The Issue Whether Shady Rest Care Pavilion, Inc. failed to maintain the nutritional status of one of its residents so as to justify the imposition of a conditional license rating upon the facility and an administrative fine of $2,500.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Shady Rest is licensed by the Agency as a skilled nursing facility. Shady Rest's license number is SNF1497096. The Agency conducted an on-site survey of Shady Rest from July 30, 2001, to August 2, 2001. At the time of the survey, Shady Rest's licensure status was standard. The survey was conducted by a "team" that included dietitian Lori Riddle and other health care professionals. The survey team identified several deficiencies at the facility. The deficiencies were detailed on the Form 2567 which was provided to Shady Rest by the Agency. The only deficiency still at issue in this proceeding is the Tag F325 which was summarized on the Form 2567 as follows: Based on observations, clinical record review and staff interviews, the facility failed to ensure that nutritional needs were met for 3 (Residents 11, 21 and 22) of 5 active sampled residents receiving tube feeding who were at high risk for malnutrition as evidenced by significant weight loss, low albumin and total protein levels and recurring pressure sores. The survey team classified the Tag F325 at Level "G" (i.e., isolated actual harm) on the federal scope and severity matrix, which corresponds to an isolated Class II deficiency under the Florida classification scheme. Based upon the cited Class II deficiency, the Agency issued a notice of intent to change Shady Rest's licensure status from standard to conditional, and the Agency initiated a separate action to impose an administrative fine upon Shady Rest. This proceeding followed. At the hearing, the Agency narrowed the focus of the alleged deficiency from the three residents identified on the Form 2567 to only one, Resident 11. No evidence or testimony was presented regarding any other residents. Resident 11 is a female. At the time of the survey, she was 89 years old, 64 inches (five feet, four inches) tall, and weighed 145 pounds. She has been at Shady Rest since 1987. A care plan for Resident 11 was developed by a "team" that included the director of nursing at Shady Rest, a nurse (Sonja Reece, R.N.), a dietitian (Ann Marie Shields, R.D.), two care plan coordinators, and social service and activity personnel. Members of the care plan team worked closely with Resident 11's physician, Dr. Lakshmi Bushan, to manage Resident 11's medical conditions. Dr. Bushan was actively involved with the care of Resident 11 and was very familiar with her conditions. Dr. Bushan was at the facility on a weekly basis and sometimes several times per week. Resident 11 is totally dependent on Shady Rest and its staff for the provision of nutrition. She is fed through a tube connected directly to her stomach. Resident 11 is a "very complex resident" as a result of a myriad of serious medical conditions, including heart attack, seizure disorder, edema (i.e., swelling of the tissues due to fluid retention), hiatal hernia with reflux, pemphagus (i.e., an autoimmune disease resulting in blisters around the body), congestion in the lungs which caused breathing problems, kidney disease, and liver problems. She was also prone to skin breakdown. The treatment of Resident 11 was complicated by the fact that management of one of her conditions would exacerbate another. For example, the Prednisone she was taking to treat her pemphagus increased her fluid retention and, hence, her edema; but, Lasix, the diuretic she was taking for the edema, caused her to have diarrhea which led to the breakdown of her skin from constant cleaning and put her at risk of dehydration and kidney failure. Resident 11's edema was at a dangerous level, referred to as "3+ pitting edema." Relieving the edema was determined to be of critical importance to Resident 11 by her physician. The fluid retention in Resident 11's lungs caused her to suffer from shortness of breath which could ultimately lead to congestive heart failure. Because Resident 11 did not respond well to Lasix and because it actually exacerbated her other medical problems (i.e., skin breakdown), a fluid reduction diet was deemed necessary by her physician. Resident 11 was overweight, partially due to her edema. Resident 11's weight contributed to and exacerbated her medical conditions, particularly her congestion and breathing problems, and it enhanced her risk of congestive heart failure. On April 3, 2001, Dr. Bushan ordered an evaluation of Resident 11's nutritional status and the adequacy of her tube feeding. Resident 11 weighed 163 pounds on that date. On April 4, 2001, Ms. Shields, performed the evaluation ordered by Dr. Bushan. Ms. Shields calculated the total calories per day (cal/day) needed by Resident 11 based upon a standard formula. She then subtracted 400 cal/day to take into account the weight loss desired by Dr. Bushan. Ms. Shields' calculation resulted in an estimated caloric need for Resident 11 of 1,100 to 1,200 cal/day. Because the feeding ordered at that time provided 1,125 cal/day, which was within the range computed by Ms. Shields, no changes were made to Resident 11's diet at that time. Resident 11 was, however, taken off Lasix at that time because it was not contributing significantly to her weight loss and it was putting her at risk for dehydration and kidney failure. Resident 11's weight dropped only slightly after the April 4, 2001, evaluation. On May 1, 2001, she weighed 159 pounds and on June 1, 2001, she weighed 158 pounds. Dr. Bushan wanted Resident 11 to lose more weight more rapidly to stabilize her serious medical conditions. Accordingly, on June 13, 2001, Dr. Bushan requested a dietary consultant to check the amount of Resident 11's tube feedings in order to implement a planned weight loss program to reduce Resident 11's weight to 145 to 150 pounds. Ms. Shields conducted the assessment on June 14, 2001, and after consulting with Resident 11's care plan team, she recommended to Dr. Bushan that Resident 11's caloric intake be reduced from 1,125 cal/day to 750 cal/day to accomplish the rapid and significant weight loss desired by Dr. Bushan. Dr. Bushan accepted Ms. Shield's recommendations and ordered the reduction in calories on June 14, 2001. On that date, Resident 11 weighed 158 pounds. Resident 11's care plan was updated on June 14, 2001, to reflect the goal of reducing her weight by not more than five pounds per week until she reached less than or equal to 150 pounds. The dietary change achieved the desired effect of rapidly reducing Resident 11's weight and stabilizing her medical conditions. Her weight records showed the following: Date June 20, 2001 Weight 153 June 27, 2001 153 July 4, 2001 152 July 11, 2001 153 July 18, 2001 152 July 25, 2001 n/a August 2, 2001 145 The dietary notes for August 1, 2001, indicate that Resident 11's "weight goal was met" and recommended a dietary change to increase Resident 11's caloric intake to 1,000 cal/day. The record does not include the doctor's order implementing that recommendation. However, by August 8, 2001, Resident 11's weight was at 151 pounds, suggesting that the dietary change was implemented. Between the June 14, 2001, dietary change and the August 2, 2001, survey, Resident 11 lost 13 pounds, which is an 8.2 percent weight loss. For the three-month period of May 1, 2001 through August 2, 2001, Resident 11 lost 14 pounds, which is an 8.8 percent weight loss. Resident 11's edema improved significantly during this period; it was no longer at the "3+ pitting edema" level. In this regard, some of Resident 11's weight loss is attributable to the elimination of retained fluids (i.e., reduction in her edema), which was a significant purpose of the weight loss program. The amount of the weight loss attributable to the fluid loss is not quantifiable. The federal guidelines discussing Tag F325, which the Agency's survey team uses in its evaluation of a facility, state that "weight loss (or gain) is a guide in determining nutritional status" and identify parameters to be used in evaluating the significance or severity of weight loss. The 8.8 percent weight loss experienced by Resident 11 over a three- month period would be considered "severe" based upon the parameters. The parameters in the federal guidelines specifically refer to "unplanned and undesired weight loss." By contrast, the weight loss experienced by Resident 11 was planned and desirable. It was directed by Dr. Bushan after Ms. Shield's dietary consultation in order to reduce Resident 11's fluid intake and her edema while also promoting rapid weight loss to minimize her congestion and related breathing problems. The estimated protein needs for Resident 11 were 53 to 57 grams per day. The protein that she was being given, both prior to and after the June 14, 2001, dietary change was within that range. Increasing Resident 11's protein to offset the calorie reduction was not considered a viable option for Resident 11 because her history showed that the more protein she received the more weight she gained. Moreover, too much protein could cause liver failure, which was a risk for Resident 11. When the body is not receiving enough calories, it can metabolize protein as a calorie source rather than for the purposes protein is normally used, such as health of the skin. Resident 11 experienced skin breakdown (i.e., pressure sores or decubitus ulcers) after the June 14, 2001, dietary change. The sores were very small in size and, consistent with Resident 11's past history, the sores healed quickly. Therefore, they are not indicative of a protein deficiency. Indeed, subsequent to the dietary change, Resident 11's skin turgor was good. The laboratory reports for Resident 11 showed her having low albumin levels after the dietary change. Low albumin is generally an indicator of insufficient protein in the body. However, as noted above, the rate at which Resident 11's skin healed suggests that she was getting sufficient protein. Resident 11's low albumin level, in and of itself, is not determinative of her nutritional status. Indeed, the federal guidelines provided to the survey team state: Because some healthy elderly people have abnormal laboratory values, and because abnormal values can be expected in some disease processes, do not expect laboratory values to be within normal ranges for all residents. Consider abnormal values in conjunction with the resident's clinical condition and baseline abnormal values. Even before the June 14, 2001, dietary change, Resident 11's albumin level was not within the normal range. Her abnormal albumin levels may have been the result of her liver problems. Dr. Bushan and the care plan team at Shady Rest managed Resident 11's care based upon their clinical observations of her in conjunction with their experience regarding what worked for her in the past, not simply based upon her laboratory values. They were constantly weighing standards of practice with what was actually happening with Resident 11.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order which: Dismisses the Administrative Complaint against Shady Rest Care Pavilion in DOAH Case No. 02-1291; and Rescinds the notice of intent to assign conditional licensure status to Shady Rest Care Pavilion in DOAH Case No. 02-1965 and retains the facility's standard licensure status. DONE AND ENTERED this 26th day of August, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 26th day of August, 2002.
