The Issue The issue in this matter is whether the superior nursing home license which Meadowbrook Manor had received should be replaced with a standard license? Meadowbrook Manor contests deficiencies cited during a survey of the facility by the Department of Health and Rehabilitative Services, Office of Licensure and Certification. The facility contends that the deficiencies were not cited according to standard departmental procedures, were cited for circumstances which are not violations of statutes or rules, or should have been waived by the Department, and that it is entitled to a superior license.
Findings Of Fact Meadowbrook Manor is a nursing home located in Dade County, Florida. It received a standard rating after a survey was conducted by the Department of Health and Rehabilitative Services Office of Licensure and Certification which occurred on September 23, 1985, through September 25, 1985. Meadowbrook Manor had between 240 and 245 patients at that time, it is a large nursing home. The Department of Health and Rehabilitative Services performs interdisciplinary surveys annually for the purpose of determining licensure ratings of nursing homes. A facility with a superior rating receives a higher Medicaid reimbursement rate than one with a standard rating. Immediately prior to the survey which gave rise to this dispute, Meadowbrook Manor had a superior rating. The Change Over in Criteria for Determining Superior and Standard Ratings Under the survey protocol in effect when the survey was conducted, a nursing home would obtain a superior rating if (1) it had no more than 20 deficiencies, with fewer than 4 deficiencies among 14 major areas, (2) had no more than 5 deficiencies in each remaining area, (3) had no class 1 or class II deficiencies (i.e., serious deficiencies posing a threat to the safety of clients, Section 400.23(4), Florida Statutes), (4) all deficiencies were corrected within certain time frames set by the Department, and (5) the nursing home met additional criteria outlined in a document entitled Guidelines for Determining Whether a Facility Exceeds Minimum Standards. A new rating system became effective on September 26, 1985, after the Meadowbrook Manor survey was performed but before the report of the survey was compiled, due to the promulgation of Rule 10D-29.128, Florida Administrative Code. Under the new rule a superior nursing home still may have no class I or class II deficiencies, but the number of class III (ordinary) deficiencies would not preclude a superior rating if they were corrected in a timely manner. The facility must be in compliance with all evaluation standards contained in the nursing home licensure survey report. Finally, to determine whether a home is superior, the surveyors utilize a document entitled "Guidelines for Exceeding Minimum Standards", which was published in August or September 1985, which incorporates the requirements of Rule 100-29.128(6)(c), (d) and (e), Florida Administrative Code. The parties stipulated that all deficiencies cited at Meadowbrook Manor as the result of the survey were class III deficiencies and that all deficiencies were corrected in a timely manner. The Survey Report Under the current licensure System prescribed by the amendment to Rule 100-29.128, Florida Administrative Code, the Department uses a protocol entitled "Nursing Home Licensure Survey Report" when annual licensure surveys are conducted. The report contains three hierarchical categories of evaluation. The most general categories are conditions, conditions are made up of more specific sub-units known as standards, and standards are made up of very specific individual factual elements to be evaluated during the survey, which are numbered NH1-NH509. (The NH presumably identifies the elements as nursing home elements.) The first element in each standard is a general element which is used to record whether, based on the findings on individual elements, the standard has been met. When the survey at Meadowbrook Manor occurred, the protocol in use today was not used. A different protocol had been used through September 26, 1985, which also had numbered, discrete elements which were evaluated. While the numbering system for elements to be surveyed changed on September 26, 1985, the substantive criteria embodied in the elements to be reviewed remained essentially the same. Any deficient element which the survey team documented in its survey using the old protocol has an analogous element under the new nursing home licensure survey report now in effect. The presentation at final hearing made by the Department was generally cast in terms of the prior survey protocol and criteria for obtaining a superior rating in effect before September 26, 1985. Based on a motion filed by the facility, a ruling was made at the final hearing that the licensure decision based on the survey information collected on September 23-25, 1985, was being made after the new evaluation System embodied in Rule 100-29.128, Florida Administrative Code, became effective on September 26, 1985, so the new evaluation system applied to the information collected during the survey. Testimony from the survey team members about deficiencies they believe they found was received, and cross-referenced to the numbered elements of the old and new survey system. In this recommended order, the surveyors' findings will be evaluated with reference according to the new system for numbering elements, unless otherwise indicated. HRS Survey Procedures HRS has published a manual setting out policies and procedures which members of survey teams are to follow in conducting licensure and certification surveys. For example, medical records of 10 percent of the patients at a facility are to be reviewed during the survey process. This sample is to be generated through the use of a random number table to provide the surveyors with a random sample. A table of random numbers and instructions for its use is found in the Department's survey manual. If surveyors find minor deficiencies which can be corrected prior to the survey team's exit conference with the facility's staff and the deficiencies are corrected before departure, it is departmental policy that the facility should not be cited for those deficiencies. If a deficiency fits into two or more possible classifications, it should be treated as a single deficiency to avoid double counting. In order to enhance the ability of surveyors to determine the quality of care provided at the nursing home, rather than assess mere paper compliance with regulatory standards, surveyors conduct interviews with patients. The survey team members are required by departmental policy to discuss their findings during the survey process with the facility's staff so the staff members can direct the survey team to appropriate sources of information or provide appropriate explanations of what team members find during the survey. The survey team members are required by departmental policy to conduct an exit conference with the staff of the facility after they have held, among themselves, a pro-exit conference to discuss the findings of each team member and to ensure that there is agreement among the team members on elements found deficient, i.e., not in compliance with statutory and rule requirements. The survey team leader conducts the exit conference, during which the team leader or team members announce each deficiency so that the staff of the facility will be aware of deficiencies. If deficiencies are found, the Department of Health and Rehabilitative Services resurveys to determine whether the deficiency has been corrected. These resurveys are usually conducted within 90 days. The review of medical records of nursing home patients is an important part of the survey; clinical records and administrative records are also reviewed. The Department's survey handbook prescribes a selection procedure to generate a 10 percent random sample of medical records. See Finding of Fact 10, ante. This obviously is designed to provide a sample which will give the team a reliable overview of the quality of care being provided to residents. Deficiencies in the Survey Process The testimony of the team leader, Mr. Bavetta, established that the proper procedure was not followed to draw the sample of records reviewed by the survey team. Rather than use the random selection procedure found in the handbook, Mr. Bavetta took patient records from each section of the facility, so if there are four wings he would pick records from each wing. While this has intuitive appeal, proper use of the sampling procedure would produce a representative sample. The procedure utilized here did not comply with the Department's own selection criteria, which seriously undermines the ability to generalize about trends at the facility, based on the findings made on the records that team members did review. Five deficiencies found in the report of the team's findings had actually been corrected before the survey team left, or should have been treated as corrected. These include: old NH272, violation relating to the height of storage of items in the pantry; old NH 352, relating to maintenance of moldings, and louvered doors; old NH354, arising from a minor drainage problem in a beauty salon sink; old NH335, dealing with labeling of electrical circuits; and old NH267, relating to flame retarding treatment of paneling in an office which could have been completed before the survey team left, but was briefly delayed because the team used that room for its work and could not have done so due to fumes if the treatment material on hand had been applied while the team was at the facility. With respect to the social services survey, the surveyor did very little patient interviewing (compare Finding of Fact 12, ante), and declined to discuss her findings with the facility's staff (compare Finding of Fact 13, ante). These failures did not significantly affect the surveyor's findings, however. The suggestion by the facility that the survey was scheduled at a time too far in advance of the date Meadowbrook's superior license was to expire is rejected. Although by Departmental practice, surveys may usually take place within one hundred twenty (120) days of licensure expiration, the Department has the authority to survey at any time. Rule 100-29.128(2), provides that the scheduling of annual inspection "shall be at the discretion of the department". Deficiencies Admitted by Meadowbrook Notwithstanding the errors in the generation of the medical records sample, Meadowbrook Manor admitted in the pre-trial stipulation that deficiencies in the following survey elements were found during the survey. As stated in Finding of Fact 6, however, these deficiencies were class III deficiencies which were corrected in a timely manner (numerical references are to survey elements): Condition IV, Dietary Services; Standard (f), Preparation and Food Service; element NH185, requiring that food be prepared by methods that conserve nutritive