The Issue Whether Respondent nursing home violated Florida statutes and Department rules (and should be subject to a civil penalty) as alleged by the Department for (1) failing to provide adequate health care to an injured patient, and (2) failing to meet nursing staffing requirements.
Findings Of Fact Upon consideration of the evidence presented at the hearing, including the demeanor and credibility of the witnesses, and posthearing filings by counsel, the following findings of fact are determined: Respondent Nursing Home, the Apalachicola Valley Nursing Center, is a nursing care facility located immediately west of Blountstown, Florida. It is licensed by the Department, and has been in operation since June, 1975. (Testimony of Margaret Brock) Injury to and Standard of Care Provided Myrtle White On July 4, 1979, Dora M. Keifer was the licensed practical nurse on duty during the Nursing Home's night shift. At approximately 1:30 a.m., nurse Keifer heard a noise coming from the nearby room of an elderly patient, Myrtle White. The nurse immediately investigated, and found Myrtle White lying on the floor, and against the wall. Nurse Keifer then visually examined Mrs. White's head and extremities for bruises, discolorations, swelling, lacerations, and other signs of possible fractures. Finding only a slight abrasion on her elbow, nurse Keifer then manually examined the patient's leg and hip for signs of a bone fracture or associated pain. The patient responded by complaining of pain on her right side from her knee to her hip. However, no swelling of that area could be detected; nor were there any other physical symptoms of a bone fracture which were detectable by visual or manual examination. (Testimony of Dora Keifer) After completing the examination, nurse Keifer, with the assistance of four aides, placed Mrs. White on a blanket and carefully lifted her directly onto her bed, placing her on her back. This is a lifting procedure which minimizes sudden movement and is recommended for use with patients who are suspected of suffering from bone fractures. Nurse Keifer then raised the bed side rails to prevent the patient from falling off the bed, and checked the patient's vital signs. Except for slightly elevated blood pressure, the patient's vital signs were within normal limits. Nurse Keifer, then pushed the bed to within 10 feet of her nursing station to ensure that the patient would-be constantly observed during the remainder of her shift. (Testimony of Dora Keifer, Dr. E. B. White) Except on the two occasions when she made her routine rounds, nurse Keifer kept Mrs. White under constant personal observation until her shift ended at 7:00 a.m. on July 4, 1979. When she made her rounds, nurse Keifer advised her aides to keep Mrs. White under constant observation. During the remainder of her shift, nurse Keifer periodically reexamined Mrs. White. Physical symptoms of a fracture, or other injury resulting from the patient's fall, continued to be absent. At 4:30 a.m., nurse Keifer checked the patient's urine sample and detected no blood or other unusual signs. (Testimony of Dora Keifer) At the time of her accident on July 4, 1979, Mrs. White, an 88-year-old woman, was suffering from deafness, senility, disorientation, poor eyesight and arthritis. She had previously fractured her right hip, and a prosthetic device had been inserted. Her ailments caused her to frequently suffer, and complain of pain in the area of her right hip, for which her doctor (Dr. Manuel E. Lopez) had prescribed, by standing (continuing) order, a pain medication known as Phenophen No. 4. The standing order authorized the nursing staff to administer this pain medication to the patient, without further authorization from a physician, four times daily, and on an "as needed" basis to relieve Mrs. White's pain. (Testimony of Dora Keifer, Mr. Manuel Lopez, Margaret Brock) Previous to and at the time of Mrs. White's accident, nurse Keifer was aware of Mrs. White's ailments, and frequent complaints of discomfort, as well as the standing order of Dr. Lopez which authorized the administering of Phenophen No. 4 to Mrs. White on an "as needed" basis to relieve pain. In addition, nurse Keifer, by background and training was qualified to examine, make judgments concerning, and render care to patients requiring emergency medical treatment. For several years, she had served as a part-time nurse on the night shift at the Nursing Home, and had served for 6 years in the emergency room and obstetric ward at Calhoun County Hospital. At the hospital, she had engaged in the detection and treatment of traumatic injuries and broken bones on a daily basis, and was familiar with the proper nursing and medical techniques used in caring for such injuries. (Testimony of Dora Keifer, Dr. E. B. White) Nurse Keifer had been instructed by local physicians (including Dr. Lopez) practicing at the Nursing Home that they should not be telephoned during the late evening and early morning hours unless, in the nurse's judgment, the patient required emergency care. Because Blountstown suffers a severe shortage of physicians, the judgment of licensed nurses necessarily assumes on increasingly important role in providing adequate medical care. (Testimony of Dora Keifer, Dr. E. B. White, Margaret Brook, Dr. Manuel Lopez) Between 1:30 a.m. (the time of Mrs. Trite's accident) and 7:00 a.m., on July 4, 1979, nurse Keifer administered Phenophen No. 4 two times to Mrs. White for the purpose of relieving pain. The initial dose was given Mrs. White shortly after she had complained of pain and been moved near nurse Keifer's duty station for observation. The drug appeared to alleviate Mrs. White's discomfort. Three or four hours later, after Mrs. White again complained of pain, a second dose was administered. (Testimony of Dora Keifer) Nurse Keifer administered the two doses of Phenophen No. 4 to Mrs. White during the early morning hours of July 4, 1979, without contacting, or seeking the further authorization of a physician. Having detected no symptoms of a bone fracture, or other injury to Mrs. White resulting from her fall, nurse Keifer concluded that administration of the medication to relieve pain was authorized by Dr. Lopez's standing order, and justified under the circumstances. She further made a judgment that Mrs. White was not suffering from an injury which justified emergency treatment, and the immediate contacting of a physician. (Testimony of Dora Keifer, Dr. Manuel Lopez, Dr. E. B. White) At 5:30 a.m. on July 4, 1979, nurse Keifer telephoned Calhoun County Hospital and left a message requesting Dr. Lopez to come to the Nursing Home and examine Mrs. White as soon as he completed his rounds at the hospital. Nurse Keifer was aware, at the time, that Dr. Lopez began his daily hospital rounds at 6:00 a.m. Later that morning, at the direction of Dr. Lopez, Mrs. White was taken to the hospital for x-rays which revealed that Mrs. White had fractured her right hip. She was returned to the Nursing Home that day, and transferred to Tallahassee Memorial Hospital for several days. No surgical repairs were ever made to the hip fracture, however, and Mrs. White was subsequently returned to the Nursing Home, for bed-side care. (Testimony of Dora Keifer, Dr. Lopez, Dr. E. B. White) It was nurse Keifer's professional judgment, based upon the facts known to her at that time, that Mrs. White's fall, and physical condition neither required emergency medical treatment nor justified the immediate contacting of a physician. Nurse Keifer further concluded that the administration of Phenophen No. 4 to relieve Mrs. White's pain, without further authorization of a physician, was necessary and authorized by the standing order of Dr. Lopez. These professional nursing judgments and actions were reasonable, justified by the facts, consistent with established health care standards applied in the Blountstown area, and did not endanger the life, or create a substantial probability of harm to Mrs. White. Although the Department's Medical Facilities Program Supervisor, Howard Chastain, testified that nurse Keifer's failure to immediately notify a physician concerning Mrs. White's fall presented an imminent danger to the patient, it is concluded that the contrary testimony of two experienced medical doctors constitutes the weight of the evidence on this issue. As to the meaning of Dr. Lopez's standing order con cerning administration of Phenophen No. 4 to Mrs. White, the Department's witnesses on this matter, James L. Myrah and Christine Denson, conceded that they would net disagree with Dr. Lopez if the doctor testified that nurse Keifer's action was consistent with the standing order. Dr. Lopez, subsequently, so testified. (Testimony of Dr. M. Lopez, Dr. E. B. White, James L. Myrah) Shortage of One Nurse on Night Shift During the period of June 1 