The Issue Whether Respondent, Guy Hendricks, III, R.Ph., is subject to discipline pursuant to Subsection 465.016(1)(e), Florida Statutes, for violating Rule 64B16-28.120(2), Florida Administrative Code.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, Guy R. Hendricks, III, R.Ph., is a Florida-licensed registered pharmacist, so licensed in 1972; he was licensed as a consultant pharmacist in 1974. Registered pharmacists typically dispense medications at a community pharmacy, for example, Eckerds and Walgreen's. Consulting pharmacists oversee a pharmaceutical distribution system in a long-term care nursing home facility with a Class I institutional permit. In addition to his employment at the Arbors in Orange Park (the Arbors), Respondent is engaged in the development of "cutting edge consultant computer programs" and "research and development in the field of software platforms which will lead to a fully integrated consultant software package." (Respondent's vita, Petitioner's Exhibit 2) On August 1, 1996, Respondent became the consulting pharmacist for the Arbors. The AHCA survey, which is the genesis of the allegations of the Amended Administrative Complaint in this case, was conducted later that same month. The Arbors is a sub-acute care facility which has a Class I institutional pharmacy permit. Florida Statutes and Florida Administrative Code rules restrict the type of medicinal drugs and drug preparations allowed in Class I institutional pharmacies. One of the consulting pharmacist's responsibilities is to see that the applicable Florida Statutes and Florida Administrative Code rules are followed within the Class I institutional pharmacies, subject to pharmacist's control. The Arbors utilized a Baxter SureMed Dispensing Machine (SureMed machine) which is a computerized dispensing machine that stores medications and allows the pharmacist to track when medications are taken from the machine, by whom they are taken, what dosage is dispensed, and to whom the medication is administered. It has a complete computerized tracking system. It is a "modern tool of pharmacy" used to provide a high level of pharmaceutical care for nursing home residents. Florida Statutes and Florida Administrative Code rules require that nursing homes, such as the Arbors, provide "reasonable and consistent quality of life for residents" and that "reasonable efforts be made to accommodate the needs and preferences of residents to enhance the quality of life in a nursing home." Florida Administrative Code rules allow the Arbors to adopt policies and procedures regarding drugs to meet the needs of residents and to maintain an Emergency Medical Kit(s), the contents of which shall be determined by the facility's medical director, director of nursing, and pharmacist, and "it (the medical kit) shall be in accordance with facility policy and procedures"; the "emergency medical kit" may contain medicinal drugs and drug preparations which are not otherwise allowed within Class I institutional pharmacies. Respondent testified that the SureMed machine was being used as one of the Emergency Medical Kits of the Arbors. The drugs contained in the SureMed machine were determined by the Arbors staff before Respondent was employed as consulting pharmacist. During the August 27-28, 1996, AHCA Survey, the surveyor concluded that the SureMed machine was being used inappropriately by the Arbors. The survey revealed that the SureMed dispensing unit was used as an emergency medication kit. Review of the SureMed Policy and Procedure stated "Medications stored in SureMed are intended for emergency stat orders, late admission first dose, new orders and missing doses" (part of Petitioner's Exhibit 5) contrary to the approved use of medicinal drugs used in facilities with a Class I Institutional Pharmacy Permit. An inventory list provided by the facility revealed in excess of 300 medications in the SureMed unit and this unit had been accessed 22 times in the 24 hours prior to surveyor review. Further review of the usage log revealed that an unsampled resident received Norixin from the SureMed unit on 8/26/96 at 23:04, 8/27/96 at 22:21 and 8/28/96 at 22:21 instead of receiving a resident specific labeled medication from the provider pharmacy. Respondent suggests that a "typographical error" may have occurred in the facility's SureMed policy and procedure in that, if the word "not" is inserted after the words "emergency stat orders," the policy and procedure would conform to the limitations proscribed for Class I institutional permitees. While this explanation is plausible, it is not accepted as credible. This portion of the Arbors' SureMed policy and procedure, referenced by the AHCA surveyor, does not follow Florida law. If the foregoing policy and procedure language is the only language considered, the surveyor's conclusions may be justified; however, the surveyor failed to note the following language which immediately follows the quote from the same SureMed policy and procedure. "SureMed is not intended to be a routine source of medication. The pharmacy must be informed of all new admissions, new orders, refill orders, and missing doses." When a nursing home resident is first admitted to the Arbors, the admittee does not bring medications but brings new prescription orders which must be filled by the provider or back-up pharmacy. Home Care Pharmacy in Orlando, Florida, provides medications to the Arbors; it is 140 miles from Orlando to Orange Park. Deliveries are made two times a day. There were occasions in 1996 when patients were out of medication or Home Care Pharmacy was not delivering as ordered. While the Arbors has only a Class I institutional permit which limits drugs readily available to residents, the facility accepts residents who are "sub-acute" care patients, for example, patients with chronic disease, post-surgical patients, and patients with "super" infections, all of whom require continuity of pharmaceutical therapy. Frank May, a registered pharmacist and certified HCFA surveyor for AHCA, testified that while the Arbors' SureMed policy and procedure were "out of compliance," nevertheless, it was appropriate to "take a drug out of the machine or out of the emergency medication kit if it cannot be provided by the provider pharmacy or if that provider pharmacy is a long way off or by a back-up pharmacy in a timely manner for the next dosage of that medication." May also testified that "there is nothing wrong" with utilizing the SureMed machine as an emergency medical kit or maintaining drugs, otherwise not permitted in a Class I institution permit, in the machine. May further testified that without examining each instance wherein the SureMed machine was accessed immediately prior to the AHCA survey, it would be impossible to determine whether or not an "emergency" existed warranting the use of the particular drug obtained from the SureMed machine. May testified that in 1996, the use of automated drug dispensing machines was becoming very prominent in nursing homes; and problems, such as addressed in this case, were "fairly prevalent." Respondent maintains that the facility's use of the SureMed machine was on a bona fide emergency basis only. The Arbors' SureMed policy and procedure were changed immediately following the August 1996 survey. Respondent sent AHCA a July 20, 1997, letter in response to the AHCA licensure investigation in which he identified the SureMed machine as a "computerized emergency system," a "modern tool of pharmacy," and "our only solution" "to treat our residents' sub acute conditions" when "some local pharmacies . . . could not provide medications." The SureMed machine was removed from the Arbors in November 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges against Respondent in the Amended Administrative Complaint be dismissed. DONE AND ENTERED this 28th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 28th day of March, 2001. COPIES FURNISHED: Guy Hendericks, III Post Office Box 4173 Sebring, Florida 33871 Lawrence F. Kranert, Jr., Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 John Taylor, R.Ph., Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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.
The Issue Whether Respondent failed to protect one of the residents of its facility from sexual coercion. Whether Respondent failed to report the alleged violation immediately to the administrator.
