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 presented in this cause is whether the failure by the Respondent to correct the deficiency identified by the Department' s inspectors in their annual inspection constitutes a violation of the cited rules and statutes.
Findings Of Fact The Lake County Board of County Commissioners, the Respondent in this cause, had a license to operate Lake Memorial Nursing Home, the facility in question in the instant proceedings. On September 2 and 3, 1981, during an annual licensing survey, the inspection team of the Department of Health and Rehabilitative Services discovered that the soffits under the eaves of the roof of the Lake Memorial Nursing Home were sagging in some places. This deficiency was pointed out both orally and in writing to the nursing home's administrator by the team at the conclusion of the annual inspection in 1981. On October 18 through 20, 1982, during the annual licensing survey, the Department's team discovered that the aforestated condition of the soffits had not been repaired. Between the two inspections, the director of the nursing home had commenced the procedure for having this deficiency corrected. Because the licensee is a governmental body, a work order had to be processed in accordance with the County's rules and the expenditure approved by the appropriate authorities. This approval was obtained, and the contract was ready to be let to repair this item, together with others, when the County Commission made the decision to close the nursing home. Although work directly related to the safety and comfort of the patients was performed, the soffits were not repaired. In February 1983, the nursing home was closed by the Board of County Commissioners. The Department's inspectors were aware of the County's decision to close the nursing home when it was cited for this deficiency in 1982.
Recommendation Having found that there is no violation of the rules and statutes as alleged in the Notice to Show Cause, it is recommended that the administrative penalty of $300 not be assessed. DONE and RECOMMENDED this 28th day of July, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 28th day of July, 1983. COPIES FURNISHED: James Sawyer, Esquire Department of Health and Rehabilitative Services 2002 NW 13th Street Gainesville, Florida 32601 Sanford A. Minkoff, Esquire 101 East Maud Street Tavares, Florida 32778 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Findings Of Fact The Respondent is a nursing home licensed by the Petitioner, Department of Health and Rehabilitative Services, pursuant to Chapter 400, Part I, Florida Statutes. The Petitioner is an agency of the State of Florida charged with enforcing the provisions, as pertinent hereto, of Chapter 400, Part I, Florida statutes and section 10D-29.118(6), Florida Administrative Code. On or about July 26, 1983, an investigation was conducted by Stanley Charles Peake, a hospital consultant for the Petitioner's Office of Licensure and Certification, at the Respondent's facility. It was discovered on that date (and established by witness Peake's testimony) that Nurse Sally Albury, a nurse employed by the Respondent, had failed to properly document the administration of medication to two patients who were residents of the Respondent's nursing home, the Port St. Lucie Convalescent Center. Entries recording the administration of medications to the two patients were not made, nor was any record made of the patients' condition prior to the administration of the "prn" medications. Further, the medications were to be on the "prn" or "as-needed" basis, and yet the medications were ultimately recorded as late entries showing that the medication was administered at the same time every day, when instead it was supposed to have been a "prn" medication. Further, the late entries made by Nurse Albury not only did not reflect any explanation of the patients' conditions, but no changes in condition were recorded to justify that medication (Thorazine) and the particular amounts involved. The appropriate way to correct a nursing chart concerning medication when the entry is made "after the fact" is to clearly indicate in the record that it is a late entry, which was not done by Nurse Albury in this case. Finally, the Respondent agreed in the course of the proceeding, that Nurse Albury had failed to follow the requirements of Rule 10D-29.118(6) concerning the nurses recordkeeping responsibilities. The subject deficiencies were only noted as to two charts pertaining to two patients, and immediately upon being informed of the deficiencies caused by Nurse Albury, the facility reprimanded her and ultimately terminated her employment at the Respondent's facility.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and arguments of the parties, it is, therefore RECOMMENDED: That the Respondent, Eden Park Management Company, Inc. d/b/a Port St. Lucie Convalescent Center, be found guilty of a violation of Sections 400.141(6), Florida Statutes, 400.102(1)(a) and (c), Florida Statutes, and Rule 10D-29.118, Florida Administrative Code, for which violations a $100 fine should he imposed. DONE and ENTERED this 31st day of July, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1984. COPIES FURNISHED: K. C. Collette, Esquire Department of Health and Rehabilitative Services District IX Legal Counsel 111 Georgia Avenue 3rd floor West Palm Beach, Florida 33401 Mark W. Hoffman, Esquire HOFFMAN and BERNINI, P.A. 87 Columbia Street Albany, New York 12210 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether petitioner has two years' practical experience in nursing home administration within the meaning of Section 468.1695(2)(c)3., Florida Statutes (1987) and Rule 21Z-11.008, Florida Administrative Code?