through June 30, 1979, and July 1, through July 21, 1979, for a total of fifty-one (51) nights, the Nursing Home employed only one licensed nurse on the 11:00 p.m. - 7:00 a.m. night shift. (Testimony of Margaret Brook, J. L. Myrah) During this same 51-day time period, the number of patients at the Nursing Home fluctuated between 70 and 80 patients. (Testimony of Margaret Brook, J. L. Myrah, Petitioner's Exhibit No. 2) The Nursing Home is managed by a licensed nursing home administrator, and provides a full range of health and related services to patients requiring skilled or extensive nursing home care. Most of the patients require nursing services on a 24-hour basis and are seriously incapacitated, mentally or physically. (Testimony of Margaret Brook) The Administrator of the Nursing Home was aware that Department rules required the employment of two licensed nurses on the night shift during June and July, 1979. She made numerous unsuccessful efforts to recruit, locate, and employ an additional nurse for the night shift. Her failure to hire the additional nurse required by Department rules was not a willful act of misfeasance or nonfeasance on her part--but was due to a statewide nursing shortage which is particularly severe in rural northwest Florida. Other nursing homes have experienced similar difficulty in recruiting and hiring the requisite number of licensed nurses. The Nursing Home received no economic benefit from its failure to employ the additional night nurse during the time in question because the cost of such an employee is fully reimbursed by the State. On approximately March 1, 1980, the Nursing Home located, and has since employed, the additional licensed nurse required by Department rules for the night shift. (Testimony of Dora Keifer, Margaret Brook) Due to the widespread shortage of qualified nursing personnel, the Department ordinarily brings enforcement actions against nursing homes for noncompliance with the minimum nursing staff requirements only if the noncompliance is adversely affecting patient care. (Testimony of James L. Myrah, Margaret Brock) The shortage of one licensed nurse on the night shift during the time in question did not adversely affect the level of patient care provided by the Nursing Home. (Testimony of Dora Keifer, Margaret Brock) The parties have submitted proposed Findings of Fact and Conclusions of Law. To the extent that those findings and conclusions are not adopted in this Recommended Order, they are specifically rejected as being irrelevant to the issues in this cause, unsupported by the evidence, or law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department's Administrative Complaint, and the charges against Respondent contained therein, be DISMISSED. DONE and ENTERED this 2nd day of May, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John L. Pearce, Esquire District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Stephen D. Milbrath, Esquire Dempsey & Slaughter, P.A. Suite 610 - Eola Office Center 605 East Robinson Street Orlando, Florida 32801
Findings Of Fact In October 1978 Bonnie Ray Solomon Crawford, LPN was employed at the West Pasco Hospital, New Port Richey, Florida as a licensed practical nurse provided by Upjohn Company's rent-a-nurse program. On 7 October 1978 Respondent signed out at 10:00 a.m. and 2:00 p.m., and on 8 October 1973 at 8:00 a.m. and 1:00 p.m. for Demerol 75 mg for patient Kleinschmidt (Exhibit 2). Doctor's orders contained in Exhibit 4 shows that Demerol 50 mg was ordered by the doctor to be administered to patient Kleinschmidt as needed. Nurses Notes in Exhibit 4 for October 7, 1978 contains no entry of administration of Demerol at 10:00 a.m. and at 2:00 p.m. shows administration of 50 mg. and Phenergan 25 mg. Exhibit 3, Narcotic Record for Demerol 50 mg contains two entries at 8:15 a.m. on October 7, 1978 and one entry at 12:30 p.m. where Respondent signed out for Demerol 50 mg. for patients King, Zobrist and King in chronological order. Nurses Notes for King, Exhibit 6, and Zobrist, Exhibit 5, contain no entry that Demerol was administered to patient Zobrist at 8:15 a.m. or to patient King at 12:30 p.m. on 7 October 1978. In fact, the record for Zobrist shows that Zobrist was discharged from the hospital on October 5, 1978. Failure to chart the administration of narcotics constitutes a gross error in patient care and is not acceptable nursing practice. Similarly it is not acceptable nursing practice to withdraw narcotics not contained in doctors orders or administer medication not in doctors orders. When confronted by the Nursing Administrator at West Pasco Hospital with these discrepancies in the handling of Demerol, Respondent stated that she failed to check the identity of the patient before administering medication and that she didn't feel she should be giving medications any more. Following this confrontation with the hospital authorities, Respondent was fired for incompetency. No evidence was submitted regarding Respondent's 1975 disciplinary proceedings.
The Issue Should discipline be imposed by Petitioner against Respondent's license to practice as a licensed practical nurse (L.P.N.)?
Findings Of Fact Findings Established by Request for Admissions: Petitioner is the State of Florida department charged with regulating the practice of nursing pursuant to Section 20.43, Florida Statutes, Chapter 456, Florida Statutes, and Chapter 464, Florida Statutes. Respondent is and has been at all time material to the complaint a L.P.N. in the State of Florida, having been issued license number 9246217. Respondent's address of record is Post Office Box 99, High Springs, Florida 32655-0099. At all times material to this case, Respondent was employed as a L.P.N. by Suwannee Home Care and Medical Personnel, a staffing agency. At all times material to this case, Respondent was assigned to work as a L.P.N. at Alachua Nursing and Rehabilitation in Gainesville, Florida (Alachua). At all times material to this case, Alachua in Gainesville, was a licensed rehabilitation facility as defined in Section 400.021(13), Florida Statutes. At all times material to this case, Patient E.D. was admitted to Alachua (having been admitted) on June 20, 2003, with a diagnosis of status post CVA (stroke). On or about June 21, 2003, Respondent was assigned to care for E.D. on the 3 to 11 p.m. shift, and at the end of the shift, Respondent reported to the oncoming nurse that he assisted with the care of E.D. and that E.D. was okay and in no acute distress. Respondent's nurse's notes regarding the care he provided to patient E.D. do not mention whether he suctioned the tracheostomy care being provided; and do not contain any physical assessment of the patient. Respondent should have performed and documented tracheostomy care, including but not limited to frequency of suctioning, amount of color of sputum suctioned, cleaning of the tracheostomy device, oral hygiene, and method of communication with the patient. Respondent should have performed and documented a physical assessment of the patient that included respiratory rate and effort, color, pulse rate, and exertional level. Respondent should have monitored and followed up on patient E.D.'s vital signs. Additional Facts: Alice Bostick, is a Medical Malpractice Investigator for Petitioner. She was involved in the investigation leading to the drafting of the Administrative Complaint. As part of the process she attempted to notify Respondent of the allegations made against him. On July 15, 2003, she sent a letter of notification to Respondent at an address obtained from a printout of license information associated with Respondent. That address was 13134 North 22nd Street, Apartment 109, Tampa, Florida 33612. The information sent to Respondent was a Uniform Complaint Form and a Nursing Home Adverse Incident Report. The information sent to Respondent was returned as undeliverable and not subject to forwarding, absent a forwarding request made from Respondent to the U.S. Postal Service. Having failed to notify Respondent at the Tampa address, Ms. Bostick took advantage of access which the Petitioner has to the Florida Department of Highway Safety and Motor Vehicles records to locate Respondent's address maintained by the other state agency. The address provided by the other agency was Post Office Box 99, High Springs, Florida 32655-0099. This was the proper address. Utilizing the new address, the same information was dispatched a second time from Petitioner to Respondent. This time it was not returned as undelivered. Instead Respondent contacted Petitioner's office in person and by his remarks made it known that he received the communication from Petitioner concerning the investigation. At times relevant to this case Respondent worked for the Suwannee Valley Nursing Agency. That agency assigned him to work on a shift at Alachua, now