value, flavor, and far appearance; is of high consumer palatability; is attractively served at the proper temperatures to meet individual needs; and includes consideration of the cultural food preferences of the residents. Since the survey a wholly new food delivery system has been purchased at a cost of $21,000 to ensure that food remains at the appropriate temperature while moving from the kitchen to patient rooms. Element NH190, which is part of the same condition and standard as the preceeding item, which requires an over-bed table be provided whenever residents eat in bed. Additional tables have been purchased so patients do not need to wait for another patient to finish with a table before they may eat in bed. Condition IV, Dietary Services; Standard (g), Sanitary Conditions; element NH195, which requires that sanitarian reports, Food Service Establishment Inspection form number 4023, and any other written reports of inspections by state and local health authorities be maintained on file in the facility for one year from issuance, showing correction of any deficiencies. Condition XII, Physical Environment; standard (a), Fire Prevention, Fire Protection and Life Safety; element NH369, which requires that building service equipment be in accordance with national fire prevention act section 90A, and other applicable sections of the Life Safety Code. All Life Safety violations have been corrected. Condition XII, Physical Environment; standard (a), Fire Prevention, Fire Protection and Life Safety; element NH364, which requires fire alarm systems meeting applicable codes are installed, maintained, and tested as required. These have also been corrected. Although these deficiencies have been admitted, because both parties agree they are class III deficiencies, and agree that they have been timely corrected, these stipulated deficiencies on individual elements are not sufficient in and of themselves to place the facility in violation of any standard. A contrary ruling would be dispositive here, because Rule 100- 29.128(6)(b), Florida Administrative Code, makes clear that to be eligible for superior rating, a facility must be in compliance with all standards (but not necessarily all elements) contained in the nursing home licensure survey report. Deficiencies Relied on by the Department but Contested by Meadowbrook In its proposed recommended order, the Department maintains that the evidence supports findings that the following standards were not met: (1) Condition III, Nursing Services; Standard (b), Charge Nurse, general element 100; (2) Condition IV, Dietary Services; Standard (f), Preparation and Service of Food, general element 183; (3) Condition IX, Social Services; Standard (a), Provision of Services, general element 284; and (4) Condition XII, Physical Environment; Standard (a), Fire Prevention, Fire Protection and Life Safety, general element 355. 1. Nursing Care Under standard 100, which requires that during specific hours of duty, a charge nurse is responsible for the total nursing care of residents, the Department contends the following elements were not met: NH102, which requires that the charge nurse ensure that nursing services are delivered in accordance with the established standards, policies and procedures of the facility; NH109, which requires that nursing care include measurement of basic vital functions including height and weight measurements on all residents, with abnormalities documented in the resident's medical record and reported to the attending physician; NH110, which requires that nursing care include maintenance of adequate hydration; NH122, which requires that each resident's diet is served as prescribed and the resident's food and fluid intake and output is observed; NH128, which requires that nursing services personnel encourage, and when necessary, teach residents to function at their maximum level in appropriate activities of daily living, for as long and to the degree that they are able; NH130, which requires nursing services personnel to encourage and assist residents who are learning to use and adjust to the use of adaptive equipment and prosthetic devices; NH142, which requires a preliminary resident assessment and preliminary care plan be initiated upon admission; and NH143, which requires a comprehensive resident assessment be performed and a comprehensive resident care plan based on the comprehensive assessment be developed and implemented within 14 days of the resident's admission into the facility. NH102 requires the charge nurse to ensure that the facility's own procedures are followed. The survey report criticized the facility for other specific deficiencies discussed below in Findings of Fact 25-28. To count a deficiency under this general heading and also for the specific nursing elements is an example of impermissible double counting. NH109 requires the measurement of basic functions. It is clear that at least 5 residents were not weighed when they should have been, and 1 had lost at least 30 pounds without having the matter referred to the attending physician. Since there apparently was a policy in effect for some time of taking waist measurements for some residents with a tape measure rather than weighing them, and since the resident who lost 30 pounds presented an egregious situation that this should have come to the attention of the physician, I find that the facility did violate NH109. As to element NH110, there were at least two patients with the specific orders to force fluids whose fluid intake and output was not documented. Due to the failure to select the sample in a random fashion is impossible to generalize that this constituted a trend at the facility. These were isolated cases and the deficiency is not sustained. With respect to NH128, the absence of handrolls for patients with contracted hands to assist them in keeping their hands in a functional position, there is insufficient evidence that what was observed was anything other than an isolated incident. With respect to NH130, the absence of special cups or self grooming devices, the testimony of Mr. Biondi that these were available at the time the survey was conducted is accepted. The surveyors also noted that, with respect to initial nursing care plans, plans were being drawn up within 96 hours of the resident's arrival at the facility, but criticized the plans because they included goals for fewer than all of the resident's needs. There was also criticism that in approximately 8 cases patients with problems such as decubitus did not have those problems integrated later into their comprehensive care plan. Due to the failure of the team to draw a random sample, there is not persuasive evidence that comprehensive care plans were not being properly evaluated. The findings in the survey of deficiencies with respect to elements NH142 and NH143, which deal with the initial care plans and comprehensive care plans, are not sustained. It is also significant that, in its proposed recommended order, the Department of Health and Rehabilitative Services maintains that standard 100 (which relates to the duty of a charge nurse) had not been met due to the survey of deficiencies in elements 102, 109, 110, 122, 128, 130, 142 and 143. The only element which actually falls under the standard with respect to the duties of the charge nurse is element NH102 (old element NH75). All other elements fall under different standards. I cannot conclude that element NH102 was deficient and therefore reject the contention that the standard with respect to the charge nurse was not met. The deficiency in element NH109 i not sufficient to support a violation of the standard in which it is contained, Condition III, Nursing Services, Standard (d), Nursing Care. 2. Food Service The same problem of misapplication of elements to appropriate standards appears with respect to the contention made by the Department in its proposed recommended order that Condition IV, Dietary Services, standard (f), Preparation and Service of Food (general element 183), was not met. The Department relies on deficiencies for elements NH177, NH178, NH185, NH188, NH190 and NH193, to support its contention that that standard was deficient. Elements NH177 and NH178 relate to a wholly different standard (standard (e), Menus and Nutritional Adequacy). Element NH193 is a broad element relating to standard (g), Sanitary Conditions, which requires compliance with Chapter 100-13, Florida Administrative Code, pertaining to food service. None of these five elements therefore are relevant to the contention that Standard (f) for preparation of service and food was not met. With respect to the relevant elements, the evidence fails to support the contention that sufficient eating utensils and dinnerware were not available in an amount for each resident; the survey deficiency with respect to element NH188 is not sustained. With respect to element NH190, there were not sufficient overbed tables for all residents who eat at their beds to eat simultaneously. This was one of the stipulated deficiencies. See Finding of Fact 20(b), ante. It is not sufficient to support a finding that the standard encompassing that element was not met, however. 3. Social Services As to the contention that Condition IX, Social Services, Standard (a), Provision of Services, element NH286 was deficient, there is persuasive evidence that social services are provided to residents to assist them in adjusting to the effects of their illnesses or disabilities. Moreover, the social service surveyor relied in part on her analysis of four of ten records which she reviewed to provide the basis for the deficiency. Due to the inadequacy in gathering the sample, this is not persuasive evidence of a trend showing that the facility failed to provide required social services; the testimony of the Meadowbrook's social service director in opposition to the deficiency is credible and accepted. With respect to element NH321 concerning the activity component of residents' care plans, the instances which gave rise to this survey deficiency were drawn from an inadequate sample, and the testimony concerning the efforts the social service director at the facility makes to identify therapeutic recreational activities contributing to the residents' well being was persuasive, and has been accepted. The facility met Condition IX, Social Services; Standard (a), with respect to the provision of services. 