The Issue The issue for determination is whether the Agency for Health Care Administration found deficiencies at Wellington Specialty Care and Rehab Center sufficient to support the change in its licensure status to a conditional rating.
Findings Of Fact Wellington is a nursing home located in Tampa, Florida, licensed by and subject to regulation by the Agency pursuant to Chapter 400, Florida Statutes. The Agency is the licensing agency in the State of Florida responsible for regulating nursing facilities under Part II of Chapter 400, Florida Statutes. On September 10, 1998, the Agency conducted a complaint investigation at Wellington in a matter unrelated to the issues that are the subject of this proceeding. On that same date, the Agency also conducted an appraisal survey that focused on six areas of care for which Wellington had been cited as deficient in past surveys. After the investigation and survey were completed, the Agency determined that there was no basis for the complaint, and further determined that Wellington was not deficient in any of the six areas of care which were the subject of the appraisal survey. Notwithstanding its findings that the complaint against Wellington was unfounded and that there were no deficiencies in the targeted areas of care being reviewed, the Agency determined that Wellington was deficient in an area not initially the subject of the September 1998 survey. Specifically, the Agency found that Wellington had failed to provide adequate supervision and assistance devices to two residents at the facility in violation of the regulatory standard contained in 42 C.F.R. s. 483.25(h)(2). Based on its findings and conclusions, the Agency issued a survey report in which this deficiency was identified and described under a "Tag F324." The basis for the Agency’s findings were related to observations and investigations of two residents at the facility, Resident 6 and Resident 8. During the September 1998 survey and complaint investigation, the surveyors observed that Resident 6 had a bruise on her forehead and that Resident 8 had bruises on the backs of both of her hands. Resident 6 suffered a stroke in May 1998 and had left-side neglect, a condition that caused her to be unaware of her left side and placed her at risk for falls. Moreover, Resident 6's ability to recall events was impaired. The Agency's investigation revealed that Resident 6 sustained the bruise on her forehead when she fell from the toilet on August 31, 1998. The Agency determined that Resident 6 fell because she was left alone by the staff of the facility and further concluded that Wellington was responsible for causing this fall. The Agency believed that given Resident 6's left-side neglect, the facility staff should have known not to leave the resident unattended during her trips to the toilet. The Agency suggested that Wellington should have provided constant supervision to Resident 6, although it acknowledged that such supervision may have created privacy violations. In making its determination and reaching its conclusions, the Agency relied exclusively on an interview with Resident 6, notwithstanding the fact that her ability to recall events was impaired. Since Resident 6 was admitted to the facility in May 1998, Wellington appropriately and adequately addressed her susceptibility to falls, including falls from her toilet. After Resident 6 was initially admitted to the facility in May 1998, she received occupational therapy to improve her balance. In late June 1998, following several weeks of occupational therapy, Wellington’s occupational therapist evaluated Resident 6’s ability to sit and to control the balance in the trunk of her body and determined that the resident was capable of sitting upright without support for up to 40 minutes. Based upon that assessment, Resident 6 was discharged from occupational therapy on June 25, 1998, and her caregivers were provided with instructions on how to maintain her balance. At the time Resident 6 was discharged from occupational therapy, a care plan was devised for her which provided that the facility staff would give her assistance in all of her activities of daily living, but would only provide stand-by assistance to Resident 6 while she was on the toilet, if such assistance was requested. In light of the occupational therapist's June 1998 assessment of Resident 6, this care plan was adequate to address her risk for falls, including her risk for falls while on the toilet. Wellington also provided Resident 6 with appropriate assistance devices. In Resident 6's bathroom, Wellington provided her with a right-side handrail and an armrest by her toilet to use for support and balance, and also gave her a call light to alert staff if she felt unsteady. These measures were effective as demonstrated by the absence of any falls from the toilet by Resident 6 over the course of June, July, and August 1998. The Agency's surveyor who reviewed Resident 6’s medical records was not aware of and did not consider the June 1998 Occupational Therapy Assessment of Resident 6 before citing the facility for the deficiency. Resident 8 was admitted to Wellington in February 1998 with a history of bruising and existing bruises on her body. At all times relevant to this proceeding, Resident 8 was taking Ticlid, a medication which could cause bruising and also had osteopenia, a degenerative bone condition that could increase Resident 8's risk for bruising, making it possible for her to bruise herself with only a slight bump. After observing the bruising on the backs of both of Resident 8's hands during the September 1998 survey, the Agency asked facility staff about the bruising and also reviewed the resident’s medical records. Based on her interviews and record review, the Agency surveyor found that these bruises had not been ignored by Wellington. Rather, the Agency found that when facility staff initially observed these bruises on Resident 8's hands, (1) staff had immediately notified Resident 8's physician of the bruises; and (2) the physician then ordered an X-ray of Resident 8 to determine whether there was a fracture. The X-ray determined that there was not a fracture but that there was evidence of a bone loss or osteopenia, which indicated that Resident 8 had an underlying structural problem which could increase the resident's risk for bruising. The Agency surveyor found nothing in Resident 8's medical record to indicate that the facility had investigated the bruising on the resident’s hands, identified the cause of the bruising, or identified any means to prevent the bruising from reoccurring. Based on the absence of this information in Resident 8's records, the Agency cited the facility for a deficiency under "Tag F324." The Agency's surveyor made no determination and reached no conclusion as to the cause of the bruising. However, she considered that the bruising on Resident 8 may have been caused by the underlying structural damage, medication, or external forces. With regard to external forces, the surveyor speculated that the bruising may have occurred when Resident 8 bumped her hands against objects such as her chair or bed siderails. During the September 1998 survey, when the Agency surveyor expressed her concerns about the cause of the bruising on Resident 8's hands, Wellington’s Director of Nursing suggested to the surveyor that the bruising could have been the result of the use of improper transfer techniques by either Resident 8’s family or the facility staff, or Resident 8’s medications. Despite the surveyor's speculation and suggestions by the facility's Director of Nursing, the Agency surveyor saw nothing that would indicate how the bruising occurred. In fact, the Agency surveyor's observation of a staff member transferring Resident 8 indicated that the staff member was using a proper transfer technique that would not cause bruising to the resident’s hands. The Agency surveyor made no other observations and conducted no investigation of the potential causes of the bruising on Resident 8's hands. During the September 1998 survey, after the Agency surveyor inquired as to the cause of the bruises on Resident 8's hands, the facility conducted an investigation to try to identify the potential causes for the bruising. The investigation was conducted by the facility’s Care Plan Coordinator, a licensed practical nurse who was also the Unit Manager for the unit on which Resident 8 was located. Included in the Care Plan Coordinator's investigation was a thorough examination of the potential causes suggested by the Agency's surveyor. The Agency surveyor’s speculation that the bruising was caused when Resident 8 hit her hands against her chair or bed siderails was ruled out as a cause for the bruises because Resident 8 was unable to move around in her bed or chair. More importantly, there were no bedrails on Resident 8's bed and her chair was a heavily padded recliner. Also, as a part of her investigation, the Care Plan Coordinator observed the transfer techniques employed by both Resident 8's family members and facility staff. During these observations, she did not see any indication that the techniques used were improper or would otherwise cause Resident 8 to bruise her hands. Based upon her thorough investigation, the Case Plan Coordinator determined that there were no identifiable causes of the bruising and, thus, there were no care plan interventions that the facility could have implemented then or in September 1998 to prevent the bruising suffered by Resident 8. Instead, the Care Plan Coordinator reasonably concluded that the bruising was most likely an unavoidable result of Resident 8's medications and her osteopenia. The Agency is required to rate the severity of any deficiency identified during a survey with two types of ratings. One of these is "scope and severity" rating which is defined by federal law, and the other rating is a state classification rating which is defined by state law and rules promulgated thereunder. As a result of the September 1998 survey, the Agency assigned the Tag F324 deficiency a scope and severity rating of "G" which, under federal regulations, is a determination that the deficient practice was isolated. The Tag F324 deficiency was also given a state classification rating of "II" which, under the Agency’s rule, is a determination that the deficiency presented "an immediate threat to the health, safety or security of the residents." Because the Agency determined that there was a Class II deficiency at Wellington after the September 1998 survey, it changed Wellington’s Standard licensure rating to Conditional, effective September 10, 1998. At the completion of the September 1998 survey, the Agency assigned the Class II rating to the deficiency although the surveyors failed to determine and did not believe that there was an immediate threat of accidents to other residents at Wellington. In fact, at the time of the September 1998 survey, the number of falls at Wellington had declined since the last survey. The Agency returned to Wellington on November 6, 1998, to determine if the facility had corrected the Tag F324 deficiency cited in the September 1998 survey report. After completing that survey, the Agency determined that the deficiency had been corrected and issued Wellington a Standard License effective November 6, 1998.
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 issuing a Standard rating to Wellington and rescinding the Conditional rating. DONE AND ENTERED this 17th day of May, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 17th day of May, 1999. COPIES FURNISHED: R. Davis Thomas, Jr., Esquire Qualified Representative Broad and Cassel 215 South Monroe, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Thomas Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway Suite 200 Tampa, Florida 33614 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue for determination is whether Respondent committed violations of Section 468.1755, Florida Statutes, as alleged in an Administrative Complaint dated October 7, 1988, and if so, what discipline should be taken against his nursing home administrator's license.
