The Issue Whether Life Care Center of Punta Gorda (Respondent), timely submitted its monthly nursing home quality assessment fee for February 2019; and, if not, whether a fine should be imposed for each day that the payment was delinquent.
Findings Of Fact AHCA, pursuant to section 409.913, Florida Statutes (2018),1/ is responsible for overseeing and administering the Medicaid program for the State of Florida. At all times relevant hereto, Respondent was a Florida Medicaid provider authorized to provide nursing home services, and had a valid Medicaid provider agreement with AHCA. Respondent operates a nursing home facility as defined by section 409.9082(1)(b), and is required, pursuant to section 409.9082(2), to “report monthly to [AHCA] its total number of resident days, exclusive of Medicare Part A resident days, and remit an amount equal to the assessment rate times the reported number of days.” The monthly amount assessed pursuant to section 409.9082 is known as a “Quality Assessment Fee.” Section 409.9082(2) provides, in part, that AHCA “shall collect, and each facility shall pay, the quality assessment each month[, and [AHCA] shall collect the assessment from nursing home facility providers by the 20th day of the next succeeding calendar month.” Respondent’s Quality Assessment Fee for February 2019 was to be remitted to AHCA by March 20, 2019. It is undisputed that AHCA received payment of Respondent’s Quality Assessment Fee on April 12, 2019, and that this was the first instance where Respondent failed to timely remit payment of the fee to AHCA. In explaining why the Quality Assessment Fee was not tendered by the due date, Ms. Talbott testified that Respondent’s customary process is to remit payment by FedEx “so that . . . [there is] a tracking mechanism on it.” Ms. Talbott explained that her investigation revealed that the customary process for mailing payment to AHCA was not followed in the instant dispute because the accounts payable clerk, instead of using FedEx, and as a consequence of being distracted by a family emergency, inadvertently mailed the payment via the United States Postal Service, without requesting delivery confirmation. The accounts payable clerk did not testify during the final hearing and there is no specific finding of fact that the check was not delivered to AHCA because of any act(s) or omission(s) by the accounts payable clerk. The check that was purportedly mailed by the accounts payable clerk for payment of the Quality Assessment Fee was never received by AHCA, and Ms. Talbott credibly testified that the same was never returned to Respondent by the postal service. AHCA, by correspondence dated April 3, 2019, and mailed on April 9, 2019, informed Respondent that there was “an outstanding balance pertaining to a Quality Assessment Fee for February [2019],” and that payment of the same was due immediately. Respondent paid the Quality Assessment Fee on April 12, 2019.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order finding that Life Care Center of Punta Gorda committed its first offense of section 409.9082 and imposing a fine of $11,500. DONE AND ENTERED this 26th day of November, 2019, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2019.
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.
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 Petitioner first applied for licensure as a nursing home administrator with the Board on September 21, 1978 and subsequently passed the Nursing Home Administrators Examination on December 12, 1980 but was denied licensure by letter from the Board on March 3, 1981. Upon denial of licensure by the Boards Petitioner timely requested a formal hearing in accordance with Section 120.57(1), Florida Statutes, but on April 23, 1981 Petitioner, by letter to the Hearing Officers withdrew his request for a formal hearing and the file was closed on April 28, 1981 by the Hearing Officer. Petitioner reapplied for licensure as a nursing home administrator on April 20, 1984 and the Board relying on Petitioner's previous passing score did not require Petitioner to retake the examination. The Board again denied Petitioner licensure and by letter dated May 31, 1984 stated as grounds for denial the Petitioner's record as owner of Lakeview Manor Nursing Home and Royal Nursing Home, as more specifically set out in the Board's letter of March 3, 1981. The Board concluded: You are not of good characters as required by Section 468.1685, F.S., and Rule 21Z-11.01, F.A.C. The consistent failure of Lakeview Nursing Home and Royal Nursing Home to show compliance with the law concerning patient trust funds is attributable to you, and is a violation of Section 468.1755(g)(k), and (m), F.S. The consistent pattern of late payment of bills of Royal Nursing Home and Lakeview Manor Nursing Home and the consequent narrow escapes from the termination of utility services and cessation of delivery of food and necessary supplies is attributable to you and is a violation of Section 468.1755(g), (k) and (m), F.S. The pattern of inadequate supplies of cleaning materials, food, and other supplies at Lakeview Nursing Home and Royal Nursing Home is attributable to you and constitutes a violation of Section 468.1755(g)(k) and (m), F.S. Instances of inadequate staffing of nurses at Royal Nursing Home are attributable to you and constitute violations of Section 468.1755(g)(k) and (m), F.S. The failure of Lakeview Manor Nursing Home and Royal Nursing Home to pay administrative fines levied by the Department of Health and Rehabilitative Services is attributable to you and constitutes a violation of Section 468.1755(m), F.S. The failure of Royal Nursing Home to pay unemployment taxes for over one year, which was not remedied until a suit seeking a hiring freeze was imminent, is attributable to you and constitutes a violation