4. Fire Prevention, Fire Protection and Life Safety On the deficiency cited for element NH356, that the building's construction did not comply with applicable codes and standards, the maintenance workshop, which had existed for a number of years, did not comply with the fire safety code. Yet the Department had never cited this as a deficiency over the years; including last year when the facility received its superior rating. The workshop was removed the next day after this deficiency was pointed out. The deficiency for NH357 cited due to the wood paneling in the facility's office not having been properly flame-spread rated, is not accepted; it had existed during past surveys without criticism, and the facility treated the paneling immediately after this was pointed out. See also the discussion of this deficiency in Finding of Fact 17, ante. With regard to the inaccessibility of a tamper switch, I find the maintenance supervisor was able to locate the switch, and that the lock on the switch is one of the options which may be used to satisfy fire code requirements; NH367 was not deficient. The problems with the smoke detection system in the west section of the building, where the smoke detectors did not function is a more serious problem, and the fact that those detectors did not work sustains the deficiency for element NH 359. Similarly, the removal of smoke detectors from the west wing and the absence of fire dampers in the air conditioning system which would have isolated smoke in a given wing had their been a fire sustains the deficiency for element NH369. There was also a problem with the fire alarm annunciator panel, which was locked in a closet. That panel shows the zone of the facility in which a fire has occurred, and also indicates whether the power is on, and the fire and smoke detectors are operating. Being locked in the closet, it could not perform its function because it could not be observed from a nurse's station. The annunciator panel must be monitored from a 24-hour attended location, such as a nursing station. There was a violation of NH364. The facility installed a new panel by the nurse's station, at a cost of approximately $12,000. There was also a violation of NH360 because the kitchen doors did not have an automatic latch. This is important in order to segregate the kitchen in the event of a fire in order to control the spread of smoke. This has been corrected. All of these Life Safety violations raise the question of whether the facility should fail standard (a) of Condition XII, Physical Environment. The question is a close one, but I do not believe the evidence sustains a finding that the standard was violated. The building had been annually inspected by the Department for a number of years and none of these violations had been pointed out in the past. In addition, the facility had its own Life Safety inspection done four months prior to the Department's inspection, which did not reveal these violations. The quality of that inspection may be subject to question, but the fact that it was done indicates that the facility was making a serious effort to comply with Life Safety requirements. Moreover, the parties stipulated that all of these deficiencies were corrected in a timely manner and that they were category III deficiencies. All things considered, I do not find that the violation of certain elements relating to Life Safety put the facility in violation of Condition XII, standard (a). G. Exceeding Minimum Standards Meadowbrook Manor presented convincing evidence that it is a superior nursing home facility. This evidence included the scrapbook of photographs of its monthly activities for the residents, which resulted in an award for the outstanding number and diversity of the facility's activities. The facility has a van equipped with a wheelchair lift which is used to take residents on frequent trips, the facility has a lady's club and a men's club, a happy hour every week, weekly parties and monthly theme parties, art classes, sing-alongs, exercise classes and a monthly newsletter to inform residents of the activities available. Meadowbrook also has an extensive volunteer program. The physical environment is attractive. Since 1983 approximately $800,000 has been spent on renovations of the building. With respect to resident choice, the facility provides residents with choices of sleeping and waking hours, their dress, the manner in which they are addressed by staff, choice of staff members to work with them, choice of rooms to the extent possible, choice of treatment schedules, choice of entrees for meals, choice of meal partners. The facility has a resident's council which meets regularly with the staff. The institution also has ongoing education programs, a staff nurse educator, continuing education programs in-house for the staff, and the facility has a policy to pay for employees to attend outside educational seminars. Staffing ratios exceed the minimum required in all areas. The staff turnover is low at the facility. Meadowbrook also has a system to notify physicians who do not visit patients. Numerous consultants work with the facility, including a social work consultant, Kay Kuge, a pharmacy consultant, Joseph Klalo, a consulting dietician, Angela Fernandez, a speech therapist consultant, an occupational therapist consultant, and a full-time activities coordinator. The facility has an in-house physical therapy department which includes a full-time physical therapist and several therapy aides.
Recommendation Based on the foregoing, it is RECOMMENDED: That the superior nursing home rating which Meadowbrook Manor had received BE CONTINUED. DONE AND ORDERED this 23rd day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 23rd day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0932 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Covered in the statement of the issues. Sentences 1 and 2 covered in Finding of Fact 2. Sentence 3 covered in Finding of Fact 37. Sentence 4 covered in Findings of Fact 20(a) and 33. Sentences 6- 8 rejected as unnecessary. Sentence 9 covered in Finding of Fact 35. Sentences 1 and 2 covered in Finding of Fact 3. The remainder rejected as unnecessary. Sentence 1 covered in Finding of Fact 1. Sentences 2-4 rejected as unnecessary. Sentence 5 covered in Finding of Fact 9. Rejected as unnecessary and irrelevant. Covered in Finding of Fact 4. Covered in Finding of Fact 5. Covered in Finding of Fact 9. Covered in Finding of Fact 6. Covered in Finding of Fact 6. Rejected as unnecessary. 12(a). Covered in Finding of Fact 10. 12(b). Covered in Finding of Fact 11. 12(c). Covered in Finding of Fact 11. 12(d). Covered in Finding of Fact 12. 12(e). Covered in Finding of Fact 13. 12(f). Covered in Finding of Fact 14. 12(g). Covered in Finding of Fact 14. 12(h). Rejected for the reasons stated in Finding of Fact 19. 12(i). Covered in Finding of Fact 14. 13(a). Rejected as unnecessary. 13(b). Rejected as unnecessary. 13(c). Covered in Finding of Fact 24. 13(d). Covered in Finding of Fact 24. 13(e). To the extent appropriate, covered in Finding of Fact 20(a). 13(f). Rejected as unnecessary. 13(g). Covered in Finding of Fact 25. 14(a). Covered in Finding of Fact 16, to the extent appropriate. 14(b). Covered in Findings of Fact 16 and 30. 15(a). Covered in Finding of Fact 17. 15(b). Covered in Finding of Fact 17. 15(c). Covered in Finding of Fact 17. 15(d). Covered in Finding of Fact 17. 15(e). Covered in Finding of Fact 17. 16. Covered in Finding of Fact 24. 17(a). Covered in Finding of Fact 18. 17(b). Covered in Finding of Fact 18. 17(c). Covered in Finding of Fact 18. Covered in Findings of Fact 14 and 18. Rejected as unnecessary. 21 at page 11. Rejected as unnecessary. Rejected for the reasons stated in Finding of Fact 19. 21(a) at page 12. Rejected as unnecessary. 21(b). Covered in Finding of Fact 24. 21(c). Covered in Findings of Fact 24 and 25. 21(d). Covered in Finding of Fact 24. 21(e). Covered in Finding of Fact 20(a). 21(f). Covered in Finding of Fact 26. 21(g). Covered in Finding of Fact 26. 21(h). Covered in Finding of Fact 27. 21(i). Rejected as unnecessary. 21(j). Covered in Finding of Fact 29. 21(k). Covered in Findings of Fact 20(b) and 29. 21(1). Covered in Finding of Fact 24. 21(m). Covered in Finding of Fact 31. 21(n). Covered in Finding of Fact 31. 21(o). Covered in Finding of Fact 33. Covered in Finding of Fact 4. Covered in Finding of Fact 6. 24(a). Covered in Finding of Fact 36. 24(b). Covered in Finding of Fact 36. 24(c). Covered in Finding of Fact 37. 24(d). Covered in Finding of Fact 37. 24(e). Covered in Finding of Fact 37. 24(f). Covered in Finding of Fact 38. 24(g). Covered in Finding of Fact 40. 24(h). Rejected as irrelevant and unnecessary. 24(i). Covered in Finding of Fact 41. 24(j). Covered in Finding of Fact 43. 24(k). Covered in Finding of Fact 44. 24(1). Covered in Finding of Fact 39. 24(m). Covered in Finding of Fact 42. 24(n). Covered in Finding of Fact 37. 24(o). Rejected as cumulative to Finding of Fact 41. 24(p). Covered in Finding of Fact 45. Rejected as argument. Rejected as argument. Rejected as argument, the inference of bias against the facility is specifically rejected. Rejected as unnecessary, irrelevant, and not sustained by the evidence. Whatever errors the surveyors made, I specifically reject the argument that a standard rating was given because of a dispute between Mr. Biondi at Meadowbrook and Mr. Dykes of the Office of the Licensure and Certification. Rejected for the reasons stated in the preceding paragraph. Generally accepted in the Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in the statement of the issues. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 1. Covered in Finding of Fact 4. Covered in Finding of Fact 5. Covered in Finding of Fact 9. Covered in Findings of Fact 4 and 6. Covered in Finding of Fact 6. 10(a). Rejected for the reasons stated in Findings of Fact 10 and 16. 10(b). Covered in Finding of Fact 11. 10(c). Covered in Finding of Fact 12. 10(d). Covered in Finding of Fact 13. 10(e). Covered in Finding of Fact 14. 10(f). Covered in Finding of Fact 14. Nursing Care: (a). Covered in Finding of Fact 24. Covered in Finding of Fact 25. Covered in Finding of Fact 24. Covered in Finding of Fact 26. Covered in Finding of Fact 26. Covered in Finding of Fact 27. Covered in Finding of Fact 27. Dietary: (a). Covered in Finding of Fact 29. Covered in Findings of Fact 20(a) and 29. Rejected for the reasons stated in Finding of Fact 29. Covered in Findings of Fact 20(b) and 29. Rejected for the reasons stated in Finding of Fact 29. Social Services: (a). Rejected for the reasons stated in Finding of Fact 30. Rejected for the reasons stated in Finding of Fact 30. Life Safety: (a). Rejected for the reasons stated in Finding of Fact 31. Accepted for the reasons stated in Finding of Fact 32. Rejected for the reasons stated in Findings of Fact 17 and 31. Rejected for the reasons stated in Finding of Fact 31. Accepted in Finding of Fact 33. Accepted in Finding of Fact 32. Accepted in Finding of Fact 34. COPIES FURNISHED: Nancy Schleifer, Esquire 29th and 30th Floors, AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131 Dennis Berger, Esquire Office of Licensure and Certification 5190 N.W. 167th Street, Suite 210 North Miami, Florida 33014 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Enoch Jon Whitney, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the deficiencies found at Petitioner's nursing home by the Agency for Health Care Administration were sufficient to support issuance of a conditional license.