Findings Of Fact Westminster Oaks, a "retirement village" or "continuing care facility" in Tallahassee, has a clinic, a 60-bed nursing home, an adult congregate living facility and 150 "independent living" units for older people, who are guaranteed nursing home beds, if needed, as their independence ebbs. Before Donald Long began as Westminster Oaks' administrator on December 1, 1986, the position had gone unfilled for two years. By the time he arrived, petitioner Sandra Kelly, formerly director of nursing at Westminster Oaks, had become director of health care services, for the express purpose of gaining the experience necessary to sit for the nursing home administrator licensure examination. She was following in the footsteps of Sue Reeder and five other trainees, of whom three -- all who have finished the program -- have been permitted to sit for the exam from which respondent proposes to bar her. On August 1, 1986, Ms. Kelly assumed supervisory responsibility for the Health Center, which included the nursing home. As director of health care services, she was responsible not only for the nursing home, but also for the clinic and the adult congregate living facility with its 34 places. (All but six were filled at the time of hearing.) The clinic at Westminster Oaks monitors independent residents' blood pressures, and administers B-12 injections, but does not provide home health services. After Sue Reeder left in January of 1988, she was also called upon as needed to manage the resident services department, along with operations of the business office, and the dietary and housekeeping department that related to residents of the independent living units. Even her work in marketing related to the nursing home. Even when called upon to help in other areas, she was not relieved of responsibility for the nursing home, which she had effective charge of at least 95 percent and perhaps 100 per cent of the time. (Testimony of Long) Besides having overall charge, she rotated through each department in the nursing home, managing it; or, as in the case of the housekeeping department which served not only the nursing home but also other facilities in the complex, managing operations as they related to the nursing home. In addition to her nursing home duties, she spent 15 to 20 minutes a day at the adult congregate living facility, more on days when new residents were admitted. She made rounds at the adult congregate living facility quarterly, and accompanied inspectors from the Department of Health and Rehabilitative Services when they inspected. She also met with the clinic nurse three times weekly for fifteen minutes a visit. As director of health care services, she has devoted the overwhelming majority of her time to the nursing home. She has had complete and uninterrupted charge of the nursing home's social services and activities departments, and personally hired the activities director. She also hired a medical records consultant, and oversaw putting the medical records in order for inspection by the Department of Health and Rehabilitative Services. Although she did not hire or fire otherwise, leaving that to department heads, she had the right to do so. At the time of the hearing, she had spent more than 27 months as director of health care services. Although she also devoted some of her time to the adult congregate living facility, and to the clinic, she spent more than two "working years" on nursing home administration, aside from time devoted to the adult congregate living facility and the clinic. As de facto administrator of Westminster Oaks' nursing home, under Mr. Long's supervision, she planned for and helped organize, direct and control all nursing home departments, including social services, and, insofar as they pertained to the nursing home, the nursing, dietary, housekeeping, administration and maintenance departments.
Findings Of Fact The Rule The full text of the proposed rule, as changed by the Notice of Change filed with the Department of State, is as follows: 59A-4.128 Evaluation of nursing homes and rating system. The agency shall, at least every 15 months, evaluate and assign a rating to every nursing home facility. The evaluation and rating shall be based on the facility's comp- liance with the requirements contained in sections 59A-4.100 through 59A-4.128, of this rule, Chapter 400, Part II and the require- ments contained in the regulations adopted under the Omnibus Budget Reconciliation Act (OBRA) of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medi- caid, and Other Health Related Programs), Sub- title C (Nursing Home Reform), as amended and incorporated by reference. The evaluation shall be based on the most recent licensure survey report, investigations conducted by AHCA and those persons authorized to inspect nursing homes under Chapter 400, Part II, Florida Statutes. The rating assigned to the nursing home facility will be either conditional, standard or superior. The rating is based on the compliance with the standards contained in this rule and the standards contained in the OBRA regulations. Non-compliance will be stated as deficiencies measured in terms of severity. For rating purposes, the following deficiencies are considered equal in severity: Class I deficiencies; Class II deficiencies; and those Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy. Further for rating purposes, the following defici- encies are considered equal in severity: Class III deficiencies; and those Substand- ard Quality of Care deficiencies which con- stitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm. Class I deficiencies are those with either an imminent danger, a substantial probability of death or serious physical harm and require immediate correction. Class II deficiencies are