Findings Of Fact On or about October 22, 1968, the Petitioner began his employment with Respondent's Police Department as a police officer, reaching the position of second in command in the early 1970s. At all times material hereto, the Petitioner has held the rank of Captain, reporting directly to the Chief of Police as second in command of the Police Department. The duties of Captain include: (a) the supervision and coordination of subordinate personnel engaged in law enforcement activities; (b) planning, organizing, evaluating and directing personnel involved in station and field operations; (c) evaluating assigned personnel for efficiency and effectiveness; (d) reviewing all reports for accuracy; (e) representing the Police Department at civic, community and law enforcement meetings; (f) determining situations requiring personal attention and exercising optional command over dispatch operations; and (g) supervising the general direction and procedures of investigative actions. In addition, other duties may be assigned to the Captain by the Chief. Blaine LeCouris was the Chief of Police from 1975 to 1985. During the latter years of his tenure as Chief, LeCouris observed a reduction in Petitioner's performance. He was dissatisfied with Petitioner's performance in 1984 while he was serving as Acting City Manager and Petitioner was in charge of the day to day operations of thee Police Department. Petitioner was frequently absent from duty, and could not be reached. LeCouris removed certain training duties from Petitioner because of his dissatisfaction with his performance, and reassigned them to a subordinate officer. From August 1985 until April 1987, Carl Hernandez served as Chief of Police. During this time, the Petitioner did not carry out his duties in a satisfactory manner. He needed constant supervision and was regularly absent without explanation, showed little initiative, had a careless attitude, and was suspended for two days over an incident involving the police dispatcher. Hernandez removed certain administrative duties from Petitioner, and reassigned them to a subordinate due to Petitioner's inability to get things done in a timely manner. William Lyght served as Interim Chief from July to October 1987, and during this time he formed the opinion that Petitioner was a very poor administrator who could not meet deadlines, or communicate effectively with the public or others in the Police Department. He observed Petitioner sleeping in his office while on duty on three or four occasions, and regularly had difficulty finding him. Lyght testified that Petitioner did not have a "command grasp" of his position or its duties. He counseled Petitioner about his performance, as well as his excessive weight which he felt was hindering Petitioner's performance, but he did not discipline Petitioner since he was only serving on an interim basis. On October 27, 1987, Keith R. Bergstrom was appointed Chief of Police. Within his first few months as Chief, Bergstrom met with Petitioner on several occasions about his dissatisfaction with Petitioner's performance, including specifically his inattention to detail, absences, sloppiness of appearance and of work product, and his inability to direct and organize the employees of the Police Department. On January 11, 1988, an incident involving a hostage occurred in the City of Tarpon Springs. Petitioner was not at the hostage scene, and did not come to the scene when notified by telephone of the incident. Rather, Petitioner attempted to exercise partial command via the telephone from his home, and did not clearly delineate who was in charge at the scene. He testified that he was unable to come to the hostage scene because he was suffering from severe diarrhea, and his feet and legs were swollen badly. Chief Bergstrom verbally counseled Petitioner about this incident and wrote him a memorandum requesting his answers to specific questions about Petitioner's handling of this matter. In his written response, Petitioner incorrectly numbered several paragraphs, and in several places used incorrect words or spellings. The Petitioner has admitted that he has trouble with paper work, and with communications, either verbal or written. On February 2, 1988, Chief Bergstrom again counseled Petitioner, and wrote him a memo confirming the fact that on January 27, 1988, Petitioner had failed to carry out a specific instruction to seek out information, brief police officers, and provide for the proper supervision of the repossession of an automobile. Additionally, he was instructed to keep his beeper on while at home when he was serving as Acting Chief in Bergstrom's absence since there had been an incident on February 2, 1988, when Chief Bergstrom was out of town and the Petitioner could not be reached either by telephone or beeper. On March 10, 1989, Chief Bergstrom evaluated Petitioner's performance from October 1987 to October 1988, and issued a warning and a directive to correct deficiencies involving the quality and quantity of Petitioner's work, his ability to work with others, absenteeism and tardiness, and his personal demeanor. Petitioner's work was characterized as untimely, sloppy, inaccurate and incomplete. Bergstrom noted that Petitioner was unwilling to make decisions, or to accept responsibility for those he did make. Petitioner required constant, close supervision in order to get any work done, and Bergstrom concluded that Petitioner had to make "major improvements" in every evaluation category. Following this evaluation, Petitioner's work did not improve. Chief Bergstrom continued to counsel him about his performance, and ordered him to take a forty hour management course. On March 7, 1989, Petitioner was reprimanded because he had a City vehicle repaired prior to obtaining a purchase order, contrary to standard procedure. Petitioner offered as an explanation of his action that he wanted to return the vehicle to service as soon as possible, and that he felt the job had been done at the lowest possible cost to the City. On August 14, 1989, Chief Bergstrom wrote Petitioner a memo informing him that an auxiliary officer associated with the Police Department, who had been hired by the Petitioner while he was Acting Chief, had been arrested that day on three counts of the sale and possession of cocaine. Chief Bergstrom requested some background information on this auxiliary officer's hiring. In response, Petitioner wrote that the position of auxiliary officer "is not a sworn position", and that this officer was only a "helping officer." Petitioner's response evidences that he did not understand the nature of the position of auxiliary officer, nor the need to make more complete background checks of such officers before they are hired. In his position as Captain, Petitioner was responsible for the payroll, and in that capacity had been authorizing the payment of premium holiday pay whether an employee worked one hour on a holiday or some longer period. Chief Bergstrom became concerned about this practice because, at times, work on a holiday would only constitute part of a shift. He felt that premium pay should only be paid for that part of a shift falling on the holiday, and the remainder of the shift should be paid at their regular rate of pay. In response to Bergstrom's concerns, the Petitioner wrote him a memo on September 7, 1989, stating that to his knowledge there was no set policy on the subject, and that if an officer worked any part of his shift on a holiday, it had been his practice to pay the officer for his entire shift at premium pay, if the officer requested such payment. Because the Petitioner had been in charge of payroll ever since Bergstrom had become Chief, Bergstrom felt that a uniform policy on this subject should already have been developed. As a result, in the Fall of 1989, Chief Bergstrom directed Petitioner to develop a payroll manual so that there would be definite, uniform policies to cover all payroll functions. Bergstrom changed Petitioner's assignment and placed him in charge of "special projects" in order to give him time to devote to this project almost exclusively, and also because Petitioner had announced his intention to run for the City Council. Deadlines were established by Bergstrom for Petitioner's completion of this manual, but at Petitioner's request these deadlines were extended several times. Finally, on January 3, 1990, Chief Bergstrom directed that Petitioner turn over to him whatever work he had completed on the manual. After two months, the document was not close to being in final form. This failure to complete an assigned project was consistent with Petitioner's performance on other special projects assigned to him, which ultimately required Chief Bergstrom to take more time correcting errors and checking for completeness than if he had done the entire project himself. Patricia Haynes is the secretary in the Chief's office who worked with both the Chief and the Captain. She testified that she observed Petitioner sleeping at his desk and by the coffee pot during the workday on several occasions, and that Petitioner was frequently hard to find during the workday. It was the established policy of the Police Department to require all employee's to report outside employment. This policy was initially set forth in a memo from then-Chief Hernandez in April 1985, and was confirmed in March 1989, through a memo from the Personnel Department reminding all employees of this policy. On December 15, 1989, the Petitioner completed a Notification of Outside Employment form in which he indicated he had begun outside employment delivering newspapers at night in October 1989. In fact, Petitioner began employment delivering newspapers with the St. Petersburg Times on May 27, 1989. Although he indicated to Chief Bergstrom that he had been unaware of this established policy, Petitioner had been Captain of the Police Department and second in command from the initial inception of this policy. Other officers of lower rank who Petitioner identified as also having failed to comply with this policy, contradicted his testimony and stated that they had, in fact, filed the appropriate notification form. Rule 8 of the City's Personnel Rules and Regulations has been in effect and has remained the same at all times material hereto, requiring all employees to provide information about outside employment prior to beginning employment. The failure to furnish such information is deemed an infraction and a separate cause for dismissal. On October 30, 1987, Chief Bergstrom directed Petitioner to lose weight to a level appropriate to his height and age. Petitioner informed Bergstrom that he was about to begin an extensive weight loss program, including counselling, which might take up to two years to complete. The Chief indicated that if requested by Petitioner he would recommend that Petitioner be given financial assistance for this program. It was the opinion of Bergstrom that Petitioner was not physically fit to perform his duties and that his physical appearance engendered disrespect for his rank and the Police Department as a whole. Petitioner is between 5 feet 8 to 5 feet 10 inches tall, and his birthdate is June 24, 1942. During the time when William Lyght served as Interim Chief, Petitioner's weight exceeded 400 pounds. Approximately one month prior to the hearing in this matter, Petitioner's weight was found to be 346 pounds, according to Maurice Bonilla, M.D. At all times material hereto, Petitioner has been severely overweight, with a weight that is not appropriate for his height and age. In early 1988, Petitioner enrolled in the weight loss program at Total Fitness, Inc., and according to Dean Cosgrove, who was accepted as an expert in weight counselling, Petitioner weighed 383 pounds at the beginning of this program, and by April 1988, his weight had been reduced to 341 pounds. To achieve this weight loss, Petitioner was put on a liquid diet of 520 calories a day, with walking exercises. He had minimal side effects from this liquid diet, according to Cosgrove. However, Petitioner discontinued the program from May 1988 to January 1989, when he reenrolled and was weighed at 373 pounds. In November 1988, Petitioner incorrectly informed Chief Bergstrom by memo that he was still on the weight loss program through Total Fitness, but that he had been taken off the liquid diet for health reasons. There is nothing in the record to substantiate Petitioner's memo of November 22, 1988, to Bergstrom concerning the status of his weight loss program. After resuming the program, Petitioner reduced his weight from 373 pounds in January 1989, to 348 pounds in March 1989. Cosgrove testified that he is unaware of any reason why Petitioner could not lose weight on the Total Fitness program. There is no record of Petitioner suffering from severe diarrhea while on the liquid diet program. In September 1989, Petitioner enrolled in a different program to tone muscles and improve his appearance through a facility called Tender Toning. At the start of this program, his weight was 338 pounds and in November 1989, when he discontinued this program, his weight was 332 pounds. Marcus Occhipinti, M.D., who was accepted as an expert in medicine, characterized Petitioner as "excessively obese", and diagnosed him from his medical history as having "Pickwickian syndrome" which causes sudden, unexpected sleepiness during the day, and which can only be cured through weight loss. Dr. Maurice Bonilla characterized this condition as a disorder of obesity which causes a person to spontaneously fall asleep without warning. Dr. Bonilla did not diagnose Petitioner as having this condition. Dr. Occhipinti testified that he told Petitioner that he had Pickwickian syndrome on his first visit with him, but Petitioner denied he was ever told of this condition and does not feel that he has it. According to Dr. Bonilla, who was as accepted as an expert in medicine and who specializes in the treatment of high risk obesity patients, 170 pounds is an appropriate weight for a person 5 feet 8 inches tall with a large frame like Petitioner's. An appropriate and reasonable goal weight for Petitioner would be 200 pounds, the goal suggested by Chief Bergstrom for Petitioner. Dr. Bonilla's experience in diagnosing and treating obese patients is far greater than Dr. Occhipinti's, and therefore, Dr. Bonilla's testimony is found to have greater weight than that of Dr. Occhipinti. Even Dr. Occhipinti, however, testified that there is no medical reason why Petitioner cannot lose weight. It is found, therefore, that Petitioner's overweight condition is not due to any disability, including Pickwickian syndrome. On December 27, 1989, Chief Bergstrom delivered to the Petitioner a direct