Findings Of Fact AHCA is the state agency charged with conducting licensure surveys of nursing home facilities in Florida to ensure that nursing homes are in compliance with state regulations. AHCA also surveys nursing homes to insure that they are in compliance with federal Medicare and Medicaid requirements. AHCA issues survey reports listing the deficiencies found at facilities that it has surveyed. Each deficiency is identified by a tag number corresponding to the regulation AHCA claims to have been violated. A federal "scope and severity" letter rating is assigned to each deficiency. These letter ratings run from A to L. At the end each deficiency, the survey report lists the State licensure regulation claimed to have been violated and the State's classification of the deficiency. The State's classification of deficiencies are Class I, Class II, and Class III. Changes in a facility's licensure rating are based upon the violations of applicable State regulations. The Petitioner, Mt. Dora, is a nursing home in Mt. Dora, Florida, licensed by AHCA pursuant to Chapter 400, Florida Statutes. AHCA conducted a relicensure survey of Mt. Dora in May of 1996, and a follow-up survey in August of 1996. See AHCA Exhibits 1 and 2. Richard Fuller and Kathy Johnson are Registered Nurses employed by AHCA. Fuller and Johnson inspected Mt. Dora on May 20, 1996, and August 6, 1996. As part of their inspections, Fuller and Johnson observed a "medication pass" in which Mt. Dora's staff administered medications to its residence. Fuller and Johnson compared the medications administered with the physicians' orders for the home's residents. The inspectors considered as a medication error any medication administered, but not ordered; or ordered, but not administered. Each medication ordered to be administered or administered to a patient presented an opportunity for error upon which the home's performance was rated. 11 On May 20, 1996, Johnson observed the administration of medications by the home's staff. A staff nurse administered two doses of Ventolin from an inhaler to a resident, G.L., without waiting at least one minute between doses. The physician's order for G.L. provided that two doses were to be given, but did not indicate a waiting period between the administration of the doses. Johnson wrote this up as a violation because the nurse did not wait one minute between the administration of the two doses as recommended in the manufacturer's instructions. Fuller observed the administration of Mylanta, an over- the-counter antacid, to a resident, M.R., pursuant to a doctor's order for a 30 cc dose of said medication. Fuller observed that the level of liquid in the medicine cup did not reach the 30 cc line; however, he did observe that it was above the 25 cc line. Fuller could not state exactly how much was administered. There were no index marks between the 25 cc and 30 cc lines. Fuller checked the records of a resident, H.T., for whom a physician had prescribed Megace prior to meals. Fuller observed that Megace was offered with the patient's breakfast rather than prior to the meal. The patient's medication administration record revealed that the patient was offered Megace two times, but refused the medication. Fuller observed that a staff nurse administered one drop of Artificial Tears, an over-the-counter medication for the relief of dry eyes, in each eye of R.P., a resident of the home. Fuller checked the physician's order sheet for R.P. and found that the orders did not indicate a number of drops to be given. The physician's order dated May 8, 1996, prescribed one drop to each eye to the patient R.P.1 Further, the manufacturer's recommended dosage for Artificial Tears is one drop in each eye. By administering one drop to each eye of the patient, R.P., the staff nurse was following the manufacturer's instructions. On August 6, 1996, Fuller and Johnson inspected the facility. Fuller observed a staff nurse administer a multivitamin to a resident, J.P.; however, Fuller did not find this vitamin listed on the physician's order sheet. A subsequent review of the physician's records by the facility's consulting pharmacist revealed an ongoing order dated October 8, 1993, for the administration of a multivitamin to this resident. The resident had been at the facility since 1989 and was 112 years old at the time of the inspection. Fuller also observed the staff nurse had failed to give Klonopin to a resident, J.H., during the morning medication pass. When Fuller brought this to the attention of the nurse, the nurse administered the medication. The medication was given within the time frame required by the doctor's orders. During the same period, it was observed that a staff nurse did not administer insulin to a resident, H.Y., until after breakfast when the doctor's order provided that the insulin was to be administered one-half an hour prior to breakfast. The blood sugar test for the patient revealed that the patient was not endangered by the delay in administering the insulin. On the morning of August 6, 1996, the staff nurse responsible for administering morning medications to J.H. and H.Y. suffered a medical emergency which required other staff nurses to intervene and render assistance to the stricken nurse. After the nurse was removed by ambulance to the hospital, a nurse from another wing of the facility finished administering medication on the stricken nurse's wing. On May 21, 1996, the inspectors reported four errors in 41 opportunities to administer medication. This would constitute a 9.75 percent medication error rate for that date. On August 6, the inspectors reported three errors in 42 opportunities to administer medication. This would constitute a 7.1 percent error rate. During both the May 21, 1996, and August 6, 1996, surveys, the inspectors found insulin bottles which were still in use more than three months after having been opened. In addition, the inspectors found some bottles of insulin which had not been dated when opened. This deficiency was assigned a federal scope and severity rating of "B." Mt. Dora had a policy to date bottles when opened, and to discard bottles of insulin three months after opening period. Each insulin bottle bore the date upon which it was dispensed from the pharmacy and the manufacturer's expiration date. Mt. Dora's policy to discard bottles of insulin after three months was put into place to satisfy the comments made in an earlier AHCA survey period. The policy at other nursing homes, according to the home's consulting pharmacist, is to discard insulin bottles within six months after opening. The consulting pharmacist inspects the home's medicines monthly and discards all bottles which are more than three months beyond the date they were dispensed. The record does not support the finding that any of the bottles were used beyond the manufacturer's expiration date.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Agency take no action regarding the rating of Mt. Dora Nursing Home and that its rating continued to be standard. DONE AND ENTERED this 25th day of July, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1997.