those deficiencies that present an immediate threat to the health, safety, or security of the residents of the facility and the AHCA establishes a fixed period of time for the elimination and correction of the deficiency. Substandard Quality of Care deficiencies are deficiencies which constitute either: immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immedi- ate jeopardy; or a widespread potential for more than minimal harm, but less than immedi- ate jeopardy, with no actual harm. Class III deficiencies are those which present 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. A conditional rating shall be assigned to the facility: if at the time of relicensure survey, the facility has one or more of the following deficiencies: Class I; Class II; or Substan- dard Quality of Care deficiencies which con- stitute either immediate jeopardy to resident health or safety or a pattern of or wide- spread actual harm that is not immediate jeopardy; or, if at the time of the relicensure survey, the facility has Class III deficiencies, or Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resi- dent health or safety, but less than immedi- ate jeopardy, with no actual harm and at the time of the follow-up survey, such defici- encies are not substantially corrected with- in the time frame specified by the agency and continue to exist, or, new class I or class II deficiencies or Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy are found at the time of the follow- up survey. A facility receiving a conditional rating at the time of the relicensure survey shall be eligible for a standard rating if: all Class I deficiencies, Class II deficiencies, and those Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy are corrected within the time frame established by the AHCA and All class III deficiencies and and (sic) those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm are substantially corrected at the time of the follow-up survey. A facility receiving a conditional rating at the time of the relicen- sure survey shall not be eligible for a superior rating until the next relicensure survey. A standard rating shall be assigned to a facility, if at the time of the relicen- sure survey, the facility has: No class I or class II deficiencies and no Substandard Quality of care defici- encies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy, and Corrects all class III deficiencies and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm with- in the time frame established by the AHCA. A superior rating shall be assigned to a facility, if at the time of the relicen- sure survey, the facility has received a standard rating and meets criteria for a superior rating through enhanced programs and services as contained in (7) of this section. In order to qualify for a superior rating, the nursing facility must provide initiatives or services which encompass the following areas: Nursing services. Dietary or nutritional services. Physical environment. Housekeeping and maintenance. Restorative therapies and self help activities. Social Services. Activities and recreational therapy. In order to facilitate the development of facility wide initiatives and promote creativity, these areas may be grouped or addressed individually. In establishing the facility's qualification for a superior rating, the AHCA survey team will use the Rating Survey and Scoring Sheet, Form No AHCA 3110- 6007, June, 1995, incorporated by reference, and may be obtained from the Agency for Health Care Administration. Upon initial licensure, a licensee can receive no higher than a standard license. After six months of operation, the new licensee may request that the agency evalu- ate the facility to make a determination as to the degree of compliance with minimum requirements under Chapter 400, Part II, F.S., and this rule to determine if the facility can be assigned a higher rating. Nursing facilities will be surveyed on this section of the rule beginning March 1, 1995. Petitioner's Exhibit No. 3. The "specific authority" given for the rule by the agency is Section 400.23, Florida Statutes. The rule implements Sections 400.12, 400.19 and 400.23, Florida Statutes. The Parties Florida Health Care Association, Inc., is a trade association. Its members are Florida nursing homes and it represents the great majority of nursing homes in the state. The Agency for Health Care Administration is the licensing agency of the State of Florida responsible for regulating nursing homes under Part II of Chapter 400, Florida Statutes. Florida Unique Among the 50 States Federal regulations do not require the rating of nursing homes. As one might expect, therefore, states typically do not rate nursing homes. In fact, of the fifty states, Florida is the only state that rates nursing homes. Statutory Requirement for Nursing Home Rules Section 400.23, Florida Statutes, mandates the Agency, "in consultation with the Department of Health and Rehabilitative Services and the Department of Elderly Affairs, [to] adopt and enforce rules to implement," Part II of Chapter 400. Rules to be adopted by the Agency with regard to nursing homes "include reasonable and fair criteria in relation to ... the care, treatment, and maintenance of residents and measurement of the quality and adequacy thereof, based on rules developed under [Chapter 400, Part II, Florida Statutes,] and [OBRA,] the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended." (e.s.) Section 400.23, Florida Statutes. The Statutory Framework for the Evaluation and Rating of Florida Nursing Homes The Agency is not mandated just to adopt rules for measuring the quality and adequacy of the care, treatment and maintenance of nursing home residents. The Agency is also mandated to evaluate and rate the