Findings Of Fact Petitioner is the state agency charged with licensing and regulating nursing homes in Florida, under state and federal statutes. Respondent is a licensed nursing facility located in Orlando, Florida. Respondent is a small not-for-profit facility, overseen by a voluntary board of directors. Resident 2 is a Hispanic male, 57 years of age, who speaks English and Spanish fluently. He was a self-admitted resident at Respondent's nursing home facility during the relevant time period. Respondent is a small, not-for-profit facility, overseen by a voluntary board of directors. Respondent receives its funds to operate through various types of sources such as United Way, City of Orlando, Orange County, and many foundations. At all times material hereto, Petitioner is the state agency charged with licensing of nursing homes in Florida and the assignment of a licensure status. The statute charges Petitioner with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, Petitioner is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities. Pursuant to the statute, Petitioner must classify deficiencies according to the nature and scope of the deficiency when the criteria established under the statute are not met. The classification of any deficiencies discovered is determinative of whether the licensure status of a nursing home is "standard" or "conditional." The evaluation, or survey, of a facility includes a resident review and, depending upon the circumstances, may consist of record reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services Form 2567, titled "Statement Deficiencies and Plan of Correction" and is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation and indicates the federal scope and severity of the noncompliance. Agency surveyors use the "State Operations' Manual," a document prepared by the U.S. Department of Health and Human Services, Center for Medicare and Medicaid Services, as guidance in determining whether a facility has violated 42 Code of Federal Regulations (C.F.R.), Chapter 483. In March 2003, Petitioner conducted a survey to investigate a complaint that Respondent failed to protect a resident from sexual coercion. The allegation of the deficient practice was based upon an incident involving Resident 2. Pursuant to 42 C.F.R. Section 483.13(b), a nursing facility must assure that a resident has the right to be free from verbal, sexual, and mental abuse. Failure to do so constitutes a deficiency under Florida Statutes. At hearing, Petitioner presented the testimony of Jane Woodson, nursing program specialist, employed by Petitioner. Woodson testified that she does state and federal surveys in both state and federal licensure and federal institutions to identify or define any noncompliance. She visited Respondent's facility on or about March 26, 2003, and prepared a 2567 form based on her observations, interviews, and record review. It details the results of her investigation, including her interviews with the director of nursing, the administrator, the social worker, the compliance officer, a licensed practical nurse (LPN), and the assistant director of nursing. She also toured the total facility, observed its residents and also observed Resident 2. Woodson observed that Resident 2 was a well-dressed, alert male, and she spoke to him about the incident on March 15, 2003. Woodson did not have an interpreter present at any time when she interviewed Resident 2, nor did she consider it necessary to do so. At no time did she have any concern that Resident 2 was not mentally competent to understand her when she interviewed him. Woodson was not aware that Resident 2 signed his own financial responsibility forms, patient's rights statement, or that he voluntarily checked himself into the facility. She was not aware that Resident 2 made his own medical decisions in the facility. Following her investigation, Woodson conducted an exit interview with the administrator, the director of nursing, the assistant director of nursing, the social worker, and the compliance offer. Woodson included in her report a document filled out by Sharon Ebanks (Ebanks), registered nurse (RN), but she did not personally interview Ebanks. She also did not interview Marilyn Harrilal, LPN, nor did she interview the employee involved in the incident. She advised the administrator of her finding a Class II deficiency and provided a correction date of April 17, 2003. She also concluded that this was an isolated incident. Ebanks was the weekend charge nurse on March 15, 2003, and was in charge of the facility on that date. Ebanks was working on the north wing when she was called by Mr. Daniels, a LPN working on the south wing. Daniels told Ebanks about the alleged incident between Resident 2 and the staff person. Ebanks then called Resident 2; the employee, Marcia Dorsey (Dorsey); and the certified nursing assistants (CNAs), Ms. Polysaint and Ms. Mezier (first names not in the record), who had witnessed the incident, to the green room. She also asked Harrilal to act as a witness to her interviews with the individuals involved. Ebanks first spoke to Resident 2 and Dorsey, both of whom stated that nothing had happened. She then questioned the two CNAs about what they had witnessed. Ebanks concluded, after interviewing both the participants and the witnesses, that the incident was not abuse, but rather, was inappropriate behavior on the part of both Resident 2 and the employee. She based this conclusion on the fact that Dorsey is a trainable Dows Syndrome individual, who was supposed to be working when the incident occurred. Ebanks concluded that Resident 2 had not been abused or hurt in any manner and had participated voluntarily. Ebanks noted that Resident 2 makes his own medical decisions, is considered to be mentally competent, has never been adjudicated mentally incompetent and has not had a legal guardian appointed for him. Ebanks concluded that Resident 2 had not been abused. Ebanks testified that she completed a Resident Abuse Report on March 20, 2003, concerning the incident, after being asked to do so by Respondent's compliance officer. The resident abuse report was admitted into evidence as Respondent's Exhibit 1. At the time of the initial investigation of the incident, Ebanks asked Harrilal to accompany her to the green room. While there, Harrilal listened as Ebanks first questioned Resident 2 and then Dorsey. Both stated that nothing happened. Harrilal then witnessed Ebanks question the CNAs, Polysaint and Mezier. Woodson did not interview Harrilal during her investigation. Ann Campbell, RN, a nurse for more than 38 years, was functioning in the role of assistant director of nursing on March 15, 2003. She was not in the facility on that day and was not made aware of the incident on the date of its occurrence, but became aware when she returned to work. Campbell is familiar with Resident 2. He was initially admitted with a diagnosis of alcohol abuse and dementia. She observed that he was a little confused and forgetful when first admitted, but has since became more alert and responsive. Michael Annichiarico, administrator of the facility and custodian of records, including medical records and personnel files, reviewed the personnel file of the employee, Dorsey. There were no disciplinary actions or counseling prior to the incident of March 15, 2003. Annichiarico is familiar with Resident 2 and has interacted with him. Annichiarico testified that, according to the resident's medical record, Resident 2 has never been declared mentally incompetent and that he makes his own medical and financial decisions. The Progress Note of Gideon Lewis, M.D., dated October 9, 2003, with transcription, was admitted into evidence as Respondent's Exhibit 2 and indicates that Resident 2 is mentally competent and is responsible for his actions as his cognitive functions are intact. Patricia Collins, RN, testified as an expert in the areas of nursing, long-term care, nursing home rules and regulations, and survey procedures. Collins is a RN, currently working in consulting work. She reviewed documents related to the incident. She went to the facility on two different occasions and interviewed the staff. She also reviewed the documents contained in the report of Woodson's survey. Collins interviewed the two CNAs, Ebanks, Resident 2, the medical records custodian, the director of nursing, the social worker, and Harrilal. She spent approximately four to five hours in the facility. After speaking with Resident 2, Collins concluded that he was cognitively intact and very alert. He appeared to be mentally competent. Before interviewing Resident 2, Collins reviewed his resident chart and the documents used to sign himself into the facility. She also reviewed physician's orders for medication, progress notes, nurses' notes, the MDS and the care plan. Collins testified that she reviewed the resident's financial responsibility statement and patient's rights statement, both of which were signed by the resident himself. The resident had no legal guardian. Collins concluded that during the incident of March 15, 2003, there was some inappropriate behavior that needed to be addressed and that this behavior was properly addressed by staff. The inappropriate behavior was the observation of hugging and kissing between Dorsey and Resident 2 in an empty resident's room while the employee was on duty. Collins was of the opinion that the behavior was mutual and not abuse. Collins found no reason to conclude that any harm had been done to Resident 2. Collins testified that a nursing home resident has the right to associate with whomever he desires. He also has the right to have voluntary and willing