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 for the period June 14 through August 10, 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 1120 West Donegan Avenue, Kissimmee, Florida (the "facility"). Petitioner conducted an annual survey of the facility from May 7, through May 10, 2001 (the "May survey"). Petitioner conducted a follow-up survey of the facility on June 14, 2001 (the "June survey"). The May survey cites one Class III violation. The June survey cites a repeat deficiency of a Class III violation. Subsection 400.23(8)(b) and (c), Florida Statutes (2000), refers to deficiency classifications as Class I-III deficiencies. All statutory references are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(c) defines Class III deficiencies as those deficiencies . . . which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies. The statutory definitions of Class I and II deficiencies are not relevant to this case because this case involves only a Class III deficiency. Florida Administrative Code Rule Rule 59A-4.1288 requires nursing home facilities licensed by the State of Florida to adhere to federal regulations in Section 483 of the Code of Federal Regulations ("CFR"). All references to rules are to rules promulgated in the Florida Administrative Code on the date of this Recommended Order. In relevant part, Rule 59A- 4.1288 provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. Applicable federal regulations require Petitioner to assign a scope and severity rating to the deficiencies alleged by Petitioner. Petitioner assigned a "D" rating to the deficiencies alleged in the May and June surveys. A “D” rating means that there is no actual harm with potential for more than minimal harm that is not actual jeopardy. When Petitioner alleges that the Class III deficiency from the May survey was not corrected within the time established by the agency, the agency may change the rating of the facility license from standard to conditional. Petitioner determined in the June survey that the facility had not corrected the deficiency alleged in the May survey. Effective June 14, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Petitioner noted the results of the May and June surveys on a 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 "Tag"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of relevant state rules violated by the alleged deficiency. There is only one tag at issue in the May and June surveys. It is Tag F282. In order to protect the privacy of nursing home residents, Tag F282, the 2567, and this Recommended Order refer to each resident by a number rather than by the name of the resident. Tag F282 alleges in the May and June survey that the facility failed to satisfy the requirements of 42 CFR Section 483.20(k)(ii). In relevant part, the federal regulation provides: Comprehensive Care Plans. (3). The services provided or arranged by the facility must— (ii) Be provided by qualified persons in accordance with each resident’s written "plan of care." This standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F282 does not allege that the facility provided care to residents by unqualified persons. Rather, Tag F282 alleges that Respondent failed to follow the plan of care for two residents. Tag F282 alleges in the May survey that the facility failed to provide care and services in accordance with the plan of care for Residents 3 and 1. Tag F282 alleges in the June survey that Respondent failed to follow the plan of care for Resident 1. The resident identified as Resident 1 is not the same resident in the May and June surveys. Before proceeding to the merits of the allegations in Tag F282, two policy issues must be resolved in order to make findings of fact in a manner that is consistent with Petitioner's officially stated agency policy. One issue is procedural and the other involves the definition of terms. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the "Manual"). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce. The Manual authorizes surveyors to determine whether a facility has complied with Tag F282 only after surveyors have identified violations of standards relating to: quality of care, defined in 42 CFR Section 483.25(a)–(m); quality of life, defined 42 CFR Section 483.15(a)–(h); or residents rights, defined 42 CFR Section 483.10(a)–(o). The state agency's written policy set forth in the Manual requires its surveyors to identify an issue of quality of care, quality of life, or residents’ rights before proceeding to a determination of whether the facility has violated Tag F282. The second issue involves the interpretation of the terms "inadequate", "incorrect", and "consistent." The Manual indicates that violations occur if surveyors can demonstrate inadequate or incorrect implementation of the care plan. The Manual does not define the term “inadequate.” The common meaning of the term suggests that something less than perfect implementation satisfies the requirements of the regulatory standard. That construction is consistent with other provisions in the Manual. The Manual further provides that violations of standards occur only if a facility fails to “consistently” implement the plan of care for a resident. Petitioner's surveyors acknowledged in their testimony that the goal for the quality of care regulations is to achieve positive resident outcomes and is identical to the goal of Tag F282. Petitioner offered no credible reason, within the meaning of Section 120.68(7)(e)3, why the standard for implementation of a resident’s care plan under Tag F282 should be stricter than that required by the quality of care regulations. Resident 3 had many compromising conditions and was near death at the time of the May survey. Resident 3 had 10 to 12 care plans to address his various medical problems and conditions. Each care plan contained an average of 15 separate interventions. One of the care plans for Resident 3 addressed the risk of developing pressure sores and contained 20 separate interventions for staff to implement. One intervention required staff to turn and reposition the resident every two hours. On May 7, 2001, a surveyor stationed herself outside of Resident 3’s room from 1:00 p.m. to 4:00 p.m. in the afternoon to observe who entered the resident’s room and what care was given to the resident. During that time, the surveyor observed that no staff member entered the room to turn and reposition the resident. The care plan required staff to turn the resident once during the three-hour period. The allegations in Tag F282 pertaining to the failure to reposition Resident 3 during a three-hour period on May 7, 2001, deviate from Petitioner's written agency policy in two respects. First, Petitioner did not cite the facility for any violation relating to quality of care, quality of life, or resident rights. Second, a single isolated failure to implement one intervention prescribed in one of 12 care plans for Resident 3, during a three-hour period, on one of four days of a survey, does not demonstrate inadequate care by failing to consistently implement a care plan. Petitioner failed to explain by a preponderance of the evidence why it deviated from its official written policy in its determination that Respondent violated the standard prescribed in Tag F282. The surveyor provided no credible explanation to justify a deviation from agency policy with respect to Resident 3. Nor did Petitioner present any evidence that Resident 3 developed any pressure sores or had any pressure sores worsen as a result of the failure to turn and reposition the resident on May 7, 2001. The evidence shows that the failure to turn and reposition Resident 3 presented nothing more than a minimal chance of negative impact. Tag F282 alleged in the May survey that the facility failed to provide care for Resident 1 in accordance with the care plan. Resident 1 suffered from a condition that caused his chin to droop toward his chest. The condition caused positioning problems for the resident while he was in his wheelchair. The physical therapist for the facility examined Resident 1 and recommended periodic placement of a Futuro cervical collar while the resident was in his wheelchair in order to elevate the resident's chin. The recommendation required staff to place the collar on the resident when he was in his wheelchair for two hours and then to remove it for two hours. Staff was not to place the collar on the resident during meals or while the resident was in bed. The resident would sometimes remove the collar after it was placed on him. On May 8, 2001, Petitioner’s surveyor made five observations of the resident between 10:45 a.m. and 1:50 p.m. The surveyor did not see the resident wearing the collar during any of the observations. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:45 a.m. until 1:50 p.m. The surveyor did not know if or when the collar should have been placed on the resident during the observations on May 8, 2001. It is uncontroverted that the resident would have eaten lunch for one hour during the time that the surveyor observed the resident and that the care plan did not require staff to place the collar on the resident during meals. Petitioner offered no evidence that the failure to put the collar on the resident during the observed instances presented potential for any harm to the resident. Petitioner failed to show by a preponderance of the evidence that the facility failed to implement Resident 1’s care plan. Even if it were determined that the facility failed to consistently implement the care plan or inadequately implemented the care plan, Tag F282 deviates from Petitioner's officially stated agency policy because the tag does not charge the facility with any violation of quality of care, quality of life, or resident rights. Petitioner failed to explain why it deviated from its policy. Finally, the observed circumstances presented no more than a minimal chance of minor negative impact to Resident 1. On May 9, 2001, Petitioner's surveyor observed Resident 1 on three different occasions between 10:00 a.m. and 11:05 a.m. without the collar. The surveyor did not know if or when the collar should have been placed on the resident during that time-period. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:00 a.m. until 11:05 a.m. The preponderance of the evidence failed to sustain the charge that the facility did not implement Resident 1’s care plan on May 9, 2001. The observations are insufficient to demonstrate a consistent failure to implement the care plan. Petitioner provided no credible explanation for deviating from its officially stated agency policy. Finally, the circumstances presented no chance of any harm other than minimal negative impact to the resident. Tag F282 alleges in the June survey that the facility failed to follow doctor’s orders for Resident 1 that required multi-podus boots to be applied every shift. Resident 1 in the June survey is not the same resident identified as Resident 1 in the May survey. Resident 1 in the June survey had pressure sores on his feet, and one of the interventions prescribed in the care plan required Resident 1 to wear multi-podus boots. On June 13, 2001, at 2:45 p.m., Petitioner's surveyor observed Resident 1 lying in bed without the required multi- podus boots. Resident 1 was lying on a pressure-relieving mattress so that his heels were receiving pressure relief without the need for multi-podus boots. On June 14, 2001, Petitioner's surveyor observed Resident 1 in his wheelchair in the activities room with black, hard-soled shoes on his feet instead of the multi-podus boots. The resident had dressings on his heels that protected them and was sitting so that his heels bore no weight. The facility maintained medical records that described the size and appearance of the pressure sores on Resident 1's heels. The records indicated that the pressure sores healed progressively after Respondent admitted Resident 1 to the facility. The area on the right heel was completely healed by June, 2001, and the area on the left heel was closed by July 2001. Petitioner deviated from its officially stated policy in two respects. First, Petitioner did not charge the facility with any violation of a quality of care, quality of life, or residents rights. Second, the instances observed by the surveyor do not demonstrate a failure to consistently implement the plan of care or a failure to provide adequate care. Petitioner offered no credible explanation for deviating from its policy. The events observed by Petitioner's surveyor, at most, presented the potential for causing no more than a minor negative impact on the resident.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration should enter a final order revising the May 10 and June 13, 2001, survey reports to delete the deficiency described under Tag F282, and replace the previously issued Conditional rating with a Standard 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: Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Room 310L St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue is whether Petitioner lawfully reduced Respondent's certificate to operate a nursing home from Superior to Conditional.
