The Issue Whether or not Respondent's nursing home administrator's license may be disciplined by reprimand, fine, restriction, suspension; or revocation for acts alleged in the administrative: complaint, specifically the alleged violations of Sections 400.022(1)(d), 400.162(1)and (2), 468.1755(1)(e), 468.1755(1)(g), 468.1755(I)(k), and 468.1755(1)(m) Florida Statutes (1983), and Rules 10D-29.104 and 10D-29.118(1) Florida Administrative Code.
Findings Of Fact At all times relevant, Respondent held Florida nursing home administrator's license number 0001557. She is also a registered nurse. She has worked in a variety of positions at various institutions in Florida, Pennsylvania, and New Jersey since 1963, including head nurse, assistant director of nurses, director of nurses, research nurse supervisor, assistant supervisor medical review team, assistant administrator of a nursing home, and administrator of a nursing home. The date she acquired Florida licensure as a nursing home administrator was not established, but it is clear her license has never before been the subject of disciplinary action. Her reputation as a nursing home administrator is outstanding, and in this capacity, she had been the recipient of numerous awards and commendations both prior to and since the incidents giving rise to the administrative complaint herein. Petitioner's argument that the documents in support of Respondent's character and ability which were written in late 1984 and in 1985 are not credible because the writers did not know of the incidents giving rise to the administrative complaint is not persuasive, as it is apparent from the evidence as a whole that the events giving rise to the administrative complaint were a topic of conversation in the community at least by October, 1984. From January 1979 until October 1984, Respondent, who is 46, held the position of nursing home administrator at Heritage Health Care Center, Inc. (HHCC) in Naples, Florida. HHCC is a skilled nursing facility providing services to medicare, medicaid, and private pay patients. Clarence Berylyoung was a 78 year old private pay patient admitted to HHCC on July 21, 1983. His medical records reveal he was hospitalized briefly in October 1983 with a diagnosis of a stroke of unknown severity and organic brain syndrome. Respondent helped transport him to the hospital and back to the nursing home. It is not clear whether Respondent's accompaniment of Berylyoung at that time was part of Respondent's duties as HHCC nursing home administrator or as a result of a close personal relationship which had grown up between Respondent and Berylyoung. According to Ann Heusser, HHCC's current Director of Nursing Services and formerly its Day Supervisor, Berylyoung became more forgetful and harder to deal with after his hospitalization than he had been before and was confused and forgetful immediately afterwards. However, the medical records indicate Berylyoung was alert and had a stronger gait at the time of discharge on January 23, 1984. During his stay at HHCC, Berylyoung and Respondent did develop a close personal relationship; her part in which she described as "that of a good neighbor" or as providing companionship. She checked on his clothes daily. She talked to him when she saw him. At his request, she purchased beer and other items for him outside the facility. Because he had no family close by, she took him outside the facility occasionally at mealtimes and otherwise provided transportation for him to places he might wish to go. It is not clear at what precise dates but apparently while Berylyoung was still a patient at HHCC, and therefore prior to January 23, 1984; Respondent transported Berylyoung to a local attorney's office. While there, but without Respondent's prior knowledge, Berylyoung named Respondent as a beneficiary in his will. At this visit, or perhaps earlier, Berylyoung signed a "power of attorney" permitting Respondent to handle his affairs. Neither the will nor the power of attorney was offered in evidence and no timeframe was established by which the execution of these documents can be related to Berylyoung's October 1983 stroke or his subsequent discharge. Further, there is no evidence whatsoever that Respondent entered the attorney's office, let alone that she influenced Berylyoung then or at any time to make these decisions. While Berylyoung was still a resident of the nursing home; Respondent used this power of attorney to transfer, at Berylyoung's request, approximately $25,000 to $30,000 of his funds from an Ohio bank to a Naples, Florida bank. She also used it to help him sell a trailer and a motor vehicle. There is no evidence that Respondent misused or mismanaged the funds or the sale or performed any act Berylyoung had not instructed her to do. No evidence established any timeframe by which these transactions can be accurately related to Berylyoung's stroke. As a private pay patient at HHCC, Berylyoung received no state or federal funds toward his care. His bill was approximately $1800 to $2,000 per month during his stay. He became dissatisfied with HHCC and wished to move out. After several months, he persuaded Respondent that without her help he would have no chance of ever leaving HHCC. She agreed that he could temporarily move into her home with herself, her husband, her two children, and her mother-in-law. Berylyoung was discharged on January 23, 1984. There is no evidence that the move was other than at Berylyoung's request or that Respondent persuaded, encouraged, or coerced Berylyoung to move from HHCC. Berylyoung stayed at Respondent's home until approximately February 24 or 25, 1984; when she placed him temporarily in a motel. He stayed at the motel for approximately five days, where Respondent checked on him 3-4 times a day and others did likewise. Respondent then