sexual contact with other people. The inappropriateness in this incident was due to the fact that Resident 2 had involvement with someone with mental deficits. The incident was inappropriate on the part of the employee as well, since she was participating in it during her working time. Collins disagrees with the findings of Petitioner's surveyor. Collins testified that the investigator should have determined the abuse allegation was unfounded. According to Collins' expert testimony, the facility staff acted appropriately. The CNA who initially observed the activity called another CNA as a witness. They then went to their supervisor, who then went to the ranking nurse at the facility at that point in time, which was Ebanks. Ebanks questioned the employee, Resident 2 and the witnesses. She had the presence of mind to have a witness there as well, which was Harrilal. Ebanks made the determination, based on her nursing judgment and in her authority as nurse in charge of the facility on that day, that there was inappropriate behavior on behalf of Resident 2 and the employee. She put a care plan in place as to Resident 2, separated the employee and Resident 2, and sent the CNAs back to work. Collins testified there was no need to report the incident to the Department of Children and Family Services because there was no evidence of abuse or harm to Resident 2. Collins' testimony is found to be credible. Based on all the evidence, it is found and determined that an incident occurred at Respondent's facility on Saturday, March 15, 2003, at approximately 11:00 a.m., involving Resident 2 and a staff employee of Respondent, Dorsey. Resident 2 and the employee were seen by staff employees sitting on a bed hugging and kissing each other in a resident's room that was not being used at the time. Two CNA employees witnessed and reported the incident to the charge nurse. Ebanks was the charge nurse on duty on March 15, 2003. Ebanks was advised of the incident shortly after it occurred and interviewed both Resident 2 and the employees involved, as well as the employees who witnessed the incident. The interviews were conducted in the presence of Harrilal. She completed a Resident Abuse Report on March 20, 2003, at the request of the risk manager within four business days of the incident, and the administrator was advised of the incident on the first business day after the incident. Resident 2 was alert and oriented on the date of the incident. Although he had a low level of dementia, he was mentally competent at the time of the incident. He does not meet the definition of an "elderly person" or "vulnerable adult" under Chapter 415, Florida Statutes.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order of dismissal of the Administrative Complaint be entered in this case. DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 28th day of January, 2004. COPIES FURNISHED: George F. Indest, III, Esquire The Health Law Firm Center Pointe Two 220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308
The Issue Whether Respondent’s nursing home license should be disciplined, and whether Respondent’s nursing home license should be changed from a Standard license to a Conditional license.
Findings Of Fact Bayside Manor is a licensed nursing home located in Pensacola, Florida. On June 14, 2003, Resident No. 4 climbed out of her bed without assistance to go to the bathroom. She fell to the floor and sustained a bruise to her forehead and lacerations to her cheek and chin. Her Foley catheter was pulled out with the bulb still inflated. The fall occurred shortly after Resident No. 4 had finished eating. No staff was in her room when she climbed out of her bed. She was found on her side on the floor by staff. According to the June 14 Bayside’s Nurses' notes, Resident No. 4 stated, "Oh, I was going to the bathroom." In the hour prior to her fall, Resident No. 4 was seen at least three times by nursing assistants, which was more than appropriate monitoring for Resident No. 4. On June 20, 2002, AHCA conducted a survey of Bayside Manor’s facility. In its survey, AHCA found one alleged deficiency relating to Resident No. 4. The surveyor believed that Resident No. 4 should have been reassessed for falls by the facility and, based upon that reassessment, offered additional assistive devices and/or increased supervision. The surveyor also believed that the certified nursing assistant had left Resident No. 4 alone with the side rails to her bed down. The deficiency was cited under Tag F-324. Tag F-324 requires a facility to ensure that “[e]ach resident receives adequate supervision and assistance devices to prevent accidents.” The deficiency was classified as a Class II deficiency. On October 9, 2001, and January 14, 2002, Bayside Manor assessed Resident No. 4 as having a high risk for falls, scoring 9 on a scale where scores of 10 or higher constitute a high risk. In addition to the June 14, 2002, fall noted above, Resident No. 4 had recent falls on November 30, 2001, April 19, 2002, and May 12, 2002. Resident No. 4's diagnoses included end-stage congestive heart failure and cognitive impairment. She had periods of confusion, refused to call for assistance, and had poor safety awareness. Resident No. 4 had been referred to hospice for palliative care. Because hospice care is given when a resident is close to death, care focuses on comfort of the resident rather than aggressive care. Additionally, the resident frequently asked to be toileted even though she had a catheter inserted. She frequently attempted to toilet herself without staff assistance, which in the past had led to her falls. Often her desire to urinate did not coincide with her actual need to urinate. She was capable of feeding herself and did not require assistance with feeding. Bayside Manor addressed Resident No. 4’s high risk of falls by providing medication which eliminated bladder spasms that might increase her desire to urinate and medication to alleviate her anxiety over her desire to urinate. She was placed on the facility’s falling stars program which alerts staff to her high risk for falls and requires that staff check on her every hour. The usual standard for supervision in a nursing home is to check on residents every two hours. The facility also provided Resident No. 4 with a variety of devices to reduce her risk of falling or any injuries sustained from a fall. These devices included a lap buddy, a criss-cross belt, a roll belt while in bed, a low bed, and a body alarm. Some of the devices were discontinued because they were inappropriate for Resident No. 4. In December 2001, the roll belt was discontinued after Resident No. 4, while attempting to get out of bed, became entangled in the roll belt and strangled herself with it. On May 6, 2002, the low bed and fall mat were discontinued for Resident No. 4. The doctor ordered Resident No. 4 be placed in a bed with full side rails. The doctor discontinued the low bed because it could not be raised to a position that would help alleviate fluid build-up in Resident No. 4’s lungs caused by Resident No. 4’s congestive heart failure. Discontinuance of the low bed was also requested by hospice staff and the resident’s daughter to afford the resident more comfort in a raised bed. The fact that placement in a regular raised bed potentially could result in an increase in the seriousness of injury from a fall from that bed was obvious to any reasonable person. The May 5, 2002, nurses’ notes indicate that there was a discussion with Resident No. 4’s daughter about returning the resident to a high bed for comfort. On balance, the placement of Resident No. 4 in a regular raised bed was medically warranted, as well as reasonable. The placement in a regular bed with side rails was not noted directly in the care plan but was contained in the doctor’s orders and was well known by all the facility’s staff. There was no evidence that directly mentioned the regular bed in the formal care plan was required or that the failure to do so had any consequence to Resident No. 4’s care. Even a lack of documentation clearly would not constitute a Class II deficiency. Moreover, the bed with side rails was not ordered to protect or prevent falls by Resident No. 4. The facility does not consider a bed with side rails of any sort to be a device which assists in the prevention of falls. Indeed rails often cause falls or increase the injury from a fall. In this case, the rails were ordered so that the resident could more easily position herself in the bed to maintain a comfortable position. Again, the decision to place Resident No. 4 in a regular raised bed with side rails was reasonable. The focus is on comfort as opposed to aggressive care for hospice residents. The evidence did not demonstrate that Bayside Manor failed to adequately supervise or provide assistive devices to Resident No. 4. There was no evidence that reassessment would have shown Resident No. 4 to be at any higher risk for falls, since she was already rated as a high risk for falls. Nor did the evidence show that reassessment would have changed any of the care given to Resident No. 4 or changed the type bed in which she was most comfortable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order restoring the Respondent’s licensure status to Standard and dismissing the Administrative Complaint. DONE AND ENTERED this 3rd day of June, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2003. COPIES FURNISHED: Joanna Daniels, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Donna H. Stinson, Esquire R. Davis Thomas, Jr., Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether Respondent's license as a nursing home administrator in the State of