of Section 468.1755(g)(k) and (m), F.S. Between the time of Petitioner's application on September 21, 1978 and passing the examination on December 12, 1980, Petitioner had provided the Board with documents and information sufficient for the Board to make a determination as to Petitioner's eligibility for licensure provided he had sufficient experience as a nursing home administrator. Apparently, required information on Petitioner's experience was furnished to the Board at a later date because neither the Board's denial of March 3, 1981 nor May 31, 1984 were based on lack of experience. Background investigations of applicants are part of the application process conducted by the Board. In certifying an applicant for licensure, the Board must consider the applicant's good character and suitability to be an administrator, including ability in financial management and administration, in addition to the qualifications for examination set out in Section 468.1695, Florida Statutes. See Section 468.1685(1)(2)(3), Florida Statutes and Rule 21Z.11.01, Florida Administrative Code. Prior to moving to Florida, Petitioner owned and operated nursing homes in Canada but was not required to be licensed as a nursing home administrator. From 1978 until sometime after filing his application on April 20, 1984, Petitioner was President of V & C Enterprises, Inc. (V&C) which owned and operated Lakeview Manor Nursing Home (Lakeview) during this entire period. V & C was wholly owned by Rose Chadee, Petitioner's mother. V & C surrendered its license to operate Lakeview in early 1985. Petitioner was president and majority stockholder (90 percent) of V & L Nursing Home Services, Inc. (V & L) which owned and operated Royal Nursing Home, a/k/a Palms Nursing Home (Royal/Palms) during 1980-82 but ceased operations of Royal/Palms in 1982 because of financial difficulties. Pursuant to Chapter 400, Florida Statutes and Rules 10D-29, Florida Administrative Code the Department of Health and Rehabilitative Services (HRS) licenses facilities to operate as nursing homes. Such a license is issued to the owner of the home. In accordance with its licensing function, HRS conducts an annual survey of each facility, to determine compliance with Chapter 400, Florida Statutes and Rule 10D-29, Florida Administrative Code. As a total process, HRS looks at: (a) the financial ability of the facility to operate, (b) direct nursing care, (c) dietary, (d) patient's diets (e) supplies needed to meet the needs of the patients, (f) physical plant, (g) housekeeping, (h) maintenance, (i) linens, and (j) infection control practices in the nursing home. At other times, HRS visits the facilities to investigate complaints, for appraisal units based on other agencies' reports, and for other surveillance visits. When deficiencies are noted on any visit, the facility is given an opportunity to correct the deficiency but if the correction is not timely made then the facility is subject to sanctions in the form of an administrative fine, moratorium on admissions or revocation of license. The performance at Lakeview prior to October, 1982 resulted in an increase in the number of visits by HRS to Lakeview and from October 1982 until January 1985 HRS inspected Lakeview weekly to biweekly because of the continuing lack of compliance with HRS rules. As a result of these visits, Lakeview was often cited by HRS for deficiencies during this period. Petitioner was present at Lakeview during some of these visits, and was aware of Lakeview's noncompliance. During 1980-81 administrative complaints were filed against the license of V & L which V & L failed to answer and in at least two (2) instances fines were imposed but never paid. The types of deficiencies cited during the surveys, and which formed the basis of the administrative complaints and sanctions, included problems relating to patient care, maintenance of adequate supplies, infection control procedures, and violations of regulations governing control and accounting of patient trusts funds. During Petitioner's service as president of V & C and V & L there was a great deal of turnover in nursing home administrators of the facilities. There were at least ten administrators within the two year period of 1979 to 1981. As president, Petitioner had the authority to hire and fire administrators. Petitioner sought to control his business. Administrators were "disciplined accordingly" for failure to manage the homes in accordance with how Petitioner felt it should be run. Much of the difficulty encountered by V & C and V & L in the operations of Lakeview and Royal/Palms related to financial management and the availability of funds to adequately operate the homes. There were significant problems relating to the timely payment of creditors. Amounts owing to Peoples Gas System were in a constant arrears status during 1980 and part of 1981. At Lakeview, supplies had to be obtained on a C.O.D. basis. At Royal/Palms, it was the usual situation to have a shortage of supplies and linens and a restricted food service department because of financial constraints. Administrators did not have access to funds to administer the home without the intervention of the corporation and its president, the Petitioner. V & L did not pay unemployment taxes to the State of Florida for the period of October 1979 to December 1980, until February 1981. Other examples of poor financial management are: (a) Patient trust funds were not adequately maintained or accounted for, (b) Payments of Petitioner's personal expenses were made with corporate funds, some of which were included in a cost report of the Royal/Palms for purposes of Medicaid reimbursement. As a result of these financial difficulties- Royal/Palms and Lakeview each ceased operations. Melvin C. Rhodes, a former Administrator of Lakeview found 62 deficiencies