Findings Of Fact Respondent, Robert Allen Maurer, is a licensed nursing home administrator, holding State of Florida license number NH 0002026. He is currently employed by Central Park Lodges, Inc., as a corporate administrator out of the corporate offices in Sarasota, Florida. From July 19, 1985, until February 9, 1989, Robert Maurer was the administrator at Central Park Lodges' retirement center and nursing home facility, Central Park Village, in Orlando, Florida. On April 28, 29 and 30, 1986, Grace Merifield and other staff from the Department of Health and Rehabilitative Services (HRS) Office of Licensure and Certification conducted their first annual inspection of Central Park Village. Ms. Merifield is an RN Specialist and licensed registered nurse. Ms. Merifield found several licensing rule violations, including the following, and noted them on a deficiency report form: NURSING SERVICES NH127 3 of 3 bowel or bladder retraining program patients charts reviewed lacked documentation of a formal retraining program being provided. The documentation lacked progress or lack of progress towards the retraining goal, ie., in the care plan, nurses notes or the monthly summaries. 10D-29.l08(5)(b), FAC, Rehabilitative and Restorative Nursing Care. DIETARY SERVICES NH193 1) Stainless steel polish containing toxic material was observed in the dishwasher area. Bulk ice cream and cartons of frozen foods were stored directly on the floor in the walk-in freezer. 10D-29.110(3)(g)1, FAC, Sanitary Conditions INFECTION CONTROL NH448 Infection control committee had not insured acceptable performance in that the following was observed: After a dressing change the nurse failed to wash her hands; three nurses failed to cover the table they were working off, one nurse used the bedstand along with the syringe for a tube feeding resident and returned the supplies to medical cart or medical room, cross contaminating the supplies. Floors of utility rooms were observed with dead bugs unmopped for two days of the survey. Syringe unlabeled and undated. Urinals and graduates unlabeled. Clean linen placed in inappropriate areas and soiled linen on floors, laundry bucket overflowing being pushed down the hall. 10D-29.123(2), FAC, Infection Control Committee (Petitioner's Exhibit #3) During the survey, Robert Maurer, as Administrator, and other nursing home staff met with the inspection team, took partial tours with them and participated in exit interviews, wherein the deficiencies were cited and recommendations were made for corrections. The infection control deficiencies required immediate correction, the dietary services deficiencies required correction by May 5, 1986, and the other deficiencies were to be corrected by May 30, 1986. On July 14, 1986, Ms. Merifield returned to Central Park Village for reinspection and found that most of the violations had been corrected. These, however, still remained: Stainless steel polish containing toxic materials was found in the dishwashing area, a violation of Rule 10D-29.110(3)(g)(1), Florida Administrative Code; Bulk ice cream and frozen food was stored directly on the floor in the walk-in freezer, and one of the five gallon ice cream container lids was completely off, exposing the ice cream, a violation of Rule 10D-29.110(3)(g)(1), Florida Administrative Code; Three out of three bowel or bladder retraining program program charts of residents reviewed lacked documentation, from all shifts of nurses, of a formal retraining program where progress or a lack of progress should be documented, a violation of Rule 10D-29.108(5)(b), Florida Administrative Code; The infection control committee had not insured acceptable performance, a violation of Rule 10D-29.123(2), Florida Administrative Code, in that: two nurses failed to properly cover the bedside table they were working from and cross contaminated dressing supplies; urinals and graduates were unlabeled; clean linen was placed in inappropriate areas, soiled linen was in the bathroom basin, and laundry buckets were overflowing with soiled linens in two utility rooms. After the survey in April, the facility was given a conditional license. That was changed to a standard license in October, 1986, when another inspection was conducted and no deficiencies were found. The following April, in 1987, the facility was given, and still maintains, a superior license. All of the deficiencies noted in April and July 1986 were class III, the least serious class of deficiencies, denoting an indirect or potential threat to health and safety. Deficiencies in Classes I and II are considered life-threatening or probably threatening. The number of deficiencies found at Central Park Village was not unusual. After the April inspection and before the July inspection, Robert Maurer took steps to remedy the deficiencies. Although the staff already had in-service training, additional training was given. Mr. Maurer met with the food service director and was told that a delivery had been made the morning of inspection, but that items had not been placed on the shelves by the stockman. Some of the food items had been left out to be discarded. Prior to the case at issue here, no discipline has been imposed against Robert Maurer's nursing home administrator's license.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a final order be entered finding Respondent guilty of a violation of Section 468.1755(1)(m), F.S., with a letter of guidance from the Probable Cause Panel of the Board. DONE AND RECOMMENDED this 11th day of October, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: PETITIONER'S PROPOSED FINDINGS 1. and 2. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in part in paragraph 5. Some of the deficiencies had to be corrected before the 30-day deadline. and 7. Adopted in paragraph 6. RESPONDENT'S PROPOSED FINDINGS Adopted in paragraph 1. Adopted in part in paragraph 1. Petitioner's exhibits #1 and #2 and Respondent's testimony at transcript, pages 54 and 55, establish that he was administrator from 1985-1989. Adopted in paragraph 2. Adopted in paragraph 6. Rejected as inconsistent with the evidence, including Respondent's testimony. Adopted in paragraph 6. Rejected as contrary to the evidence. Adopted in paragraph 9. through 11. Rejected as contrary to the weight of evidence. 12. and 13. Adopted or addressed in paragraph 8. 14. and 15. Adopted in paragraph 7. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Victoria Raughley, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 R. Bruce McKibben, Jr., Esquire P.O. Box 10651 Tallahassee, FL 32302 Mildred Gardner Executive Director Dept. of Professional Regulation Board of Nursing Home Administrators 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792
The Issue The issue in this case is whether Respondent committed the allegations in the notice of intent to assign a conditional license and, if so, whether Petitioner should have changed the rating of Respondent's license from standard to conditional for the period June 14 through August 10, 2001.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 1120 West Donegan Avenue, Kissimmee, Florida (the "facility"). Petitioner conducted an annual survey of the facility from May 7, through May 10, 2001 (the "May survey"). Petitioner conducted a follow-up survey of the facility on June 14, 2001 (the "June survey"). The May survey cites one Class III violation. The June survey cites a repeat deficiency of a Class III violation. Subsection 400.23(8)(b) and (c), Florida Statutes (2000), refers to deficiency classifications as Class I-III deficiencies. All statutory references are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(c) defines Class III deficiencies as those deficiencies . . . which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies. The statutory definitions of Class I and II deficiencies are not relevant to this case because this case involves only a Class III deficiency. Florida Administrative Code Rule Rule 59A-4.1288 requires nursing home facilities licensed by the State of Florida to adhere to federal regulations in Section 483 of the Code of Federal Regulations ("CFR"). All references to rules are to rules promulgated in the Florida Administrative Code on the date of this Recommended Order. In relevant part, Rule 59A- 4.1288 provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. Applicable federal regulations require Petitioner to assign a scope and severity rating to the deficiencies alleged by Petitioner. Petitioner assigned a "D" rating to the deficiencies alleged in the May and June surveys. A “D” rating means that there is no actual harm with potential for more than minimal harm that is not actual jeopardy. When Petitioner alleges that the Class III deficiency from the May survey was not corrected within the time established by the agency, the agency may change the rating of the facility license from standard to conditional. Petitioner determined in the June survey that the facility had not corrected the deficiency alleged in the May survey. Effective June 14, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Petitioner noted the results of the May and June surveys on a Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567". The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "Tag"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of relevant state rules violated by the alleged deficiency. There is only one tag at issue in the May and June surveys. It is Tag F282. In order to protect the privacy of nursing home residents, Tag F282, the 2567, and this Recommended Order refer to each resident by a number rather than by the name of the resident. Tag F282 alleges in the May and June survey that the facility failed to satisfy the requirements of 42 CFR Section 483.20(k)(ii). In relevant part, the federal regulation provides: Comprehensive Care Plans. (3). The services provided or arranged by the facility must— (ii) Be provided by qualified persons in accordance with each resident’s written "plan of care." This standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F282 does not allege that the facility provided care to residents by unqualified persons. Rather, Tag F282 alleges that Respondent failed to follow the plan of care for two residents. Tag F282 alleges in the May survey that the facility failed to provide care and services in accordance with the plan of care for Residents 3 and 1. Tag F282 alleges in the June survey that Respondent failed to follow the plan of care for Resident 1. The resident identified as Resident 1 is not the same resident in the May and June surveys. Before proceeding to the merits of the allegations in Tag F282, two policy issues must be resolved in order to make findings of fact in a manner that is consistent with Petitioner's officially stated agency policy. One issue is procedural and the other involves the definition of terms. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the "Manual"). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce. The Manual authorizes surveyors to determine whether a facility has complied with Tag F282 only after surveyors have identified violations of standards relating to: quality of care, defined in 42 CFR Section 483.25(a)–(m); quality of life, defined 42 CFR Section 483.15(a)–(h); or residents rights, defined 42 CFR Section 483.10(a)–(o). The state agency's written policy set forth in the Manual requires its surveyors to identify an issue of quality of care, quality of life, or residents’ rights before proceeding to a determination of whether the facility has violated Tag F282. The second issue involves the interpretation of the terms "inadequate", "incorrect", and "consistent." The Manual indicates that violations occur if surveyors can demonstrate inadequate or incorrect implementation of the care plan. The Manual does not define the term “inadequate.” The common meaning of the term suggests that something less than perfect implementation satisfies the requirements of the regulatory standard. That construction is consistent with other provisions in the Manual. The Manual further provides that violations of standards occur only if a facility fails to “consistently” implement the plan of care for a resident. Petitioner's surveyors acknowledged in their testimony that the goal for the quality of care regulations is to achieve positive resident outcomes and is identical to the goal of Tag F282. Petitioner offered no credible reason, within the meaning of Section 120.68(7)(e)3, why the standard for implementation of a resident’s care plan under Tag F282 should be stricter than that required by the quality of care regulations. Resident 3 had many compromising conditions and was near death at the time of the May survey. Resident 3 had 10 to 12 care plans to address his various medical problems and conditions. Each care plan contained an average of 15 separate interventions. One of the care plans for Resident 3 addressed the risk of developing pressure sores and contained 20 separate interventions for staff to implement. One intervention required staff to turn and reposition the resident every two hours. On May 7, 2001, a surveyor stationed herself outside of Resident 3’s room from 1:00 p.m. to 4:00 p.m. in the afternoon to observe who entered the resident’s room and what care was given to the resident. During that time, the surveyor observed that no staff member entered the room to turn and reposition the resident. The care plan required staff to turn the resident once during the three-hour period. The allegations in Tag F282 pertaining to the failure to reposition Resident 3 during a three-hour period on May 7, 2001, deviate from Petitioner's written agency policy in two respects. First, Petitioner did not cite the facility for any violation relating to quality of care, quality of life, or resident rights. Second, a single isolated failure to implement one intervention prescribed in one of 12 care plans for Resident 3, during a three-hour period, on one of four days of a survey, does not demonstrate inadequate care by failing to consistently implement a care plan. Petitioner failed to explain by a preponderance of the evidence why it deviated from its official written policy in its determination that Respondent violated the standard prescribed in Tag F282. The surveyor provided no credible explanation to justify a deviation from agency policy with respect to Resident 3. Nor did Petitioner present any evidence that Resident 3 developed any pressure sores or had any pressure sores worsen as a result of the failure to turn and reposition the resident on May 7, 2001. The evidence shows that the failure to turn and reposition Resident 3 presented nothing more than a minimal chance of negative impact. Tag F282 alleged in the May survey that the facility failed to provide care for Resident 1 in accordance with the care plan. Resident 1 suffered from a condition that caused his chin to droop toward his chest. The condition caused positioning problems for the resident while he was in his wheelchair. The physical therapist for the facility examined Resident 1 and recommended periodic placement of a Futuro cervical collar while the resident was in his wheelchair in order to elevate the resident's chin. The recommendation required staff to place the collar on the resident when he was in his wheelchair for two hours and then to remove it for two hours. Staff was not to place the collar on the resident during meals or while the resident was in bed. The resident would sometimes remove the collar after it was placed on him. On May 8, 2001, Petitioner’s surveyor made five observations of the resident between 10:45 a.m. and 1:50 p.m. The surveyor did not see the resident wearing the collar during any of the observations. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:45 a.m. until 1:50 p.m. The surveyor did not know if or when the collar should have been placed on the resident during the observations on May 8, 2001. It is uncontroverted that the resident would have eaten lunch for one hour during the time that the surveyor observed the resident and that the care plan did not require staff to place the collar on the resident during meals. Petitioner offered no evidence that the failure to put the collar on the resident during the observed instances presented potential for any harm to the resident. Petitioner failed to show by a preponderance of the evidence that the facility failed to implement Resident 1’s care plan. Even if it were determined that the facility failed to consistently implement the care plan or inadequately implemented the care plan, Tag F282 deviates from Petitioner's officially stated agency policy because the tag does not charge the facility with any violation of quality of care, quality of life, or resident rights. Petitioner failed to explain why it deviated from its policy. Finally, the observed circumstances presented no more than a minimal chance of minor negative impact to Resident 1. On May 9, 2001, Petitioner's surveyor observed Resident 1 on three different occasions between 10:00 a.m. and 11:05 a.m. without the collar. The surveyor did not know if or when the collar should have been placed on the resident during that time-period. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:00 a.m. until 11:05 a.m. The preponderance of the evidence failed to sustain the charge that the facility did not implement Resident 1’s care plan on May 9, 2001. The observations are insufficient to demonstrate a consistent failure to implement the care plan. Petitioner provided no credible explanation for deviating from its officially stated agency policy. Finally, the circumstances presented no chance of any harm other than minimal negative impact to the resident. Tag F282 alleges in the June survey that the facility failed to follow doctor’s orders for Resident 1 that required multi-podus boots to be applied every shift. Resident 1 in the June survey is not the same resident identified as Resident 1 in the May survey. Resident 1 in the June survey had pressure sores on his feet, and one of the interventions prescribed in the care plan required Resident 1 to wear multi-podus boots. On June 13, 2001, at 2:45 p.m., Petitioner's surveyor observed Resident 1 lying in bed without the required multi- podus boots. Resident 1 was lying on a pressure-relieving mattress so that his heels were receiving pressure relief without the need for multi-podus boots. On June 14, 2001, Petitioner's surveyor observed Resident 1 in his wheelchair in the activities room with black, hard-soled shoes on his feet instead of the multi-podus boots. The resident had dressings on his heels that protected them and was sitting so that his heels bore no weight. The facility maintained medical records that described the size and appearance of the pressure sores on Resident 1's heels. The records indicated that the pressure sores healed progressively after Respondent admitted Resident 1 to the facility. The area on the right heel was completely healed by June, 2001, and the area on the left heel was closed by July 2001. Petitioner deviated from its officially stated policy in two respects. First, Petitioner did not charge the facility with any violation of a quality of care, quality of life, or residents rights. Second, the instances observed by the surveyor do not demonstrate a failure to consistently implement the plan of care or a failure to provide adequate care. Petitioner offered no credible explanation for deviating from its policy. The events observed by Petitioner's surveyor, at most, presented the potential for causing no more than a minor negative impact on the resident.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration should enter a final order revising the May 10 and June 13, 2001, survey reports to delete the deficiency described under Tag F282, and replace the previously issued Conditional rating with a Standard rating. DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002. COPIES FURNISHED: Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Room 310L St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The ultimate issue is whether proposed Rules 10-5.002, 10-5.0025, 10-5.003, 10-5.004, 10-5.005, 10-5.008, 10-5.0085, 10-5.010, 10-5.0105, 10-5.020, and 10- 5.024, published in Volume 16, Number 13, Florida Administrative Weekly, are invalid exercises of delegated legislative authority.
Findings Of Fact 10-5.002(1) Proposed Rule 10-5.002(1) defines the term "acquisition" to mean "the act of possessing or controlling, in any manner or by any means, a health care facility, major medical equipment, an institutional health service or medical office building as one's own." The proposed rule is HRS's attempt to clarify the term's meaning as used in Section 381.706, Florida Statutes. It is based on dictionary definitions, primarily, Webster's Dictionary, Ninth Edition, but also Black's Law Dictionary. Armond Balsano, an expert in health planning, did not believe the definition to be reasonable and thought it was unclear, ambiguous, and open ended. However his opinion in this regard was not persuasive. Proposed Rule 10-5.002(1) is reasonable and sufficiently clear to withstand this challenge. 10-5.002(13) and 10-5.008(2)(d)--Skilled Nursing Issues Proposed Rule 10-5.002(13) defines "community nursing home beds" as relevant to this proceeding to include "acute care beds licensed pursuant to Chapter 395, Part I, F.S., but designated as skilled nursing beds, which are reviewable pursuant to Rule 10-5.011(1)(k) [the nursing home bed need methodology]." Proposed Rule 10-5.008(2)(d) relates to fixed need pools and states: (d) Skilled Nursing Units in Hospitals. Beds in skilled nursing units which are a distinct part of a hospital will be counted in the nursing home bed inventory, even though they retain their licensure as acute care beds. Essentially, proposed Rule 10-5.008(2)(d) requires that skilled nursing beds in a distinct unit in a hospital be categorized as hospital "general" beds on the hospital license, but that they be carried at the same time on the inventory of community nursing home beds for purposes of projecting need under "pool" projections utilized by HRS for evaluating need for new beds. Proposed Rule 10-5.008(2)(d) attempts to codify what has been HRS's policy. This rule proposes that licensed acute care beds, which form a distinct part of a hospital-based skilled nursing unit, be counted in the nursing home bed inventory to project future need with respect to the nursing home bed need formula. Thus, these beds will no longer be counted or used in the acute care bed need formula to project the acute care bed need. From a health planning standpoint, several reasons exist for and against the inclusion of these hospital-based skilled nursing units within the nursing home bed inventory. A hospital cannot use its acute care beds as skilled nursing beds without a certificate of need. However, pursuant to this rule, to obtain these distinct unit beds a hospital is forced to compete with nursing home applicants for those beds. Skilled nursing beds in hospitals are "general" beds set up in a special category for which there is no specialty hospital bed methodology. Applications are reviewed under the nursing home bed methodology. A skilled nursing unit in a hospital is a unit, certified under the Health Care Finance Administration program, to identify a distinct part of the hospital as being a service in which there is 24-hour nursing with an RN nurse on the day shift. There also must be skilled nursing multi-disciplinary treatments and therapy services provided. The Health Care Finance Administration categorizes such beds as hospital beds, a distinct part of a hospital. Skilled nursing facility (SNF) beds in a hospital are used to treat acutely ill patients with an average length of stay of 20 days, who are different from the extended care patients found in community nursing homes, who have lengths of stay of one year or longer. Hospital skilled nursing patients are overwhelmingly Medicare patients, whereas community nursing home patients are overwhelmingly Medicaid patients. In Florida, Medicaid does not reimburse for care provided in the hospital-based skilled nursing unit. Hospital-based skilled nursing units are reimbursed by the Health Care Financing Administration (HCFA) on a cost-based method. This system of reimbursement is also used with respect to non-hospital-based skilled nursing facilities. Furthermore, this means that hospital-based units are no longer reimbursed under the DRG (Diagnosis Related Groups) system. Medicare limits the patient benefit period to 100 days, regardless of the patient setting. Except for hospitals having higher allowable costs, federal guidelines do not differentiate between hospital and non-hospital-based skilled nursing units. The level of staffing is higher in a hospital nursing unit than in any community nursing home. Specialized equipment and services are offered in the hospital skilled nursing unit which are not offered in the community nursing homes. There are