Findings Of Fact Respondent is licensed to operate a nursing home known as Sunshine Manor in Sarasota. Petitioner conducted an annual relicensure survey of Sunshine Manor on March 1-3, 1999. Two tags arising out of that survey are the subject of this case. Tag F 224 states that Respondent's staff neglected Resident 2 by failing to document a condition in which he suddenly developed five small blisters on his right hand. Tag F 224 states that the staff left Resident 2 unattended with the catheter tubing wrapped around his right ring finger while his right hand was under his right leg and that this caused the blisters. Tag F 224 alleges that the staff first documented this injury on December 17, 1998. Tag F 224 concludes by stating that the staff left Resident 2 lying for 12 hours without assessing his catheter or turning him. Resident 2, who weighed over 200 pounds, was admitted to Sunshine Manor in October 1998 with diagnoses of coronary artery disease, hypertension, and diabetes. He was fed by a gastrostomy tube and required a urinary foley catheter. He needed assistance to get into and out of bed and had limited ability to move even while in bed. On the morning of December 7, 1998, a nurse discovered that Resident 2 had developed five blisters on the top of his right hand sometime during the night. The nurse reported this discovery to her supervisor, who joined her in treating and dressing the hand. The nurse supervisor then prepared an incident report and an unusual circumstances report and notified Resident 2's physician. The nurse supervisor also arranged for the wound care center to treat the wound at Resident 2's regularly scheduled appointment the following day. The wound care center treated the hand wound the following day, and it healed unremarkably. It is unclear how the blisters developed on Resident 2's hand. Respondent's staff cared for him throughout the night and early morning hours of December 6 and 7. Petitioner has failed to prove that Respondent's staff neglected Resident 2, or that any neglect caused the injury. Tag F 325 states that Resident's staff failed to maintain acceptable nutrition for Resident 12. Tag F 325 states that Resident 12 was admitted to Sunshine Manor on January 8, 1999, with the primary diagnoses of chronic obstructive pulmonary disease (COPD), Congestive Heart Failure (CHF), and weight loss. Tag F 325 states that Resident 12 weighed at admission 115.8 pounds, which was at least 18 pounds below ideal body weight. Tag F 325 states that he weighed 119 pounds on February 1, 1999, but only weighed 102 pounds on March 2, 1999. Tag F 325 then asserts the details of allegations that generally state that Respondent failed to design and implement an adequate nutrition plan for Resident 12, failed to monitor his weight adequately, and erroneously described a physician's order to the frequency of supplemental milkshakes. In fact, on admission, Resident 12's diagnoses were end-stage COPD, end-stage cardiomyopathy with CHF, weight loss secondary to the COPD and CHF, and gastroesophageal reflux disease. In combination, these conditions make it likely that Respondent would lose weight as he died from one or more of these diseases. The failure to reweigh Resident 12 was intentional and compassionate, as the weighing process itself was physically painful for the easily exerted resident. It was obvious to Respondent's staff, including an independent nutritional consultant, that Resident 12 was losing weight rapidly. Likewise, the short-lived (one day) mistranscription of the physician's orders concerning number of shakes was also immaterial under the circumstances, including Resident 12's inability to consume all of the milkshakes offered to him. Resident 12 died on March 16, 1999. His death was not attributable to any nutritional deficiencies caused by Respondent. At the time of the March 1999 survey, Respondent's license was rated Superior. Respondent's license had been rated Superior for the preceding ten years. Respondent reduced the rating from Superior due to the two tags, which have already been discussed, and the failure of Respondent to meet the minimum score. The record is relatively undeveloped to address whether Petitioner should have given Respondent the minimum score necessary to achieve a Superior rating. Petitioner objected to evidence on this point on the ground that Respondent had not raised the issue, but Respondent's petition clearly requests the restoration of its Superior rating. Thus, the Administrative Law Judge overruled the objection. Respondent's strategy was to introduce evidence showing that the conditions that earned the points necessary for a Superior rating in the 1998 survey were the same in March 1999, even though Petitioner's surveyors did not award the points in 1999. However, nothing in the record indicates whether Petitioner had legitimately chosen to make more rigorous the scoring and its surveys.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order restoring Respondent's license to Superior from the date of the March 1999 survey. DONE AND ENTERED this 7th day of September, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1999. COPIES FURNISHED: Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Karel L. Baarslag Senior Attorney Agency for Health Care Administration Post Office Box 60127 Fort Myers, Florida 33906-0127 Alfred W. Clark Attorney Post Office Box 623 Tallahassee, Florida 32302-0623
Findings Of Fact Marlene Johnson sat for the Nursing Home Administrators licensure examination administered by the Department of Professional Regulation on October 13, 1986. Petitioner had been notified by Respondent that the Nursing Home Administrator licensure examination would consist of one hundred fifty (150) questions. The national testing service with whom the Department contracts for preparation of such examinations determined the need for including fifteen (15) additional questions on the examination for the sole purpose of evaluating such questions for use in future examinations. The additional fifteen (15) questions were not to be used in scoring the examination, nor were they. Candidates for examinations are normally notified in advance by Respondent when such test question evaluation procedures are to be used. But in this instance, Respondent was not notified by its contract testing service that additional questions would be on the exam for statistical purposes, and notice was provided to candidates only on the day of the examination during the instructions to candidates. Mrs. Johnson was surprised and upset that the examination consisted of one hundred sixty-five (165) questions, instead of one hundred and fifty (150) questions as she had been notified. But she was unable to prove quantitatively how this affected her examination results. Mrs. Johnson completed the examination within the time period allotted and answered all questions. Mrs. Johnson did not answer a sufficient number of the graded (that is, 150) questions correctly to receive a passing score on the examination. 75 percent was passing; her grade was 74.7 percent. Petitioner was notified by the Respondent that she had failed the examination. Mrs. Johnson personally reviewed her examination, including questions, key or correct answers, and her own questions, under supervision of Department of Professional Regulation personnel on January 22, 1987. She filed no objections to her incorrect score for any questions for which she was not given credit. On Respondent's advice, Petitioner re-took the examination on February 2, 1987.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Professional Regulation, Board of Nursing Home Administrators enter a final order: confirming that Petitioner's grade on the October 13, 1986, examination is a failing 74.7 percent; and denying licensure at this time; and denying Petitioner's other requested relief. RECOMMENDED this 12th day of March, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4903 Section 120.59(2), Florida Statutes (1985) Rulings Petitioner filed no proposed findings of fact. Respondent's proposed finding 9 is cumulative and the last sentence of 8 is subordinate. Otherwise, Respondent's proposed findings of fact are accepted and incorporated. COPIES FURNISHED: Marlene Johnson 5750 Bahia Vista Sarasota, Florida 33582 Jeffrey H. Barker, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mildred Gardner Executive Director Board of Nursing Home Administrators Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner, Angell Care of Hialeah, Inc., d/b/a Hialeah Convalescent Home (Hialeah), is a nursing home licensed under the authority of Chapter 400, Florida Statutes. On April 26, 1985, Hialeah submitted its license renewal application to the Department of Health and Rehabilitative Services (Department), to renew its nursing home license for license year August 1, 1985 to July 31, 1986. The Department issued Hialeah Standard License No. 2134; however, by letter of September 30, 1985, the Department cancelled Hialeah's standard license, and replaced it with Conditional Rating License No. C-985. The Department's action was premised on its assertion that the results of a survey concluded by its Office of Licensure and Certification on August 1, 1985, established a conditional rating. Hialeah filed a timely request for formal administrative review of the Department's action. Hialeah asserted that the Department's action downgrading its license from standard to conditional was unwarranted and that, as opposed to a standard rating, it was entitled to a superior rating. At hearing, the parties stipulated that if this de novo review of the Department's action, which was premised on the deficiencies found in the survey conducted by its Office of Licensure and Certification, resulted in a finding that Hialeah was qualified to receive a standard rating, as opposed to a conditional rating, then it should receive a superior rating. Accordingly, the issues in this case