helped him find an apartment and get settled and thereafter did occasional grocery shopping and housekeeping for him and generally maintained the friendly relationship they had established until August 26, 1985. Despite speculation by HHCC's Director of Dietary Services, Susan Gentry, as to why the move to the motel may have been desired by Respondent, there is no direct credible evidence that Berylyoung's move to his own apartment was other than at Berylyoung's own request or by mutual agreement. Respondent signed Berylyoung's name to a form indicating receipt of his medications (P-1A). This was done at the time of Berylyoung's discharge on January 23, 1984, at his request, and while Respondent still possessed the power of attorney to act for him. At the time it was signed, Berylyoung, with his medications, was moving into Respondent's home on a temporary basis. This falls short of establishing that Respondent had Berylyoung released into her custody. HHCC also uses a document titled "Standard Admission Record and Agreement" (P-1, page 1). It is divided into two parts. The top portion of a single page is filled out when a patient is admitted to HHCC. At the bottom of the page is a portion designed to elicit discharge information. In this bottom portion, under the date of discharge of 1-23-84, Respondent wrote, "Living by himself--no address." However, Respondent testified that she made this entry not on the date of discharge when she knew Berylyoung would be living with her for awhile but later in 1984 while Berylyoung was temporarily living in a motel with no permanent address, that her purpose in filling in this information at that time was to update the records; and that the statement was true when she wrote it. Neither Mrs. Heusser nor any other witness could state that this information was false when written by the Respondent or even when it was written by the Respondent. Respondent also admits filling in the "agency referral" line at the bottom of a document titled, "Discharge Summary" and dated "1-23-84" at its top. (P-1; page 3). Respondent admits that on the agency referral line she wrote in, "Living by himself at his request. Will follow up as needed. Ann Martin." Respondent claims that despite the 1-23-84 date at the top of the page, this line was added by her as a follow-up after Mr. Berylyoung left her home. Respondent asserts, and Mrs. Heusser confirms, that standard operating procedure at HHCC is that these discharge summaries usually are signed after a patient has been discharged and after a patient has actually left the facility. Mrs. Heusser specifically did not know whether this information added by Respondent was accurate when Respondent wrote it but she did not find it odd or unusual that Respondent would add more to this page as much as 2 to 3 weeks after actual discharge of any patient. Based on the testimony and evidence as a whole, Respondent's explanation that her notations on both the "Standard Admission Record and Agreement" and the "Discharge Summary" would normally be made, and in fact were actually made, by her after the patient's discharge and not on the date of discharge is entirely credible. Moreover, her adding her signature to the agency referral line of the Discharge Summary does not, under these circumstances, indicate an attempt to mislead; falsify, or defraud, so much as it suggests an attempt to indicate who had made this note and that she, Respondent, and not Berylyoung, had filled in this portion of the "Discharge Summary." On May 7, 1984, Berylyoung's outstanding bill of $1,386.90 was written off by HHCC. Attached to the write-off slip was a form collection letter dated February 29, 1984, (5 days after he had left Respondent's home), signed by Respondent on behalf of HHCC, and addressed to Berylyoung at Respondent's home address, 3101 Buena Vista Lane, Naples, Florida 33942. This form collection letter was attached as support for the write-off. (Composite P-2). Typed on the write-off slip itself was the notation, "Funds depleted. Does not qualify for state aid due mobile trailer. Present address unknown. (Discharged due to lack of funds.)" The slip was prepared by someone other than Respondent and how the information concerning lack of funds appeared is not explained. However; it may be reasonably concluded that the notation concerning Berylyoung's unknown address resulted indirectly from the previous notations made by Respondent on the "Standard Admission Record and Agreement"; on the "Discharge Summary," and on her signature on the February 29 letter. Unlike the admission and discharge documents which either require a physician's signature or are otherwise part of a patient's medical chart and so may be classified as "medical records," the debt write-off slip is not a part of a patient's medical records as that term is normally understood. The write off slip is merely a financial or business record of HHCC. This finding is consistent with Rules lOD-29.104 and lOD-29.118(1) Florida Administrative Code. Respondent signed and approved the write-off slip in her capacity as HHCC's nursing home administrator; and Respondent in fact knew where Berylyoung was living (in his own apartment) at the time she signed his financial write-off slip. Approval of these write-off slips is a routine duty and the Berylyoung slip was one of 18-20 such slips Respondent signed on the same day. Upon the foregoing scenario and Respondent's acknowledgement that she is responsible for financial documents she signs in her professional capacity, it is found that Respondent knew the address of Berylyoung when she signed the financial write-off slip but still approved the write-off of his account at least partially on the ground that his present address was unknown. While this falls short of fraud or falsification, it does constitute