order that he appear at Dr. Bonilla's office on January 3, 1990, so that he could be weighed to determine what progress, if any, he had made in achieving any weight loss. The Petitioner did not keep this appointment. Prior to January 3, 1990, a law suit was initiated on Petitioner's behalf in Federal District Court, and a protective order was sought to prevent Petitioner from having to keep this appointment. On January 4, 1990, the day after the scheduled appointment, an Order was entered in Case No. 89-1634-CIV-T-17C which stayed the physical examination of Petitioner until further Order of the Federal District Court. Chief Bergstrom has warned others in the Police Department about being overweight. Specifically, on February 9, 1989, Chief Bergstrom noted on his evaluation of Bobby Lockhart, Jr., a narcotics detective, that he had to reduce his weight. At that time, Lockhart, who is six feet tall, weighed 375 pounds. In response to counselling and a concerted weight loss program, by February 1990, Lockhart had reduced his weight to 277 pounds. Despite Petitioner's assertion that there are other overweight officers in the Police Department who have not been ordered to reduce their weight as he has been, no evidence was introduced to show that there are any other sworn officers in the Tarpon Springs Police Department whose stature is even remotely comparable to Petitioner's. To the contrary, it appears that Petitioner's overweight condition was by far the most severe among officers in the Police Department, which was particularly problematic for the person holding the position of second in command. Chief Bergstrom reasonably felt that Petitioner's weight hindered him in the performance of his duties, and that others in the Police Department and the public may view Petitioner's overweight condition as an indication of his lack of concern or interest in his position, and an absence of willpower and a sense of accountability, and that his appearance could reasonably be expected to engender a lack of respect for him in his position as second in command and for the Police Department. On January 9, 1990, Petitioner was informed that Chief Bergstrom had recommended that he be terminated, and he was given the right to respond to Bergstrom's charges that he had violated Rules 18(1)(b) and (1)(k) of the City's Personnel Rules and Regulations. After considering Petitioner's responses through counsel to these charges, a Notice of Discharge and Statement of Charges was issued to Petitioner, dated January 15, 1990, and approved by the City Manager on January 19, 1990, based upon Rules 18(1)(b) and (1)(k). This dismissal was effective on January 19, 1990. Thereafter, Petitioner timely filed an appeal of this matter before the City's Civil Service Board pursuant to Rule 18(9), and the final hearing in this case was held by the undersigned at the request of the Civil Service Board and with the agreement of the parties.
Recommendation Based upon the foregoing, it is recommended that the appeal of B. F. Johnson, Petitioner, be DISMISSED, and that his dismissal be AFFIRMED. DONE AND ENTERED this 20th day of September, 1990 in Tallahassee, Florida. DONALD D. CONN 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 20th day of September, 1990. COPIES FURNISHED: John A. Shahan, Esquire 526 East Tarpon Avenue Tarpon Springs, FL 34689 Thomas M. Gonzalez, Esquire 109 North Brush Street Suite 200 Tampa, FL 33601 Courtenay N. Crutcher, Chairman Civil Service Board City of Tarpon Springs P. O. Box 5004 Tarpon Springs, FL 34688-5004 Anthony L. Shoemaker, City Manager City of Tarpon Springs P. O. Box 1575 Tarpon Springs, FL 34686-1575
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and on the entire record of this proceeding, the following Findings of Fact are made. The Agency is authorized to license nursing home facilities in the State of Florida and, pursuant to Chapter 400, Part II, to evaluate nursing facilities and assign ratings. The Agency conducted a survey of Petitioner's facility from October 8 through 10, 2001. As a result of the survey, the Agency cited Petitioner for "fail[ing] to adequately assess and develop a plan of care to maintain acceptable parameters for a resident resulting in significant weight loss," and issued a Notice of Intent to change its licensure status to conditional. Petitioner timely challenged the conditional rating and filed a Petition for Formal Hearing. Pursuant thereto, a formal hearing was held on March 28 and 29, 2002. The Recommended Order, which was issued on August 14, 2002, recommended that the Agency enter a final order issuing a standard licensure rating to Petitioner and rescinding the conditional licensure rating. On February 18, 2003, AHCA issued a Final Order adopting the Findings of Fact and Conclusions of Law in the Recommended Order, ordering that a standard licensure rating be issued to replace the previously-issued conditional licensure rating, and rescinding the conditional licensure rating. As such, Petitioner was the prevailing party in the underlying case, DOAH Case No. 02-0049, AHCA 2001-071241. No appeal of the Final Order in the underlying proceeding was filed. On April 21, 2003, Petitioner filed a Petition for an Award of Attorney's Fees and Costs (Petition) with supporting affidavits. In the Petition, Petitioner sought relief under both the Florida Equal Access to Justice Act, Section 57.111, as well as pursuant to Subsection 120.569(2)(e). The Agency opposed the Petition. Although Petitioner requested an award of attorney fees under Subsection 120.569(2)(e), it presented no evidence that the Agency had filed any pleadings, motions, or other papers not properly signed or that any were interposed for any improper purpose. Accordingly, the undersigned will not consider an award of attorney fee's under Subsection 120.569(2)(e), and the focus of the evidence presented will be as to Section 57.111. The parties stipulated as to the reasonableness and amounts of the attorneys fees and costs. Reasonable attorney's fees are $21,547.50. The reasonable amount of costs is $4,183.82. The amount of attorney's fees and costs that may be awarded is limited to $15,000.00, based upon Subsection 57.111(3)(d)(2), which the parties agree is applicable to this proceeding. The Health Care Center of Naples, Inc., is a corporation with its principal office in Florida. At the time the underlying action was initiated by the Agency in October 2001, the Health Care Center of Naples, Inc., had a net worth of not more than $2 million. The net worth of Health Care Center of Naples, Inc., on October 31, 2001, was $158,048.65. The net worth of Health Care Center of Naples, Inc., for September 2001 was $190,829.22. The net worth of Health Care Center of Naples, Inc., for November 2001 was $171,726.44. The Administrative Complaint in the underlying proceeding, DOAH Case No. 02-0049, alleged that Petitioner failed to ensure that a resident maintained acceptable parameters of nutritional status. The basis of this allegation was the result of a survey which found that a resident had a significant weight loss from the period between July 30, 2001, to August 11, 2001. The Agency's Final Order, adopting the Recommended Order in Case No. 02-0049, found that the patient's weight loss was expected due to edema or third space fluid, resulting from the patient's being over-dehydrated before her recent surgery. Moreover, in the underlying proceeding, it was found that in determining that the resident had a significant weight loss, "the Agency surveyors based their calculations on an inaccurate usual body weight for the resident." As a result of these and other findings, the Agency's decision to change the status of Petitioner's licensure rating to conditional was rescinded. Although the Agency did not prevail in the underlying proceeding, the surveyors were substantially justified in citing Petitioner for the alleged deficiency, and the Agency was substantially justified in initiating the action. The Final Order found that the usual body weight relied upon by the surveyors in determining that the resident had a significant weight loss was obtained from the records of Petitioner. Also, the record in the underlying proceeding found that many of Petitioner's staff members were concerned about the resident's weight loss and did not consider that the weight loss was caused by edema. Finally, there is no indication in the record that at the time of the survey, Petitioner's staff gave the Agency surveyors any reasonable explanation for the resident's alleged significant weight loss. The evidence, which was the basis of the findings in the Final Order in the underlying proceeding, while available at the time of the survey, was not discovered or known to the surveyors and, to some extent, to Petitioner's staff.
The Issue The issue is whether Respondent's license as a medical doctor should be disciplined for the reasons given in the Administrative Complaints filed on October 17, 1997, and February 2, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times material hereto, Respondent, Duke H. Scott, was a licensed medical doctor having been issued license number ME 0013791 by the Board of Medicine (Board). Until 1998, Respondent practiced as a family physician at 1205 Beach Boulevard, Jacksonville, Florida. Except for the charges raised in this proceeding, there is no evidence that Respondent has ever been involved in a prior disciplinary action. Based on complaints filed by three former female patients, J. P., B. N., and S. C., Petitioner, Department of Health (Department), prosecuting this matter on behalf of the Board, issued an Administrative Complaint on October 17, 1997, alleging that while treating those patients between the years 1992 and 1994, Respondent improperly exercised influence in the patient-physician relationship for the purpose of engaging those patients in a sexual activity, and he engaged in sexual misconduct in the practice of medicine. Those three complaints are found in Case No. 98-0985. On February 2, 1998, the Department issued a second Administrative Complaint alleging that during the years 1992 through 1995 Respondent engaged in similar activity with two other female patients, C. A. and A. G. Those two complaints are found in Case No. 98-0785. Respondent has denied all allegations of misconduct and requested a hearing for the purpose of contesting the charges. Because the parties presented sharply conflicting versions of events, the undersigned has accepted the most credible testimony and resolved those conflicts in the following manner. Respondent's Practice Respondent has worked as a family practitioner in Jacksonville, Florida, since the 1960's and has treated thousands of patients over the years. When the events herein occurred, he was employed as a physician by Health South, Inc. (HSI), a large medical organization, until HSI was bought out by another entity. In 1992 through 1994, when the alleged misconduct occurred, Respondent's typical day would begin around 5:30 a.m. or 6:00 a.m. when he made "morning rounds" at two local hospitals visiting patients. He then met with his office personnel at 7:30 a.m., and he began seeing patients shortly thereafter. His work day did not end until the last patient was seen, generally between 6:00 p.m. and 8:00 p.m., depending on the case load. In an average day, Respondent saw no fewer than twenty-five, and as many as sixty, patients. The regular staff, which numbered five or six, reported to work each morning by 7:30 a.m. Besides the regular staff, Respondent also hired temporary or part-time workers, often former or current patients, to staff the office after 4:00 p.m. so that some of his regular staff could be relieved. Respondent encouraged these part-timers to complete their education, he paid for their books and tuition while they worked in his office, and he arranged their work schedules around their classes. Because of his full work day, it was not unusual for Respondent to meet with potential part-timers at the end of the work day in his office to discuss possible employment and what their duties would entail. The staff was divided into "front" and "back" staff, which meant they either worked in the front reception area answering the telephone, making appointments, receiving payments, and processing insurance claims, or they worked in the back assisting the doctor when he was seeing patients. As a rule, part-timers worked with the front staff and not with patients. During the early 1990's, Respondent had a fairly large contingent of patients who were on a weight loss program. After an initial comprehensive examination, these patients would return on a periodic basis at 7:30 a.m. for weight and blood pressure checks and a quick visit with Respondent to check on their progress. They remained fully clothed during follow-up visits. Unless they had a specific problem, the patients rarely saw the doctor for longer than a minute or two, and an assistant was always present to keep the patients moving. Beginning around 1985 or so, Respondent had a policy of always having a female assistant in the examination room whenever he conducted a