are resolved to the validity of the deficiencies noted by the Office of Licensure and Certification. Deficiencies noted by the Department: Pertinent to these proceedings, 1/ the survey conducted by the Department's Office of Licensure and Certification classified the deficiencies noted at Hialeah into ten major categories, and listed the deficient nursing home licensure requirement number (NH) and applicable statutory or code provision violated, 2/ as follows: Administration and Management (1) NH 3 10D-29.104(1)(b), F.A.C. (2) NH 21 10D-29.104(5)(d)1g, F.A.C. (3) NH 25 10D-29.104(5)(d)4, F.A.C. (4) NH 26 10D-29.104(5)(d)5, F.A.C. Patient Care Policies NH 57 10D-29.106(2), F.A.C. Physician Services (1) NH 60 10D-29.107(2)C, F.A.C. Nursing Services (1) NH 77 10D-29.108(3)(c)16, F.A.C. (2) NH 80 10D-29.108(5)(b)6, 13, 15a & b, 16b & i, F.A.C. Dietary Services (1) NH 125 10D-29.110(3)(g)2; 10D-13.24(1)(4), F.A.C. Maintenance (1) NH 352 10D-29.122(1)(a), F.A.C. (2) NH 357 10D-29.122(1)(f), F.A.C. Infection Control (1) NH 365 10D-29.123(3)(a), F.A.C. Disaster Preparedness (1) NH 404 10D-29.126(5), F.A.C. Statutory Requirements (1) NH 405 Section 400.165, Fla. Stat. Life-Safety (1) NH 241 10D-29.119, F.A.C. (2) NH 250 10D-29.119, F.A.C. (3) NH 251 10D-29.119, F.A.C. (4) NH 269 10D-29.119, F.A.C. (5) NH 273 10D-29.119, F.A.C. (6) NH 277 10D-29.119, F.A.C. (7) NH 295 10D-29.121(10)(e), F.A.C. With the exception of the deficiencies listed for NH 3 (administration and management), NH 60 (physician services), and NH 250, NH 251, NH 269, NH 277, and NH 295 (life safety), Hialeah concedes that the deficiencies noted by the Department were appropriate. 3/ Accordingly, resolution of the question of which rating should be accorded Hialeah is dependent upon the propriety of seven disputed deficiencies. The Administration and Management Deficiency: The deficiency noted as NH 3 found: The provision for the resident's rights to privacy during treatment and care was not routinely adhered to. On the morning of July 24, 1985, staff members were observed attending to residents in rooms 7 and 8 of the Center Court while other residents were in the rooms and without the use of the portable privacy curtains. Chapter 400, Part 1, F.S. 10D-29.104(1)(6), F.A.C. Section 400.022(1)(h), Florida Statutes, accords a nursing home resident a right to privacy during treatment and care. Hialeah's failure to use available portable privacy curtains while patients were being bathed violated their right to privacy, and NH 3 was properly cited. The Physician Services Deficiency: The deficiency noted as NH 60 found: There was no documented evidence to verify that staff incident reports were reviewed by the Medical Director. 10D-29.107(2)C, F.A.C. Rule 10D-29.107(2), F.A.C., provides in pertinent part: Responsibilities of the Medical Director . . . shall include, at a minimum, the following: * * * (c) Reviewing reports of all accidents or unusual incidents occurring on the premises and identifying to the facility Administrator hazards to health and safety . . . . The proof in this case established that the Medical Director did review all incident reports; Rule 10D-29.107(2), F.A.C., does not require documentation. Accordingly, deficiency NH 60 was not substantiated. The Life-safety Deficiencies: The life-safety surveyor noted the following disputed deficiencies: NH 250: One required-stairway from the second floor discharges internally at the first floor and is not enclosed or separated to provide exiting directly to the exterior. This is a repeat deficiency. Architectural plans must be submitted to Jacksonville Plans and Construction Section for approval, indicating physical changes required to this deficiency, prior to corrective action . . . . * * * NH 251: The southwest exit door to 27th Street was locked and exit lights were removed. This created a dead end area with only one means of exiting for the south portion of the center court. This is part of a repeat deficiency form (sic) 1984 survey. * * * NH 269: a storage closet in the activities office is not protected by the automatic sprinkler system. * * * NH 277: The following air conditioning deficiencies were found: 1. The heat sensor for the air conditioner unit located on the first floor at the dining room did not activate properly when tested. NH 295: Rooms where soiled linen is stored and soiled utility rooms are not exhausted to the exterior in accordance with Table II. 4/ Hialeah asserts that the Department has waived or deleted deficiency NH 250, or is estopped from counting it as a deficiency for rating purposes. Hialeah's assertion is unpersuasive. The record reveals that during the October 24, 1984 life-safety survey, Hialeah was cited for the same deficiency, NH 250/K32, that is subject matter of these proceedings. 5/ In response to Hialeah's request for a waiver of this deficiency, the Health Care Finance Administration (HCFA) advised Hialeah by letter of January 28, 1985: We have reviewed your request for a waiver of items K-32 . . . cited as deficiencies to you. Based on this review we concur with the State Agency's recommendation to deny this request. We expect you to submit an accept- able Plan of Correction to these deficiencies to the State Agency within 15 days of the date you receive this letter. We are notifying the State of this action. Notwithstanding the unequivocal denial of Hialeah's request for waiver, a life- safety follow-up inspection on April 17, 1985, revealed that the deficiency had not been addressed or corrected. As of April 26, 1985, the date Hialeah submitted its renewal application which is the subject matter of these proceedings, a plan of correction had still not been submitted nor had the deficiency been corrected. 6/ At this juncture, faced with an uncorrected deficiency from its last survey, Hialeah submitted its second request for waiver of NH 243/K 32. 7/ Hialeah's request for waiver, dated May 23, 1985, was forwarded by the Department's Miami office to the Director of its Office of Licensure and Certification on July 23, 1985, with a recommendation of denial predicated on HCFA's previous action. Before the Department acted, however, the results of the July 29 - August 1, 1985 survey were published and the same deficiency cited. On October 30, 1985, the Department responded to Hialeah's May 23, 1985 request for waiver, as well as the results of the July 29 - August 1, 1985 survey. That letter provided: A thorough review has been made of the citations found in OPLCM report of life safety deficiencies found during the survey conducted July 29 - August 1, 1985. As a result of that survey NH 250; NH 277 item #2, NH 282, and NH 219 will be deleted from the report . . . . Your letter of July 23, 1985 (sic) addressed to Alvin Delaney requesting waivers of items K 32 . . . cannot be granted and corrections must be made . . . . However, by letter of December 12, 1985, the Department advised Hialeah that: the indication . . . (in my letter of October 30) . . . that NH 250 citation related to a second floor stairway would be deleted as a deficiency was an error . . . and that deficiency must be corrected. Hialeah's assertion that NH 250 was waived or deleted by the Department is contrary to the evidence. Hialeah's assertion that the Department is estopped from raising that deficiency because of its delay in passing on Hialeah's "second" request for waiver is equally unpersuasive. Hialeah knew of the deficiency because of the October 24, 1984 survey, knew by letter of January 28, 1985, that the deficiency would not be waived, and took no action to correct the deficiency. The fact that the Department erroneously advised Hialeah that NH 250 was deleted did not prejudice Hialeah since such announcement was made after the current survey. Further, that letter affirmatively advised Hialeah that K 32 (the federal equivalent) could not be waived. In sum, NH 250 was properly cited as a deficiency. Hialeah asserts that NH 251 was improperly cited because it had complied with an "alternative plan of correction," approved by the Department, which allowed the 27th Street exit to remain locked so long as staff carried keys to the exit. The proof supports Hialeah's assertion. Since staff do carry keys, NH 251 was improperly cited. Hialeah's assertion that NH 269 was improperly cited because the closet in question measured less than 100 square feet is unfounded. The closet was created by erecting a partition in an existing room, and was used for the storage of activity supplies, including combustibles, for nursing home residents. The life-safety code required that the subject closet be sprinkled, and the Department had no policy which deviated from the code. Accordingly, NH 269 was properly cited. Hialeah's assertion that NH 277(1) was improperly cited because the heat sensor was not correctly tested is unfounded. At the time of inspection the heat sensor was properly tested and failed to function. Therefore, NH 277(1) was properly cited. Hialeah's assertion that NH 295 was improperly cited, because cited on a consultative visit, is not supported by the record. NH 295 was cited as a result of the July 29 - August 1, 1985 life-safety inspection, not a consultative visit, and its citation was proper. Conditional vs. Superior Rating: The parties have stipulated that if Hialeah meets the requirements for a standard rating that it is likewise entitled to a superior rating. To qualify for a standard rating Hialeah must have no more than 20 Class III deficiencies and no more than 5 Class III deficiencies in the specific areas delineated by Hialeah's Exhibit 20, Item 3. While each of the cited deficiencies are Class III, and the number of deficiencies correctly cited do not exceed 20, Hialeah amassed more than 5 deficiencies in the area designated by Rules 10D-29.119, 10D-29.121, 10D-29.123, and 10D-29.125. Accordingly, Hialeah does not qualify for a standard or superior rating but, rather a conditional rating.
