis Field Office Manager Agency for Health Care Administration 5150 Linton Boulevard, Suite 500 Delray Beach, Florida 33484 (Electronic Mail)