Florida should be suspended, revoked, or otherwise disciplined for the alleged violation of Chapter 468, Florida Statutes, as set forth in the Administrative Complaint filed October 10, 1988. The Administrative Complaint charges Respondent with violating Section 468.1755(1)(g), Florida Statutes, because of alleged negligence, incompetence or misconduct in the practice of nursing home administration, and Section 468.1755(1)(m), Florida Statutes, as a result of willfully or repeatedly violating any of the provisions of the law, code or rules of the licensing or supervising authority or agency of the state having jurisdiction of the operation and licensing of nursing homes. The charges are based on the allegation that Respondent was the Administrator in charge of a nursing home in Miami, Florida while also acting in the capacity of Administrator at another facility without having a qualified Assistant Administrator to act in his absence. This case was originally scheduled for hearing on March 26, 1989. That hearing was continued while the parties attempted to finalize a settlement agreement. On April 25, 1989, the Petitioner, Department of Professional Regulation, Board of Nursing Home Administrators entered a Final Order imposing a reprimand on Respondent. Respondent objected to the Final Order and contended that it was not in accordance with the settlement negotiations that took place. A Notice of Appeal was filed in connection with the Final Order. Subsequently, the parties agreed that the appeal should be dismissed and the case was remanded to the Division of Administrative Hearings to conduct a formal administrative hearing. At the hearing, Petitioner called two witnesses: James W. Bavetta, an inspector with the Department of Health and Rehabilitative Services, Office of Licensure and Certification and William Carl Wheatley, Jr., a licensed Nursing Home Administrator in the State of Florida, who was accepted as an expert in the field of nursing home administration. The Petitioner offered three exhibits into evidence all of which were accepted. The Respondent testified on his own behalf and had fourteen exhibits marked, all of which were accepted into evidence except Respondent's Exhibit 2 which was not offered. At the conclusion of the hearing, the parties requested and were granted an opportunity to brief certain legal issues raised during the hearing in order to obtain a ruling on those issues prior to submitting proposed recommended orders. However, the parties subsequently withdrew this request and by Agreed Order dated December 29, 1989, the parties were granted until January 29, 1990 to file their proposed recommended orders. The parties were also granted fifteen days after submission of proposed recommended orders to file a reply memoranda to the legal issues raised in the proposals. Both parties filed proposed recommended orders. In addition, Respondent filed a Memorandum Brief regarding certain legal issues raised. The Petitioner did not file a separate brief on the legal issues. The Petitioner's proposed recommended order was filed on January 30, 1990. By notice filed on February 5, 1990, the Respondent waived any objection to the late filing of Petitioner's Recommended Order. All submittals have been reviewed and considered in the preparation of this Recommended Order. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order. Prior to the hearing, Respondent had filed a Motion to Compel Complete Response to Respondent's Request for Production of Documents. That Motion was related to the purported failure by the Department of Health and Rehabilitative Services to produce documents requested pursuant to subpoena Duces Tecum issued August 16, 1989. The Department of Health and Rehabilitative Services ("HRS") is not a party to this action, but it filed a Response to Motion to Compel indicating that HRS's records were not kept in a manner which would allow the agency to isolate the documents requested without going through every licensure file kept by the agency. HRS offered the Respondent an opportunity to undertake such an investigation. At the commencement of the hearing, the Respondent advised that he was prepared to go forward with the hearing without a ruling on the Motion to Compel. However, counsel for Respondent requested the opportunity to revisit this issue, if necessary, at the conclusion of the hearing. During the hearing, an investigator from HRS testified and produced certain documents relating to Respondent's Florida facility. In addition, the HRS investigator testified regarding certain HRS policies and procedures. Based upon the evidence adduced at the hearing, the Motion to Compel appears moot and Respondent has not addressed this issue in his proposed recommended order. Therefore, the Motion to Compel is denied. At Petitioner's request, official recognition has been taken of Rule 10D- 29.104(6)(c).
Findings Of Fact Based upon the testimony of the witnesses and documentary evidence received at the hearing and the entire record herein, I make the following findings of fact: The Respondent, is a licensed Nursing Home Administrator in the State of Florida, license number NH 0001018. He has been duly licensed in Florida since 1974-1975. At all times material hereto, the Respondent has been the nursing home administrator in charge at Riverside Care Center ("Riverside",) a nursing home located at 899 N.W. 4th Street, Miami Florida. Respondent has never been the designated nursing home administrator for any other facility licensed by or located in Florida. At all times material hereto, Riverside held and continues to hold a superior rating issued by Florida HRS pursuant to Section 400.23, Florida Statutes. At all times material hereto, Respondent has been a licensed nursing home administrator in the State of Kentucky, having been issued license number 420. Respondent has also been a licensed nursing home administrator in the State of Ohio since 1973. Other than the charges in this case, Respondent has never been the subject of disciplinary action or faced administrative charges in any of the states in which he is licensed. At all times material hereto, Respondent has been the licensed nursing home administrator in charge of Garrard Convalescent Home, (`1Garrard") located at 425 Garrard Street, Covington, Kentucky 41011. In December, 1985, as a part of the re-licensure process, Riverside filed DHRS Form 109 with MRS. The information contained on that form disclosed that Respondent served as an Administrator for Garrard which is a superior rated nursing home located in and licensed by the Commonwealth of Kentucky. Prior to July 11, 1986, Riverside designated in writing, Richard Stacey and Riverside's Director of Nursing, as the persons in charge and responsible for the facility in the absence of Respondent from the facility. On July 11, 1986, Richard Stacey, Respondent's brother, was a nursing home administrator licensed by Kentucky. Thus, he had passed the national examination. He had applied for an administrator's license by endorsement in Florida. Such license was issued to Mr. Stacey in 1986, but not until after July 11, 1986. On July 11, 1986, Respondent was in Cincinnati, Ohio, at Riverside's central business office, working on payroll for the facility. Richard Stacey was physically present and in charge of Riverside on that date. However, he was not a licensed administrator in Florida at that time. Betty Ward, a licensed administrator, was physically present and in charge at Garrard. On July 11, 1986, as the result of comments received from the HRS Medicaid Office, Audit Division, in Tallahassee, an MRS representative went to Riverside and determined that Respondent was not present at the facility. During the inspection, Mr. Bavetta, the MRS representative, did not look for nor did he find any evidence that the residents were not being cared for or that their rights were not being protected. As a result of the inspection, the HRS investigator issued a Recommendation for Sanctions against the facility for a purported violation of Florida Administrative Code Rule 10D-29.104(6)(c) and/or 10D-29.104(6)(d). A violation of either of those sections would generally constitute a Class III deficiency pursuant to Section 400.238(4), Florida Statutes. Class III deficiencies do not present a direct or immediate threat to the safety or welfare of the residents. The existence of a Class III deficiency or deficiencies does not automatically establish negligence, incompetence or misconduct on the part of the Administrator of the facility. As a matter of general policy, HRS does not seek administrative sanctions if a Class III deficiency is corrected within the prescribed time. In this case, no time to correct the deficiency was prescribed and HRS sought administrative sanctions against the facility. Within six (6) days of receipt of the notice by Riverside of the alleged violations of Florida Administrative Code Rule 10D-29.104(6), a licensed assistant administrator was hired by Riverside. The decision not to hire a licensed assistant administrator at Riverside prior to July 11, 1986 was based upon the advice of Respondent's attorney that such was not a requirement under Florida law. For the period January 1, 1985 through September 21, 1989, Petitioner has not filed charges against any other licensed nursing home administrator in the State of Florida except Respondent for an alleged violation of Florida Administrative Code Rule 10D-29.104(6)(c) or 10D-29.104(6)(d). Respondent's conduct of nursing home administration at Riverside was in conformity with the standard of practice utilized by a normal, prudent, responsible nursing home administrator in Florida.