negligence and incompetence. Respondent did not know until approximately May; 1984 that the Department of Professional Regulation viewed the holding of a power of attorney by an employee of a nursing home to be the type of conduct subject to license discipline. By that time, she had already turned over all of Berylyoung's money to him and torn up the power of attorney. There was no evidence adduced at formal hearing that Respondent's actions resulted in HHCC being charged by the Department of Health and Rehabilitative Services with violations of Sections 400.022(1)(d) and 400.162(1) and (2) Florida Statutes and Rules lOD-29.104 and lOD-29.118(1) Florida Administrative Code as alleged in paragraph 6 of the administrative complaint. Without such proof, these allegations remain unproven and no harm to HHCC has been established except that it may be "out" $1,386.90. Even that loss, if it occurred, was not established by clear and convincing evidence because it was never clearly established that Berylyoung, if located prior to May 7, 1984, could have paid the $1,386.90. His $25;000-30 000 in the bank plus the proceeds of the sale of his car and trailer, would seem to suggest that at some earlier point in time Berylyoung's finances would have permitted payment to HHCC but no accurate timeframe for these events was established at formal hearing. There is no evidence of record that Berylyoung's health or safety were threatened or impaired by Respondent's influence or actions. Neither Mrs. Heusser, a nurse, nor Miss Gentry, a dietician, who were in the best position to have personally observed Berylyoung's condition, described a patient in danger. Ann Heusser described an elderly man who was alert most of the time, sometimes forgetful as to when he had had his last beer, sometimes belligerent, and who frequently threatened to leave HHCC because he was dissatisfied. All the nursing services did with respect to him is pass out his medication and keep a tight rein on his liquor. They reminded him to wear clean clothes and to feed himself but he could feed himself. He was on a regular diet according to Miss Gentry. His records indicate an intermediate level of care with the need to sometimes clean up loose stools. While he was in her home, Respondent prepared his meals and bathed the man, as did her mother-in-law and friend when Respondent was not there. Her activities with regard to Berylyoung's care at the motel and in his apartment are related supra. Respondent's testimony that Berylyoung was never harmed physically by his discharge is the only factual evidence of his condition after discharge. No other witness observed him after discharge. Mr. John Patrick; Jr.; the current nursing home administrator of HHCC was qualified as an expert witness in nursing home administration and stated that for a nursing home administrator to deliberately falsify medical records of a patient is considered misconduct in the practice of nursing home administration: that falsification of a patient's billing information by the nursing home administrator is considered misconduct in the practice of nursing home administration; and that it is, in Mr. Patrick's personal opinion, misconduct in the practice of nursing home administration for the administrator to falsify information on a patient's write-off slip. He also testified that he knew of no negligence or incompetence of Respondent. This type of "expert" opinion testimony is of negligible value because it invades the province of the trier of fact, because it requires conclusions of law; and because it assumes that "falsification" has been established; which it has not. The undersigned specifically finds no falsification has been established by the evidence adduced at formal hearing. (See findings of fact paragraphs 10-14 and legal determinations in the following conclusions of law concerning falsification versus negligence.) Moreover, with regard to Mr. Patrick's testimony as a whole, his misunderstanding of certain key elements of the allegations against Respondent and of much of the evidence adduced at formal hearing, his unfamiliarity with the statutes, rules, and standards of nursing home administration and what constitutes a medical record, his reluctance to specify "misconduct", his effort to substitute the word "inappropriate" for "misconduct", his desire to distinguish between his personal and professional opinions until after the Methot proffer, and his present close ties with HHCC greatly diminish the weight, credibility, and probative value of his testimony for establishing either existing standards of the profession of nursing home administration or any deviation by Respondent from such standards. Respondent is presently the director of nursing at Bentley Retirement Village, Inc. It is apparent from the testimony of Ray Smith, Executive Director and Vice-President of Bentley Village and one who works with Respondent on a daily basis; that despite any cloud which may have attached to Respondent as a result of the events giving rise to the instant proceedings, Respondent's reputation in the community for being an efficient and responsible nursing home administrator and for personal veracity has not been impaired. Mr. Smith is not qualified as an expert in the standards of nursing home administration since he has no education, training, experience, or license in that profession. Indeed, he was not tendered as an expert on such standards, however, the undersigned has carefully observed the candor and demeanor of all witnesses in this cause and finds Mr. Smith's testimony as to reputation and character to be entirely credible. His admitted desire to appoint Respondent, due to her qualifications and abilities, to the post of nursing home administrator for Bentley's newly authorized addition does not diminish the value of his testimony for reputation, character, and mitigation purposes since he is fully aware of all the charges and their basis. Professional reputation and character testimony is admissible in mitigation. Indeed, as to reputation; Mr. Smith's opinion is entirely corroborated by Petitioner's expert witness, John Patrick, who recommended Respondent for a job as a new nursing home administrator in Cape Coral during the course of the events which led up to these proceedings and by letters of commendation received by Respondent after these events. Respondent has never-acted as a trustee, conservator; or guardian for Clarence Berylyoung.