assessed against Lakeview when he became administrator in November 1978 but 58 were corrected within 3 weeks and petitioner was credited by Rhodes with hiring him and cooporating with him to correct the deficiencies. During the period in which Lakeview was being closely monitored by HRS, similar inspections were being conducted by the Pinellas County Health Departments Nursing Home Section (PCHD). A Pinellas County ordinance charges the PCHD with the duty to inspect nursing homes for compliance, using HRS standards found in Rule 10D-29, Florida Administrative Code. Like HRS, PCHD cites deficiencies and sets time limits for correction. In the event of a continuing lack of compliance, the administrator or owner is asked to appear at an informal conference to determine guidelines and methods of compliance. Continued failure to comply results in action before the County Health Permit Board, for revocation of the permit. Lakeview and Royal/Palms were inspected on almost a daily basis because of failure to correct deficiencies. The types of deficiencies cited included shortage of necessary supplies, poor housekeeping, shortage of life- saving supplies, and failure to maintain a seven-day emergency food supply. Petitioner attended one such conference as a representative of the management of Lakeview. Petitioner was the person "in charge", to the understanding of the PCHD.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Board enter a final order DENYING Petitioner licensure as a nursing home administrator. Respectfully submitted and entered this 19th day of February, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2225 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner did not number the paragraphs in his Proposed Findings of Fact but for purposes of this Appendix a number has been assigned to each paragraph. Adopted in Finding of Fact No. 1. First sentence adopted in Finding of Fact 4. Second and third sentences adopted in Finding of Fact 5. Fourth and sixth sentences adopted in Finding of Fact 6. Fifth sentence rejected as not supported by substantial competence evidence -- see Petitioner's testimony page 31, lines 16-17 and page 37, lines 11-15. First, second and third sentences adopted in Finding of Fact 17 but clarified. The fourth sentence rejected as immaterial, irrelevant and unnecessary. First and second sentences adopted in Finding of Fact 2. The third and fourth sentences rejected as immaterial, irrelevant and unnecessary. Rejected as not supported by substantial competent evidence. Rulings On Proposed Findings of Fact Submitted by the Respondent Respondent did not number the paragraphs in its Proposed Findings of Fact but for purposes of this Appendix a number has been assigned to each paragraph. Adopted in Finding of Fact No. 1. First sentence adopted in Finding of Fact 4. The second and third sentences adopted in Finding of Fact 5. Fourth sentence adopted in Finding of Fact 6. First sentence adopted in Finding of Fact 6. Second sentence adopted in Finding of Fact 5. Adopted in Finding of Fact No. 7. Adopted in Findings of Fact No. 8 and 9. Adopted in Finding of Fact 10. Adopted in Findings of Fact 10 and 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. First sentence adopted in Finding of Fact 16. Second sentence rejected as not supported by substantial competent evidence. Adopted in Finding of Fact 18. First sentence rejected as immaterial. Seconds third fifth and sixth sentences adopted in Finding of Fact 19. Fourth sentence rejected as not supported by substantial competent evidence. Adopted in Finding of Fact 3 as clarified. Adopted in Finding of Fact 3 as clarified. COPIES FURNISHED: Douglas A. Mulligan, Esquire 1327 Ninth Street St. Petersburg, Florida 33705 Deborah D. Hart, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mildred Gardner, Executive Director Board of Nursing Home Administrators Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Conclusions Having reviewed the administrative complaint dated June 26, 2009, attached hereto and incorporated herein (Exhibit 1), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Exhibit 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Filed November 9, 2009 12:00 PM Division of Administrative Hearings. Upon full execution of this Agreement, Respondent agrees to pay $1,875.00 in administrative fines to the Agency within thirty (30) days of the entry of the Final Order. Respondent accepts the assignment of conditional licensure status commencing March 5, 2009 and ending April 14, 2009. A check should be made payable to the "Agency for Health Care Administration." The check, along with a reference to these case numbers, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. A conditional license is imposed commencing March 5, 2009 and ending April 14, 2009. Each party shall bear its own costs and attorney's fees. The above-styled cases are hereby closed. DONE and ORDERED this 4-ctay , 2009, in Tallahassee, Leon County, Florida. :a.:,ecretary ealth Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A ., SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Donna Holshouser Stinson, Esq. Attorney for Respondent Broad and Cassel 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 (U. S. Mail) Alba M. Rodriguez, Esq. Assistant General Counsel Agency for Health Care Administration 8350 N. W. 52 Terrace - Suite 103 Miami, Florida 33166 (Interoffice Mail) Finance & Accounting Agency for Health Care Administration 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) John G. Van Laningham Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399 Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) .. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the , day of /)yue,,,,--- , 2009. Richard J. Shoop Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 (850) 922-5873 STATE OF FLORIDA