Recommendation Based upon the foregoing facts and conclusions of law, it is RECOMMENDED that the Florida Board of Nursing Home Administrators enter a Final Order finding Ralph L. Stacey, Jr., not guilty of violating Section 468.1755(1)(g) and Section 468.1755(1)(m) Florida Statutes, and dismissing all the charges in the Administrative Complaint. DONE and ORDERED this 4th day of April 1990, in Tallahassee, Florida. J. STEVEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12 day of April 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-6233 Both the Petitioner and the Respondent submitted Proposed Recommended Orders which include proposed findings of fact and conclusions of law. The following rulings are directed towards the findings of fact contained in those proposals. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. 1 Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 9. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 8. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. 1 Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 4. 3. Adopted in substance in Findings of Fact 2. 4. Adopted in substance in Findings of Fact 3. 5. Adopted in substance in Findings of Fact 6. 6. Adopted in substance in Findings of Fact 7. 7. Adopted in substance in Findings of Fact 8. 8. Adopted in substance in Findings of Fact 9. Rejected as constituting a conclusion of law rather than a finding of fact. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 12. Adopted in substance in Findings of Fact 13. 13. Adopted in substance in Findings of Fact 15. 14. Adopted in substance in Findings of Fact 16. 15. Adopted in substance in Findings of Fact 17. 16. Subordinate to Findings of Fact 14. 17. Subordinate to Findings of Fact 13. 18. Rejected as constituting a conclusion of law rather than a finding of fact. 19. Adopted in substance in Findings of Fact 18. COPIES FURNISHED: Charles F. Tunnicliff Chief Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth S. Handmaker, Esquire Middleton & Reutlinger 2500 Brown & Williamson Tower Louisville, Kentucky 40202 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easely, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Valerie Humphrey is a Licensed Practical Nurse holding License No. 27860-1 issued by the Florida State Board of Nursing. Notice of the formal hearing in the above style cause was provided to the parties in accordance with the provisions of Chapter 120, Florida Statutes. On October 25, 1975 Valerie Humphrey was employed as a Licensed Practical Nurse at Florida Convalescent Home, Melbourne, Florida. On that date, Valerie Humphrey was observed by Alma Bourne, then employed as a Nurses' Aide at Florida Convalescent Home, attempting to give medication, to wit, an aspirin, to a patient at said convalescent home. When the patient refused to take the medication, Mrs. Humphrey took the patient's walker away from her. The patient was eighty (80) years old and needed the walker to move about. On the same date, Mrs. Bourne observed Valerie Humphrey attempt to administer a laxative to a male patient, Ernest Price, who spit out the laxative twice, whereupon Valerie Humphrey slapped him hard enough to bring a welt to the side of his face. After striking the patient, Humphrey did not try to administer the laxative again. The Director of Nursing at Florida, Convalescent Home testified that physical injury and intimidation were not necessary or appropriate to force medications on patients at the nursing home. Other means of administering the medications to include giving them in combination with foods or drinks, were generally used with uncooperative patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the license of Valerie Humphrey, L.P.N., License Number 27860-1, be suspended for a period not to exceed six (6) months; further, that the order of the Florida State Board of Nursing be communicated to any other State or territory of these United States in which Valerie Humphrey is also licensed. DONE and ORDERED this 16th day of December, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Building Jacksonville, Florida 32202 Geraldine B. Johnson, R.N. State Board of Nursing 6501 Arlington Expressway - Bldg B Jacksonville, Florida 32211 Valerie E. Marsh Humphrey, L.P.N.
The Issue The issues for determination are: (1) whether the noncompliance as alleged during the August 30, 2001, survey and identified as Tags F324 and F242, were Class II deficiencies; (2) whether the "Conditional" licensure status, effective August 30, 2001, to September 30, 2001, based upon noncompliance is appropriate; and (3) whether a fine in the amount of $5,000 is appropriate for the cited noncompliance
Findings Of Fact Charlotte is a nursing home located at 5405 Babcock Street, Northeast, Fort Myers, Florida, with 180 residents and is duly licensed under Chapter 400, Part II, Florida Statutes. AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, in the instant case it is required to evaluate nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes (2000). AHCA evaluates all Florida nursing homes at least every 15 months and assigns a rating of standard or conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency," which, on behalf of the federal government, monitors nursing homes that receive Medicaid or Medicare funds. On August 27 through 30, 2001, AHCA conducted an annual survey of Charlotte's facility and alleged that there were deficiencies. These deficiencies were organized and described in a survey report by "Tags," numbered Tag F242 and Tag F324. The results of the survey were noted on an AHCA form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to this 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 identified each alleged deficiency by reference to a Tag number. Each Tag on the 2567 includes a narrative description of the allegations against Charlotte and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to each resident by a number (i.e., Resident 24) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The ratings reflect the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There are two Tags, F242 and F324 at issue in the instant case, and, as a result of the August 2001 survey, AHCA assigned each Tag a Class II deficiency rating and issued Charlotte a "Conditional" license effective August 30, 2001. Tag F242 Tag F242 generally alleged that Charlotte failed to meet certain quality of life requirements for the residents, based on record review, group interviews, and staff interviews, and that Charlotte failed to adequately ensure that the residents have a right to choose activities that allow them to interact with members of the community outside the facility. On or about August 24, 2001, AHCA's surveyors conducted group interviews. During these interviews, 10 of 16 residents in attendance disclosed that they had previously been permitted to participate in various activities and interact with members of the community outside the facility. They were permitted to go shopping at malls, go to the movies, and go to restaurants. Amtrans transportation vans were used to transport the residents to and from their destinations. The cost of transportation was paid by Charlotte. An average of 17 to 20 residents participated in those weekly trips to dine out with other community members at the Olive Garden and other restaurants. During those trips, Charlotte would send one activity staff member for every four to six residents. The record contains no evidence that staff nurses accompanied those select few residents on their weekly outings. The outings were enjoyed by those participants; however, not every resident desired or was able to participate in this particular activity. Since 1985, outside-the-facility activities had been the facility's written policy. However, in August 2000, one year prior to the survey, Matthew Logue became Administrator of the facility and directed his newly appointed Activities Director, Debbie Francis, to discontinue facility sponsored activities outside the facility and in its stead to institute alternative activities which are all on-site functions. Those residents who requested continuation of the opportunity to go shopping at the mall or dine out with members of the community were denied their request and given the option to have food from a restaurant brought to the facility and served in-house. The alternative provided by the facility to those residents desiring to "interact with members of the community outside the facility" was for each resident to contact the social worker, activity staff member, friends or family who would agree to take them off the facility's premises. Otherwise, the facility would assist each resident to contact Dial-A-Ride, a transportation service, for their transportation. The facility's alternative resulted in a discontinuation of all its involvement in "scheduling group activities" beyond facility premises and a discontinuation of any "facility staff members" accompanying residents on any outing beyond the facility's premises. As described by its Activities Director, Charlotte's current activities policy is designed to provide for residents' "interaction with the community members outside the facility," by having facility chosen