Recommendation Upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Board of Nursing Home Administration enter a final order finding Respondent guilty of simple negligence and incompetence within Section 468.1755(1)(g) in signing the write-off slip, reprimanding her therefor, and dismissing all other charges. DONE and ORDERED this 26th day of March, 1986, in Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1986.
The Issue The issues for consideration in these cases are: as to Case Number 00-3497, whether the Agency for Health Care Administration should impose an administrative fine against the Respondent's license to operate Beverly Savana Cay Manor, a nursing home in Lakeland; and, as to Case Number 00-2465, whether the Agency should issue a conditional license to the Respondent's facility effective April 28, 2000.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Agency for Health Care Administration, was the state agency in Florida responsible for the licensing of nursing homes and the regulation of the nursing home industry in this state. It is also the agency responsible for conducting surveys to monitor the compliance of nursing homes with the conditions of Medicare and Medicaid participation. Respondents, Beverly Savana Cay Manor, Inc., d/b/a Beverly Healthcare Lakeland, and Beverly Enterprises - Lakeland, are licensed by the Agency to operate a skilled nursing home at 1010 Carpenter's Way in Lakeland. On August 31, 1999, the Agency conducted an investigation into a complaint that Savana Cay had failed to provide sufficient nursing service and related services to allow residents to attain or maintain the highest practicable physical, mental, and psychosocial well-being as required by Federal rules governing Medicare and Medicaid. The Agency surveyor, Patricia Mills, observed several residents who did not have their call buttons within reach so that they could summon help if needed. Ms. Mills also talked with residents and family members and from these interviews determined that even when the resident could reach the call button and summon help, the response time was excessively long or, in some instances, the call went unheeded. This sometimes resulted in resident's suffering from the results of their incontinence because the staff did not timely respond to the help calls. Ms. Mills concluded, based on her extensive experience in surveying nursing homes, that the number of staff on duty was not sufficient to meet the residents' needs. It did not allow for the best possible well-being of the residents. Though the information related by Ms. Mills came from her interviews with residents and their families and was clearly hearsay testimony, it was admissible and considered as corroborative of her direct observation. The parties stipulated that a follow-up survey of the facility was conducted on October 13, 1999, at which time the deficiency described was deemed to have been timely corrected. The Respondent, by stipulation, does not concede the validity of this discrepancy on the August 19, 1999, survey, and the Agency does not rely on it to support the administrative fine sought to be imposed herein. Another survey of the facility was conducted by the Agency on April 26-28, 2000. On this occasion, surveyor Patricia Gold interviewed residents regarding the everyday life of the facility and reviewed resident council reports to follow up on any resident or family concerns which did not appear to have been addressed by the facility staff. During the resident interviews, Ms. Gold was advised that call lights were not answered in a timely fashion. In that connection, early on the morning of April 28, 2000, Ms. Gold observed a resident request a nurse to bring something to drink. The nurse was overheard to tell the resident the request would have to wait until she finished her report. Ms. Gold also noted on April 28, 2000, that dirty dishes were left uncollected over night in the facility common corridor and that one resident had two dirty trays left in the room. The dishes in the corridor were also seen by surveyors Donna Edwards and Marie Maisel. Based on their observations, the interviews, and the review of the council reports, the surveyors concluded that the staff on duty were insufficient in number. Another surveyor, Joanne Stewart, reviewed the resident files and medical reports of several of the residents and determined that in several cases the facility had failed to provide adequate supervision and assistive devices to prevent falls and inconsistently applied the interventions that were put in place. For example, Ms. Stewart observed Resident 12 on the floor at 2:40 p.m. on April 27, 2000. This resident, a cognitively impaired individual, had been placed in the facility from the hospital after he had sustained a fracture to his right hip and, at the time of the fall, still had staples in his hip. Ms. Stewart's review of the kardexes maintained by the certified nursing assistant (CNA) revealed there were no entries thereon indicating a need for special care to prevent this resident from falling. Although he was supposed to wear a tab alarm at all times, the facility staff knew the resident would periodically remove