different conceptual approaches to care in the skilled nursing unit in a hospital as compared to those provided in community nursing facilities. Acutely ill patients on intravenous feeding or hyperalimentation, and those with multiple diagnoses require the hospital level nursing care. These units are not intended to provide residential care. Hospital beds are licensed under Rule 10D-28, whereas nursing home beds are licensed under Rule 10D-29, Florida Administrative Code. Although the proposed rule requires skilled nursing beds in distinct units of hospitals to be comparatively and competitively reviewed with community nursing home applications, the two types of beds are not comparable. This creates an unfair comparison. As a matter of good health planning, these skilled units in hospitals should be reviewed differently and separately from regular community nursing home beds. By their nature, SNF beds in distinct units in hospitals are in fact "hospital" beds under Chapter 395 and not nursing home beds under Chapter 400, Florida Statutes. Hospital-based skilled nursing units are not considered special care units as defined in Rule 10D-28, Florida Administrative Code. Specifically, special care units deal with very specialized intensive care settings. However, pursuant to some federal guidelines and state licensing requirements, a skilled nursing unit is considered a custodial type setting. For example, special care units are surveyed about once every two years and skilled nursing facilities once every year. However, failure to conduct a survey is not a determinative factor for special care units continuing under the Medicaid/Medicare programs. Skilled nursing units are not as fortunate. In fact, failure to survey a skilled nursing unit leads to the expiration of its enrollment in the Medicaid/Medicare programs. Section 395.003(4), Florida Statutes, defines the various types of hospital beds and states that beds not covered under any specialty bed need methodology, which a skilled nursing unit is not, shall be considered general beds. This is why these hospital-based skilled nursing units are licensed as general acute care beds. The proposed rule amendments also present logistical problems. Hospitals and nursing homes are licensed under different chapters of the Florida Statues and the Florida Administrative Code, and those standards do not match. Their projects are in different planning cycles. HRS intends that hospitals apply for skilled nursing units on the nursing home application currently in use, but admits that the application does not really fit this type of project. The proposed rule amendments regarding skilled nursing units will be costly and burdensome. Although skilled nursing units offer valuable services and few currently exist, under the nursing home need rule it will be difficult to prove need for these projects. A hospital desiring to establish one will likely find itself having either to challenge the fixed need pool for nursing home beds or litigate the almost inevitable denial of its application for lack of need. Either course of action would involve time and expense over and above those usually encountered in the CON process, particularly because such an application would likely draw the opposition of existing nursing homes, even though their services are not really comparable. The proposed rule amendments do not comport with the basic health planning policy of reducing over-bedding by encouraging conversion to other services. It is unlikely a hospital could get a skilled nursing unit by showing a numeric need under the nursing home need methodology, and any attempt to show exceptional circumstances would be hampered by the lack of utilization data. Such beneficial conversions will probably also be chilled by the difficulty in converting a skilled nursing unit back to general acute care use, should it not be successful. Given the extreme acute care over-bedding which exists throughout the state, it is not anticipated that there will be any need for additional acute care beds for the foreseeable future. Since a skilled nursing unit would not be counted in the acute care bed inventory, the reconversion to acute care use would have to undergo CON review and would almost certainly be denied. 10-5.002(52) Proposed Rule 10-5.002(52) defines refinancing costs, which Rule 10- 5.004(2)(c) states are subject to expedited review under Section 381.706(2). The purpose of this definition is to provide guidance to applicants by identifying examples that are often encountered in either bond refunding or refinancing. The definition is straightforward in nature and encompasses the elements common in refinancing. Mr. Balsano, testifying for Adventist, readily acknowledged the preciseness of this definition, but faulted the definition for its absence of any discussion as to the potential benefit of refinancing. However, Mr. Balsano's concerns were misplaced. Distinctions exist between the benefits of refinancing and the meaning of refinancing. Indeed, the benefits of refinancing go to the merit of whether or not the certificate of need should be granted. Since every applicant is required to address the review criteria found in Section 381.705, Florida Statutes, the proper forum for addressing the benefits of refinancing is in the CON application itself. Proposed Rule 10- 5.002(52) is simply a definition. 10-5.004(2)(g)--Projects Subject to Expedited Review: Capital Expenditure Projects This proposed rule allows applicants who propose a capital expenditure project to improve, repair, or correct their existing facility to apply for a certificate of need on an expedited basis. This proposed rule is conducive to encouraging existing facilities to make needed improvements by seeking approval of the expenditure expeditiously and without the delays associated with batching cycles. It is important for a provider to make and complete corrections or improvements quickly in order to minimize the disruption of patient care. Some of the more common capital expenditures include expansion of emergency departments or emergency rooms and the renovation or expansion of other patient care areas. An application to relocate a hospital is also considered a capital expenditure. Under extreme circumstances of pervasive physical plant deficiencies, coupled with a lack of practical renovation options to overcome plant deficiencies, an existing health care facility might apply for a replacement facility. Only when such replacement facility would (1) involve no new beds or changed bed use (e.g., from general acute care to comprehensive medical rehabilitation beds), (2) involve no substantial change in services, and (3) involve no substantial change in service area would HRS consider such an application to be solely reviewable as a capital expenditure and thus entitled to expedited review under the proposed rule. HRS reviews replacement facility applications by carefully assessing the applicants' claims of pervasive physical plant problems. HRS sends a team of experts, including architects, to the existing facilities to independently judge whether the physical plant is in such a condition as would warrant replacement and whether renovations could serve as a practical alternative from a physical standpoint. HRS also performs an economic assessment to compare the alternatives of replacement versus renovation in order to determine the most cost-effective alternative. Replacement facility applications typically involve a determination not of whether dollars will be spent, but rather, how they are best spent--by replacement or by renovation. As such, HRS helps to contain health care costs without participation by competitors in these institution- specific decisions. Pursuant to Section 381.709(5)(b), Florida Statutes, competitors do not have standing to challenge a proposed capital expenditure and, therefore, there is no adequate reason to defer review of these projects until a future application cycle. Further, when a capital expenditure approval is sought to replace or relocate an existing facility, no one other than the applicant/existing facility can apply to spend or make those expenditures. An unrelated entity cannot compete to replace another entity's existing facility. Conducting a comparative review with respect to a capital expenditure project for the replacement of a hospital is illogical, unworkable, and futile. 10.5.008(1)(c)3 and 10-5.008(3)(b)--Capitalized Costs Proposed Rule 10-5.008(1)(c) requires that a letter of intent describe the proposal with specificity. Subsection (1)(c)3 sets forth the following requirement: 3. A proposed capital expenditure must be rounded to the nearest dollar . . . . If no capital expenditure is proposed, the applicant must so indicate. If the actual capital expenditure has already been incurred, either wholly or in part, and the project will account for such expenditures as capitalized costs, regardless of the purpose, then the total capital expenditure of the project shall be indicated. As related to this same subject, proposed Rule 10-5.008(3)(b) states: (b) Capital expenditures incurred for projects not originally subject to Certificate of Need review must be identified as a proposed expenditure when such expenditure will be capitalized in a project for which a Certificate of Need is required. HRS asserts that this proposed rule codifies HRS's existing policy and that the purpose of this provision is to develop consistency in how applicants treat an already incurred capital expenditure. It is also allegedly intended that this proposed rule give uniformity concerning how project costs are calculated and allocated. For example, if an applicant is going to convert space from one use to another, the value of the space must be included in the applicant's capital expenditure estimate. While Ms. Gordon-Girvin, HRS's health planning expert, opined that this proposed rule is consistent with current practices in the health care market place concerning how capital expenditures are treated and that it forms a common basis of comparison for comparing the applicants' treatment of capitalized costs, the greater weight of the credible evidence does not support these opinions. Actually, the effect of these proposed rules is that a certificate of need applicant, who has previously made capital expenditures and later pursues a certificate of need project utilizing such prior capitalized costs, must identify and include those prior capital expenditures as a portion of the certificate of need project, even though no actual incremental funds will be necessary or spent in connection with the project. One of the problems with proposed Rules 10-5.008(1)(c)3 and (3)(b) is that they both ignore a distinction between fixed costs and variable costs which is fundamental to a financial evaluation of any project. Specifically, it is inappropriate to require an applicant who will have no incremental costs in implementing a project to allocate a portion of prior capital expenditures, where such an application is measured against a competing application in which the entire outlay for capital costs will be necessary. This distorts the evaluation due to inappropriately comparing prior fixed costs to future variable costs. An example of the illogical result of the proposed rules provides guidance. If a hospital has already spent one million dollars to add a CON- exempt outpatient cardiac cath lab, and later seeks to establish an inpatient cardiac cath program, under these proposed provisions, that hospital would have to represent a cost of one million dollars in its application to convert the outpatient cardiac cath lab to an inpatient project. From a health planning and financial standpoint, this is inappropriate. Having to include capital costs which have already been incurred and viewing those costs in the context of the decision to approve or reject a CON project is misleading. Ultimately, the purpose and objective of the CON process is to minimize duplication of health care resources. The proposed rules work in conflict with that goal. Conversion of underutilized resources to resources that could be more beneficially utilized is a policy that is encouraged by HRS. This policy is encouraged in the various need methodologies. One of the reasons to encourage a conversion is that often zero dollars are involved to convert a project from one CON-approved use to another CON-approved use. Proposed Rules 10-5.008(1)(c)3 and (3)(b) would eliminate consideration of the minimal cost involved in a conversion project and are therefore unreasonable. Moreover, the proposed rules could end up creating excess resources in the system simply because they would eliminate the preference for conversion as opposed to new construction. With respect to allocating prior capital expenditures, the proposed rules, as alleged by HRS, are intended to codify existing HRS policy as well as provide uniformity to the process of ascertaining project costs. These proposed rules do neither. In point of fact, HRS has accepted, within the last three years, conversion projects indicating a zero project cost in the application. The proposed rules are thus inconsistent with current HRS policy of accepting and evaluating these applications and are contrary to HRS's stated intention in this proceeding. However, with respect to providing uniformity to the process of ascertaining project costs, the proposed rules provide no methodology by which prior capital cost allocations are to be determined. Indeed, there is no uniformity proposed regarding how a health care facility or applicant accounts for capital expenditures. Generally, a capital expenditure is one that is "material" and the useful life of the item capitalized exceeds one year. What is material to one applicant may be entirely different from that which would be material to another applicant. Thus, the uniformity of presentation of prior capitalized costs contained in CON applications submitted to HRS for review will not and cannot exist as envisioned by HRS in its proposed rules. 