pelvic or breast examination on a female patient. Whenever patients were required to disrobe, they were given a paper gown to wear. It was established that a female assistant would remain in the room until the examination was completed. During a pelvic examination, Respondent always wore a rubber glove on the hand that was being used for the examination. Finally, Respondent kept detailed patient records, and he would never do a breast examination without documenting this in the patient's chart. Unlike most modern era doctors, Respondent occasionally made house calls to family members of his patients when unusual circumstances arose. He followed up on concerns personally, and he treated whole families. In terms of his practicing style, Respondent would sometimes hug his patients, male and female, or even give the females a peck on the forehead before they left his office. This conduct was grounded on his care and concern for the patient, and not for sexual gratification. His style of personally caring for patients has become so rare in today's society that some patients might misinterpret this behavior. The Charges Each of the five patients who filed charges with the Department was either represented in a civil action, or signed an affidavit prepared, by the same Jacksonville attorney. Their claims will be discussed separately below. Patient C. A. In September 1997, C. A. read an article in a local newspaper regarding a civil lawsuit filed against Respondent and certain other defendants by J. P., S. C., and B. N. Motivated by the fact that she could "help out getting [Respondent's] license taken away," she contacted the attorney who was representing the plaintiffs and agreed to sign an affidavit prepared by him. The attorney then mailed it to the Department. She offered no plausible explanation as to why she had waited five years after the alleged misconduct occurred before making a complaint. Respondent's initial contact with C. A. occurred on November 16, 1992, or five years earlier, when she was eighteen years old, after she fell out of a jeep, broke her ankle, and suffered multiple bruises and contusions. Using her parents' health insurance policy, she visited Respondent's office on seven occasions for treatment of her ankle between November 16 and December 30, 1992. She had no complaints regarding his conduct while visiting him for treatment on those occasions. At hearing, C. A. contended that on an undisclosed date in late 1992, at Respondent's invitation, she rode with him to his condominium where they ate a take-out dinner and he mixed her one drink, ostensibly for the purpose of discussing a part-time job at his office. Respondent denied that this occurred. She also claimed that they met several times at his office "after dark," when the office was empty, for "training" sessions. While she felt "uncomfortable" and "weird" in those settings, she conceded that Respondent never raised the subject of sex, never asked her to engage in sexual relations, and never tried to inappropriately touch her. C. A.'s recollection of the alleged events was somewhat hazy. For example, she claimed that Respondent showed her around the condominium, but her description of the condominium was inaccurate. She could not recall the specific dates or times that she visited his office, except that it was after 5:30 p.m., when it became dark. She agreed that it was probably between 6:00 and 7:00 p.m., but if this were true, there would still have been patients or staff in the office at that time, as well as the cleaning crew. She also says that on one occasion, she got some basic training on how to take blood pressure; that training, however, was always given by an assistant, rather than Respondent, and in any event, she would have been hired as "front" staff to meet patients rather than assisting the doctor in treating them. C. A. says that she related Respondent's alleged misconduct to her "mom, stepmother, grandmother, and roommate," and to her present husband, whom she met a few months after last seeing Respondent in December 1992. Except for her husband, no one appeared at hearing to corroborate this assertion. As to the husband, his testimony has been discredited as being biased since he was evicted as a tenant from a rental property owned by Respondent. This occurred after he made an unannounced visit to Respondent's home one Sunday afternoon seeking reimbursement for some painting expenses. During that visit, he banged on the door and windows of Respondent's home until Respondent threatened to call the police and have him arrested. Because of his animosity towards Respondent, it is fair to suspect that he may have motivated his wife to bring these charges or color her testimony. For the foregoing reasons, the testimony of C. A. has not been credited. Even assuming arguendo that the events described by C. A. occurred, there is less than clear and convincing evidence that Respondent exercised influence within this relationship for the purpose of engaging C. A. in sexual activity, as alleged in the complaint. Patient A. G. Like C. A., A. G. read a local newspaper story which detailed the fact that three other patients had filed a lawsuit against Respondent and certain other defendants. She also read that one or more of the actions had been settled for money by the other defendants. After contacting the plaintiffs' attorney, she learned that the statute of limitations barred her from filing a claim. She agreed, however, to sign an affidavit executed by the attorney, who then filed it with the Department. A. G. first visited Respondent in September 1992 to seek assistance in controlling her weight. She was referred to Respondent by her mother, who was also a weight loss patient and a "long time" friend. A. G. continued in the weight loss program for around nine months. In her complaint, A. G. contended that Respondent always asked her to remove her bra, without any attendant being present, while he conducted her follow-up weight loss examinations. Although he never touched her breasts, she complained that she was "uncomfortable" without a top, and that he sometimes positioned himself much closer to her than was necessary. Once, she says he brushed his body against her while examining her eyes and ears. Besides these office visits, A. G. also contended that Respondent approached her to discuss the possibility of her appearing in a scuba diving instruction video he wished to produce. A meeting at his office, however, never materialized. A. G.'s testimony contained many inconsistencies. For example, at one point, she contended that she was asked by Respondent to take off her bra on "every" office visit; she later testified that he asked her to do so on some occasions; she finally testified that this occurred only once. Even then, she conceded that Respondent had never touched her breasts during any office visit. A. G. also recalled Respondent wearing an old fashioned doctor's band with a little silver "thing" on the top of his head. His office staff established, however, that he does not use such a device. The testimony regarding weight checks by Respondent's former office staff was unequivocal that weight patients are fully clothed; that evidence has been accepted as being the most credible on this issue. Visits by weight program patients took no more than a minute or two at most, and an assistant was always in and out of the room to ensure that Respondent moved on to the next waiting patient. In 1995, after having not seen him for over two years, A. G. returned to Respondent's office and requested that he give her a medical excuse to cover an unauthorized leave of absence from her job. Although A. G. denied that this occurred, it was established that she had in fact returned to his office in 1995 and was very angry when she left because Respondent refused to give her the work excuse note that she requested. A. G. also testified that she told her confidant and godmother, Margaret Hightower, about Respondent's alleged behavior. Hightower denied, however, that A. G. ever relayed these alleged incidents to her, and testified that A. G. has a reputation for untruthfulness. For the foregoing reasons, the testimony of A. G. has not been credited. Even one of Petitioner's own experts did not find her testimony to be credible. Accordingly, there is insufficient clear and convincing evidence that Respondent improperly exercised influence in his relationship with A. G. for the purpose of engaging in sexual activity, as alleged in the complaint. Patient J. P. J. P.'s allegations are rather lengthy and involve a number of office visits beginning in late April 1993 and ending in early May 1994. However, she did not have specific recall of which allegations arose from a particular office visit. During her testimony, she relied on notes she had made over two years later in contemplation of civil litigation. In some cases, her testimony was in conflict with contemporaneous medical and insurance records, or with the testimony of other witnesses. In addition, her testimony was seriously impeached as a result of other matters found in the record. For these reasons, her testimony has not been accepted. J. P. initially saw Respondent for hormone and thyroid problems, and emotional distress. She was also treated for a knee injury occuring in May 1993. She was a very large woman weighing approximately 272 pounds. The patient had no complaint regarding her first visit. On her second visit on May 18, 1993, however, she claimed that Respondent examined her without an assistant in the room and attempted to undress her by unbuttoning her blouse and unhooking her bra. She also contended that he examined her breasts unlike any other doctor she had ever visited, including doing so while she sat upright on an examination table and rubbing her nipples until they became hard. Although J. P. contended that the purpose of the second visit was for treatment of an injured knee, the record shows that the original purpose of the visit was to review lab tests and to receive a refill for her thyroid medication. There was no indication in the medical records that a breast examination was performed, and the documentary evidence has been accepted on this issue. Even if one was performed, Petitioner's own expert agreed that it was appropriate to examine her breasts while she was sitting up on the examination table and that it was appropriate and necessary to examine and rub her nipples. J. P. also contended that Respondent performed breast examinations on other occasions even though she was being treated for a knee injury. The medical records do not support this assertion. She also contended that on two occasions, she felt an erection when Respondent brushed up against her during an examination. Like many other doctors, however, Respondent routinely carried an otoscope in his pocket, and it is more likely that the patient felt this instrument if in fact Respondent may have accidentally brushed against her. During a pelvic examination conducted on December 15, 1993, J. P. recalled that Respondent insisted that the female assistant, Frances McLaurin, leave the room. McLaurin disputed that this occurred, and her testimony has been accepted on this issue. When asked why she continued to see Respondent despite the foregoing conduct, J. P. stated that she believed that her insurance company would not allow her to change doctors. The record belies this contention in several respects. For the foregoing reasons, it is found that Respondent did not improperly influence his relationship with J. P. for sexual purposes, or engage in sexual misconduct with the patient, as alleged in the complaint. Patient B. N. B. N. first saw Respondent in March 1979 when she was eighteen years of age. She continued to see him on approximately thirty-five occasions prior to May 1992. She expressed no complaints regarding his conduct during those visits. In April 1992, B. N. began working as an assistant in Respondent's office. She was terminated in October 1992. A few months later, she was rehired on a part-time basis in the late afternoon. This employment ended on August 19, 1993, when she found a full-time job elsewhere. When she left Respondent's employ, B. N. had a disagreement with Respondent regarding her insurance benefits. This was confirmed by a representative of HSI, who was in charge of health insurance benefits. B. N. was under the impression that Respondent had maliciously and intentionally cut her work hours so that she would not be eligible for insurance. As it turned out, though, Respondent had no control over the provision of health insurance to a part-time employee. This bias on the part of B. N. casts doubt on the credibility of her testimony. On May 15, 1992, B. N. claimed that she was disrobed above the waist while no one other than she and Respondent were in the room. She further complained that Respondent touched her forehead while breathing in her ear. She also contended that Respondent stared into her eyes while doing a breast examination, and that he kissed her on the forehead after the examination was completed. Assuming arguendo that the foregoing events