the Manor of Gainesville. On June 21, 2003, Respondent worked the 3:00 p.m., to 11:00 p.m., shift at Alachua. One of the resident's in his care at that time was E.D. Resident E.D. was born on May 18, 1920. She had been released from the hospital on June 20, 2003, and transferred to Alachua. She was receiving oxygen. Physician's orders called for tracheostomy care (trach care) to be administered "Q 6 hours." She had a catheter which was last changed on the date of her release from the hospital. The order indicated that the catheter should be changed every Friday beyond that point. The resident was being fed by tube. As Respondent describes it, E.D. was among 30 patients in his care on the shift. Other residents included persons with G-tubes and insulin-dependent diabetics. Respondent was very busy during his shift helping the residents. Another staff member at the nursing home reminded the Respondent that he needed to suction E.D's trach. At some point in time Respondent and the other staff member suctioned the trach. When this function was performed during the shift is not established in the nursing home record pertaining to resident E.D., as that record was presented at the hearing. Therefore it was not shown an entry was made in the resident's record for care confirming the suctioning of the trach. The only reference to patient E.D. made in writing by Respondent presented at hearing, was from nursing notes related to resident E.D. In the nurse's note Respondent made an entry at the end of his shift as to vital signs for the resident, pulse rate 92, respiration rate 24 and a notation that Respondent "Assisted e-care no acute distress noted." Contrary to the nurse's note made by Respondent, resident E.D. was in distress as discovered by Gloria Brown, L.P.N., who came on shift to work from 11:00 p.m. June 21, 2003, until 7:00 a.m. June 22, 2003. Ms. Brown was familiar with the need to suction a trach and to make appropriate entry in the nursing notes in caring for a trach patient. Notes are also made in relation to oxygen saturation for that resident if a doctor's order calls for that entry. Ms. Brown properly expected the prior shift nurse to notify her concerning the resident's condition as to the number of liters of O2 provided the resident and if the resident had a fever. If the resident had a Foley catheter placed reference would be made to that circumstance. Generally if the resident was experiencing a problem, Ms. Brown would expect the outgoing nurse to mention that fact. On June 21, 2003, at 11:45 p.m., as Ms. Brown described in the nursing notes, "On first rounds observed resident E.D. with shallow breathing, skin color grayish, O2 on a 2 liter per trach mask. Attempt to suction, felt resistance. Sat. 24. O2 increased to three liters. Able to palpate pulse. 911 was called. Transported to Shands at UF via 911. Respiratory distress." Resident E.D. was transported to Shands Hospital at 12:00 midnight. When resident E.D. was transported to the hospital she was experiencing respiratory distress. She had a baseline level of consciousness in the alert range. Petitioner presented an expert to comment on Respondent's care rendered resident E.D. in the context of the allegations set forth in the Administrative Complaint. That expert was Meiko D. Mills, R.N., M.N.S., A.R.N.P. Ms. Mills is licensed to practice nursing in Florida. She has a business that involves the preparation for graduates of L.P.N. schools and R.N. schools to take the National Licensing Examination for those fields. Ms. Mills is familiar with trach care. She has had occasion to write nursing notes pertaining to trach care. She is generally familiar with the requirements for nursing notes in the patient record concerning any form of patient care rendered by the nurse practitioner. She was recognized in this case as an expert in the field of nursing related to patient care and L.P.N.s. In providing trach care, Ms. Mills refers to the need for a sterile environment and the part of the trach device that she refers to as a tube, requires a lot of cleaning because of secretions from the patient. She describes the fact that the trach device will form a crust. As a result the center portion of the device sometimes has to be taken out and soaked in sterile water to clean it. The suctioning process associated with trach care involves the use of a suctioning machine in which all the encrustations and saliva are removed. It is possible for a hard mucus plug to form if suctioning is not done appropriately, according to Ms. Mills. Ms. Mills expressed her opinion concerning Respondent's care provided resident E.D., as to a reasonable degree of certainty and whether Respondent met the minimal standards for acceptable and prevailing care and treatment of E.D. She described that care as lacking. Ms. Mills comments that the nursing note that was made by Respondent at the end of his shift was inadequate in describing the kind of care provided to the resident. In particular she describes the lack of reference to the trach issue and the oxygen saturation issue. She perceives that E.D. required considerable attention and that attention is not reflected in the nursing note. As a person responsible for providing care to E.D., who had a trach, Ms. Mills refers to the need for the Respondent to establish a baseline at the beginning of the shift. That baseline is constituted of vital signs and oxygen saturation, as well as a basic assessment of the resident. There was the need to compare the vital signs assessment to the shift before Respondent came on duty to gain an impression of any trends. The observations by Respondent should have been documented in nursing notes beginning with the baseline as to vital signs, oxygen saturation, reference to the condition of the trach, respiratory effort and so forth, and there was the need to go back and reassess over time. As Ms. Mills explains the resident's condition was reaching an abnormal state on the shift before. Without entries concerning the resident's condition, the assumption is made by Ms. Mills, that the patient care and in particular trach care was not performed by Respondent. Ms. Mills refers to a normal pulse rate as 80 to 100, but Ms. Mills cautions her students that a pulse rate close to 100 bears watching. A respiration rate approaching the highest normal demands attention. Anything above that creates concern. Higher readings tend to manifest themselves with shallower breathing by patient at more frequent intervals, given the body's attempt to compensate for a lack of oxygen. To address this condition a baseline oxygen saturation should be established at the beginning of a shift to help set a plan of care. A resident such as E.D. with a pulse rate of 97 and respiration rate of 24 is a person who needs to be closely monitored. There was no record by Respondent reflecting the establishment of monitoring to address these circumstances. The resident's progress should have been noted as to pulse rate and respiration rate several times during Respondent's shift, as Ms. Mills perceives it. Respondent should have also notified the oncoming nurse for the following shift that the patient was not doing well. This was not done. Overall, Ms. Mills feels that Respondent was deficient in his documentation concerning resident E.D. through the nursing notes. The general comment by Respondent that he assisted with care is not sufficient to establish that trach care was performed in Ms. Mills opinion. According to Ms. Mills, some of the vital signs reflected in the resident's record would create the possibility that they were in relation to a mucus plug in the trach. When the Resident E.D. was transported from the nursing home on June 21, 2003, at 11:30 the oxygen saturation at that time was 78 percent and her pulse was 159. In Ms. Mills opinion those values represented the fact that the resident was in distress. Ms. Mills believes that Respondent engaged in unprofessional conduct by acts of omission. Ms. Mills compared the nursing notes made by Respondent to those made by nurses on the prior two shifts at the nursing home. The prior notes were described as good notes talking about the care, while Ms. Mills did not get the same feeling about the notes made by Respondent. Ms. Mills compared the circumstances when Respondent came on shift when resident E.D. had a pulse of 100 and respiration rate of 20 and the change from the respiration of 20 to the respiration rate of 24 at the end of the shift, as indicating that the resident had shallow compensatory respiration because of a lack of oxygen. This leads Ms. Mills to the conclusion that the vital signs look worse and the person was significantly compromised over the day. Whether this circumstance was brought about by the formation of a plug due to a lack of trach care, Ms. Mills is not certain, but the vital signs indicate that the resident was sufficiently compromised to alert a health professional to that possibility. Earlier in the day the resident had a respiration rate of 28 and a pulse of 110. The change in those values over time up through the Respondent's shift did not indicate improvement in resident's condition in Ms. Mills' opinion. Ms. Mills' opinions that have been described are accepted. Based upon the facts found and Ms. Mills' expert opinion, Respondent failed to meet minimal standards of acceptable and prevailing nursing practice in the care provided resident E.D.