10-5.005(2)(e) Proposed Rule 10-5.005 relates to exemption from CON review and Subsection (2)(e) states as follows: (e) Failure to initiate the exemption within twelve months after it appears in the Florida Administrative Weekly will result in the notice of exemption being void. The alleged basis for this proposed rule is to protect those persons pursuing an exemption by ensuring that they are still eligible for it under the same facts and circumstances. Additionally, HRS has encountered problems in the past when entities have received a determination of exemption for a project but have failed to implement the project. In one case, HRS gave a nursing home an exemption to replace a facility on site. After discharging the patients, the nursing home took no further action. However, these beds are still licensed and are included in the bed inventory. Such a situation artificially suppresses the need for nursing home beds in that district for the planning horizon. The proposed rule is an attempted response to this problem. The laws implemented by the proposed rules are Section 381.706 and 381.713(1). Pursuant to these sections, HRS must grant an exemption if the applicant meets the statutory definitions. Further, if a project is exempt, it is not subject to review. Exemption requests may be made at any time and are not subject to batching requirements. Once a project is deemed to be exempt and not subject to review, HRS ceases to have jurisdiction over the project and HRS, accordingly, has no jurisdiction to void an exemption. 10-5.008(2)(f) Proposed Rule 10-5.008(2)(f) establishes a procedure for HRS and applicants to follow when a departmental need methodology does not exist for a proposed project. The proposed rule attempts to clarify for applicants how best to present themselves when applying for a project for which no methodology has been adopted in an existing rule. This is particularly useful to applicants in addressing the need component required by statute. Policy utilized but not yet adopted by HRS will be provided to applicants in addressing the need component required by statute; however, applicants are not bound by that policy and may tender their need calculations. This proposed rule gives credence to the fact that there may be different methodologies and allows applicants the opportunity to make all the necessary arguments to demonstrate the nature and extent of entitlement to a certificate of need. 10-5.0085(4) Proposed Rule 10-5.008(4) describes shared service arrangements and delineates the procedures applicants must follow to initiate or terminate a shared service. The part of the proposed rule challenged by FHA and the area on which it focused concerned the termination of a shared service arrangement. Proposed Rule 10-5.008(4) provides in pertinent part: (4)(a) The following factors are considered when reviewing applications for shared services where none of the applicants are currently authorized to provide the service: * * * Any of the parties providing a shared service may seek to dissolve the arrangement. This action is subject to review as a termination of service. If termination is approved by the department, all parties to the original shared service give up their rights to provide the service. Parties seeking to provide the service independently in the future must submit applications in the next applicable review cycle and compete for the service with all other applicants. * * * 6.b. The following factors are considered when reviewing applications for shared services when one of the applicants has the service: * * * e. Dissolution of a shared services contract is subject to review as a termination of service. * * * If termination is approved, the entity(ies) authorized to provide the service prior to the contract retains the right to continue the service. All other parties to the contract who seek to provide the service in their own right must request the service as a new health service and are subject to full Certificate of Need review as a new health service. (Emphasis added) The basis for requiring CON review for a termination of a shared service as delineated above is found in Section 381.706(2)(e), Florida Statutes (1989). If a shared service arrangement terminates, the party who originally had the service would retain the service. This is reasonable because the entity would have already been granted a certificate of need for the service, singularly offered. The party would be placed back in the same situation it was in prior to the shared service. Conversely, in situations where neither party originally had the service, the remaining parties would have to apply for the service in a batched review. This, too, is reasonable in that the service would no longer be shared and the ability to provide it singularly would be evaluated anew. Here, the party would also be placed back in the same situation it was in prior to the shared service. Additionally, a shared service arrangement (and approval of it) is based on certain benefits present within that arrangement. Upon termination the same benefits may not be present. The identity of the parties and their relationships to each other will have changed. Review at this point provides an applicant the opportunity to compete again to establish the service in its own right under a different set of circumstances, and it allows other providers to compete either for the service in their own right or through another shared arrangement. Such a policy is prudent because the very reason for the shared service was to produce benefits that were not otherwise obtainable singularly. Indeed, even FHA's own witness, Mr. Bebee, acknowledged that certain advantages to a shared services arrangement might not be present when such an arrangement terminates. 10-5.010(2) Proposed Rule 10-5.010(2) concerns what local health plan is to be used and addressed in a CON application, and it provides as follows: The applicable local health plan is the most current plan adopted by the appropriate local health council and which has been accepted and approved in writing by the Department at the time letters of intent are due or, if not accepted by the Department, as reviewed and commented on by the Department. The agency will provide to all prospective applicants those items of the local health plan which must be addressed in the application. HRS asserts that the purpose of this amendment to existing Rule 10- 5.010 is to assist applicants by identifying various components of the plan to which they should address their application and thereby maximize their time and effort and, ultimately, their chances for approval and that this proposed rule codifies current departmental practice of providing those items of the local health plan which must be addressed by the applicant. Contrary to HRS's assertion that this proposed rule is clarifying in nature, the rule in fact goes far beyond those parameters. "Reviewed and commented on by the Department" means that the local health council's adopted plan has been reviewed for consistency with existing need methodologies and has been commented on by HRS. HRS maintains that "commented on" does not mean verbal comments. The proposed rule does not, however, specify that only written comments were intended. Indeed, HRS admitted that the way the rule is drafted it takes into account oral as well as written comments. Statutorily, HRS is required to adopt as a rule the local health plans or portions thereof to be used in the CON review regulatory process. Local health plans generally contain allocation factors, preferences, and policies with respect to the particular district. Within the last several months, HRS has sought to adopt as a rule preferences and policies set forth in the various local health plans around the state of Florida. HRS withdrew those proposed rules. Proposed Rule 10-5.010(2) does not make reference to or account for the fact that the local health plans must be adopted as rules by HRS. HRS cannot circumvent statutory requirements by proposing that an applicant address "approved plans," nor can it require an applicant to address local health plans with which HRS is not in full agreement with the local health council as to whether the plan is consistent with statutory guidelines. Indeed, where HRS and the local health council are in disagreement, an applicant is pulled between HRS and the local council. This proposed rule allows HRS to simply reject the expressed wants of the local health council and to insert its own comments and views, thereby inserting itself into a province exclusively reserved to the local health councils. 10-5.020 Proposed Rule 10-5.020 involves addition of one sentence to the existing rule. The added language provides that HRS will issue a license to the CON holder in accordance with the CON and will not issue a license for fewer beds than the total on the CON. The proposed addition to this rule addresses a problem currently facing the Department, and it reflects a change in agency policy for HRS. Basically, the added language clarifies for an applicant or certificate of need holder that the Office of Licensure and Certification shall only issue a license consistent with the terms of the certificate of need. The proposed rule addition conforms to several health planning goals. First, it requires the implementation of a project in accordance with the certificate of need. Second, the language addresses HRS's current problem of need suppression by industry members. Third, it seeks to ensure uniform development of services. This proposed rule does not penalize hospitals who want to do phase-in type projects. On the contrary, the language seeks to ensure that needed beds and services will be implemented in the horizon year in accordance with the application and entitlement demonstrated by the applicant. Economic Impact Statement The Summary of the Estimate of the Economic Impact states in relevant part: The proposed amendments are expected to have no adverse impact either on existing and new applicants for certificate of need, or on small and minority businesses . . . . The Economic Impact Statement (EIS) addresses the cost to the agency of implementing the proposed rules, an estimate of the cost to persons directly affected by the proposed rules, an estimate of the impact of the proposed action on competition, a statement of the date and method used in making those estimates, and an analysis of the impact on small businesses as defined in the Florida Small and Minority Business Assistance Act of 1985. Specifically, the EIS states that the proposed rules "will have a minimal economic impact on current or future certificate of need applicants and the public at large." There is no competent, substantial evidence to establish with specificity the existence of any defects in the EIS which impaired the fairness of the rulemaking proceeding or the correctness of the agency actions related to the EIS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED: 1. Proposed Rules 10-5.002(1) and (52), 10-5.004(2)(g), 10-5.008(2)(f), 10-5.0085(4), and 10-5.020 are valid. 