and facility scheduled activities such as: Hospice, yard sales, barbershop groups for men and beautician's day for women, musical entertainment, antique car shows, and Brownie and Girl Guides visits. These, and other similar activities, are conducted by "community residents" who are brought onto the facility premises. According to the Activities Director, Charlotte's outside activities with transportation provided by Amtrans buses were discontinued in October of 2000 because "two to three residents had been hurt while on the out trip, or on out-trips."1 Mr. Logue's stated reason for discontinuing outside activities was, "I no longer wanted to take every member of the activities department and send them with the resident group on an outing, thereby leaving the facility understaffed with activities department employees." The evidence of record does not support Mr. Logue's assumption that "every member of the facility's activities department accompanied the residents on any weekly group outings," as argued by Charlotte in its Proposed Recommended Order. Charlotte's Administrator further disclosed that financial savings for the facility was among the factors he considered when he instructed discontinuation of trips outside the facility. "The facility does not sponsor field trips and use facility money to take people outside and too many staff members were required to facilitate the outings." During a group meeting conducted by the Survey team, residents voiced their feelings and opinions about Charlotte's no longer sponsoring the field trips on a regular basis in terms of: "feels like you're in jail," "you look forward to going out," and being "hemmed in." AHCA's survey team determined, based upon the harm noted in the Federal noncompliance, that the noncompliance should be a State deficiency because the collective harm compromised resident's ability to reach or maintain their highest level of psychosocial well being, i.e. how the residents feel about themselves and their social relationships with members of the community. Charlotte's change in its activities policy in October of 2000 failed to afford each resident "self- determination and participation" and does not afford the residents the "right to choose activities and schedules" nor to "interact with members of the community outside the facility." AHCA has proved the allegations contained in Tag F242, that Charlotte failed to meet certain quality of life requirements for the residents' self-determination and participation. By the testimonies of witnesses for AHCA and Charlotte and the documentary evidence admitted, AHCA has proven by clear and convincing evidence that Charlotte denied residents the right to choose activities and schedules consistent with their interests and has failed to permit residents to interact with members of the community outside the facility. Tag F324 As to the Federal compliance requirements, AHCA alleged that Charlotte was not in compliance with certain of those requirements regarding Tag F324, for failing to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. As to State licensure requirements of Sections 400.23(7) and (8), Florida Statutes (2000), and by operation of Florida Administrative Code, Rule 59A-4.1288, AHCA determined that Charlotte had failed to comply with State established rules, and under the Florida classification system, classified Tag F324 noncompliance as a Class II deficiency. Based upon Charlotte's patient record reviews and staff interviews, AHCA concluded that Charlotte had failed to adequately assess, develop and implement a plan of care to prevent Resident 24 from repeated falls and injuries. Resident 24 was admitted to Charlotte on April 10, 2001, at age 93, and died August 6, 2001, before AHCA's survey. He had a history of falls while living with his son before his admission. Resident 24's initial diagnoses upon admission included, among other findings, Coronary Artery Disease and generalized weakness, senile dementia, and contusion of the right hip. On April 11, 2001, Charlotte staff had Resident 24 evaluated by its occupational therapist. The evaluation included a basic standing assessment and a lower body assessment. Resident 24, at that time, was in a wheelchair due to his pre-admission right hip contusion injury. On April 12, 2001, two days after his admission, Resident 24 was found by staff on the floor, the result of an unobserved fall, and thus, no details of the fall are available. On April 23, 2001, Resident 24 was transferred to the "secured unit" of the facility. The Survey Team's review of Resident 24's Minimum Data Set, completed April 23, 2001, revealed that Resident 24 required limited assistance to transfer and to ambulate and its review of Resident 24's Resident Assessment Protocols (RAPs), completed on April 23, 2001, revealed that Resident 24 was "triggered" for falls. Charlotte's RAP stated that his risk for falls was primarily due to: (1) a history of falls within the past 30 days prior to his admission; (2) his unsteady gait; (3) his highly impaired vision; and (4) his senile dementia. On April 26, 2001, Charlotte developed a care plan for Resident 24 with the stated goal that the "[r]esident will have no falls with significant injury thru [sic] July 25, 2001," and identified those approaches Charlotte would take to ensure that Resident 24 would not continue falling. Resident 24's care plan included: (1) place a call light within his reach; (2) do a falls risk assessment; (3) monitor for hazards such as clutter and furniture in his path; (4) use of a "Merry Walker" for independent ambulation; (5) placing personal items within easy reach; (6) assistance with all transfers; and (7) give Resident 24 short and simple instructions. Charlotte's approach to achieving its goal was to use tab monitors at all times, to monitor him for unsafe behavior, to obtain physical and occupational therapy for strengthening, and to keep his room free from clutter. All factors considered, Charlotte's care plan was reasonable and comprehensive and contained those standard fall prevention measures normally employed for residents who have a history of falling. However, Resident 24's medical history and his repeated episodes of falling imposed upon Charlotte a requirement to document his records and to offer other assistance or assistive devices in an attempt to prevent future falls by this 93-year-old, senile resident who was known to be "triggered" for falls. Charlotte's care plan for Resident 24, considering the knowledge and experience they had with Resident 24's several falling episodes, failed to meet its stated goal. Charlotte's documentation revealed that Resident 24 did not use the call light provided to him, and he frequently refused to use the "Merry Walker" in his attempts of unaided ambulation. On June 28, 2001, his physician, Dr. Janick, ordered discontinuation of the "Merry Walker" due to his refusal to use it and the cost involved. A mobility monitor was ordered by his physician to assist in monitoring his movements. Charlotte's documentation did not indicate whether the monitor was actually placed on Resident 24 at any time or whether it had been discontinued. Notwithstanding Resident 24's refusal to cooperatively participate in his care plan activities, Charlotte conducted separate fall risk assessments after each of the three falls, which occurred on April 12, May 12, and June 17, 2001. In each of the three risk assessments conducted by Charlotte, Resident 24 scored above 17, which placed him in a Level II, high risk for falls category. After AHCA's surveyors reviewed the risk assessment form instruction requiring Charlotte to "[d]etermine risk category and initiate the appropriate care plan immediately," and considered that Resident 24's clinical record contained no notations that his initial care plan of April 23, 2001, had been revised, AHCA concluded that Charlotte was deficient. On May 13, 2001, Dr. Janick visited with Resident 24 and determined that "there was no reason for staff to change their approach to the care of Resident 24." Notwithstanding the motion monitors, on June 17, 2001, Resident 24 fell while walking unaided down a corridor. A staff member observed this incident and reported that while Resident 24 was walking (unaided by staff) he simply tripped over his own feet, fell and broke his hip. Charlotte should have provided "other assistance devices," or "one-on-one supervision," or "other (nonspecific) aids to prevent further falls," for a 93-year-old resident who had a residential history of falls and suffered with senile dementia. Charlotte did not document other assistive alternatives that could have been utilized for a person in the condition of Resident 24. AHCA has carried its burden of proof by clear and convincing evidence regarding the allegations contained in Tag F324.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Agency enter a final order upholding the assignment of the Conditional licensure status for the period of August 30, 2001 through September 30, 2001, and impose an administrative fine in the amount of $2,500 for each of the two Class II deficiencies for a total administrative fine in the amount of $5,000. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2003.