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of those provisions of law set forth in Counts One through Three, calling for a written reprimand for those violations, imposing an administrative fine of $500.00, and placing Respondent on probation for a period of two years. DONE AND ENTERED this 24th day of May, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 24th day of May, 2005. COPIES FURNISHED: Judith A. Law, Esquire J. Blake Hunter, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Harvey J. Price Post Office Box 99 High Springs, Florida 32655 Dan Coble, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue presented for decision in this case is whether a civil penalty in the amount of $1,400.00 should be imposed on the Respondent for the repeated deficiencies cited in the Administrative Complaint dated September 14, 1998.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent, Heartland of Zephyrhills ("Heartland"), is a nursing home licensed by and subject to regulation by AHCA, pursuant to Chapter 400, Florida Statutes. Section 400.23(8), Florida Statutes, requires AHCA to evaluate all nursing home facilities and make a determination as to their degree of compliance with the established rules at least every 15 months. The inspection and evaluation is to ensure compliance with applicable state and federal standards. The standards relevant to this case are 42 Code of Federal Regulations (C.F.R.) Section 483.25(c), Florida Statutes, and Rule 59A-4.128, Florida Administrative Code. On August 17-20, 1998, AHCA surveyed Heartland and allegedly found violations of 42 C.F.R. Section 483.25(c), Florida Statutes, which states that a facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the resident’s clinical condition demonstrates that they were unavoidable, and that a resident having pressure sores receives necessary treatment to promote healing, prevent infection, and prevent new sores from developing. In the parlance of the Federal Health Care Financing Administration Form 2567 ("Form 2567") employed by AHCA to report its findings, this requirement is referenced as "F 314" or "Tag 314." Katherine Robbins is a Registered Nurse with over 20 years experience, including working as a director of nursing in an 86-bed nursing home. She is a federally certified surveyor, and now works for AHCA as a surveyor of long-term care facilities such as nursing homes. Ms. Robbins performed a portion of the survey of Heartland and wrote the deficiency notes under Tag 314 for Resident No. 1. Resident No. 1 was admitted to Heartland on January 29, 1998, with a diagnosis of dementia, osteoarthritis, anxiety, and depression. Ms. Robbins testified that diagnoses of dementia and osteoarthritis indicate a predisposition to the development of pressure sores. She testified that a diagnosis of anxiety could indicate a predisposition to pressure sores, if the patient is receiving psychoactive medications. The initial skin assessment on Resident No. 1 indicated there was no skin breakdown at the time she was admitted. Review of the patient records indicated that skin breakdown was evident on July 26, 1998, when a stage II pressure sore on the coccyx was reported. Pressure sores are graded on a scale from stage I for the least severe to stage IV for the most severe. On August 5, 1998, the facility developed a care plan to deal with the skin breakdown and prevent further breakdown caused by Resident No. 1’s decreased mobility, medications, and lack of awareness of her own needs. The resident was completely unable to care for herself, and was unable to get in and out of a chair or the bed on her own. The approaches set forth in the plan included changing the resident after each incontinent episode, increasing her intake of protein foods, and naps in the afternoon to relieve sitting pressure on the coccyx. Ms. Robbins testified that this plan was not adequate in all respects, but would have been workable had it been properly implemented. On August 17, 1998, the first day of the survey, Resident No. 1 was observed at 9:20 a.m. sitting in a wheelchair in her room. She was observed sitting in the activity room from 11:35 a.m. until 12:50 p.m., at which time she was taken to the dining room for lunch. Following lunch, she was observed sitting in her wheelchair without a change in position until 3:20 p.m., when she was taken to the shower room for a shower. Ms. Robbins testified that allowing the resident to sit in the same position would create pressure on the coccyx, where the resident already had a pressure sore. It is routine preventive care to reposition a resident who has a pressure sore or is at risk of developing pressure sores. On August 18, 1998, Resident No. 1 was observed in her room, sitting in a wheelchair and eating breakfast at 8:15 a.m. She was observed at 12:40 p.m. in the dining room, sitting in a chair without a pressure relieving air flotation jell cushion. Ms. Robbins testified that use of such a cushion would be good practice to help heal a pressure sore. Ms. Robbins testified that she asked the director of nursing about this situation, and that the director of nursing told her that Resident No. 1 was sitting in the wrong chair. The clinical record showed that wheelchair modifications had been included in Resident No. 1’s physical therapy plan, but the resident was not placed in the correct chair. Therapy notes indicated that the goal for the resident was to have a chair that would prevent posterior pelvic pressure and lower the seat so that the resident could maneuver the wheelchair safely. The resident would be able to tolerate sitting up in the wheelchair for three or four hours with repositioning being provided every two hours for bathroom needs and pressure relief. The care plan for Resident No. 1 also called for her to be assisted to bed for a nap in the afternoon. Ms. Robbins observed that the resident was not taken for a nap on either August 17 or August 18, 1998. The survey team made a collective decision to cite the Tag 314 deficiency as a class II deficiency, because the stated care plan for the resident was not followed and this was a repeat licensure deficiency. A class II deficiency is subject to a civil penalty of not less than $1,000. However, the Administrative Complaint erroneously cited this as a class III deficiency and recommended a civil penalty of only $700. The August 17-20, 1998, survey also found alleged violations of Life Safety Code ("LSC") standards set forth by the National Fire Protection Association ("NFPA"), in particular NFPA 90A LSC 12-5.2.1 and 13-5.2.1 air conditioning and ventilation standards. In the parlance of Form 2567, this requirement is referenced as "K 067." Peter Cranfield is a fire protection specialist employed by AHCA. He has over 35 years experience in the design, installation, and sales of fire protection systems, mostly in the private sector, including fire protection systems for nursing homes. Mr. Cranfield participated in the survey of Heartland and cited the facility for the K 067 deficiency. Mr. Cranfield found that the following areas of the facility did not have an operable exhaust ventilation system: the main dietary and dishwasher independent units; the No. 300 wing nurse station toilet room; and the No. 400 wing and No. 100 wing janitor closets. Mr. Cranfield brought these deficiencies to the attention of Heartland’s maintenance director, who agreed upon examination that the exhaust units did not appear to be operational. Mr. Cranfield testified that the maintenance director later told him an electrical malfunction was causing the problem. The K 067 deficiency was noted as a repeat class III citation.