it, and when Ms. Stewart saw him prior to the fall, he was not wearing it. No other interventions, such as quick-release seat belts or Velcro belts, had been implemented to prevent his falls. It was just the kind of fall that he had which caused his placement in the facility and which gave rise to the need for supervision adequate to prevent further injury. He did not get the needed supervision. In fact, though the resident sustained a skin tear and bleeding of the arm as a result of the fall, the nurse who came to the scene of the fall went back to her desk and did some paperwork for between twenty and twenty-five minutes before the resident was provided any treatment for his injury. Ms. Stewart concluded the facility did not provide adequate supervision and assistance to Resident 12, and it is so found. Due to a cognitive impairment and an inability to ambulate due to an intracerebral hemorrhage, diabetes, and a cardio-vascular accident, Resident 9 was assessed at high risk for falls, and a determination was made that the resident should wear a tab alarm while in bed and in the wheelchair. During the course of her survey, Ms. Stewart observed this resident on several occasions without the tab alarm when she should have been wearing it. The resident had previously sustained falls, one of which occurred while the resident was on leave, on March 31 and April 1, 2000, but the only caveat on the CNA kardex for the resident was the caution not to leave her on the toilet alone. Ms. Stewart did not consider the supervision and assistance rendered Resident 9 to be adequate. It is so found. Ms. Edwards focused her review on the records of Resident 22 who was not at the facility at the time of the survey. The records indicated the resident had been assessed at a high risk for falls at the time of her admission and a tab alarm was used. However, according to the nurse's notes, on April 10, 2000, the alarm went off causing the resident to lose her balance and fall while in the merry walker. She lacerated her scalp and sustained a large swelling in the occipital area. The only fall assessment of this resident was done when she was admitted to the facility. The evidence does not indicate when this was, but presumably, it was not done timely. There is a requirement that fall assessments be done quarterly, but it cannot be determined when it was done here. Even when, on April 11, 2000, the day after the fall, the physical therapy staff re-screened this resident for a merry walker, no change in care notation was noted in her record or implemented. Resident 22 sustained another fall on April 16, 2000. On this occasion, the resident was found on the floor of the day room, out of the merry walker. There was no indication she was being supervised or monitored at the time of her fall. This time she sustained another head injury just above the old one. After this fall, the facility staff ordered a new merry walker even though there was no indication a different one would provide additional protection. The resident sustained a third fall on April 18, 2000, sustaining another injury to the head which resulted in substantial blood loss. As a result of this fall, she was taken to the hospital. Because of this, she was not present when the survey was done, but based on her review of the resident records, Ms. Edwards concluded that the facility did not provide sufficient supervision or assistive devices to this resident. During the period of the survey, Ms. Gold observed Resident 3 on five separate occasions. On none of them was the resident wearing a Tabs alarm even though the facility's care plan called for one to be used. A falls assessment had been started on the resident but not completed. The record also revealed that the resident fell on March 29, 2000, resulting in a skin tear to the right arm. Based on the above, Ms. Gold concluded that the resident was not provided with adequate care and assistive devices. Resident 10 was a resident with a history of falls both before and after admission to the facility. The resident's care plan called for chair alarms, a merry walker, a safety seat belt, a low bed, and a bike horn. Though Ms. Maisel, the surveyor, observed that the resident had a chair alarm, she did not see that any of the other interventions called for in the plan were provided. She did not ever see the resident with a merry walker, and on at least two occasions, she saw the resident when the chair alarm was not in use. In her opinion, the use of one intervention does not make the use of other interventions unnecessary, and she considers the facility's supervision and assistive device provision to be inadequate. Resident 4 was an individual who had sustained a hip fracture, was senile, and was taking pain medications. The resident required help in getting out of bed or a chair. The care plan for the resident called for the use of a Tabs alarm, but on none of the occasions that Ms. Stewart observed this resident was the tabs alarm in use. She considered the supervision and assistive devices provided by the facility to this resident to be inadequate. Respondent does not contest that the incidents cited by the Agency took place. Rather, it contends that the interventions implemented by it were sufficient. It also disputes the effectiveness of some interventions called for, specifically the Tabs alarms, suggesting that the alarm does not prevent falls and often contributes to them by startling the wearer. There is some evidence to support that claim. Respondent further contends that the safety provided by the use of an intervention device, such as the Tabs alarm, straps, bed rails, or the merry walker, restrictive as they are, must be weighed and evaluated against the loss of dignity of the resident caused by their use. It is also urged by the facility that the use