occurred, they do not rise to the level of constituting sexual activity or misconduct, as charged in the complaint. For example, Petitioner's expert conceded that it was not inappropriate to stare into a patient's eyes while performing a breast examination. Moreover, the fact that the patient may have felt Respondent's breath while he looked into her ears is not per se an inappropriate activity. Finally, when Respondent gave a female patient a peck on the forehead before she left his office, it was established that this was done out of care and concern for the patient, and not for sexual gratification. On August 10, 1993, Respondent performed a pelvic examination on B. N. after she presented complaints of pain in her lower left quadrant which was enhanced during sexual relations. She was diagnosed with inflammation of the cervix and a bacterial infection of the uterus and vagina. B. N. complained, however, that she felt pressure to her clitoris during the pelvic examination, and she was asked inappropriate questions of a sexual nature by the doctor. As to the first contention, Petitioner's own expert established that given the complaints presented by the patient, it was appropriate for a doctor to touch the clitoris during a pelvic examination, particularly if the patient had complained of pain during sex. As to the inappropriate questions, the same expert testified as to the legitimate medical reasons for the inquiries made by Respondent. B. N. further contended that Respondent performed the vaginal examination without a glove. In light of the more credible evidence presented by his medical assistants on this issue, and Respondent's own testimony to the contrary, this assertion has been rejected. In summary, there is insufficient clear and convincing evidence that Respondent exercised influence within his relationship with B. N. for the purpose of engaging in sexual activity, or that he engaged in sexual misconduct with the patient. Patient S. C. S. C. was a twenty-year-old female when she first saw Respondent as a patient in August 1993. She was taken to see Respondent on August 18, 1993, by her mother, who was also a patient. At that time, she complained of shortness of breath and anxiety. During the comprehensive initial examination, S. C. was asked by a member of the staff to remove her blouse, but not her bra, and she was given a paper gown to wear. During the comprehensive examination, Respondent checked the patient's groin areas for nodes, and he felt the femoral pulses. Although S. C. felt uncomfortable when this occurred, she did not think it was inappropriate. According to Petitioner's expert, this was acceptable conduct on the part of Respondent since there were medical reasons for checking a femoral pulse. S. C. also noted that Respondent cupped her breast while listening to her heart with a stethoscope. However, he never rubbed, caressed, or otherwise fondled her breast, and S. C. never indicated this made her feel uncomfortable or was inappropriate. S. C. was unemployed during this period of time and was looking for a job. At the same time, Respondent needed someone to replace a part-timer (B. N.) who was leaving the next day. Accordingly, he asked her to return later that day to discuss possible employment. When S. C. returned, the office floors were being buffed by the clean-up crew, and it was too noisy to discuss a job. Respondent suggested that they go to his nearby condominum, sometimes used as a rental or loaned to friends, where his wife was cleaning and restocking the unit. This was confirmed by his wife, who was waiting for him at the condominium. On the way to the condominium, S. C. suggested they stop to eat dinner. Since Respondent had already eaten with his wife, he suggested they return to his office on the assumption that the cleaning of the floors was completed. When they returned, one member of the clean-up crew was still present. While in the office, S. C. mentioned that she was having trouble breathing through her nose. Respondent gave her a medication for allergic rhinitis. S. C. recalled that he also performed a quick nasal inspection, and while doing so, Respondent's groin area came into contact with her hands and that he had an erection. She later amended her testimony to state that his groin area came into contact with her knee. At no time, however, did Respondent ever say a word about engaging in sex. Assuming that the above scenario occurred, an accidental brushing up against the patient does not constitute sexual misconduct. Even if S. C. may have felt something brush up against her knee, it is more likely that she felt his otoscope, which he routinely carried in his pocket. S. C. accepted the offer of employment, but she left for Miami shortly thereafter, where her father lived, and she never returned to work for Respondent. In light of the foregoing, it is found that there is less than clear and convincing evidence to indicate that Respondent exercised influence within the patient-physician relationship for the purpose of engaging S. C. in sexual activity, or that he engaged in sexual misconduct with her, as alleged in the complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the two complaints, with prejudice. DONE AND ENTERED this 4th day of May, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire The Cambridge Center 355 North Monroe Street Tallahassee, Florida 32301 Kelly B. Mathis, Esquire Michael A. Wasylik, Esquire DONALD R. ALEXANDER 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 4th day of May, 1999. Suite 1700, SunTrust Building 200 West Forsyth Street Jacksonville, Florida 32202-4359 Joseph P. Milton, Esquire 1660 Prudential Drive, Suite 200 Jacksonville, Florida 32207-8185 Robert M. Ervin, Jr., Esquire Melissa F. Allaman, Esquire Post Office Drawer 1170 Tallahassee, Florida 32302-1170 Tanya Williams, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0750 J. Harding Peterson, III, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner was the subject of an Unlawful Employment Practice by being discharged from his employment due to his handicap, obesity with resulting sleep apnea, in violation of the Florida Human Rights Act, Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was hired as a radiology escort in March, 1981, at Sun Coast Hospital. At that time Petitioner weighed approximately 325 - 335 pounds. The essential functions of Petitioner's job require that he transport patients by stretcher and wheelchair to and from the radiology department, and lift and maneuver up to 300 pounds without assistance. Other primary duties include assisting in the radiographic rooms as needed, removing soiled linen to a designated area, monitoring oxygen tanks, cleaning radiographic rooms and performing dark room duties as needed. In 1985, Petitioner received an average work performance evaluation. In 1986, Petitioner did not meet standards in four out of nine areas. Petitioner needed to improve his work habits and relationships with his coworkers. Petitioner frequently complained when requested he perform special tasks. Petitioner received two counsel sheets in 1986. Counsel sheets are the last stage of the progressive discipline procedure. One counsel sheet arose from Petitioner refusing to perform one of his job duties. The other sheet specified that Petitioner was not performing his share of the work. Petitioner complained about his work, slept on the job, and insisted on taking lunch breaks, even if there was a patient that needed assistance. Petitioner's performance improved in 1987. Nevertheless, Petitioner's self motivation was still below standard. In 1988, Petitioner experienced performance problems once again. Petitioner's 1988 annual evaluation specified that Petitioner needed to increase his productivity and decrease his absenteeism. In addition, Petitioner needed to be more self-motivating. In September, 1988, Petitioner received a written warning for falling asleep in the hospital's front lobby. Petitioner was warned not to sleep on hospital time or work premises. When Petitioner returned with a patient, he was short of breath and sweating. In November, 1988, Petitioner received a written counsel sheet again for his poor job performance. Petitioner was slow, did not do his share of the work, and complained in front of patients. Again, when Petitioner returned with a patient, he was short of breath and sweating. Petitioner insisted on sitting down and resting before he transported another patient. Other employees complained to his supervisor that they could not perform their job when Mr. Engleka was not getting patients to them. In 1988, Petitioner did not indicate that he needed reasonable accommodation. Petitioner's position as an escort was a one person job. Petitioner could not rest in between patients because other employees could not get their work done. Delay resulted in radiological tests not being done in a timely fashion which resulted in delayed patient care. At the request of management, Petitioner was evaluated to determine if he was physically able to perform the essential requirements of his position. Dr. Rea, Respondent's personal physician, determined that continued employment of Petitioner would pose a reasonable probability of substantial harm to Petitioner. Petitioner's labile hypertension, evidence of heart disease, obesity, low blood oxygen levels, and the physical requirements of his job placed Petitioner at substantial risk of having a heart attack and/or stroke. Petitioner's prognosis as it stood was determined to be very guarded to poor. There was no way to decrease the substantial risk of potential heart attack or stroke, but for Petitioner to go on medical leave and lose weight. No reasonable accommodations could be made to enable Petitioner to perform his essential job functions and eliminate or reduce the significant risk of heart attack or stroke to Petitioner. It was decided to recommend that Petitioner go on medical leave and participate in a weight loss program to improve his physical well being which could result in improvement of his work performance. Petitioner was advised that the Hospital was placing Petitioner on a medical leave of absence requiring Petitioner to enter the Optifast Weight Loss Program, and get treatment for sleep apnea. Respondent agreed to and did pay for eighty percent (80 percent) of the weight loss program. Petitioner's last day of work was February 14, 1989. When Petitioner was initially told about the requirement for weight loss, he thought it was a good idea. The next Optifast program started in March, 1989. Petitioner was paid all outstanding vacation, holidays, and sick leave until the Hospital outlined the specifics of placing Petitioner on medical leave. On or about March 24, 1989, Petitioner signed the leave agreement which specified Petitioner would be terminated if he did not comply with the weight loss program. Additionally, the Hospital agreed to assist Petitioner in receiving some income. The document specified that Petitioner understood that he would be replaced in his job. The Optifast program lasted at least twenty-six (26) weeks. Petitioner was expected to be on a leave of absence for at least the twenty-six (26) weeks time period, and return to his position once he completed the Optifast program. Petitioner applied for unemployment compensation in February, 1989, but was denied unemployment when Petitioner told the Unemployment Commission that he was on a medical leave of absence. Petitioner started the Optifast program on March 14, 1989. At that time Petitioner weighed four hundred fifty-three (453) pounds. Petitioner had problems with weight loss program compliance in week 6 (April 18, 1989); week 12 (May 30, 1989); and Week 15 (June 20, 1989) when Petitioner gained more than five (5) pounds. Petitioner stopped attending the Optifast program after week 16, (June 27, 1989), of the 26 week program, and did not see the doctor after that date. A very important phase of a fasting program is the behavior modification phase where eating habits are actually changed so the patient does not regain the weight he lost. Petitioner quit the Optifast program before reaching maintenance. Petitioner was not released, nor did he graduate from the Optifast program. Petitioner did not comply with the Optifast Weight Loss Program, because he stopped the program after 16 weeks. Therefore, Petitioner did not comply with the agreement between himself and Sun Coast Hospital. Petitioner understood that he would be terminated by the Hospital if he did not complete the Optifast program. Petitioner was denied Social Security disability benefits in July 17, 1989. At that time, Petitioner told Ken Deibel, former Director of Human Resources for Suncoast Hospital, that he was in desperate need of some type of income. Deibel told Petitioner the Hospital would change Petitioner's status to layoff so he could receive unemployment. Petitioner immediately received two weeks severance pay in keeping with layoff status. Shortly thereafter, Dr. Rea wrote an undated note stating that Petitioner could return to a working status, in order for Petitioner to qualify for unemployment. Dr. Rea