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Agency for Health Care Administration enter a final order requiring Heartland of Zephyrhills to pay a civil penalty in the amount of $1,400 for the two cited class III deficiencies. DONE AND ENTERED this 25th day of March, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 25th day of March, 1999. COPIES FURNISHED: Karel Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33906 Terrie Restivo-Mock, Esquire Heartland of Zephyrhills 38220 Henry Drive Zephyrhills, Florida 33540 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Stipulated facts AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. At all times material hereto, Avante was licensed by Petitioner as a skilled nursing facility. Avante operates a 116-bed nursing home located in Leesburg, Florida. On or about March 28, 2002, AHCA conducted a complaint investigation at Avante. Based on AHCA's findings during the March 28, 2002, complaint investigation, federal tag F281(D) was cited against Avante. On or about May 13, 2002, AHCA conducted a survey at Avante. Based on AHCA's findings during the May 13, 2002, survey, federal tag F281(D) was cited against Avante. Resident E.S. was admitted to Avante on March 11, 2002, with diagnoses including e. coli sepsis, anemia, and schizophrenia with an order for serum albumin levels to be performed "now and yearly." Resident E.S.'s resident chart failed to reflect that a serum albumin test had been performed for Resident E.S. at any time from the date of his admission on March 11, 2002, until March 28, 2002. Avante failed to follow the orders of Resident E.S.'s physician due to its failure to perform a serum albumin test on Resident E.S. at any time between March 11, 2002, and March 28, 2002. Resident R.L. was admitted to Respondent's facility on May 6, 2002 with diagnoses including gastrointestinal hemorrhage, congestive heart failure, coronary artery disease, A-fib, pneumonia, diverticulitis, gout, fracture of right arm, and cancer of the prostate. Resident R.L.'s resident chart reflects that Resident R.L. was neither offered or administered Tylenol by Avante's staff at any time between May 9, 2002, and May 13, 2002. Facts Based Upon the Evidence of Record The correction date given to Respondent for the deficiency cited, Tag F281(D), as a result of the March 28, 2002, complaint investigation was April 28, 2002. Respondent does not dispute the deficiency cited by AHCA as a result of the March 28, 2002, complaint investigation. Thus, facts and circumstances surrounding the May 13, 2002, survey visit to Avante is the source of this dispute. The purpose of the May 13, 2002 survey visit to Avante by AHCA was for annual certification or licensure. In an annual license survey, a group of surveyors goes to a facility to determine if the facility is in compliance with state and federal requirements and regulations. Part of the process is to tour the facility, meet residents, record reviews, and talk to families and friends of the residents. During the licensure visit on May 13, 2002, the records of 21 residents were reviewed. Stephen Burgin is a registered nurse and is employed by AHCA as a registered nurse specialist. He has been employed by AHCA for three years and has been licensed as a nurse for six years. He also has experience working in a hospital ER staging unit and in a hospital cardiology unit. Nurse Burgin has never worked in a nursing home. Nurse Burgin conducted the complaint investigation on March 28, 2002, and was team leader for the licensure survey visit on May 13, 2002, at Avante. He was accompanied on the May 13, 2002, visit by Selena Beckett, who is employed by AHCA as a social worker. Both Nurse Burgin and Ms. Beckett are Surveyor Minimum Qualification Test (SMQT) certified. During the course of the May 13, 2002, licensure survey visit, Ms. Beckett interviewed Resident R.L. As a result of this interview, Ms. Beckett examined Resident R.L.'s medication administration record (MAR) to determine whether he was receiving pain medication for his injured left elbow. As a result of reviewing Resident R.L.'s record, Ms. Beckett became aware of a fax cover sheet which related to Resident R.L. The fax cover sheet was dated May 8, 2002, from Nancy Starke, who is a registered nurse employed by Avante as a staff nurse, to Dr. Sarmiento, Resident R.L.'s attending physician. The box labeled "Please comment" was checked and the following was hand written in the section entitled "comments": "Pt refused Augmentin 500 mg BID today states it causes him to have hallucinations would like tyl for pain L elbow." According to Nurse Starke, the fax to Dr. Sarmiento addressed two concerns: Resident R.L.'s refusal to take Augmentin and a request for Tylenol for pain for Resident R.L.'s left elbow. She faxed the cover sheet to Dr. Sarmiento during the 3:00 p.m. to 11:00 p.m. shift on May 8, 2002. Despite her fax to Dr. Sarmiento, which mentioned pain in R.L.'s left elbow, her daily nurse notes for May 8, 2002, reflect that Resident R.L. was alert, easygoing, and happy. He was verbal on that day meaning that he was able to make his needs known to her. Her daily nurse notes for May 8, 2002 contain the notation: "Pt refused augmentin today. Dr. Sarmiento faxed." According to Nurse Starke, she personally observed Resident R.L. and did not observe any expression of pain on May 8, 2002, nor did Resident R.L. request pain medication after she sent the fax to Dr. Sarmiento. The fax cover sheet also contained the hand written notation: "Document refused by PT. OK 5/9/02" with initials which was recognized by nurses at Avante as that of Dr. Sarmiento. The fax sheet has a transmission line which indicates that it was faxed back to Avante the evening of May 9, 2002. Nurse Starke also provided care to Resident R.L. on May 11, 2002. According to Nurse Starke, Resident R.L. did not complain of pain on May 11, 2002. Theresa Miller is a registered nurse employed by Avante as a staff nurse. Nurse Miller provided care to Resident R.L. on May 9 and 10, 2002, during the 7:00 a.m. to 3:00 p.m. shift. Nurse Miller's nurses notes for May 9 and 10, 2002, reflect that she observed Resident R.L. to be alert, easygoing, and happy. Her notes also reflect that Resident R.L. was verbal on those dates, meaning that he was able to tell her if he needed anything. She did not observe Resident R.L. to have any expression of pain on those dates, nor did Resident R.L. express to her that he was in any pain. Vicki Cannon is a licensed practical nurse employed by Avante as a staff nurse. Nurse Cannon has been a licensed practical nurse and has worked in nursing homes since 1998. Nurse Cannon provided care to Resident R.L. on May 11 and 12, 2002, on the 7:00 a.m. to 3:00 p.m. shift. Her nurse's notes for May 11, 2002 reflect that Resident R.L. was sullen but alert and verbal. Resident R.L. had blood in his urine and some discomfort. Nurse Cannon contacted Dr. Sarmiento by telephone on May 11, 2002, to inform him of Resident R.L.'s symptoms that day. Nurse Cannon noted on Resident R.L.'s physician order sheet that she received a telephone order from Dr. Sarmiento to give Resident R.L. Ultram PRN and Levaquin, discontinue Augmentin, order BMP and CBC blood work, and a urology consult. Ultram is an anti-inflammatory and a pain medication. Ultram is stronger than Tylenol. The notation "PRN" means as requested by the patient for pain. Levaquin is an antibiotic. Nurse Cannon faxed the order to the pharmacy at Leesburg Regional Medical Center. By the time Nurse Cannon left Avante for the day on May 11, 2002, the Ultram had not arrived from the pharmacy. On May 12, 2002, Resident R.L. had edema of the legs and blood in his urine. Nurse Cannon notified Dr. Sarmiento of Resident R.L.'s symptoms. Resident R.L. was sent to the emergency room for evaluation based on Dr. Sarmiento's orders. Additionally, Nurse Cannon called the pharmacy on May 12, 2002, to inquire about the Ultram as it had not yet arrived at the facility. Resident R.L. returned to Avante the evening of May 12, 2002. Alice Markham is a registered nurse and is the Director of Nursing at Avante. She has been a nurse for more than 20 years and has been employed at Avante for a little over two years. She also has worked in acute care at a hospital. Nurse Markham is familiar with Resident R.L. She described Resident R.L. as alert until the period of time before he went to the hospital on May 12, 2002. She was not aware of any expressions of pain by Resident R.L. between May 9, 2002 until he went to the hospital on May 12, 2002. Nurse Markham meets frequently with her nursing staff regarding the facility's residents. During the licensure survey, Nurse Markham became aware of Ms. Beckett's concerns regarding Resident R.L. and whether he had received Tylenol. She called Dr. Sarmiento to request an order for Tylenol for R.L. The physician order sheet for R.L. contains a notation for a telephone order for Tylenol "PRN" on May 14, 2002, for joint pain and the notation, "try Tylenol before Ultram." The medical administration record for R.L. indicates that Resident R.L. received Ultram on May 13 and and began receiving Tylenol on May 15, 2002. AHCA 's charge of failure to meet professional standards of quality by failing to properly follow and implement physician orders is based on the "OK" notation by Dr. Sarmiento on the above-described fax and what AHCA perceives to be Avante's failure to follow