2. Proposed Rules 10-5.002(13); 10-5.008(1)(c)3, (2)(d), and (3)(b); 10- 5.005(2)(e); and 10-5.010(2) are invalid exercises of delegated legislative authority. DONE and ORDERED this 10th day of October, 1990, in Tallahassee, Florida. DIANE K. KIESLING, 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 10th day of October, 1990. APPENDIX TO THE FINAL ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in these cases. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners Venice Hospital and Adventist Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(3); 5(5); 6(6); 10(14); 12(15 and 16); 15-17(25-27); and 19(28). Proposed findings of fact 1, 3, 7-9, 11, 13, 18, 21, 22, 24, and 25 are subordinate to the facts actually found in this Final Order. Proposed finding of fact 2 is unnecessary. Proposed findings of fact 14, 20, 23, and 26 are unsupported by the credible, competent, and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner FHA Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(7); 5(10); 6(11); 8-12(12- 16); and 13-17(19-23). Proposed findings of fact 2, 3, 18, 19, and 21-24 are subordinate to the facts actually found in this Final Order Proposed finding of fact 7 is unnecessary. Proposed finding of fact 20 is unsupported by the credible, competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Humana Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(34, 35, and 38). Proposed findings of fact 2, 5, and 7-13 are subordinate to the facts actually found in this Final Order. Proposed findings of fact 1, 3, 4, and 14-19 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners NME and PIA Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2(34, 35, and 38); 3-6(39- 42); 8(53); and 9(54 and 55). Proposed findings of fact 1 and 7 are subordinate to the facts actually found in this Final Order. Proposed findings of fact 10 and 11 are irrelevant because these Petitioners dismissed their challenge to the EIS in the Stipulation of the parties admitted as Joint Exhibit 2. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Sarasota Proposed findings of fact 1-4, 6, 7, and 13 are subordinate to the facts actually found in this Final Order. Proposed finding of fact 5 is unnecessary. Proposed findings of fact 17, 18, and 20 are unsupported by the credible, competent, and substantial evidence. Proposed findings of fact 8-12, 14-16, and 19 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent HRS Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 and 2); 2(28); 3(46); 4(47-49); 5(51); 7(29); 8(32 and 33); 9(33); 11(8); 13(17); 14(18); 15(23); 16(23 and 24); 17(36); 19(37); 21(57); and 22(58). Proposed findings of fact unnumbered paragraph re: 10-5.005(2)(e); 10; 12; 18; 20; and unnumbered paragraph re: Economic Impact Statement are subordinate to the facts actually found in this Final Order. Proposed findings of fact 1A and 6 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Intervenor HCA DOCTORS Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(30) and 7(31). Proposed findings of fact 2-5 are subordinate to the facts actually found in this Final Order. Proposed findings of fact 1 and 9-11 are unnecessary. Proposed findings of fact 8 is irrelevant. *NOTE: THIS RECOMMENDED ORDER'S EXHIBIT "A" [RULE 10-5.002, 10-5.004(2), 10-5.005(2), 10-2.008(1)(n), 10-5.008(5)(h), 10-5.010(2), 10-5.020] IS AVAILABLE FOR REVIEW IN THE DIVISION'S CLERK'S OFFICE. COPIES FURNISHED: Jeffery A. Boone, Attorney at Law Robert P. Mudge, Attorney at Law 1001 Avenida del Circo Post Office Box 1596 Venice, FL 34284 Kenneth F. Hoffman, Attorney at Law 2700 Blair Stone Road Post Office Box 6507 Tallahassee, FL 32314-6507 James C. Hauser, Attorney at Law 204-B South Monroe Street Tallahassee, FL 32301 C. Gary Williams, Attorney at Law Stephen C. Emmanuel, Attorney at Law Post Office Box 391 Tallahassee, FL 32302 Theodore C. Eastmoore, Attorney at Law 1550 Ringling Boulevard Post Office Box 3258 Sarasota, FL 34230 Robert A. Weiss, Attorney at Law John M. Knight, Attorney at Law The Perkins House, Suite 101 118 North Gadsden Street Tallahassee, FL 32301 Thomas R. Cooper, Attorney at Law Edward G. Labrador, Attorney at Law Department of Health and Rehabilitative Services 2727 Mahan Drive, Suite 103 Tallahassee, FL 32399-0700 John Radey, Attorney at Law Elizabeth W. McArthur, Attorney at Law Suite 1000, Monroe-Park Tower 101 North Monroe Street Post Office Drawer 11307 Tallahassee, Florida 32302 Donna H. Stinson Moyle, Flanigan, Katz, FitzGerald & Sheehan, P.A. The Perkins House--Suite 100 118 North Gadsden Street Tallahassee, Florida 32301 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 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Liz Cloud, Chief Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32399-1300
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.
Findings Of Fact At all times material hereto, Plantation was a licensed nursing home facility and participated in the Medicaid program. A nursing home that receives a superior rating is entitled to incentives based on the Florida Medicaid Reimbursement Plan. Plantation has met all the requirements for a superior rating that are enumerated in Rule lOD-29.128, Florida _Administrative Code. The only reason Plantation was not granted a superior rating was based on the Medicaid Inspection of Care, Team report. (stipulated facts) From August 21 through August 31, 1984, Plantation underwent a routine inspection by the HRS Medicaid Inspection of Care (IOC) Team. The purpose of the inspection was to review the care and treatment of Medicaid recipient patients in accordance with state and federal standards in order for the facility to receive Medicaid payment for those individuals. During the course of the inspection, several deficiencies were found by IOC Team. The deficiencies were summarized in the Medicaid Inspection of Care Team report, entitled Facility Evaluation Summary, prepared by Ms. Tranger. The report listed the deficiencies as follows: Fifteen skilled and two intermediate out of 46 medical records reviewed failed to have medication revalidated by the attending physician within the proper time frame Four of forty-six records reviewed failed to have available documentation that laboratory tests were completed in accordance with doctors' orders and medication regimen, Fourteen skilled and thirteen intermediate out of 46 medical records reviewed failed to have the Plan of Care reviewed within the proper time frame: Ten medical records were not certified within the proper time frames and fifteen medical records were not current for recertification. As to the first deficiency noted, the problem was not that the physician failed to revalidate medication, but that Ms. Tranger did not think that the physician appropriately dated the revalidation. In almost all of the cases, the problem was that Ms. Tranger did not think that the physician had personally entered the date because the date was written with a different color of ink than the doctor's signature or the handwriting appeared to be different. Ms. Tranger did not know whether the dates were written by someone in the physician's office or someone at the nursing home. It is very difficult for a nursing home to get a physician to sign and date orders properly. Plantation had a procedure for securing the doctor's signature and having records dated. When a record was received that was not properly signed and dated, Plantation returned the record to the doctor with a letter or note telling the doctor what needed to be done. When returned by the doctor to Plantation, the record would bear the later date, which caused some records to be out of' compliance with the required time frames. The return to the doctor of records that were not properly dated may also explain why some of he dates were written in a different color ink than the doctor's signature. In those few cases where the dates on the report were not within the proper time frame, the dates were only a few days off. In one case a 34 day period, from July 7, 1984 to August 10, 1984, elapsed before the medication was revalidated. In another case, there were 33 days between the dates. In both cases the medication should have been revalidated every 30 days. The problem with the revalidation dates was strictly a paperwork problem and not one that affected the care of the patients. As stated before, in the majority of the cases the medication was revalidated within the proper time frame. The problem was simply that it appeared that someone other than the doctor had written down the date. The second deficiency was a finding by the surveyors that 4 of the 46 medical records reviewed failed to have available documentation regarding laboratory tests being completed in accordance with doctors' orders. However, Jean Bosang, Administrator of Plantation, reviewed all of the records cited by the IOC Team as the basis for these deficiencies and could only find two instances in which laboratory tests were not performed. HRS did not present any evidence to establish the two other alleged instances. Dr. Lopez reviewed the medical records of the two residents in question and determined that there was no possibility of harm to the patient as a result of failure to perform these tests. One of the two residents is Dr. Lopez' patient, and he normally sees her every day. He stated that the test, an electrolyte examination, was a routine test, that the patient had had no previous problems, and if any problem had developed, she would have had symptoms which would have been observable to the nurses. The tests performed before and after the test that was missed were normal, and the failure to perform the one test had absolutely no effect on the patient. Dr. Lopez was familiar with the other resident upon whom a test was not performed and had reviewed her records. This resident was to have a fasting blood sugar test performed every third month. Although this test was not performed in April of 1984, it was performed timely in every other instance. All tests were normal, and the failure to perform this test did not have any effect on the resident. Had she been suffering from blood sugar problems, there would have been physical signs observable to the nurses. The fourth deficiency listed in the report was a paperwork problem similar to the first deficiency. Patients in a nursing home are classified by level of care and must be recertified from time to time. Certification does not affect the care of the resident. The recertification must be signed and dated by the physician. Again, there was a problem on the recertification because some of the dates were in a different color ink than the physician's signature. Again, the problem was primarily caused by difficulty in getting proper physician documentation. The deficiency did not affect the care of the residents. Mr. Maryanski, who made the decision not to give Plantation a superior rating, testified that of the four deficiencies cited in the IOC report, he believed that only the third deficiency listed, in and of itself, would have precluded a superior rating. An analysis of that deficiency, however, shows that it also was mainly a paperwork deficiency and had no impact on patient care. The third deficiency listed involved a purported failure to have the plans of care reviewed within the proper time frames. Patient care plans are to be reviewed every 60 days for "skilled" patients, those that need the most supervision, and every 90 days for "intermediate" patients, those that need less supervision. A patient's plan of care is a written plan establishing the manner in which each patient will be treated and setting forth certain goals to be reached. A discharge plan is also established, which is basically what the nursing home personnel believe will be the best outcome for the patient if and when he or she leaves the hospital. The patient plan of care is established at a patient care plan meeting. Patient care plan meetings are held by the various disciplines in the nursing home, such as nursing, dietary, social work and activities, to review resident records and discuss any problems with specific residents. The manner in which the problem is to be corrected is determined and then written down on the patient's plan of care record. The evidence revealed that the basis of the deficiency was not a failure to timely establish or review a plan of care, but a failure to timely write down and properly date the plan of