of certain interventions such as Tabs alarms is made unnecessary when the resident is immobile and safety is provided by the use of other interventions such as bed rails, which are more pertinent to the condition of the resident. In the case of Resident 9, the failure to provide for the use of a Tabs alarm when the resident was on leave with her husband was off-set by the one-on-one supervision she received during that period. Respondent contends that falls will occur among residents of the type in issue here regardless of the planning to identify the risks of fall, the efforts made to prevent them, and the implementation and use of interventions designed to avoid them. While this may be so, the facility nonetheless has a duty to provide necessary and adequate supervision and assistive devices to minimize to the greatest extent possible, the risk of injury as the result of falls. In some cases, this was not done here. In support of its position, Respondent presented the testimony of Theresa Vogelspohl, a nursing home consultant and an agreed expert on falls, issues of the elderly, issues of care of the elderly, and nursing practices and standards in nursing homes. Ms. Vogelspohl indicated that as a general practice when patients are admitted to a nursing home they are considered at risk for falls until the facility staff gets to know them. Each facility sets its own standard as to the length of the observation period, during which the residents are studied for their gait and safety awareness. In addition, the residents are evaluated for safety awareness by the staff of the physical and occupational therapy departments. Ordinarily, the assessment includes only the minimum data set (MDS) criteria, but increasingly during the last few years, a separate falls assessment has become common. In addition to the initial assessment, the attending nurses do an independent admissions assessment, and Ms. Vogelspohl found that such an assessment process was followed as to each of the residents in issue here. Ms. Vogelspohl found that an incomplete falls assessment had been done on Resident 3. Based upon her own review of the resident's records, however, had the full assessment been completed, other than the fact that she was a new resident, the resident would have been classified as a low risk for falls. She opines that the failure to complete the falls assessment did not deny the resident any care or a care plan for falls. Ms. Vogelspohl determined that the facility had opted, instead, for a more cautious approach to this resident in the care plan which, in her opinion, was appropriate for a new admission. A care plan is a map for the staff to be made aware of the care being provided and the specific interventions pertinent to the resident. If the resident is at increased risk for falls, the care plan would list the interventions designed to decrease the risk of falls. One of the most significant risk factors for falls is increase in age. Others are disease conditions, medications, cognitive functioning levels, eyesight, and other impairments. The interventions available to a facility to address the issue of risk of falls depend upon the condition of the resident. The first consideration should be the need to maintain a safe physical environment for the resident. Appropriate footwear is important as is the availability of assistive devices such as a cane or walker. If the resident has a history of falls, consideration should be given to changing those factors which were related to the prior falls. Included in that is consideration of different seating or a more frequent toileting schedule. According to Ms. Vogelspohl, the last thing one would want to do is to apply physical restraint, but, if all else has failed, the least restrictive physical or chemical restraint may be necessary to decrease the likelihood of falls. Ms. Vogelspohl emphasizes that only the likelihood of falls can be reduced. It is not possible to prevent all falls. Room cleanliness is not something which should appear in a care plan. It is a given, and nurses know to place furniture in such a way and to reduce clutter to the extent that the resident can safely navigate the room either with a walker or a wheelchair. Obviously, in this case the survey staff concluded the placement of the dirty trays in the hallway and in the resident's room constituted a hazard. In Ms. Vogelspohl's opinion, supervision and monitoring of residents in a nursing home is a basic. That is generally the reason for the resident's being admitted in the first place. While they should be done on a routine basis, supervision and monitoring are still sometimes placed in a care plan, but the failure to have the requirements in black and white is not a discrepancy so long as the appropriate supervision and monitoring are accomplished. The residents most at risk for falls, and those who are the most difficult to manage, are those who have full physical functioning yet who have almost nonexistent cognitive functioning. Ms. Vogelspohl is of the opinion that for these residents, the best intervention is the merry walker. This is better than a regular walker because the resident cannot leave it behind. If the resident is one who falls from bed, then a low bed, with rails if appropriate, is the primary option. A low bed was called for for Resident 10 but was not provided. Ms. Vogelspohl does not have a high opinion of the Tabs alarm because it can cause as many falls as it prevents. It has a place with the cognitively aware resident who will sit back down if she or he hears the alarm sound. More often than not, however, the routine resident will automatically react by trying to get away from the noise, and, thus, be more likely to engage in rapid, impulsive behavior that can lead to a fall. Ms. Vogelspohl considers the use of the