wrote this note after Petitioner complained that he would not be able to continue the weight loss program unless he had a source of income. Dr. Rea did not release Petitioner to return to his position of radiology escort. The note was not addressed to or received by the Hospital. The note did not qualify Mr. Engleka to return to work as an escort at Sun Coast Hospital. Petitioner did not receive unemployment compensation following the change of his status from medical leave of absence to layoff. Petitioner did not restart the Optifast program. Petitioner never brought a release from the Optifast program or told the Hospital that he was ready to return to work. On January 14, 1990, Dr. Rea wrote another letter stating Petitioner could return to a "working status." In January, 1990, when Sun Coast Hospital received the release for Petitioner to return to a "working status," Petitioner was not otherwise qualified for the escort position because he had not lost weight, and still represented a substantial risk to himself. At that time Petitioner had regained almost all the weight that he lost while on the Optifast program, weighing 443 pounds. In January, 1992, Petitioner was diagnosed as having congestive heart failure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: That a Final Order be issued which DENIES Petitioner's Charge of Discrimination. DONE AND ENTERED this 26th day of May, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of May, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit proposed findings of fact Proposed Findings of Fact Submitted by Respondent: Accepted in substance: paragraphs - 1, 2, 4-11, 18-20, 21(in part), 22-42, 45-49, 50 in part Rejected as irrelevant or subsumed: paragraphs - 3, 12, 13, 14, 15, 16, 17, 21(in part), 43, 44 COPIES FURNISHED: Robin E. Greiwe, Esquire Thompson, Sizemore & Gonzalez, P.A. 109 Brush North Suite 200 Tampa, Florida 33602 Mr. Michael David Engleka 2826 Oak Lawn Avenue Apartment B Largo, Florida 34641 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4149
The Issue DOAH Case No. 02-0033: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 02-1788: Whether Respondent committed the violations alleged in the Administrative Complaint dated March 13, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Healthpark operates a licensed nursing home at 16131 Roserush Court, Fort Myers, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On October 15 through 18, 2001, AHCA conducted an annual licensure and certification survey of Healthpark, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged three deficiencies during the survey, two of which are at issue in these proceedings. At issue are deficiencies identified as Tag F224 (violation of 42 C.F.R. Section 483.13(c)(1)(i), relating to neglect of residents) and Tag F325 (violation of 42 C.F.R. Section 483.25(i)(l), relating to maintenance of acceptable parameters of nutritional status). Both of the deficiencies alleged in the survey were classified as Class II under the Florida classification system for nursing homes. A class II deficiency is "a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. Both of the deficiencies alleged in the survey were cited at a federal scope and severity rating of G, meaning that each deficiency was isolated, caused actual harm that is not immediate jeopardy, and did not involve substandard quality of care. Based on the alleged Class II deficiencies in Tags F224 and F325, AHCA imposed a conditional license on Healthpark, effective October 18, 2001. The license expiration date was September 30, 2002. Tag F224 The survey allegedly found violations of 42 C.F.R. Section 483.13(c)(1)(i), which states: Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. The facility must-- (i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.... In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F224." The Agency's allegations in this case involved neglect of a resident rather than any form of abusive treatment. The Form 2567 listed two incidents under Tag F224, both involving Resident 10, or "R-10." The surveyor observations read as follows: Based on observations, record review and interviews with a resident and a Certified Nursing Assistant (CNA), the facility failed to provide toileting needs as care planned for 1 (Resident #10) of 8 sampled residents reviewed for incontinence and toileting programs. The resident was not toileted for more than 5 hours causing multiple creased areas and redness to her left groin, perineum and buttocks. The findings include: On 10/15/2001, Resident #10 was in her room, #141, in bed A at 2:20 P.M. Resident stated she was wet. The call bell cord was clipped to the sheet, but the bell mechanism was off the side of the bed, out of the resident's reach. Surveyor walked to the North nurse's station and continued to observe the resident's room entrance. Record review revealed Resident #10's most recent quarterly Minimum Data Set (MDS) completed 8/27/2001, assessed her with bladder incontinence at 3 (frequently incontinent), bowel incontinence at 1 (less than once weekly), activity is assessed as bed mobility 3/3 (needs extensive assistance to move in bed), and toilet use at 3/2 (needs extensive assistance). At 4:15 P.M., the resident requested the surveyor to get someone to change her as no one had come in and the call bell was still out of her reach. The resident's request was given to the nurse at 4:20 P.M. On 10/16/01, Resident #10 was observed in her wheelchair in the hall outside her room from 8:55 A.M. until 12:05 P.M., when she was escorted to the main dining room. At 2:20 P.M., resident was still sitting in her wheelchair. After surveyor intervention, the CNA put the resident to bed at 2:30 P.M. When the adult diaper was removed, it revealed the resident to be incontinent of feces and urine. The odor of urine was very strong in the room. The resident's perineum and buttocks were red and moist, with multiple creased areas. The left groin was especially red. During an interview with the CNA, she stated the resident was last toileted before lunch at approximately 11:00 A.M. This was during the time of direct observation by the surveyor of the resident in the hall outside her room. Review of the resident's Care Plan revealed that she was to have the call bell in place at all times and scheduled toileting. Diane Ashworth was the survey team member who recorded the observation of R-10. Ms. Ashworth was assigned the task of observing R-10, and based her findings on a review of the resident's medical records, observations and interviews. R-10 was a 96-year-old diabetic female who had been admitted to Healthpark on March 28, 2000. R-10's most recent Minimum Data Set ("MDS"), completed on August 27, 2001, indicated that R-10 had short and long-term memory difficulties and moderately impaired decision making as to tasks of daily life. R-10 was generally confused as to place and time. She could make herself understood, and had no difficulty understanding what was said to her. She was easily angered and could be physically abusive to staff. R-10 required extensive assistance to move, dress, toilet, and maintain general hygiene. She was confined to her bed or to a wheelchair, and required assistance to move the wheelchair. R-10's MDS indicated a loss of voluntary movement in her hands, including her wrists and fingers. The MDS indicated that R-10 experienced daily incontinence of the bladder, and bowel incontinence once a week on average. The nurse's notes for R-10 indicated that she was able to make her needs known and that she was encouraged by staff to call for assistance as needed. The care plan for R-10 stated that she should have "scheduled toileting," but set forth no firm schedule. Ms. Ashworth testified that she would have expected R-10 to be toileted before meals, before bed, and upon rising, at a minimum. Mona Joseph was the CNA who attended R-10 on a daily basis. Ms. Joseph testified that R-10, like all residents who wore adult diapers, was scheduled for toileting every two hours and whenever necessary. In practice this meant that Ms. Joseph would inquire as to R-10's need for toileting every two hours. Ms. Joseph testified that R-10 would ask her for toileting at least twice a day, and that she never refused the request. She always toileted R-10 before lunch, and testified that on October 16 she toileted R-10 at about 11 a.m. before taking her to lunch. Toileting R-10 required the use of a Hoyer lift to move the resident from her wheelchair to the bed. Ms. Joseph estimated that the entire process of toileting R-10 took seven to eight minutes. Caroline Nicotra, the supervisor of the long-term care unit in which R-10 resided and Ms. Joseph's supervisor, confirmed that Healthpark's CNAs were trained to make rounds every two hours and ask those residents requiring assistance if they needed to be toileted. R-10 was capable of making that decision, and her wishes regarding her need for toileting would be respected by the CNA. Ms. Ashworth's testimony was generally consistent with her written findings. She met R-10 on the afternoon of October 15. R-10 was lying in bed, and told Ms. Ashworth that she was wet. Ms. Ashworth noted that the call bell cord was clipped to R-10's bed, but that the bell mechanism itself was not within R-10's reach. Ms. Ashworth left the room and took a position at the nurses' station, from which she could see the door to R-10's room. She watched to see if any staff person from Healthpark went into R-10's room. She saw no one enter the room between 2:20 p.m. and 4:15 p.m., at which time she asked a CNA to toilet R-10. Ms. Ashworth returned at 8:55 a.m. on October 16, and observed R-10 sitting in her wheelchair in the hallway outside her room. Ms. Ashworth took up her post at the nurses' station and watched R-10 until 12:05 p.m. At no time in the morning did Ms. Ashworth see R-10 being moved or taken for toileting, though Ms. Joseph testified that she toileted R-10 at about 11 a.m. The evidence established that R-10's room was at the opposite end of a corridor from the nurses' station. The corridor was approximately 200 feet long from the nurses' station to R-10's room. The corridor was busy. Medications were passed at 9:00 a.m., meaning that medication carts went up and down the corridor. Staff carried breakfast trays in and out of rooms. Housekeeping and treatment carts were in the hallway. Given the distance of the nurses' station from R-10's room and the constant activity in the corridor, it is unlikely that Ms. Ashworth's view of R-10 was unobstructed at all times. Moreover, the nurses' station itself was a hub of activity. At the end of the nurses' station where Ms. Ashworth stood was the fax machine. The fax machine was kept constantly busy sending physicians' orders to the pharmacy. The unit secretary was stationed in this location. Nurses passed through this area to retrieve forms from the filing cabinets or to go to the medication room. The likelihood that Ms. Ashworth was unable from her vantage point to view R-10 at all times makes credible Ms. Joseph's testimony that she regularly checked with R-10 to ask whether she required toileting. However, it is unlikely that R-10 was ever out of Ms. Ashworth's sight for the period of seven to eight minutes necessary to actually toilet the resident. Ms. Ashworth's testimony that R-10 was not toileted at 11 a.m. on October 16 is therefore credited. At 12:05 p.m., R-10 was taken to the dining room for lunch. Ms. Ashworth followed and observed R-10 in the dining room. After lunch, R-10 was wheeled back to the outside of her room. Ms. Ashworth observed her from the nurses' station until 2:20 p.m. Ms. Ashworth did not see R-10 being taken for toileting between 12:05 and 2:20 p.m. At 2:30 p.m. on October 16, Ms. Ashworth approached Mona Joseph, the CNA responsible for R-10, and asked her to put R-10 to bed so that Ms. Ashworth could examine her buttocks. Ms. Ashworth asked another AHCA surveyor, Maria Donohue, to accompany her to confirm her observations. There was some delay while Ms. Joseph finished a task for another resident, but eventually Ms. Joseph wheeled R-10 into the room and placed her into bed. Ms. Joseph changed R-10's adult brief in the presence of Ms. Ashworth and Ms. Donohue. Ms. Ashworth testified that there was a strong smell of urine in the room, even before the brief was removed, though she noticed no smell of urine about R- 10 prior to entering the room. When Ms. Joseph removed the adult brief, Ms. Ashworth noted that it was wet and that there was a large amount of feces in the brief and on R-10's buttocks. Ms. Ashworth noted that the skin on R-10's perineum and buttocks was creased and red. The area of R-10's left groin was so red that Ms. Ashworth at first thought there was no skin. Ms. Ashworth stated that this kind of redness is associated with not being toileted as scheduled, though she conceded that such redness can also result from pressure. Ms. Ashworth also conceded that this was her first observation of R-10's buttocks, and thus that she had no baseline to judge how abnormal the redness was at the time Ms. Joseph changed the adult