state's nursing homes. Section 400.23(8), F.S. Presumably, this rating process is intended to promote improvement of nursing homes, to enhance quality and adequacy of care of residents and to aid in selection of nursing homes by potential residents and their families. In any event, the Agency is required, "at least every 15 months, [to] evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules ... as a basis for assigning a rating to that facility." Id. The various ratings Taking into consideration the most recent inspection report and other material deemed pertinent by statute, the Agency must assign one of three ratings to a nursing home under evaluation: standard, conditional or superior. A standard rating means, that a facility has no class I or class II deficiencies, has corrected all class III deficiencies within the time established by the agency, and is in substantial compliance at the time of the survey with criteria established under this part, with [agency rules] ... , and, if applicable, with rules adopted under [OBRA] ... as amended. (e.s.) Section 400.23(8)(a), F.S. A conditional rating means, that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part, [agency rules] ..., or, if applicable with rules adopted under [OBRA] ... as amended. ... (e.s.) Section 400.23(8)(b), F.S. A superior rating means that a facility meets the criteria for a standard rating and exceeds those criteria through enhanced programs and services in seven areas: 1. nursing service; 2. dietary or nutritional services; 3. physical environment; 4. housekeeping and maintenance; 5. restorative therapies and self-help activities; 6. social services; and, 7. activities and recreational therapy, (the "seven statutory areas of enhancement.") Section 400.23(8)(c), F.S. In order to achieve a superior rating, a facility may group the seven areas of enhancement within single programs or address each individually. If a facility chooses to group any within a program or initiative, however, the facility will not qualify for a superior rating "if fewer than three programs or initiatives are developed to encompass the required areas." Section 400.23(8)(d), F.S. ii. Rules with regard to Ratings. The Agency is responsible for establishing the rules under which most of the evaluation and rating process takes place. The Agency was charged with establishing uniform procedures by January 1, 1994, for evaluating nursing homes including the provision of criteria in the seven statutory areas of enhancement. Section 400.23(8)(h), F.S. Under the proposed rules, the rating is tied to classification of deficiencies, which must be "according to the nature of the deficiency." Section 400.23(9), F.S. OBRA Regulations and their Applicability Compliance by a nursing home with OBRA regulation, if applicable, is part of the evaluation of nursing homes and is one aspect used to determine which rating, (conditional, standard or superior,) is to be given a nursing home. Section 400.32(8)(a),(b) and (c), F.S. Effective July 1, 1995, the U.S. Department of Health and Human Services amended its rules regarding the survey, Medicare-certification and enforcement of regulations for nursing homes. The new rules implemented certain provisions of the federal Omnibus Budget Reconciliation Act of 1987 ("OBRA '87,") as amended. Changes were thereby made in the process of surveying skilled nursing facilities under Medicare and nursing facilities under Medicaid and in the process for certifying that such facilities meet the federal requirements for participation in Medicare and Medicaid programs. The agency considers federal OBRA regulations in place after the amendments made under OBRA 87 to be applicable, including those adopted with an effective date of July 1, 1995. No evidence was introduced in this proceeding to contradict the agency's opinion that OBRA regulations are applicable to Florida nursing home ratings and evaluations. The OBRA regulations effective in July of 1995 include a "matrix" made up of twelve boxes. The matrix, to be referred to in determining whether a nursing home is in "substantial compliance" with federal regulations and whether a deficiency constitutes "substandard quality of care," or not, was published by the federal Health Care Financing Administration in the Department of Health and Human Services as a pamphlet entitled "Public Reference Guide." The pamphlet states as part of its "Background" section, "[t]his regulation becomes effective on July 1, 1995. The matrix (see Appendix "B", a copy of the matrix admitted into evidence as Petitioner's Exhibit No. 1) contains four levels of severity of federal deficiencies in bands stacked horizontally one on top of the other, described in descending order to the left of the matrix: "Immediate Jeopardy to Resident Health or Safety"; "Actual Harm that is not Immediate Jeopardy",; "No Actual Harm with Potential for More than Minimal Harm that is not Immediate Jeopardy"; and, "No Actual Harm with Potential for More than Minimal Harm". The matrix is divided into three columns at its base describing the scope of the deficiency in ascending order from left to right: "Isolated," "Pattern," and "Widespread." The intersections of the four bands of severity and the three columns of scope produce the twelve boxes. The boxes are labeled "A" through "L." The A box, the least intense in severity, is denominated "No Actual Harm with Potential for Minimal Harm" and is the most confined in scope, that is, "Isolated." The antipode of the "A" box is the "L" box, where severity is most intense, denominated "Immediate Jeopardy to Resident Health and Safety," and scope is the broadest, that is, "Widespread." The pamphlet is coded to indicate deficiencies which do not defeat substantial compliance. These