Tabs alarm as only one factor in assessing the degree of supervision provided. She looks at the care plan to see if the Tabs alarm even meets the needs of the resident. If the resident is cognitively alert and at no risk of falls, a Tabs alarm is not appropriate. There are other interventions which can be used such as quick release, velcro seat belts which better prevent falls because they provide a resistance when the resident attempts to stand up. To determine whether a care plan has been developed and implemented, Ms. Vogelspohl reviews the record. She looks at the nurse's notes and those of the social services personnel. She evaluates the records of the physical, occupational, and recreational therapy staff. Finally, she reads the resident's chart to see what staff is actually doing to implement the interventions called for in the care plan. However, on the issue of supervision, she does not expect the notes or the record to affirmatively reflect every incident of supervision. There is no standard of nursing practice that she is aware of that calls for that degree of record keeping. What she would expect to see is a record of any kind of unsafe behavior that was observed. By the same token, Ms. Vogelspohl would not expect a facility to document every time it placed an alarm unit on a resident. The units are applied and removed several times a day for bathing, clothing changes, incontinence care, and the like, and it would be unreasonable, she opines, to expect each change to be documented. Further, she considers it inappropriate and insulting to the resident to require him or her to wear an alarm when cognizant and not displaying any unsafe behavior. If a resident who is not cognitively impaired declines intervention, it would, in her opinion, be a violation of that resident's rights to put one on. In that regard, generally, interventions are noted in the resident records when initiated. Usually, however, they are not removed until the quarterly assessment, even though the intervention may be discontinued shortly after implementation. Ms. Vogelspohl took exception to Ms. Edwards' finding fault with the facility for the three falls experienced by Resident 22. The resident was under observation when the first fall occurred, but the staff member was not able to get to the resident quickly enough to catch her when she stood up and immediately toppled over in her merry walker. The resident had been properly assessed and proper interventions had been called for in the care plan. Ms. Vogelspohl attributes the fall to the resident's being frightened by the Tabs alarm going off when she stood up and believes she probably would not have fallen had she not had the tab unit on. The second fall took place while the resident got out of her marry walker in the day room. Though the day room was visible to anyone out in the hallway, the fall was not witnessed, but Ms. Vogelspohl is of the opinion that it is not reasonably possible to keep every resident under constant visual supervision unless an aide can be assigned on a one-on-one basis to every resident. On the third fall, which occurred at about 10 p.m., the staff had put the resident to bed and had put a Tabs unit on her at that time, but the resident had detached the unit and gotten out of bed. There was nothing the staff could do to prevent that. The resident was able to remove the unit no matter how it was affixed to her. Taken together, the actions taken by the facility with regard to this resident were, to Ms. Vogelspohl, appropriate. Some things could have been done differently, such as perhaps using a heavier merry walker, but she did not consider these matters as defects in the care plan, in assessment, in design, or in application. Further, she concluded that the actions taken by the facility subsequent to the first fall on April 10, 2000, wherein the resident's medications were adjusted to compensate for their effect on the resident, constituted a recognition of a change in the resident's condition which was properly addressed. Too much supervision becomes a dignity issue. There is no formula for determining how much supervision is adequate. It is a question of nursing discretion based on the individual resident. An unofficial standard in place within the industry calls for a resident to be checked on every two hours, but rarely will this be documented. Staff, mostly nurses and CNAs, are in and out of the residents' rooms on a regular basis, administering medications and giving treatments. Those visits are documented, but not every visit to a resident's room is. Resident 12, a relatively young man of 62 with several severe medical problems, sustained a fall which resulted in a fractured hip just two weeks after admission to the facility and two weeks before the survey. He was far more mobile than expected. According to the records, he was mostly cognitive intact and had been assessed for falls. As a result of this assessment, the facility developed a care plan to address his risk for falls. Implementation of the plan was difficult, however, because he was aware and could make up his own mind as to what interventions he would accept. As to the resident's April 27, 2000 fall, the only evidence in the file shows that he was found on the floor of his room in front of a straight chair, having sustained a small skin tear in addition to the fracture. From Ms. Vogelspohl's review of the record she could find no indication that the facility had failed to do something that it should have done to prevent the fall. The staff had put a Tabs alarm on the resident, and he removed it. They tried to keep his wheel chair as close to him as possible. They tried to restrict his water intake by giving him thickened liquids to reduce his trips to the rest room. He would pour out the thickened fluids and replace them with