The Issue At issue in this proceeding is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Adele "Nikki" Leon, holds Florida teaching certificate number 413436, covering the area of emotional disturbances and special learning disabilities. Such certificate is valid through June 30, 1996. At all times material hereto, respondent was employed by the Dade County Public Schools, Palmetto Adult Education Center, as a part-time teacher, and was assigned to teach Adult Basic Education for the Elderly (ABE) at Snapper Creek Nursing Home. Pertinent to this case, respondent's assignment during September and October 1992, included the teaching of an ABE class at Snapper Creek Nursing Home each Tuesday from 3:00 p.m. to 5:00 p.m. According to respondent's attendance reports for that period, twenty-five residents were enrolled in the class. On September 15, 1992, Ivette Morgan, assistant principal of Palmetto Adult Education Center, at the request of Edward Gehret, principal of Palmetto Adult Education Center, visited Snapper Creek Nursing Home to evaluate the adult education program. During the course of that visit, as well as visits on September 22, September 29, and October 20, 1992, Dr. Morgan had an opportunity to observe respondent's Tuesday class. On those occasions, Dr. Morgan noted only four to six residents in the classroom. 4/ Dr. Morgan reported her observations regarding class attendance to Dr. Gehret who, at the time, had been involved with enrollment and attendance review for, inter alia, Snapper Creek Nursing Home. Based on that review, Dr. Gehret observed that respondent had routinely marked all twenty-five residents in her class as "present," which did not square with Dr. Morgan's observations. On October 22, 1992, Dr. Gehret met with respondent to review the discrepancies he perceived in her attendance report procedures. At that time, it was the School Board's policy to mark residents "present" for an ABE class if they appeared at any time during the class period, no matter how briefly; but if they never appeared, to mark them as "absent." 5/ Respondent advised Dr. Gehret that she was of a different perception, and understood that nursing home residents enrolled in an ABE class were not to be marked as "absent" but, rather as "present," whether attending or not, so long as they were still in the facility. Notwithstanding, following the meeting, respondent agreed to conform her attendance procedure to the policy Dr. Gehret outlined. Regarding the discrepancies in respondent's attendance reports, when measured against the School Board's policy, the proof demonstrates that for the attendance reporting periods of September 14-27, September 28-October 11, and October 12-25, 1992, respondent completed and signed the attendance report for her Tuesday class on which she marked as "present" nursing home residents Helen Ambler and Gertrude Monge. Ms. Ambler and Ms. Monge were not, however "present" during such periods since they had died September 2, 1992, and June 15, 1992, respectively. The proof further demonstrated that for the same reporting periods, respondent had marked as "present" nursing home residents Agaton Bolanio, Nazario Lopez, and Martin Ruiz. Mr. Bolanio, Mr. Lopez and Mr. Ruiz were not, however, "present" during such periods since they had been discharged from the nursing home on June 19, 1992, July 20, 1992, and May 14, 1992, respectively. Finally, based on Dr. Morgan's observations of respondent's Tuesday class on September 15, September 22, September 29, and October 20, 1992, wherein she observed no more than four to six residents in attendance, it is reasonable to conclude that a significant number of residents who were marked as "present," other than the residents heretofore mentioned, were likewise not "present" on those dates. Which residents and why they were not present was not, however, established of record. 6/ Regarding the ABE program and the preparation of enrollment and attendance reports at Snapper Creek Nursing Home, the proof demonstrates that the ABE program was under the direction of the nursing home activities director who, without the participation of the instructors, prepared the enrollment for each class. 7/ Accordingly, respondent would not necessarily have known the residents assigned to her class, and reasonably assumed that the list of residents she received from the activities director contained current residents of the nursing home. Likewise, respondent relied on the activities director to advise her when residents died, were discharged or were otherwise no longer able or interested in attending before removing them from the roll; however, such information was rarely provided by the activities director. Finally, absent advice to the contrary from the activities director, respondent did not consider a resident's failure to attend on a given day an absence, as in the traditional classroom setting, and routinely marked them "present." Such practice in the ABE program was reflective of the voluntary nature of the program, as opposed to compulsory attendence in the traditional school setting, and the unavailability of information, except from the activities director, as to the reason a resident did not attend. Notably, residents frequently did not attend because, inter alia, nurses aides failed to bring them to class or they were too ill to attend, as opposed to not wanting to attend the course any longer. That such was the procedure at Snapper Creek Nursing Home, and perhaps other adult education centers in Dade County, finds other support in the record apart from respondent's testimony. For example, another instructor, Evelyn Foster, during the times in question, carried Francies Lambrou as "present" on her attendance record until July 27, 1992, although she was discharged July 2, 1992; and carried Maria Diaz, Carmen Morela, and Lorenzo Legundo as "present" until at least October 9, 1992, although Ms. Diaz and Ms. Morela were discharged September 5, 1992, and Mr. Segundo was discharged September 24, 1992. Moreover, Dr. Morgan found it necessary, at sometime between September 15 and October 26, 1992, to give the activities director specific instructions on how attendance was to be recorded, and Dr. Gehret found it necessary to conduct a "rollbook workshop" at Snapper Creek Nursing Home for all instructors, as well as agreeing to urge the nurses aides to bring the residents who desired to attend to class. [Petitioner's exhibit 1, pages 17 and 21, and respondent's exhibit 12.] Finally, there is of record a memorandum of July 8, 1993, almost one year after the events at issue in this case, from Connie Gilbert, District Director, Division of Adult Education, Dade County Schools, to all adult education center principals, which suggests continued confusion in attendance procedures for off- campus classes and that the practice at Snapper Creek Nursing Home was not an isolated occurance. That memorandum provided, in part, as follows: SUBJECT: ATTENDANCE PROCEDURES Off-campus visitations have revealed problems and confusion about attendance procedures. Please inform all teachers of the following procedures: Students must be present in a teacher's class and participate in the class activities in order for the teacher to mark this student present in that class. * * * Please make sure that off-campus teachers understand that students present "someplace in the facility" can not be considered present in a particular class. Students must be physically present in a class in order to be marked present in that class. Given the proof, it must be concluded that respondent's failure to record attendance in accordance with school board policy was, more likely than not, a consequence of a misunderstanding of, or ignorance of, that policy. In this regard, it is observed that no state policy for recording ABE attendance was established of record, and no proof that any policy established by the school board had been reduced to writing or imparted to respondent, or any other adult education instructor, prior to the events giving rise to the issues in this case. Accordingly, it follows that there was no compelling proof that respondent, by completing the attendance reports in the manner she did, had any intent to deceive the school board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative compliant. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of May 1995. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May 1995.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner, Stacey Health Care Centers, Inc., is licensed to operate Riverside Care Center, located at 899 Northwest Fourth Street, Miami, Florida, as a nursing home in compliance with Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. On July 9, 1986, James A. Bavetta, assistant area supervisor, Office of Licensure and Certification, made a visit of Riverside's facility and determined that Ralph Stacey, Jr., the administrator of record, was acting in the capacity of administrator for two facilities, the subject facility and another facility in Kentucky, without having a qualified assistant administrator to act in his absence. (Respondent's Exhibit 1) Ralph L. Stacey Jr., is a licensed nursing home administrator in the States of Ohio, Kentucky and Florida. He has been licensed in Kentucky and Florida since 1974. At the time of Mr. Bavetta's visit and inspection during July, 1986, Ralph Stacey, Jr., was in Cincinnati, Ohio preparing the payroll for Stacey Health Care Centers. During this time period, Ralph Stacey, Jr., served as the administrator for the subject facility, Riverside Care Center, and another facility in Kentucky and did not have a qualified assistant administrator employed to act in his absence. However, once Mr. Bavetta issued his recommendation for sanctions, Petitioner, as part of its plan of correction, has employed a licensed administrator who is presently on staff and serves as Riverside's assistant administrator during the administrator's absence.