are all the deficiencies which fall into the A, B and C boxes; that is, the least severe deficiencies no matter what their scope. Deficiencies falling into the remainder of the boxes indicate a facility's failure to achieve substantial compliance. The pamphlet is also coded to indicate deficiencies which constitute substandard quality of care. These are all of the categories of most severe deficiencies, ("Immediate Jeopardy to Resident Health or Safety"), that is, the J, K and L boxes; the two of the next most severe category of deficiencies, ("Actual Harm that is not Immediate Jeopardy") that are broadest in scope, ("Pattern" and "Widespread"), that is, the H and I boxes; the broadest in scope ("Widespread") of the third level in descending order of categories of severity, ("No Actual Harm with Potential for More than Minimal Harm that is not Immediate Jeopardy,") that is, the F box; and none of the least severe category of deficiencies. Left as not indicating substandard quality of care are deficiencies which fall into Boxes A through E and Box G. One would be disappointed if holding the expectation that deficiencies which would indicate a facility culpable of substandard of care would be divided somewhere neatly in the progression from the A box to the L box so that every box lettered higher in the alphabet and above this division would contain deficiencies constituting substandard care and every box below this line and lower in the alphabet would contain deficiencies not constituting substandard care. This is because the expectation fails with the F and G boxes. Every box higher than G, (H through L) contain categories of deficiencies constituting substandard of care and every box lower than F, (A through E,) contain categories free of substandard of care. But there is a reversal when it comes to the F and G boxes. The G box, with the next to the most intense severity, ("Actual Harm that is not Immediate Jeopardy") and the narrowest scope, ("Isolated,") does not contain deficiencies constituting substandard quality of care. In contrast, deficiencies which fall into the F box, a box with lower severity than the G box, that is, the next to the least intense severity, ("No Actual Harm with Potential for More than Minimal Harm that is not Immediate Jeopardy,") do indicate substandard quality of care because the scope of the F box is the greatest, that is, "widespread." The code "key," which appears in the federal pamphlet and is part of the federal regulation, appears just below the matrix on the pamphlet. With regard to any box coded as "substandard quality of care," the key contains the following stipulation: Substandard quality of care: any deficiency in s. 483.13, Resident Behavior and facility Practices, s. 483.15 Quality of Life, or in S. 483.25, Quality of Care that constitutes: [deficiencies that fall in the F box, or boxes H through L.] Respondent's Exhibit No. 2. The Challenge to the Proposed Rule The Association's challenge to the proposed rule has two parts: the first is to the text of the rule; the second, to Form No. AHCA 3110-6007, a "superior rating" form incorporated into the rule by reference. The Text Omission of Federal Limitations The proposed rule contains definitions of Class I, II and III deficiencies as well as definitions of "substandard quality of care" deficiencies. The definitions of the Class I, II and III deficiencies come directly from Section 400.23 of the Florida Statutes. In contrast, the definition of "substandard quality of care" deficiencies, while established by regulations adopted under the Omnibus Reconciliation Act (OBRA) of 1987 (Pub. L. No. 100-203), as discussed above, are not the same in the proposed rule as in the federal regulations. This is because the federal regulations limit the definition in ways the proposed rule does not. The federal regulations furnish the following definition: Substandard Quality of Care means one or more deficiencies related to participation require- ments under [s.] 483.13, Resident behavior and facility practices, [s.] 483.15, Quality of life, or [s.] 483.25, Quality of care of this chapter, which constitute either immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immediate jeopardy; or a widespread potential for more than minimal harm, but less than immediate jeopardy, with no actual harm. 42 CFR 488.301. This provision of OBRA regulation limits the definition of "substandard quality of care," to deficiencies related to participation requirements under three sections of Chapter 42 in the Code of Federal Regulations: s. 483.13, governing resident behavior and facility practices; s. 483.15, governing quality of life; and s. 483.25, governing quality of care. The proposed rule, by comparison, defines "Substandard Quality of Care" deficiencies as those which constitute either: "immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immediate jeopardy; or a widespread potential for more than minimal harm, but less than immediate jeopardy, with no actual harm." Petitioner's Ex. No. 3, p. Unlike the federal regulations, the proposed rule does not limit the definition to deficiencies related to participation requirements under the three sections enumerated in the section defining "substandard quality of care," 42 CFR 488.301. It was the agency's intent that the proposed rule follow the definition of the federal regulations precisely. Nonetheless, the agency omitted from the proposed rule the limitations present in the federal regulations. The omission was attributed by the agency to oversight on its part. In the view of the agency, the absence in the proposed rule of the federal regulations' limitations makes the proposed rule "incomplete." (Tr. 339.) Lack of Definitions in OBRA Regulations The OBRA regulations do not