and implement that "order" for Tylenol for Resident R.L. AHCA nurse and surveyor Burgin acknowledged that the "OK" on the fax cover sheet was not an order as it did not specify dosage or frequency. He also acknowledged that the nursing home could not administer Tylenol based on Dr. Sarmiento's "OK" on the fax cover sheet, that it would not be appropriate to forward the "OK" to the pharmacy, that it should not have been placed on the resident's medication administration record, and that it should not have been administered to the resident. However, Nurse Burgin is of the opinion that the standard practice of nursing is to clarify such an "order" and once clarified, administer the medication as ordered. He was of the opinion that Avante should have clarified Dr. Sarmiento's "OK" for Tylenol on May 9, 2002, rather than on May 14, 2002. Nurse Burgin also was of the opinion that it should have been reflected on the resident's medication administration record and treatment record or TAR. In Nurse Markham's opinion, "OK" from Dr. Sarmiento on the fax cover sheet does not constitute a physician's order for medication as it does not contain dosage or frequency of administration. Nurse Markham is also of the opinion that it should not have been forwarded to the pharmacy, transcribed to the medication administration record, or transcribed on the treatment administration record. According to Nurse Markham, doctor's orders are not recorded on the treatment administration record of a resident. Nurse Markham is of the opinion that the nursing staff at Avante did not deviate from the community standard for nursing in their care of Resident R.L. from May 8, 2002 to May 14, 2002. Nurse Cannon also is of the opinion that the "OK" by Dr. Sarmiento does not constitute a physician's order for medication. The Administrative Complaints cited Avante for failure to meet professional standards of quality by failing to properly follow and implement a physician's order. Having considered the opinions of Nurses Burgin, Markham, and Cannon, it is clear that the "OK" notation of Dr. Sarmiento on the fax cover sheet did not constitute a physician's order. Without Dr. Sarmiento's testimony, it is not entirely clear from a review of the fax cover sheet that the "OK" relates to the reference to Tylenol or the reference to Resident R.L.'s refusal of Augmentin. Accordingly, Avante did not fail to follow a physician's order in May 2002. As to AHCA's assertion that Avante failed to meet professional standards by not clarifying the "OK" from Dr. Sarmiento, this constitutes a different reason or ground than stated in the Administrative Complaints. Failure to clarify an order is not the equivalent of failure to follow an order. There is insufficient nexus between the deficiency cited on March 28, 2002 and the deficiency cited on May 13, 2002. Accordingly, Avante did not fail to correct a Class III deficiency within the time established by the agency or commit a repeat Class III violation. Moreover, the evidence shows that the nursing staff responded to the needs of Resident R.L. Resident R.L. expressed pain in his left elbow to Nurse Starke on May 8, 2002. Resident R.L. was alert and could make his needs known. He did not express pain or a need for pain medication to Nurse Miller on May 9 or 10, 2002 or to Nurse Cannon on May 11 or 12, 2002. Rather, Nurse Cannon noted a change in his condition, notified Dr. Sarmiento which resulted in Resident R.L. being sent to the emergency room. Resident R.L. returned to Avante the evening of May 12, 2002, and received Ultram for pain on May 13, 2002, when the medication reached Avante from the pharmacy. The evidence presented does not establish that Avante deviated from the community standard for nursing in its actions surrounding the "OK" from Dr. Sarmiento. In weighing the respective opinions of Nurses Burgin and Markham in relation to whether the community standard for nursing was met by the actions of Respondent, Nurse Markham's opinion is more persuasive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints issued against Respondent, Avante at Leesburg. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 13th day of December, 2002. COPIES FURNISHED: Jodi C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Station 3 Tallahassee, Florida 32308 Karen L. Goldsmith, Esquire Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis 2180 Park Avenue North, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Valinda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue The issue is whether Respondent's license to practice nursing should be revoked, suspended, or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Rita Flint (Flint) was a licensed practical nurse in the State of Florida, holding license number PN0655201. Flint's last known address is 6494 South West 8th Place, North Lauderdale, Florida 33068. At all times material to this proceeding Flint was employed by North Broward Medical Center (NBMC) located in Pompano Beach, Florida, as a practical nurse. On August 3, 1990, Flint was assigned to care for patients J. C. and J. K. including administering their medications and charting same on their Medication Administration Record (MAR). On August 3, 1990, J. C.'s physician prescribed one (1) nitroglycerine patch each day. Flint failed to administer the patch on this date. On August 3, 1990, J. C.'s physician prescribed 100 mg. of Norpace every six (6) hours. Flint failed to administer the 2:00 p.m. dosage of Norpace to J. C. On August 3, 1990, J. C.'s physician prescribed 120 mg. of Inderal each day. Flint failed to administer the 9:00 a.m. dosage of Inderal until 1:30 p.m. without noting any explanation on J. C.'s MAR. On August 3, 1990, Flint failed to document the administration of J. K's own medications on the MAR. On August 3, 1990, Flint failed to sign the MARs for J. C. and J. K. as required by hospital policy. On August 15, 1990, Flint left an intravenous bag with an exposed needle hanging at the bedside of a patient. On August 29, 1990, Flint was assigned to care for patient R. R. including administering his medications. Flint failed to administer the following medications leaving all of them at R. R.'s bedside: (a) Timolo (9:00 a.m. and 2:00 p.m. doses); (b) Mixide (9:00 a.m. dose); (c) Zantac (9:00 a.m. and 4:00 p.m. doses); (d) Lasix (9:00 a.m. dose); and, (e) Entozyme (8:00 a.m. and 12:00 noon doses). On August 30, 1990, NBMC terminated Flint's employment as a result of the aforementioned conduct. There is no evidence that any patient suffered any actual harm as a result of Flint's errors. In September of 1990, NBMC referred Flint to the Intervention Project for Nurses. At all times relevant to this proceeding, Flint's job performance was adversely affected by long work schedules necessitated by severe financial problems. During the week of August 3, 1990, Flint worked a ninety-two-hour week. The acute financial stress was due to domestic problems including the breakup of her twenty-two-year-old marriage. Flint had no problems involving substance abuse. Flint attended individual therapy sessions with a clinical psychologist, Priscilla Marotta, Ph.D., and participated in group therapy designed primarily for persons with substance abuse problems. Flint attended weekly therapy sessions for approximately one month after which she could no longer afford treatment. Even though Flint was financially unable to continue treatment with Dr. Marotta or any other counseling program recommended by the Intervention Program for Nurses, she diligently undertook a self-help program to educate herself on stress management techniques, to develop self-reliance, and to improve self-esteem. Flint's effort to participate in therapy, to the extent financially possible, and to rehabilitate herself shows a strong commitment to her profession. Flint has been licensed to practice nursing since May 31, 1982. There is no evidence of any disciplinary action against her license prior to or after the incidents herein described. Flint is currently employed as a nurse in a hospice. Her recent performance appraisal reports indicate that, on an average, she fully meets all job requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Board of Nursing enter a Final Order finding Respondent guilty of violating Section 464.018(h), Florida Statutes (1989), as defined in Rule 210-10.005(1)(e)1 and Rule 210-10.005(1)(e)2, Florida Administrative Code, and not guilty of violating Section 464.018(1)(j), Florida Statutes. It is further recommended that the Board's final order: (1) place the Respondent on probation for one year subject to such requirements as the Board may require; and (2) require the Respondent to pay an administrative fine in the amount of two hundred fifty dollars ($250). DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November 1994. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2715 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Incorporated into Findings of Fact 1. Incorporated into Findings of Fact 2 and 11. Incorporated into Findings of Fact 4. Incorporated into Findings of Fact 5. Incorporated into Findings of Fact 6. Incorporated into Findings of Fact 7. Incorporated into Findings of Fact 8. Incorporated into Findings of Fact 9. Incorporated into Findings of Fact 10. The first sentence is incorporated into Findings of Fact 13. The remaining portion of this proposed fact is not supported by competent substantial evidence. Furthermore, Respondent's Exhibit 3, as it relates to a diagnosis of a mental condition, is hearsay which does not supplement or explain any other psychological or medical evidence. Thus, any reference in Exhibit R3 to a generalized anxiety disorder is insufficient to support Petitioner's proposed finding. Unsupported by competent substantial evidence. Unsupported by competent substantial evidence. See number 10 above. FOR THE RESPONDENT: 1. Respondent did file proposed findings of fact or conclusions of law. COPIES FURNISHED: Laura Gaffney, Esquire Natalie Duguid, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rita Flint 3313 South East Second Street Pompano, Florida 33063 Judie Ritter Executive Director Board of Nursing AHCA 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Harold D. Lewis General Counsel The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue in this case is whether Respondent committed the allegations in the notice of intent to assign a conditional license and, if so, whether Petitioner should have changed the rating of Respondent's license from standard to conditional from June 13, 2001, through July 11, 2001.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 710 North Sun Drive, Lake Mary, Florida 32746 (the "facility"). Petitioner conducted a complaint investigation on June 13, 2001 (the "June survey"). Petitioner noted the results of the complaint investigation on the Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567". The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "tags"). Each tag of the 2567 includes a narrative description of the allegations against Respondent and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. In order to protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number rather than by the name of the resident. Tag F314 is the only allegation at issue in this proceeding. Tag F314 generally provides that a facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless they were unavoidable; and the resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. Tag F314, in relevant part, alleges that the facility: . . . did not insure the prevention of pressure sore development or provide that necessary treatment for pressure sores which had developed in the case of one of four residents. Applicable federal and state laws require Petitioner to assign a rating to the deficiency alleged in the 2567. The rating required by federal law is for scope and severity. Petitioner assigned a G rating to Tag F314. A G rating means that the alleged deficiency was "isolated." State law requires Petitioner to assign a class rating. Petitioner assigned a Class II rating to the deficiency alleged in Tag 314. A Class II rating is authorized in Section 400.23(8)(b), Florida Statutes (2001), for any deficiency that has "compromised the resident's ability to maintain or reach his or her highest practicable physical, mental and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." The Class II rating is the only rating at issue in this proceeding. (All statutory references are to Florida Statutes (2001) unless otherwise stated.) When Petitioner alleges a Class II deficiency in the 2567, applicable rules require Petitioner to change the rating of the facility's license. Effective June 12, 2001, Petitioner changed to rating of the facility's license from standard to conditional. Petitioner conducted a follow-up survey on July 11, 2001 (the "July survey"). Petitioner determined that Respondent had corrected the deficiency alleged in Tag F 314 in June. Effective July 11, 2001, Petitioner changed the rating of the facility's license from conditional to standard. The Class II rating from Petitioner rests on the allegations in Tag 314. The first allegation is that Respondent did not prevent the development of a pressure sore on the right buttock of Resident 1. The second allegation is that the facility failed to provide the treatment necessary to treat the pressure sore. The facility admitted Resident 1 on October 19, 2000. Between the date of admission and June 4, 2001, Resident 1 did not develop any pressure sores. However, on June 4, 2001, a certified nursing assistant ("CNA") noticed an open area on the resident’s right buttock while showering the resident. The CNA notified the attending nurse. A threshold issue is whether the area of concern on Resident 1 was a pressure sore or a blister caused by incontinence and chafing from the resident's diaper. The nursing staff described the identified area on a document in the resident’s medical chart called a "pressure ulcer report." Petitioner contends that the use of a "pressure ulcer report" by Respondent is an admission by Respondent and that Respondent has the burden to prove that the area was not a pressure sore. However, the burden of proof is on Petitioner to show that the area of concern is a pressure sore. Petitioner promulgates a written definition of a pressure sore in the guidelines that Petitioner requires its surveyors to use in interpreting the regulatory standard of Tag F314. Petitioner defines a pressure sore as: . . . ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or sheer. Section 120.68(7)(e)3 prohibits Petitioner from deviating from its officially stated policy unless Petitioner explains the deviation. Petitioner failed to provide any evidence for deviating from its written definition of a pressure sore. Ischemic ulceration or necrosis of tissue that has been subjected to pressure, friction, or sheer is not a pressure sore, as defined by Petitioner, if the area does not overlie a bony prominence. The parties disagree as to the location of the area of concern on Resident 1. Petitioner's surveyor is an expert in nursing practices and procedures. She observed the area of concern on Resident 1 during the June survey. The surveyor testified at the hearing that the area of concern was located over the resident’s ischial tuberosity; i.e., the bone on which the resident placed her weight when she sat. The facility's director of nurses is also an expert in nursing practices and procedures. The director observed the area immediately after the survey and testified that it was located in the fleshy part of the resident’s buttocks and was not over any bony prominence. The preponderance of evidence did not show that the area of concern on Resident 1 was located over a bony prominence. The area of concern was located in the same location as the elastic band of the diaper that the resident wore for her incontinence. The area of concern was likely caused by the combination of the resident’s incontinence and chafing from the diaper. The pressure ulcer report prepared by the nursing staff contains the outline of a human body on which the nursing staff marked the location of the area of concern on Resident 1 when staff first identified the area. The report shows that the area of concern is located in the fleshy part of the resident’s right buttock. The report did not indicate that the area of concern was located in the area on which the resident would have placed her weight when she was seated or prone. Even if the area of concern were located at the ischial tuberosity other factors belie a diagnosis of pressure sore. Pressure sores typically involve deep tissue damage, have drainage and odor, and require a long time to heal. The pressure ulcer report indicated that the area identified on the resident was small in size, had scant odor and no drainage, and healed by July 3, 2001. All of the surrounding facts and circumstances indicate that the area of concern on Resident 1 was not a pressure sore but was a blister caused by chafing from the diaper the resident wore for her incontinence. The "pressure ulcer report" for Resident 1 classified the area of concern as a stage II. A stage II involves a partial thickness loss of skin layers either dermis or epidermis that presents clinically as an abrasion, blister or shallow crater. The area was further described in the report as being 0.7 by 0.7 centimeters in size with scant serous drainage, no odor, and pink in appearance. The director of nurses testified that the area presented as a "dry blister." Assuming arguendo that the area of concern on Resident 1 was a pressure sore, there are two additional