Recommendation Based on the foregoing findings of fact and conclusions of lawn it is RECOMMENDED: The Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine in the amount of One Thousand Dollars ($1,000.00) upon Stacey Health Care Centers- Inc., d/b/a Riverside Care Center, which amount shall be payable to Respondent within thirty (30) days after entry of Respondent's Final Order. RECOMMENDED this 18th day of September, 1987, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 18th day of September, 1987. COPIES FURNISHED: Kenneth S. Handmaker, Esquire MIDDLETON & REUTLINGER 2500 Brown & Williamson Tower Louisville, KY 40202-3410 Leonard T. Helfand, Esquire Office of Licensure and Certification Department of Health and Rehabilitative Services 5190 Northwest 167th Street Miami, Florida 33014 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard -Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact FMCC's application is to provide a 102-bed long-term care nursing facility in Fort Myers, Florida, while AHC's and HSI's applications are to provide 120-bed long-term nursing care facilities. When each of these applications was presented to the south Central Florida Health Systems Council, Inc. (HSA), the application of FMCC was approved and forwarded to Respondent recommending approval and the other two applications were disapproved and so forwarded. The primary reason given by HSA for disapproving HSI's application was lack of firm financing and for disapproving AHC's application was cost of construction. Trained personnel to man the proposed facilities are in short supply in Lee County. Applicants' plans to import personnel, if necessary, from other parts of the country were supported by no evidence to indicate such personnel would be amenable to move to Lee County. All applications were disapproved by Respondent and each applicant requested a hearing which resulted in this consolidated hearing. At present there are 741 existing or approved long-term care nursing home beds in Lee County, Florida. A 120-bed facility at Cape Coral became operative in February, 1979 and a 60-bed addition to Beacon-Donegan Manor nursing home has also been approved. Prior to the opening of the newest 120-bed facility at Cape Coral, the occupancy rate for the other long-term care nursing homes was greater than 90 percent. Due to its recent opening, no evidence was presented as to the occupancy rate in Lee County following the opening of the Cape Coral facility. The population of Lee County in 1978 was 184,841 with 41,984 more than 65 years old, which is less than 23 percent of the population. This is in line with the population forecasts by the University of Florida and validates the estimated 1980 population figures which were used by all parties in submitting their applications. In 1978 Respondent proposed a State Health Plan which included a determination that the long-term care nursing home bed needs were 27 per 1,000 population greater than 65 years old. This determination was unacceptable to the Department of Health, Education and Welfare (HEW) whose decision is binding on Respondent. In refusing to accept this standard, HEW reaffirmed the requirement that the formula contained in the Hill-Burton Act be utilized in determining certificates of need. Following the Hill-Burton formula results in no additional long-term care nursing home beds needed in Lee County. Modification of the results produced by use of the Hill-Burton formula when extenuating and mitigating circumstances exist is authorized by the Florida Medical Facilities Plan. Accordingly, when use of Hill-Burton formula produces results contrary to obvious facts, such as a showing of no need for additional facilities when occupancy rates are high and long waiting lists for admission exists, these extenuating circumstances are considered and a finding of need is made. The parties stipulated that extenuating circumstances, notably the greater than 90 percent occupancy rate in nursing homes in 1977 and most of 1978 and the existing waiting lists created need for 100 to 120 additional beds. No evidence was presented establishing a need for more than 100-120 additional long-term care nursing home beds in Lee County. In fact, no evidence was presented showing the current occupancy rate, current waiting lists, or any other information not previously submitted to the Health Systems Agency was here presented other than the latest Census Report, which merely confirmed the accuracy of the forecasts. Even if the 27 beds per 1,000 population greater than 65 which was proposed by the South Central Florida Health Systems Agency were used to establish the number of beds needed, their limitation, that no more than 50 percent be added in the two-year planning period, would preclude approving more than one additional nursing home at this time. Absent evidence showing a need for more than one additional nursing home, the only issue remaining is which of the applicants is best qualified to provide the best service at the lowest cost for the stipulated need. HSI submitted proposed construction costs and patient charges in line with those submitted by FMCC. However, although their application states, and the Health Systems Agency apparently accepted, their allegation that an option to lease had been obtained on the property on which the proposed facility was to be erected, testimony at the hearing disclosed that only an oral agreement to lease the property had been obtained by HSI. An oral agreement affecting a long-term lease of real property comes within the Statute of Frauds and is unenforceable. This fact alone renders all cost estimates submitted by HSI suspect. Further, the financing proposed by HSI to construct the facility shows less than $200,000 equity capital available and a requirement to borrow $1,300,000. One ground noted by the Health Systems Agency for disapproving this application was the inadequacy of their financing. No evidence presented at this hearing contradicted this Health System Agency's finding. AHC operates some 50 nursing homes in 14 states with two nursing homes in the Orlando area. A certificate of need has been obtained for a third nursing home in Jacksonville. Florida Living Care, Inc., the parent corporation of FMCC, manages some 44 nursing homes and owns 25. It has certificates of need for 6 nursing homes in Florida, one of which is completed and in operation, while 3 are under construction. AHC proposes to finance 87 percent of the cost of the 120-bed project, or $2,160,000, in a 40-year loan at 8.5 percent interest. FMCC proposes to finance 80 percent of the cost of a 102-bed project, or $1,000,000, in a 25-year loan at 9.5 percent interest. Although no testimony regarding the current status of mortgage money was presented, it is recognized that interest rates are at historically high levels and that FMCC is more likely to get financing on the terms it proposed than is AHC on the terms the latter proposed. HSI proposed costs and charges result in average costs of $30.16 per patient per day. FMCC proposed costs and charges result in average costs of $30.96 per patient per day. AHC proposed costs and charges result in average costs of $34.40 per patient per day. No significant difference exists in the services proposed by each of the applicants. Savings from combined purchasing can result when numerous facilities are operated. Both AHC and FMCC are in a better position in this regard than is HSI. Additional savings in group food purchasing can result when facilities are within 200 miles of each other. The facilities FMCC's parent corporation is opening in Sebring and Port Charlotte are close enough to Fort Myers to allow group food purchasing for these facilities. AHC's construction costs are approximately 50 percent higher per bed than are the costs submitted by FMCC and HSI. This factor must result in higher charges to amortize these higher construction costs.