define the terms used to describe scope: "isolated," "pattern," or "widespread." Neither do the statute or the proposed rule. With regard to severity, the term "immediate jeopardy" is defined in the OBRA regulations, but the terms "actual harm" and "minimal harm" are not defined. The terms "actual harm" and "minimal harm" are not defined by statute or the proposed rule. The lack of definitions creates a problem among surveyors. Left to themselves, surveyors define the terms differently. Differences as to definitions are found even among surveyors on the same agency survey team. Superior Rating with Substandard Quality of Care Deficiencies assigned the next to the lowest severity but the broadest scope, that is, those that fall into the F box, are considered substandard quality of care under the OBRA regulations and the proposed rule. Nonetheless, these deficiencies are equated with Class III deficiencies. A facility found to have rendered substandard quality of care equated with a Class III deficiency, therefore, is eligible still to receive a superior rating provided the deficiencies are corrected in a timely fashion. At present, under current law without the proposed rule being effective, it is possible for the most severe OBRA deficiencies to be classified by the state as Class I, II or III deficiencies. The proposed rule would change that so that the most severe OBRA deficiencies would not be classified as Class III deficiencies. Aside from any requirement of the statute, the agency's rationale for using the OBRA regulations with regard to substandard quality of care was to ensure that facilities which are found to be providing substandard quality of care not receive a superior rating. The Superior Rating Form The Rating Survey and Scoring Sheet, Form No. AHCA 3110-6007, (the "Superior Rating Form) used by agency surveyors since March 1, 1995, opens with a section of instructions to the agency's surveyors to be used in making the determination as to whether a nursing home should be rated "superior." In observance of the statute, the instructions caution the surveyors that a superior rating survey is to be conducted only on facilities which have achieved "a standard rating at the time of the relicensure survey." The instructions go on to state: Florida law provides that a superior rating may only be awarded to a facility that exceeds the criteria for a standard rating in the following areas: Nursing services. Dietary or nutritional services. Physical environment. Housekeeping and maintenance. Restorative therapies and self help activities. Social services. Activities and recreational therapy. Petitioner's Ex. No. 6. The instructions then state, "[a] facility will be deemed to have met the statutory requirements if it attains the score necessary for a superior rating under this survey instrument." Id. After further instructions, the form is divided into six sections, four of which are to be completed by the surveyor and two of which are to be completed by the facility. The two to be completed by the facility are titled, "Consumer Satisfaction Survey," and "Staffing Characteristics." Id. The remaining four (those to be completed by the surveyors) call for descriptions of: 1. the resident population; 2. any quality improvement programs; 3. training not required by regulation to staff; and, 4. types of adjunct or specialty positions consistently used to provide improved resident care. Scored Sections Of the six sections to be filled out by the surveyor or the facility, four are scored to determine whether a superior rating should be assigned. The four are "quality improvement," "training," "resident care," and "staffing characteristics." Each demands a minimum number of points in order for the facility to receive a superior rating. "Quality improvement" demands 14 points, "training" 5, "resident care" 16, and "staffing characteristics" 12. Staffing Characteristics As to "staffing characteristics," the section of the form awards points for the years of experience of various key personnel at the facility. Points are also awarded for the number of years those individuals who occupy key staff positions have been employed by the facility. Points are awarded neither on the basis of ability of staff nor for adequate performance. The staffing section is the one scored section completed by the facility rather than the surveyors. After completion, the information filled in by the facility is not reviewed by the agency. While common sense advances a nexus between longevity of service and quality of service, no hard data was presented that longevity of service of key staff members plays a role in a facility's ability to provide superior service. Furthermore, the form provides for points to be assigned for the credentials of the staff members but neither the form nor the rule identify which credentials should yield points. The agency has such a list of credentials but neither the form nor the rule makes reference to the list. Agency surveyors do not confirm or question the information the facility provides in the "staffing characteristics" section of the form. The other scored sections With regard to the other three scored sections of the form, most of the information and scoring relate to the seven areas of enhanced programs and services the statute lists as necessary to qualify for a superior rating. For example, under Section III., the "Quality Improvement" section, points are awarded for active involvement in the quality improvement program of the following department/disciplines: nursing, rehabilitative services, dietary, housekeeping, maintenance, activities, social services and administration/medical staff. These department/disciplines all relate to at least one of the seven statutory areas of