care. During the time in question, care plan meetings were held every Wednesday, and all of the disciplines attended the meetings. However, all disciplines did not write their comments on the patients' records at the meeting; some wrote them later. Usually, when they were added later, the comments were dated on the day they were written, rather than on the day the meetings were held. The evidence presented did not show any case in which all disciplines were late in making notes, but revealed only that specific disciplines were tardy. Since all the disciplines attended one meeting, it is apparent that when the date for any discipline was timely, the later dates of other disciplines merely reflected a documentation or paperwork problem. In late 1984 or early 1985, Plantation changed its system to avoid the problem in the future. There appeared to be problems with some of the discharge plans being untimely. The discharge plan is not utilized in the day-to-day care of the resident. Discharge plans at Plantation were kept in two places, and Ms. Tranger recognized that she may have overlooked some plans if they had been written only on the separate discharge sheet. The four deficiencies cited all involved time frames. There are innumerable time frames that must be met by a nursing home. The great majority of the deficiencies involved a failure to properly document. None of the deficiencies affected the care of the patients. Indeed, Ms. Tranger indicated that the patients were all receiving proper nursing care. The decision to give Plantation a standard rating was made by Mr. Maryanski based solely on the IOC report. He relied upon section 400.23,(3) Florida Statutes, which states: "The department shall base its evaluation on the most recent annual inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations and inspections." There are no regulations or written or oral policies implementing this provision. Mr. Maryanski looked solely at the face of the IOC report and did not do any independent investigation. He never visited the nursing home, and he never talked to the on-site surveyors to determine whether the deficiencies cited by the IOC Team were significant. He never saw the underlying documentation which formed the basis of the report. Mr. Maryanski has no background either in nursing or medicine and had no knowledge of purpose the tests that were allegedly not performed. On October 4, 1984, the HRS Office of Licensure and Certification (OLC) conducted the annual survey of the facility. Mr. Maryanski did not determine whether the deficiencies found by the IOC Team had been corrected at the time of the annual survey. An IOC Team surveyor returned on November 21, 1984, and found that all of the deficiencies cited during the IOC inspection had been corrected. A resurvey of the facility was conducted on December 27, 1984, by OLC. All deficiencies noted in OLC's original inspection had been corrected. All nursing home facilities in Florida are rated by HRS as conditional, standard, or superior. In addition to its financial significance, the rating of a facility is important because it affects the facility's reputation in the community and in the industry. The rating for a facility goes into effect on· the day of the follow-up visit of OLC if all deficiencies have been corrected. Therefore, Plantation would have received a superior rating, effective December 27, 1984, had it not been for the IOC report Mr. Maryanski never tried to determine whether the deficiencies in the IOC report had been corrected subsequent to the report being issued. Under rule lOD-29.128, Florida Administrative Code, there are extensive regulatory and statutory requirements which must be met for a facility to be granted a superior rating. Plantation met all of the enumerated requirements, yet it received only a standard rating. Mr. Maryanski based his determination on the IOC report despite the fact that it was outdated and the deficiencies in that report were corrected by November, 1984, prior to the December, 1984, resurvey by the OLC. There was nothing in the annual survey report of the OLC to preclude a superior rating. This is the first time a facility has been denied a superior rating based upon a report other than the annual report.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Plantation Nursing Home be given a superior rating. DONE AND ENTERED this 3rd day of March, 1986, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, 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 3rd day of March, 1986. COPIES FURNISHED: Jonathan S. Grout, Esquire Post Office Box 1980 Orlando, Florida 32802 Harold Braynon; Esquire District X Legal Counsel, 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner Accepted in Finding of Fact 1. 2-3. Accepted in Finding of Fact 2. 4. Accepted as set forth in Finding of Fact 21. 5-6. Accepted in Findings of Fact 22-23. 7-9. Accepted in Finding of Fact 24. 10. Rejected as immaterial. 11-12. Accepted in Findings of Fact 24-25. Accepted in Finding of Fact 19. Accepted in Finding of Fact 26. 15-16. Accepted generally in Findings of Fact 20 and 24. 17-19. Accepted generally as set forth in Finding of Fact 26. In Background section. Cumulative. Accepted in Finding of Fact 18. Accepted in Finding of Fact 12. 25-31. Accepted in substance in Findings of Fact 4-7. 32-43. Accepted in substance in Findings of Fact 8-10. 44. Rejected as not supported by the evidence. 45-46. Accepted in Finding of Fact 11. 47. Accepted in Finding of Fact 3. 48-49. Accepted in Finding of Fact 3. 50-57. Accepted in general in Findings of Fact 13-16. 58. Accepted in Finding of Fact 17. Rulings On Proposed Findings of Fact Submitted by the Respondent Accepted in Finding of Fact 1. Accepted generally in Findings of Fact 1, 20, 24. Accepted in Finding of Fact 1. Accepted generally in Finding of Fact 19 and Background. 5-8. Accepted in Finding of Fact 3. Accepted in substance in Finding of Fact 2. Accepted in Finding of Fact 2. Accepted in Finding of Fact 3. Accepted in Finding of Fact 13 except as to time frame for intermediate patients which should be 90 days. Accepted that the documentation showed a gap, but proposed finding rejected in that the evidence did not show that, in fact, the patient was not reviewed with the proper time frame. Accepted, without naming the patients, and explained in Finding of Fact 6.
The Issue Was Petitioner properly cited for a Class III deficiency.
Findings Of Fact Horizon Healthcare & Specialty Center (Horizon), is an 84-bed nursing home located at 1350 South Nova Road, Daytona Beach, Florida. It is licensed under Chapter 400, Part II, Florida Statutes. The Agency for Health Care Administration (AHCA) is the state agency charged with licensing and regulating nursing homes in Florida. On August 14, 2000, AHCA conducted a survey of Horizon. This was accomplished in part by Rose Dalton, a nurse. At the hearing Ms. Dalton was determined to be an expert in nursing care. A report on a nursing home survey is made on a Form 2567-L which is approved by the U.S. Department of Health and Human Services, Health Care Financing Administration. A Form 2567-L was generated as a result of Ms. Dalton's survey. It was reported under the category Tag 327. Resident 7. Ms. Dalton, in conjunction with the survey team accompanying her, determined on August 17, 2000, that Resident 7 was dehydrated. This conclusion was reached because facility records indicated that Patient 7 had a blood urea nitrogen (BUN) of 57 on August 7, 2000, with normal being 6-26, and a high normal creatinine of 1.6. Another factor used in concluding that Resident 7 was dehydrated was a report dated August 8, 2000, which revealed a BUN of 34. On August 12, 2000, a report indicated a BUN of 43 and a creatinine of 1.9. The survey team was also aware that Resident 7 was ingesting Levaquin, a powerful antibiotic which requires that a patient remain well-hydrated. Ms. Dalton and the survey team cited the facility with a Class III deficiency, for state purposes, and a "G" on the federal scale. The federal scale goes from "A", which is a deficiency which causes no harm, to "J", which is harm which may cause death. The "G" level meant that it was the team's opinion that there was great potential for actual harm. Resident 7 was admitted on August 3, 2000. Among other ailments, Resident 7 was suffering from a femoral neck fracture and renal insufficiency when admitted. The resident contracted a urinary tract infection (UTI), and was being administered Levaquin, an antibiotic appropriate for UTI treatment. On August 8, 2000, a physician's order requested that the patient be encouraged to consume fluids. It is Ms. Dalton's opinion that Resident 7 was not provided proper fluid intake by the facility which could have caused serious health consequences for Resident 7. When Resident 7 was in the hospital, prior to being admitted to Horizon, his BUN was 41 and his creatinine was 2.3, which is consistent with Resident 7's chronic renal insufficiency. The BUN of 43 and creatinine of 1.9 observed in the facility on August 12, 2000, did not indicate Resident 7's condition was worsening, and in fact, it was improving marginally. The values for a normal BUN might vary from laboratory to laboratory but generally a normal BUN would be around 25 or less. Because of Resident 7's underlying renal disease and ischemic cardiomyopathy, it was unlikely that Resident 7 would ever manifest a BUN which would be considered normal. Dr. Elizabeth Ann Eads, D.O., an expert in the field of geriatric medicine, reviewed the laboratory values and the nursing notes in the case of Resident 7. It is her opinion, based on that review, that the facility provided appropriate care, that the patient improved during the stay at the facility, and that there was nothing in the record which suggested any actual harm to Resident 7. This opinion was accepted. Resident 8. Ms. Dalton opined that, based on her personal observation and a review of Resident 8's medical records, that the facility failed to respond to the hydration needs of Resident 8 and did not follow the care plan which was developed for Resident 8. Ms. Kala Fuhrmann was determined to be an expert in the field of long-term care nursing. She noted that Resident 8 was admitted to the facility on August 1, 2000. Resident 8's hospital records indicated that Resident 8 might be developing a UTI based on a urinalysis performed on July 31, 2000, which revealed blood and protein in the urine. On August 3, 2000, Resident 8's doctor started an antibiotic, Levaquin, and ordered another urinalysis. On August 4, 2000, a culture determined that Resident 8 was positive for a UTI, so the antibiotic treatment was continued. On August 15, 2000, it was determined the UTI had been cured. During the course of the UTI, Resident 8 was incontinent, which is often the case when elderly patients are afflicted with UTI. By August 18, 2000, Resident 8 was continent. It is Ms. Fuhrmann's opinion that the care provided to Resident 8 was appropriate and that there is nothing in the record which demonstrates that anything less than adequate hydration was provided to this resident. This opinion was accepted.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the allegations set forth in relation to the TAG 327. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 12th day of June, 2001. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
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 issues are thus whether the acts and omissions charged occurred, whether they constitute violations of Section 400.022(1)(j) and 400.141, Florida Statutes, and related rules, and whether an administrative fine is appropriate pursuant to 400.102(c) and Section 400.121, Florida Statutes. Upon the commencement of the hearing, the petitioner moved to amend paragraph 8 of its Complaint, so that the date "March 4" would read March 14." The motion was granted on the basis that there was only a clerical error involved and paragraph 8 correctly alleges that there-was a nursing staff shortage from February 20 to March 14, 1980. Eight witnesses were called by the Petitioner, and two by the Respondent. Ten exhibits were adduced as evidence. The Respondent has submitted and requested rulings upon ninety-five proposed findings of fact. In that connection, all proposed findings, conclusions, and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein they have been accepted, and to the extent such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith they have been rejected.