Findings Of Fact During the months of June and July, 1987, Respondent Convalescent Services of Venice, Inc., operated Pinebrook Place Health Care Center in Venice, Florida. On or about June 19, 1987, Rev. Spittal, then the licensed Administrator of the facility, submitted his emergency resignation in order to assume administration of another facility to which he was obligated to give guidance. He immediately notified the Regional Director of the Respondent corporation, Mr. Rick Winkler, who was himself a licensed health care administrator in Florida. As Regional Director, with the responsibility for supervising five nursing homes and one retirement center, Mr. Winkler had his office in the Pinebrook Place facility. Mr. Winkler's license was physically located at Respondent corporation's other facility, Lakeside Nursing Home in Naples, Florida. Mr. Winkler had been the Administrator of that facility prior to becoming Regional Director, and because the incumbent administrator, Ms. Harnish, was newly licensed, and because an administrator in training, Ms. Cox, was undergoing training at that facility, he left his license at the Lakeside facility when he moved to Pinebrook to become Regional Director. Upon the departure of Rev. Spittal, Mr. Winkler immediately assumed administration of the Pinebrook facility, fulfilling all the functions of the administrator and advising the staff that he had done so. In addition, he immediately entered into a contract with Ms. Joyce A. Coleman, a licensed nursing home administrator, to assume the position of Administrator of Pinebrook Place effective July 13, 1987. Thereafter, between Rev. Spittal's departure on June 19 and Ms. Coleman's arrival on July 13, 1987, Mr. Winkler was the Administrator of Pinebrook Place Health Care Center. A licensed assistant administrator was not employed at Pinebrook during that period. On June 30, 1987, Mr. Dowless, an investigator for HRS Office of Licensure and Certification, pursuant to a report filed by a discharged former employee at Pinebrook, visited the facility to determine if the allegation made that Pinebrook was operating without a licensed administrator was true. That day in question, Mr. Winkler was absent from the facility attending the opening of the Respondent corporation's newest facility. When Mr. Dowless arrived he spoke with the acting Administrator In Charge, the chief nurse to whom Mr. Winkler supposedly gave a letter of authority in writing to assume supervision in his absence, and after an inspection of the facility, concluded that the Respondent corporation was in violation of the law. This was because Mr. Winkler, though a licensed nursing home administrator, had his license physically located at Lakeside and he failed to have an Assistant Administrator under his supervision at the Pinebrook facility. This information was telephonically reported to Mr. Winkler who called Mr. Dowless by telephone later that day. The discussion was somewhat heated. Because he was unable to convince Mr. Dowless of the fact that he was the administrator at that facility, Mr. Winkler placed a telephone call to Mr. Richard Reysen, a Deputy Director of the Office of Licensure and Certification. During this conversation, Mr. Winkler explained his licensure situation and was led to believe that the situation was acceptable so long as he would have his license physically removed from Lakeside to Pinebrook. He did this and took no further action. Considering the matter closed, he was somewhat surprised when a citation was subsequently issued by Petitioner levying a fine of $1300. The fine was $100 per day for each day of the alleged violation.
Recommendation Based on the foregoing findings of fact and conclusions of laws it is therefore: RECOMMENDED that the Administrative Complaint filed in this case against the Respondent, Convalescent Services of Venice, Inc. d/b/a Pinebrook Place Health Care Center be DISMISSED. RECOMMENDED in Tallahassee this 16th day of June, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of June, 1988. APPENDIX TO RECOMMENDED ORDER 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. By the Petitioner 1 - 2. Accepted. Accepted and incorporated herein. Irrelevant. Respondent is not cited for this alleged violation. Accepted and incorporated herein. 6 - 10. Accepted and incorporated herein. 11. Irrelevant. 12 - 13. Accepted and incorporated herein. By the Respondent Accepted and incorporated herein. Accepted and incorporated herein. Accepted and Incorporated herein. 4 - 5. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a synopsis of testimony, not a finding of fact. Irrelevant. COPIES FURNISHED: ANTHONY DELUCCIA, ESQUIRE DISTRICT VIII LEGAL COUNSEL P. O. BOX 06085, SUITE 110 FT. MYERS, FLORIDA 33906 R. BRUCE MCKIBBEN, JR., ESQUIRE P. O. BOX 10651 TALLAHASSEE, FLORIDA 32302 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 Respondent violated the duly promulgated rules of the Department of Health and Rehabilitative Services by designating and continuing to designate the same person as the Assistant Administrator and the Director of Nursing of the Bonifay Nursing Home, Inc., after having been cited for such deficiency and allowed sufficient time to correct the deficiency.
Findings Of Fact An Administrative Complaint was filed by Petitioner Department of Health and Rehabilitative Services on October 27, 1980 notifying Respondent Bonifay Nursing Home, Inc., a skilled nursing care home, that Petitioner intended to impose a civil penalty of $100 for violating duly promulgated rules by designating the same person to act as Assistant Administrator and Director of Nursing of the nursing home. At the formal administrative hearing the Administrator admitted that he served more than one health facility, that at all times pertinent to the hearing the acting Assistant Nursing Home Administrator was also designated as the Director of Nursing, and that she was the only registered nurse on duty. It was admitted that no change had been made after the inspector for the Petitioner Department had called attention to this alleged violation until after the time period allowed for correcting this situation had expired and after the Petitioner had informed Respondent it intended to impose a $100 civil penalty. In mitigation Respondent presented testimony and adduced evidence showing that as the owner and operator of the nursing home he had made an effort to employ registered nurses at the home and that on the date of hearing the nursing home was in compliance with the statutes, rules and regulations. It was evident to the Hearing Officer that the nursing home serves a need in the community and that the residents appreciate the service. Petitioner Department submitted proposed findings of fact, memorandum of law and a proposed recommended order, which were considered in the writing of this order. Respondent submitted a memorandum. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered by the Petitioner assessing an administrative fine not to exceed $50. DONE and ORDERED this 10th day of February, 1982, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1982. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32301 Mr. J. E. Speed, Administrator Bonifay Nursing Home 108 Wagner Road Bonifay, Florida 32425 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