disciplines. Involvement of the nursing staff in a quality improvement program, for example, clearly relates to enhanced services in the area of "nursing services." Likewise, the same may be said for involvement of housekeeping and maintenance in the quality improvement program vis-a-vis the statutory area of housekeeping and maintenance. Other areas of scoring, however, do not relate as directly to one of the seven statutory areas of enhancement. Under Section III., "Quality Improvement," for example, 2 points are awarded under the heading "Implementation plans," for each of "resolve problems identified thorough monitoring aspects of care," "resolve problems identified by consumers," and "resolve problems identified by staff and management." With regard to the resolution of problems identified by staff and management, there is nothing to connect the problems to the seven areas of enhancement. For instance, a staff member could identify a personal problem with a supervisor, the resolution of which would have no impact on enhancement in any of the seven statutory areas. This shortcoming of the Superior Rating Form, (lack of nexus, with regard to achievement of points, between scored information and the seven areas of enhancement, appears throughout the scored sections.) In sum, it is difficult to know for certain that when points are awarded in every instance there will be a relationship with one of the seven statutory areas of enhancement. At the same time, at least one of the areas of enhancement appears to be shortchanged in the form. The only place "physical environment" enhancement is awarded points is under Section V., "Resident Care," and then only when "the facility has enhanced the physical environment to meet the extraordinary needs of special population residents." Id., p. 7. Yet, the listing of "physical environment," in the statute as one of the seven areas of enhancement does not limit the applicability of the area to any segment of the resident population. "Physical environment," is an area of enhancement applicable without limitation to the entire resident population of a nursing home. Nor does there appear to be much in the Superior Rating Form that relates directly to the statutory area of enhancement, "Restorative therapies and self-help activities." The difficulty in relating the scored categories of the form to the seven statutory areas of enhancement sets up the possibility for a nursing home to receive a superior rating when it does not deserve one because it does not exceed the criteria for a standard rating through enhanced programs and services in all seven areas. The form also requires a minimum of 14, 5, 16 and 12 points in the form's scoring categories of "Quality Improvement," "Training," "Resident Care," and "Staffing Characteristics," respectively. These minimums set up the possibility that a nursing home deserves a superior rating and yet will not receive one because, although it has enhanced programs and services in all seven areas, it may still not receive enough points as required by the form. This is true particularly if it does not receive the minimum number of points, (twelve,) under "staffing characteristics." In such a case, a facility could have enhancements in all seven areas, yet be defeated because of key personnel not having been in the facility's employ long enough. AHCA Use of an Unpromulgated Rule With the exception of the agency's use of the Superior Rating Form, there was no evidence offered at hearing that AHCA is using an unpromulgated rule to evaluate and rate nursing homes.
The Issue As stated in the Prehearing Stipulation filed by the parties, the "issue to be litigated is whether Petitioner is entitled to a Superior or Standard rating on its license for the period September 1, 1986 through August 31, 1987"?
Findings Of Fact The Petitioner, The Magnolias Nursing and Convalescent Center, is a 210-bed nursing home located in a four-story building in Pensacola, Florida. It is licensed as a nursing home by the State of Florida pursuant to Chapter 400, Florida Statutes. Howard Bennett and his wife have been the owners of the Petitioner since it was built in 1978. On April 28-30, 1986, and May 1-2, 1986, the Department conducted an annual Licensure and Certification survey (hereinafter referred to as the "Annual Survey") of the Petitioner's nursing home as required by Section 400.23, Florida Statutes. Based upon the Annual Survey conducted by the Department, the Department determined that the Petitioner's facility failed to meet nursing home licensure requirement numbers (NH) 100 and 102, as identified on the Department's Nursing Home Licensure Survey Report, DHRS exhibit 2. The deficiencies found by the Department and which in fact existed during the Annual Survey relating to NH 100 and 102 were as follows: The charge nurse for each shift on each of the four floors of the facility is responsible, under direction from Director of Nursing, for the total nursing activities in the facility during each tour of duty. The charge nurses are thus responsible for ensuring that nursing personnel carry out the direct nursing care needs of specific patients and assist in carrying out these nursing care needs. This responsibility is not always met in that: On the day of the survey, there were urine odors noted on the halls, rooms of fourth and third floors, indicating lack of attention by nursing. Other instances of lack of personal attention by nursing on the above mentioned floor in that: One patient required oral hygiene. Fourteen residents required fingernail care, one resident's fingernails were long, thick, and black indicating a need for attention. Two residents had redden buttocks, three residents were wet, three residents needed shaving, three residents