Findings Of Fact Manhattan Convalescent Center is a nursing home facility located in Tampa and licensed by the Department of Health and Rehabilitative Services. On January 22, February 20, February 25, March 3, March 6, and March 14, 1980, a number of Department employees representing the Department's medical review team, and the Office of Licensure and Certification, consisting of registered nurses, hospital consultants and Department surveillance team members, made inspections of the Respondent's facility for the purpose of ascertaining whether the premises, equipment and conduct of operations were safe and sanitary for the provision of adequate and appropriate health care consistent with the rules promulgated by the Department and whether minimum nursing service staff standards were being maintained. Thus, on January 22, 1980 a member of the medical review team, witness Maulden, observed a rat run across the floor in one of the wings of the nursing home facility. On February 20, Muriel Holzberger, a registered nurse and surveyor employed by the Petitioner, observed rodent droppings in one of the wings of the facility and on February 20, March 12 and March 14, 1980, numerous roaches were observed by various employees of the Department making inspections throughout the facility. On February 20, 1980 strong urine odors were present on the 200, 300 and 400 wings of the facility as well as in the lobby. The odor was caused by urine puddles under some patients' chairs in the hallway, wet sheets, and a spilled catheter. On February 20 and 25, 1980 the grounds were littered with debris and used equipment, the grass and weeds on the grounds needed cutting and there was a build up of organic material, food spills and wet spots on the floors. The Respondent's witness, Ann Killeen, as well as the Petitioner's hospital consultant, Joel Montgomery, agreed that a general state of disrepair existed at the Respondent's facility, consisting of torn screens, ill fitting exterior doors with inoperative or missing door closers and missing ceiling tile. Interior and exterior walls were in need of repair and repainting. Additionally, eleven bedside cords for the nurse paging system were cut, apparently by patients, and on February 25, 1980, a total of 36 nurse paging stations were inoperative. A substantial number of these cords were cut by a patient (or patients) with scissors without the knowledge of the Respondent and steps to correct the condition were immediately taken. On January 22, 1980 Petitioner's representatives, Mary Maulden and Alicia Alvarez, observed a patient at the Respondent's facility free himself from physical restraints, walk down the hall and leave the facility. A search for nursing staff was made but none were found on the wing. After three to five minutes the Assistant Director of Nurses was located and the patient was apprehended. Nurse Alvarez's testimony revealed that the Respondent's nursing staff was in and out of, and working in that wing all that morning except for that particular point in time when the patient shed his restraints and walked out of the facility. On March 3, 1980 Department employee, William Musgrove, as part of a surveillance team consisting of himself and nurse Muriel Holzberger, observed two patients restrained in the hall of the facility in chairs and Posey vests, which are designed to safely restrain unstable patients. The witness questioned the propriety of this procedure, but could not establish this as a violation of the Respondent's patient care policies required by Rule 10D-29.41, Florida Administrative Code. The witness reviewed the Respondent's written patient care policy required by that Rule and testified that their policy complied with it and that the policy did not forbid restraining a patient to a handrail in the facility as was done in this instance. The witness was unable to testify whether patients were improperly restrained pursuant to medical orders for their own or other patients' protection. A hospital consultant for the Department, Bill Schmitz, and Marsha Winae, a public health nurse for the Department, made a survey of the Respondent's facility on March 12, 1980. On that day the extensive roach infestation was continuing as was the presence of liquids in the hallways. On February 20, 1980 witness Joel Montgomery observed a lawn mower stored in the facility's electrical panel room which is charged as a violation in paragraph 3 of the Administrative Complaint. The lawn mower was not shown to definitely contain gasoline however, nor does it constitute a bulk storage of volatile or flammable liquids. Nurse Holzberger who inspected the Respondent's nursing home on February 20, February 25, March 3 and March 6, 1980, corroborated the previously established roach infestation and the presence of strong urine odors throughout the facility including those emanating from puddles under some patients' chairs, the soaking of chair cushions and mattresses and an excess accumulation of soiled linen. Her testimony also corroborates the existence of 36 instances of inoperative nurse paging devices including the 11 nurse calling cords which had been cut by patients. This witness, who was accepted as an expert in the field of proper nursing care, established that an appropriate level of nursing care for the patients in this facility would dictate the requirement that those who are incontinent be cleaned and their linen changed more frequently and that floors be mopped and otherwise cleaned more frequently. Upon the second visit to the facility by this witness the nurse call system had 9 paging cords missing, 11 cords cut, and 15 of the nurse calling devices would not light up at the nurses' station. This situation is rendered more significant by the fact that more than half of the patients with inoperative nurse paging devices were bedridden. On her last visit of March 6, 1980 the problem of urine puddles standing on the floors, urine stains on bed linen, and resultant odor was the same or slightly worse than on the two previous visits. An effective housekeeping and patient care policy or practice would dictate relieving such incontinent patients every two hours and more frequent laundering of linen, as well as bowel and bladder training. On March 6, 1980 controlled drugs were resting on counters in all of the facility's four drug rooms instead of being stored in a locked compartment, although two of the drug rooms themselves were locked. The other two were unlocked, but with the Respondent's nurses present. Ms. Holzberger participated in the inspections of March 3 and March 6, 1980. On March 3, 1980 there were no more than 14 sheets available for changes on the 4:00 p.m. to midnight nursing shift. On March 6, 1980 there were only 68 absorbent underpads and 74 sheets available for changes for approximately 65 incontinent patients. The unrefuted expert testimony of Nurse Holzberger established that there should be available four sheets for each incontinent patient per shift. Thus, on these two dates there was an inadequate supply of bed linen to provide changes for the incontinent patients in the facility. On March 6, 1980 Nurse Holzberger and Nurse Carol King observed 12 patients who were lying on sheets previously wet with urine, unchanged, dried and rewet again. This condition is not compatible with generally recognized adequate and appropriate nursing care standards. Incontinent patients should be examined every two hours and a change of sheets made if indicated. If such patients remain on wet sheets for a longer period of time their health may be adversely affected. On March 6, 1980 these same employees of the Petitioner inspected a medical supply room and found no disposable gloves, no adhesive tape, no razor blades and one package of telfa pads. There was no testimony to establish what the medical supply requirements of this facility are based upon the types of patients it cares for and the types and amounts of medical supplies thus needed. The testimony of Robert Cole, the facility's employee, who was at that time in charge of dispensing medical supplies, establishes that in the medical supply room (as opposed to the nurses' stations on the wings) there were at least six rolls of tape per station, 50 razors, four boxes or 80 rolls, 300 telfa pads and 200 sterile gloves. Nurses Holzberger and King made an evaluation of the Respondent's nurse staffing patterns. Ms. Holzberger only noted a shortage of nursing staff on February 24, 1980. Her calculations, however, were based on an average census of skilled patients in the Respondent's facility over the period February 20 to March 4, 1980 and she did not know the actual number of skilled patients upon which the required number of nursing staff present must be calculated on that particular day, February 24, 1980. Further, her calculations were based upon the nurses' "sign in sheet" and did not include the Director of Nurses who does not sign in when she reports for work. Therefore, it was established that on February 24 there would be one more registered nurse present than her figures reflect, i.e., the Director of Nurses. Nurse King, in describing alleged nursing staff shortages in the week of March 7 to March 13, 1980, was similarly unable to testify to the number of skilled patients present on each of those days which must be used as the basis for calculating required nursing staff. She rather used a similar average patient census for her calculations and testimony. Thus, neither witness for the Petitioner testifying regarding nursing staff shortages knew the actual number of patients present in the facility on the days nursing staff shortages were alleged. In response to the problem of the roach infestation, the Respondent's Administrator changed pest control companies on March 26, 1980. The previous pest control service was ineffective. It was also the practice of the Respondent, at that time, to fog one wing of the facility per week with pesticide in an attempt to control the roaches. Further, vacant lots on all sides, owned and controlled by others, were overgrown with weeds and debris, to which the witness ascribed the large roach population. The problem of urine odors in the facility was attributed to the exhaust fans for ventilating the facility which were inoperable in February, 1980. She had them repaired and, by the beginning of April, 1980 (after the subject inspections), had removed the urine odor problem. The witness took other stops to correct deficiencies by firing the previous Director of Nurses on March 14, 1980, and employing a new person in charge of linen supply and purchasing. A new supply of linen was purchased in February or March, 1980. The Respondent maintains written policies concerning patient care, including a provision for protection of patients from abuse or neglect. The Respondent's Administrator admitted existence of the torn screens, broken door locks, missing ceiling tiles and the roach infestation. She also admitted the fact of the cut and otherwise inoperable nurse paging cords in the patients' rooms, but indicated that these deficiencies had been repaired. The various structural repairs required have been accomplished. All correction efforts began after the inspections by the Petitioner's staff members, however.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the evidence in the record, it is RECOMMENDED that for the violations charged in Counts I, II, IV, VI, IX and X of the Administrative Complaint and found herein to be proven, the Respondent should be fined a total of $1,600.00. Counts III, V, VII and VIII of the Administrative Complaint should be dismissed. DONE AND ENTERED this 31st day of March, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1981. (904) 488-9675 COPIES FURNISHED: AMELIA PARK, ESQUIRE JANICE SORTER, ESQUIRE W. T. EDWARDS FACILITY 4000 WEST BUFFALO AVENUE, 4TH FLOOR TAMPA, FLORIDA 33614 KENNETH E. APGAR, ESQUIRE EDWARD P. DE LA PARTE, JR., ESQUIRE 403 NORTH MORGAN STREET, SUITE 102 TAMPA, FLORIDA 33602