brief. Ms. Donohue also recalled a strong urine smell as soon as they entered the room. She agreed that R-10's buttocks were red in some areas, but recalled no further details. She could not recall if there was feces in the adult brief, but did recall that it was saturated with urine. Mona Joseph, the CNA who changed R-10's adult brief, believed that the urine smell in the room came from the next bed, because she had just changed the adult brief of the person in that bed. Ms. Joseph smelled no odor of urine or feces about R-10. Ms. Joseph testified that R-10's brief was dry, and that she began having a bowel movement while being changed. She noted no redness on R-10's buttocks. Caroline Nicotra was the supervisor of the long-term care unit in which R-10 resided. She knew R-10, and stated that R-10 regularly used her call bell, and would call out for help if she could not reach the call button clipped to her bed. She noted that all of the rooms to which Ms. Joseph was assigned were in the same area of the corridor, so that Ms. Joseph would always be able to hear R-10 call out. There would also be nurses in the area who could hear R-10. Ms. Nicotra knew the surveyors had gone into R-10's room with Ms. Joseph, and she went into the room moments after the surveyors left the room to ascertain whether anything had occurred that she needed to address. Ms. Joseph told Ms. Nicotra what had happened. Ms. Nicotra asked R-10 for permission to examine her body and R-10 assented. Ms. Nicotra removed R-10's adult brief and inspected R-10's buttocks. She observed no creasing or redness of the perineum or the buttocks. R-10's skin was intact and no different than Ms. Nicotra had seen it on other occasions. R-10 told Ms. Nicotra that she was not experiencing pain or discomfort in her buttocks area. Ms. Nicotra stated that R-10 weighed about 180 pounds, and that the creasing and redness observed by the surveyors could have been caused by the pressure of sitting in her wheelchair for a long time. Ms. Nicotra examined the adult brief that had been removed from R-10. She observed that it was slightly damp, which she attributed to sweat, and that it contained a smear of bowel movement. It did not smell strongly of urine. Viewing the evidence in its entirety, and crediting the honesty of the testimony of each witness, it is found that AHCA failed to prove the elements of Tag F224 by a preponderance of the evidence. Ms. Ashworth did not observe R-10 being toileted. However, Ms. Ashworth's observation does not establish that R-10 required toileting or that the facility was negligent in not toileting the resident. After the first meeting on October 15, Ms. Ashworth did not ask R-10 whether she needed to be toileted. Ms. Joseph inquired as to R-10's toileting needs every two hours. R-10 was able to make her needs known to facility staff, and she did so on a daily basis. If her call bell was out of reach, she would call out to staff. Ms. Joseph's testimony that the adult brief was dry of urine and contained only a slight amount of fecal material is supported by that of Ms. Nicotra, the only other witness who actually handled the adult brief, and is therefore credited. The only harm alleged by AHCA was the irritation to R- 10's bottom, claimed to be the result of R-10's sitting in a soiled adult brief for an extended period of time. The surveyors' testimony that R-10's perineum, buttocks, and left groin were creased and red at the time of changing is credited. Also credited, however, is Ms. Nicotra's testimony that R-10's perineum, buttocks and left groin were no longer creased or red a few minutes after the changing. Ms. Nicotra's testimony indicates that the creasing and redness were caused, not by irritation from urine and/or feces in the adult brief, but by an extended period of sitting in her wheelchair. The evidence indicates no neglect of R-10, and that R-10 suffered no harm during the sequence of events described in the Form 2567. II. Tag F325 The survey allegedly found a violation of 42 C.F.R. Section 483.25(i)(1), which states: Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident-- Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible.... This requirement is referenced on Form 2567 as "Tag F325." The survey found one instance in which Healthpark allegedly failed to ensure that a resident maintained acceptable parameters of nutritional status. The surveyor's observation on Form 2567 concerned Resident 17, or "R-17": Based on record review and staff (Unit Manager and Registered Dietician) interviews, the facility failed to adequately assess and revise the care plan to address the significant weight loss of 1 (Resident #17) of 15 from a sample of 21 residents reviewed for nutritional concerns. This is evidenced by: 1) After Resident #17 had a significant weight loss of 6.8% in 4 weeks, the facility did not have an adequate nutritional assessment and did not revise the care plan to prevent the resident from further weight loss. The findings include: 1. Resident #17 was admitted to the facility on 9/6/01 with diagnoses that include Sepsis, S/P Incision and Drainage (I&D) of the Right Knee and GI Bleed. The resident has a history of Coronary Artery Disease (CAD). During the clinical record review, it revealed [sic] that the resident's physician ordered Ancef (antibiotic) 2 grams every 8 hours on 9/6/01, to be given for 25 days. During the review of the resident's initial MDS (Minimum Data Set) completed on 9/19/01, it revealed [sic] he weighed 185 lbs (pounds) and is 72 inches tall. Review of the MDS also revealed the resident is independent with his cognitive skills for daily decision making. Further review of the MDS also revealed he requires set up and supervision during meals. He requires extensive assistance with dressing, bathing, and ambulation. Review of the nutritional assessment revealed the RD assessed the resident on 9/10/01. The assessment stated, "Resident has decreased appetite which may be R/T (related to) current meds (medications); Resident's wife feels he has lost wt (weight) but wt is increased due to edema in feet. Resident's current diet meets assessed needs. Will include food preferences to increase intake." Under "Ethnic/Religious Food Preferences" it stated, "No cultural preferences stated." The nutritional assessment completed by the RD on 9/10/01, stated that the resident weighs 185 lbs. His UBW (usual body weight) is 182 lbs. During an interview with the Unit Manager and Registered Dietician (RD) on 10/18/01 at approximately 11:00 AM, they stated that the resident's weight of 185 lbs., which is documented in the initial MDS, was inaccurate. The resident's accurate weight on admission was 175 lbs. During the review of the weight record, it revealed [sic] the resident remained 175 lbs. on 9/11/01. On 9/18/01, the resident weighed 168 lbs., indicating a weight loss of 7 lbs. in 7 days. During the review of the Resident Assessment Protocol (RAP) completed on 9/19/01, it revealed [sic] she [sic] triggered for "Nutritional Status." The care plan developed on 9/19/01 stated, "Res. (resident) leaves 25% or more of food uneaten at most meals. Weight: 168 lbs; UBW (usual body weight) 182 lbs." The goal stated, "Res will maintain weight up or down within 1-2 lbs. through next quarter: 10/17/01." The following approaches are listed: "Diet as ordered." "Encourage fluids." "Monitor weights." "Food preferences and substitute for uneaten foods." "Assist with tray set-ups, open all packages." Review of the physician's order dated 9/18/01 revealed the resident was started on TwoCal HN (supplements) 60cc's four times a day, ice cream everyday [sic] at 8:00 P.M., fruit everyday [sic] at 10:00 A.M. and peanut butter, cracker, and juice everyday [sic] at 2:00 P.M. During the review of the Medication Administration Record (MAR) for the months of 9/01 and 10/01, it confirmed [sic] that this additional supplements were given to the resident, however there is no documentation to indicate the resident's consumption of each supplement. Interview with the Unit Manager on 10/18/01 at approximately 11:15 A.M. also confirmed there is no documentation in the clinical record to indicate the resident's consumption of each snack. Review of the CNA (Certified Nursing Assistant) Care Plan for the month of 9/01 revealed no documentation being offered at bedtime and no documentation for the month of 10/01 that the resident received bedtime snacks. Further review of the resident's weight record revealed the resident weighed 163 lbs on 10/2/01. This indicates a significant weight loss of 12 lbs or 6.8 percent of his total body weight in 4 weeks. Review of the nurses' notes revealed that this significant weight loss had been identified on 9/26/01, 20 days after the resident's admission to the facility. The nurse's notes dated 9/26/01 stated that the care plan to address the risk for weight loss was reviewed. Review of the care plan confirmed it was reviewed on 9/26/01 and 10/6/01. The goal stated, "Will lose no more weight, 11/6/01." Added to approaches stated, "Nutritional supplements as ordered." However, further review of the clinical record and the care plan revealed no documentation to indicate that a comprehensive nutritional assessment was done. There is no documentation in the resident's clinical record to indicate that the care plan was revised. During an interview with the Unit Manager on 10/18/01 at approximately 2:15 P.M., she confirmed that after the resident's admission to the facility on 9/6/01, the resident was refusing to eat, but his appetite improved in the beginning of 10/01. He was consuming 75 percent-100 percent of his meals. She also stated that the resident had "pedal (foot and ankle) edema" on admission to the facility. There is no documentation in the resident's clinical record to indicate that this edema was monitored. There is no documentation in the clinical record that the resident was on a diuretic. She further stated that the final report on the blood culture done on the resident, dated 10/1/01, was positive for Candida sp (yeast infection). During the review of the clinical record, it did not have [sic] documentation to indicate that an assessment of the resident's protein intake was assessed at this time. There is no documentation in the resident's clinical record to indicate that the resident's albumin and protein levels were assessed. During an interview with the Unit Manager on 10/18/01, at approximately 2:15 P.M., she stated that the resident's family members were encouraged to visit more often and encourage to bring foods that he likes. She stated that the resident liked Italian food. This is in contrary to [sic] the RD's nutritional assessment completed on 9/10/01. She also stated that the facility staff continued to honor resident's food preferences and provided alternatives. There is no documentation in the resident's clinical record to indicate that an assessment of the resident's nutritional status, based on his current weight of 163 lbs. and current food intake was done. Further review of the resident's weight record revealed he weighed 158 lbs. on 10/9/01. This reveals a weight loss of 5 more lbs. in 12 days. During the interview on 10/18/01 at approximately 2:15 P.M., she did not have an explanation why the resident continued to lose weight despite an improvement in his appetite. Maria Donohue was the survey team member who recorded the observation of R-17. This resident was initially assigned to Ms. Ashworth, who briefly assessed R-17 in his room and commenced a review of his medical records. Ms. Ashworth noted R-17's weight loss and that his situation required further investigation. Because Ms. Ashworth was busy with her observations of R-10, the survey team shifted responsibility for R-17 to Ms. Donohue. Ms. Donohue based her findings on a review of the resident's medical records and interviews with Healthpark staff. She did not speak to or observe R-17. She did not interview R-17's physician, and could not recall speaking to R- 17's family. R-17 was an 84-year-old male with a history of coronary artery disease who was admitted to Healthpark from a hospital. About a year and a half before his admission to Healthpark, R-17 had a total knee replacement. He was admitted to the hospital because of a fever. A medical work-up revealed that he was septic, with infection throughout his body. The infection stemmed from his knee, and an incision and drainage was performed. The infection was severe, requiring the parenteral administration of the cephalosporin Ancef for a period of 25 days, beginning September 6, 2001. Anorexia is a known adverse reaction to Ancef. Upon admission to Healthpark, R-17 was experiencing pain that was controlled by Percocet, an analgesic with the potential to affect appetite. R-17 was prescribed Zanaflex, a muscle relaxant that can affect appetite. R-17 was also diagnosed as prone to constipation and took laxatives. R-17 also had swelling in his feet and ankles that caused discomfort when he walked. On September 9, an attending nurse documented edema from his ankles to his feet. On September 10, R-17's physician prescribed T.E.D. hose (compressive