needed hair cuts. One resident needed colostomy bag changed. One resident had a small amount of feces on backside, and was not properly cleaned around the rectum and scrotum. Several residents had on clothing that was too tight, zippers open, buttons not fasten, soil wrinkled and threads hanging around the bottom. It is also noted, that there are 116 total care, and 17 self care residents in the facility indicating a need for constant intensive nursing care to the residents. Ref. 10D-29.108(3)(d)(1) Based upon the totality of these deficiencies, it was concluded that the Petitioner failed to comply with the standard of care to be provided by the charge nurse. The deficiencies cited by the Department during the Annual Survey were classified as Class III deficiencies. The Annual Survey was conducted by Christine Denson. Ms. Denson had conducted nine to ten annual surveys of the Petitioner prior to the survey which is the subject of this proceeding. During Ms. Denson's inspection of the Petitioner's nursing home, Ms. Denson pointed out the deficiencies which are noted above to the director of nursing who accompanied Ms. Denson during her inspection. Ms. Denson normally records in some manner the identity of a resident to whom a deficiency relates; by noting the room number or bed number. Ms. Denson did not follow this procedure during the Annual Survey. Ms. Denson met with Howard Bennett, the owner of the Petitioner, at the conclusion of the Annual Survey. After Ms. Denson had explained the deficiencies she had found during her inspection, Judge Bennett stated to Ms. Denson: "I know the place is going down hill. We are letting it slide. Judge Bennett did not ask Ms. Denson for any information concerning the identity of the residents to which deficiencies related. The Petitioner had policies in effect at the time of the Annual Survey which addressed each of the deficiencies cited by the Department. Those policies were not, however, followed. Ms. Denson did not know when the residents to which the deficiencies she found related had been admitted to the Petitioner, their medical condition, how long the fingernail problems had existed or how long the residents had resided at the Petitioner. Ms. Denson did not speak to the residents about the problems she noted, review their medical or dental records or talk to any residents' physician. Finally, Ms. Denson did not remember whether any of the residents were continent or incontinent. On August 13, 1986, a letter was issued by the Department informing the Petitioner that its license rating was being converted from a superior rating to a standard rating. The August 13, 1986, letter from the Department also indicated that the deficiencies noted in the Annual Survey had been corrected based upon a July 31, 1986, follow-up inspection conducted by the Department. The Petitioner requested an administrative hearing challenging the proposed rating of its license by letter dated September 24, 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued assigning a standard rating on the Petitioner's license for the period September 1, 1986, through August 31, 1987. DONE and ENTERED this 19th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 19th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4182 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Accentance or Reason for Rejection 1-3, 6-7, 81 These are matters included in the Prehearing Stipulation. They are hereby accepted. 4-5 Statement of the issue in this case 8 Not supported by the weight of the evidence. Ms. Denson testified at pages 48-49 of the transcript that whether a nursing home was considered to be out of compliance depended on the totality of the deficiencies and that she considered all of the deficiencies she found at the Petitioner's facility. 9 12. 10-11 10. 12-13 7. 14 Irrelevant. 15-16, 19-20, 22-23, 25, 29-31 10. 17 Hearsay. 18, 28, 33-34, 36-37, 39, 41-43, 45 Hereby accepted. 21, 24, 26-27, 32, 48, 54-66, 71, 73-77 These proposed findings of fact are generally true. They all involve, however, possible explanations for the deficiencies found at the Petitioner's facility. In order for these proposed findings of fact to be relevant it would have to be concluded that the Department had the burden of dispelling any and all possible explanations for the deficiencies. Such a conclusion would not be reasonable in this case. The Department presented testimony that the deficiencies cited existed and that, taken as a whole, they supported a conclusion that the Petitioner was not providing minimum nursing care. This evidence was credible and sufficient to meet the Department's burden of proof and to shift the burden to the Petitioner to provide proof of any explanations for the deficiencies. 35 9. 38, 40, 49-51, 53, 82-83, 86-87 Irrelevant and/or argument. 43-44 1. 46-47, 51, 56, 66-67, 71-71 These proposed findings of fact are true. They are not relevant to this proceeding, however, because they involve situations at the Petitioner's facility which may explain the deficiencies. The Petitioner failed to prove that they actually were the cause of any of the deficiencies. 70, 78-80, 84-85 Conclusions of law. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2-3. 2 11-12. 3 4 and 6. 4 4. 5-7 Irrelevant, summary of testimony, conclusion of law. 8 9. 9 8. 10 Irrelevant. 11 8. 12 Summary of testimony and facts relating to the weight of Ms. Mayo's testimony. 13-14 Hereby accepted. 15 Argument. 16-17 Conclusions of law. 18 4. 19-20 Conclusions of law, argument and irrelevant. COPIES FURNISHED: Jonathan S. Grout, Esquire Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32302 Michael O. Mathis Staff Attorney Office of Licensure and Certification Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