issues to be determined. One issue is whether development of the alleged pressure sore was unavoidable due to the resident’s clinical conditions. The other issue is whether the facility failed to provide the treatment and services necessary to promote healing after the alleged pressure sore developed. Petitioner promulgates guidelines for Tag F324 for use by surveyors in determining whether a pressure sore is unavoidable. The guidelines state in relevant part: . . . a determination that development of a pressure sore was unavoidable may be made only if routine preventative and daily care was provided [by the nursing home]. The guidelines define routine preventative care as: . . . turning and proper positioning, application of pressure reduction or relief devices, providing good skin care, providing clean and dry bed linens, and maintaining adequate nutrition and hydration as possible. The guidelines instruct surveyors to determine whether a facility complies with the foregoing standards "consistently" rather than one hundred per cent of the time. When the facility admitted Resident 1 in October, 2000, she was immobile and had several compromising diagnoses. They included atrial fibrillation; chronic ischemic heart disease and coronary atherosclerosis (diseases of the heart and arteries); abnormal loss of weight; angina pectoris; senile dementia; a kidney infection; and incontinence of both bowel and bladder. The clinical conditions placed Resident 1 at high risk for the development of pressure sores. The surveyor guidelines for Tag F314 state that a resident who is immobile, has continuous urinary incontinence, chronic bowel incontinence, and chronic heart disease is at high risk for the development of pressure sores. At the time of admission, the nursing staff at the facility assessed Resident 1 as being at risk for the development of pressure sores due to her incontinence and immobility. They designed a care plan to prevent the development of pressure sores. The care plan included frequent turning and repositioning of the resident, weekly skin assessments by a nurse, skin checks during care and bathing, and prompt incontinence care. The parties agree that the interventions in the care plan met the regulatory requirements for preventative care under Tag F314. With one exception, Petitioner does not allege that the facility failed to provide routine preventative care to the resident. Respondent does not dispute that the facility did not perform weekly skin checks for three weeks in May preceding the identification of the area of concern on Resident 1. However, the failure to perform those skin checks did not cause Resident 1 to develop a pressure sore. A weekly skin check is a head-to-toe assessment of a resident’s skin by a nurse. Since a nurse can only observe a pressure sore after it has appeared on a resident, this assessment is not preventative in nature. Instead, it is designed to assure that appropriate and immediate treatment can be provided to the area after a reddened area develops. Even if weekly examinations of a resident’s skin were an integral part of a plan intended to prevent the development of pressure sores on Resident 1, the facility necessarily exceeded this standard with regard to the resident’s right buttock where the area of concern actually occurred. Facility staff observed the resident’s buttock more than once a day when the resident received incontinence care, bath, or showers. Consistently through May and June, the resident’s chart shows that the resident was incontinent at least three times a day and that she received a partial bath or full shower at least once a day. On June 4, 2001, facility staff in fact observed a reddened area during the resident's shower. Petitioner submitted no evidence that the facility could or should have been observing the resident’s buttock more frequently than its staff actually did or that the area could have been identified any earlier. The preponderance of evidence shows that the facility consistently implemented the component of its care plan that required monitoring of the resident’s buttock. The care plan for Resident 1 included two other primary components to prevent pressure sores. One component was prompt incontinence care. The other was turning and repositioning of the resident every two hours to relieve pressure over areas susceptible to breakdown. Petitioner alleges that the facility failed to comply with these components during the June survey. Proving that a facility consistently turns and repositions a resident and provides prompt incontinence care is problematic for a facility. Those interventions are routine care. There is no regulation or standard that requires nurses to chart routine care. Because these interventions are not typically charted, a nursing home will not typically have documentary evidence to demonstrate that the interventions were provided to a resident. The facility provided sufficient evidence to show that the interventions of repositioning and prompt incontinence care were provided to Resident 1 during the June survey. The facility provided incontinence care to the resident at least three times a day. With regard to turning and repositioning the resident, the director of nursing testified that she saw staff turning and repositioning the resident prior to the survey. Resident 1 was at high risk of developing pressure sores. If staff had not consistently turned and repositioned the resident and provided prompt incontinence care, it is more likely than not that the resident would have developed serious pressure ulcers on most or all of her weight bearing surfaces. The appearance of one small area on the resident and the absence of any other areas over any bony prominence is persuasive evidence that the facility consistently turned and repositioned the resident and consistently provided her with prompt incontinence care. The final issue is whether the facility provided the treatment to Resident 1 that is necessary for healing of the alleged pressure sore. Petitioner agrees that the facility developed an appropriate care plan for the identified area immediately upon its discovery. An order in the care plan developed after discovery of the alleged pressure sore called for application of a duoderm patch to the wound. Petitioner alleges that the facility did not follow the order because the surveyor observed no patch on the resident during the survey. It is more likely than not that the duoderm patch came off of Resident 1 during an episode of incontinence prior to the time that the surveyor observed the resident. Duoderm patches commonly come off when a resident has an incontinent episode. Regardless of why the patch was not on Resident 1 during the survey, the absence of the patch one time during the survey does not demonstrate that staff consistently failed to comply with the order calling for the patch. The instance observed by Petitioner's surveyor was the only instance identified by the surveyor as a failure to follow the resident's care plan. The resident’s medication administration records demonstrate that facility staff applied the duoderm patch in all other instances in compliance with the doctor’s order. Furthermore, the facility continued to provide the routine preventative care called for by the care plan. Petitioner did not show that the facility consistently failed to follow the care plan for Resident 1 as alleged in Tag F314. The area of concern on Resident 1 healed quickly and progressively after it was discovered. Petitioner offered no evidence that the alleged pressure sore did not heal or that the resident was otherwise harmed as a result of the failure to place a duoderm patch on the resident on June 13, 2001. The pressure ulcer report and nurse’s notes indicate that the wound healed by July 3, 2001. The records noted with each successive entry after June 4, 2001, that the area was smaller in size. The area demonstrated characteristics of healing, including the absence of any odor or drainage, and pink granulating tissue. Resident 1 was at high risk for pressure sores, and pressure sores do not typically heal quickly. The progressive pattern of healing indicates that the facility provided the necessary and effective treatment for the area of concern on Resident 1.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order finding that there was no basis upon which the agency could have issued a Conditional rating to Respondent on June 13, 2001, deleting the deficiency described under Tag F314, and issuing a Standard rating to Respondent to replace the previously issued Conditional rating. DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002. COPIES FURNISHED: Eileen O'Hara Garcia Agency for Health Care Administration 525 Mirror Lake Drive North Sebring Building, Room 310J St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