stockings) for the edema. R-17 refused to wear them. On the same date, R-17's pain increased and his physician ordered a low-dosage Duragesic patch in addition to his other medications. The dosage was increased on September 12, when his pain became so severe that he was screaming out and having spasms. By September 13, R-17's spasms were abating. On September 14, the pain had lessened and he was able to move about, though he continued to voice complaints about the pain. On September 18, R-17 was weighed and it was noted that he had lost seven pounds in the week since his admission. This weight loss was attributed to his pain and the combination of drugs R- 17 was taking, as well as some subsidence of the edema. Healthpark's nursing staff reported the weight loss to R-17's physician, who ordered the snacks and the TwoCal protein drinks described in Ms. Donohoe's observation. The physician visited on September 24 because R-17's pain level had increased and he was again experiencing constipation. The physician ordered blood cultures and Methotrexate for his pain. The physician was making continued efforts to determine the cause of R-17's pain. After the blood cultures were performed, R-17 was referred to a rheumotologist. The blood cultures revealed the presence of another organism in R-17's system besides that being treated with Ancef. On October 2, R-17 was also seen by an infectious disease specialist. R-17's condition improved for about a week. By October 10, the physician was preparing to order his discharge from Healthpark. However, in the early morning hours of October 11, R-17 became confused, incontinent, and had greatly increased pain. His physician ordered new lab work, including a total protein array and electrolyte tests. The record shows that on October 12, R-17 was screaming out in pain and his appetite, which had shown some improvement in early October, was very poor. Though R-17's condition and appetite showed some improvement over the next few days, on October 16 his physician decided to admit him to a hospital to determine the cause of R-17's weight loss and why his pain could not be controlled. Ms. Donohue explained the protocol followed by AHCA surveyors assessing a resident's nutritional status. First, the surveyor determines whether the resident has been assessed comprehensively, adequately, and accurately. If the assessment found that the resident was at risk for nutritional problems, then the facility must determine the interventions necessary to prevent the problems. The surveyor next assesses how the facility implemented the interventions. If the interventions do not work, the facility must show that it has re-evaluated the interventions and reassessed the resident to determine why the interventions failed. The facility must demonstrate that it has looked at all relevant factors, including intake of food and supplements and the resident's underlying medical condition. This re-evaluation and reassessment should lead to revisions in the interventions. The essential allegation under Tag F325 was that Healthpark failed to make a nutritional reassessment after finding that R-17 experienced a significant weight loss over a period of four weeks. Ms. Donohue's testimony at the hearing essentially confirmed her observation on the Form 2567, quoted above. R-17 was weighed weekly, and his weight record confirmed that between September 11, 2001 and October 9, 2001, R-17's weight dropped from 175 to 158 pounds. Lori Riddle, AHCA's expert in dietetics and nutrition, was also involved in the decision to cite R-17's treatment as a deficiency. Her review of the records led her to conclude that Healthpark was aware of R-17's weight loss and put in place approaches to counter that weight loss, but that these approaches were not well planned. Healthpark did not adequately monitor R-17's nutritional intake, such that the record indicated amount of food that was offered but not how much R-17 actually consumed. Ms. Riddle found that Healthpark's approaches were "fairly generic." Healthpark added snacks and nutritional supplements to R-17's diet, but did not indicate in its written care plan whether or how these would meet R-17's nutritional needs. After the initial nutritional assessment on September 10, Healthpark did not formally reassess R-17's caloric needs, even after he began losing weight. Ms. Riddle saw indications in the record that Healthpark recognized the weight loss and stated a goal of maintaining R-17's weight, but saw no recalculation of how many calories would be needed to maintain his weight. Alexandria Antoni was the registered dietician at Healthpark and an expert in the field of nutrition. Ms. Antoni performed the initial nutritional assessment of R-17 and monitored his status throughout the relevant period. She testified as to her relationship with R-17 and her efforts to maintain his food intake. R-17 was very alert and oriented, but had adjustment problems because he had always been an independent, relatively healthy person and had never been in a facility like Healthpark. As a result, R-17 was not receptive to staff's offering food. He did not want to be in the facility at all and resented being bothered by staff. Ms. Antoni noted that R-17 was in much pain and had a hard time dealing with it. The pain affected his ability to sit up or be mobile, and he was on many medications for his pain and infection, any or all of which could have affected his appetite. On her initial visit, Ms. Antoni brought R-17 a copy of the Healthpark menu and reviewed it with him and his family. Ms. Antoni credibly testified that R-17 stated no ethnic food preferences at this initial meeting, though he did tell her that he liked soup at lunch, prune juice in the morning, and a banana on his breakfast tray. Ms. Antoni's initial strategy was to increase R-17's intake by offering foods he liked to eat. His family was there with him every day, and she encouraged them to bring in foods that R-17 liked. Ms. Antoni saw R-17 daily. He would wait for her in the hallway and ask her to come in and tell him what was on the menu. R-17 would often directly phone the kitchen staff to discuss his meal preferences. Ms. Antoni disagreed that R-17's caloric needs were not properly documented. In her initial nutritional assessment, she calculated his caloric needs, based on his height, weight and medical condition, at 1,900 to 2,300 calories per day. She relied on the nursing admission assessment, which listed R-17's weight at 185 pounds, rather than his accurate weight of 175 pounds. Thus, Ms. Antoni's calculation resulted in R-17's getting more calories than his actual weight would have indicated. In her later approaches to R-17's situation, Ms. Antoni kept in mind that R-17 was already being offered more calories than his weight required. She opined that if R-17 had consumed what she calculated, his nutritional needs would have been met and he should not have lost weight. Ms. Antoni could not say why R-17 was losing weight. For the most part, he was eating 75 percent of his meals, which provided between 1,800 and 2,000 calories per day. The TwoCal supplement and the snacks ordered by the physician provided an additional 1,000 calories per day, providing a total well in excess of the 1,900 to 2,300 calorie range calculated by Ms. Antoni. Healthpark staff, including Ms. Antoni and R-17's physician, held meetings every week to discuss the residents' weight status. At each of these weight meetings, Ms. Antoni brought up the subject of R-17's weight loss with his doctor. Ms. Antoni disagreed with AHCA's conclusion that no reassessment was performed. She contended that reassessment occurred at the weekly weight meetings. She followed R-17's caloric intake daily. She could think of nothing else she could have done to increase R-17's weight. Any further action, such as ordering further laboratory tests or a feeding tube, would have required a physician's order. Carol Morris, an RN, was Medicare clinical coordinator at Healthpark and an expert in geriatric nursing. She concurred that the diet ordered for R-17 was adequate to meet his needs. He was cognitively aware, responsive, and could not be forced to eat. Ms. Morris confirmed that Healthpark staff tried to encourage R-17 to eat. The staff gave nutritional advice to R-17's family members so that they could assist in offering him foods that might help his appetite. Ms. Morris noted that pain can be a factor in weight loss. She also observed that the edema would have added to his weight on admission, and its resolution would naturally cause some weight loss. Resolution of his constipation also could have affected his weight. Healthpark staff considered all these factors in care planning to deal with R-17's weight loss. Staff communicated with R-17's physician and with his family on a daily basis. The nursing staff was following doctor's orders, and expected to see R-17's weight stabilize at some point. Ms. Morris testified that Healthpark's assessment of R-17's weight loss took into account his edema, constipation, adjustment to the facility, disease process, and the amount he was eating. She did not think there was anything else Healthpark could have done, given that R-17's physician was also perplexed as to why he was losing weight. Ms. Morris attributed the AHCA citation for failure to document R-17's caloric intake to a simple failure to understand Healthpark's method of charting. The nurses did not explicitly note the amount eaten by R-17 at every meal or snack. The nurse's initials indicated that R-17 ate 100 percent of the meal or snack. An amount was noted only when R-17 ate less than 100 percent of the food offered. If R-17 declined a meal or snack, it was noted and his physician was informed. Ms. Morris testified that R-17's preference for Italian food came up in a conversation with his family, after the nutritional assessment was done. When Healthpark staff saw that R-17 was losing weight, they to the family about what he might like to eat. Viewing the evidence in its entirety, it is found that AHCA failed to prove the elements of Tag F325 by a preponderance of the evidence. It is unquestioned that R-17 lost a significant amount of weight during the four weeks from September 11, 2001, to October 9, 2001. However, the evidence does not demonstrate that R-17's weight loss was caused by Healthpark's failure to provide adequate nutrition. To the contrary, the record indicates that R-17 was provided more than enough calories through meals to maintain his weight, and that supplements were ordered by his physician when he began to lose weight. While R-17's appetite was diminished, he continued to consume 75 percent of his meals on average and to take the snacks and TwoCal supplement. Healthpark's staff and R-17's physician were perplexed as to the reasons for his weight loss, with the physician ultimately ordering R-17 admitted to a hospital for further testing as to both his persistent pain and his weight loss. AHCA correctly noted that Healthpark failed to perform a nutritional reassessment of R-17, but the evidence indicates that such a reassessment would merely have constituted a written rendition of the actions the facility was taking. Healthpark was fully aware of R-17's weight loss and reacted in a reasonable manner. Staff encouraged R-17 to eat by offering him dietary options and enlisting the aid of his family. AHCA criticized Healthpark for failure to perform follow-up laboratory tests or to consider a feeding tube for R-17. However, only R-17's physician could have ordered laboratory tests or a feeding tube. The record makes it apparent the physician was concerned with the weight loss, but that his primary concern was R-17's multiple infections and his unexplained and intractable pain. R-17's edema subsided during his stay at Healthpark, which could account for some weight loss. His constipation was resolved to some extent, which could also have had some effect on his weight. R-17 was taking multiple medications, including powerful antibiotics and analgesics, that could affect his appetite. R-17 was having emotional difficulty adjusting to the facility and to his physical condition. Finally, R-17 was cognitively alert and within his rights simply to refuse to eat. Aside from the weight loss itself, R-17 showed no indications of a lack of proper nutrition. Healthpark took all these factors into account in its treatment of R-17. A formal nutritional reassessment would have had no substantive effect on R-17's treatment. At most, Healthpark failed adequately to document the steps it took in caring for R-17 and addressing his weight loss.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 02-1788, and rescinding the notice of intent to assign conditional licensure status to Healthpark Care Center in Doah Case No. 02-0033 and reinstating the facility's standard licensure status. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 6th day of September, 2002. COPIES FURNISHED: Lealand McCharen, 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 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Jodie C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