water. Because of this resident's mobility, Ms. Vogelspohl does not accept the surveyor's conclusion that the facility did not use Tabs alarms. He was able to get out of them by himself and frequently did. She is also of the opinion, in light of the way the resident behaved, that the blank kardex observed by the surveyor in no way contributed to the resident's fall. The CNA's were aware that the Tabs units were supposed to be used, and Ms. Vogelspohl has concluded that there were no more aggressive interventions that could have been used with this resident. To attempt the use of restraints, either belt or vest, would have been futile because he could have gotten out of them easily. The only other thing Ms. Vogelspohl feels could have been done was to put him in a geriatric psychiatric unit, and this was ultimately done, but not in the Respondent facility. Ms. Vogelpohl also addressed the surveyors' write- ups as they related to Residents 9, 4, 3, and 10. Resident 4 was bed-ridden as a result of Parkinson's Disease and did not need a Tabs alarm, the deficiency cited, while in bed. When seated in a wheel chair, his postural deficits were compensated for by lateral supports and a padded cushion, and she was of the opinion that a Tabs alarm was not required. She opines its absence would not have addressed his risk for falls. His January 2000 fall apparently did not relate to the failure to use a Tabs unit. Resident 3, also the subject of a write-up for failure to use a Tabs alarm, was not, in Ms. Vogelspohl's opinion, at risk for falls because she did not move around a lot due to her physical condition. Nonetheless, she experienced a fall in late March 2000 and shortly thereafter, the facility placed a Tabs alarm on her and made the appropriate entry in her care plan. Resident 9 was ambulatory only with assistance and had a special seating device to keep her in her wheel chair. After the resident sustained two falls close together, a Tabs alarm was placed on her, and from that time until the time of the survey she had no further falls. Ms. Vogelspohl contends that it was an appropriate nursing decision not to place a Tabs unit on her. The rationale for this position is not at all clear. The care plan for Resident 10, also one of the residents observed without a Tabs alarm in place, was described as "somewhat cluttered." It showed multiple interventions initiated as early as April 1999. The initial care plan was crossed through and a new one substituted in September 1999 with the family's concurrence. Nonetheless, Ms. Vogelspohl did not find it too cluttered to be understood. The evidence shows that the resident's chair was outfitted with a soft seat belt and a pressure-sensitive alarm, both of which are considered to be more effective than the Tabs alarm. Ms. Vogelspohl contends that the facility did not ignore the requirement to assess the residents for falls or the requirement to address that issue in care planning. She admits that in some cases, the plan addressing falls prevention was covered in another assessment than the one wherein it might most likely be expected, but it is her contention that if the subject is properly and thoroughly addressed somewhere in the resident's care record, that is sufficient. She considers placing it in several areas to be a redundancy and though it is frequently done so, it is done to meet a paper compliance without having any impact on the quality of care provided.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order sustaining the Conditional license for the Respondent effective April 28, 2000, and, based only on the conditions observed at the facility on that date, imposing an administrative fine of $700.00. DONE AND ENTERED this 22nd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2001. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 R. Davis Thomas, Jr., Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post office Box 11300 Tallahassee, Florida 32302-1300 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact At all time relevant hereto, respondent, Margaret Ann Morris Martin, held registered nurse license number 1076252 issued by petitioner, Department of Professional Regulation, Board of Nursing. She presently resides at 3101 Buena Vista Lane, Naples, Florida. Martin has been a registered nurse since 1963, and holds licenses in Florida and Pennsylvania. She has worked in a variety of positions at various institutions since 1963, including head nurse, assistant director of nurses, director of nurses, research nurse supervisor, assistant supervisor medical review team, assistant administrator of a nursing home, and administrator of a nursing home. She has received outstanding evaluations concerning the quality of her work, and has never been subjected to prior disciplinary action. Martin also holds a nursing home administrator's license. Using that license she held the position of nursing home administrator at Heritage Healthcare Center, Inc. (HHHC) in Naples, Florida from January, 1979 until October, 1984. HHHC is a 97 bed skilled nursing facility providing medical and nursing services to Medicare, Medicaid and private pay patients. Martin was hired by HHHC as a nursing home administrator, and did not perform nursing duties while employed at the facility. Clarence Berlyoung was a 78 year old private pay patient admitted to HHHC on July 21, 1983. He remained a patient at HHHC until his discharge on January 23, 1984. According to his patient records, Berlyoung required an intermediate level of nursing care, which included observation, monitoring of his condition, and a daily note by the nurses. The notes indicated that Berlyoung was "weak", that he had some "drooping" on one side of his face, and that his gait was unsteady. The records also indicated Berlyoung had suffered a stroke and had an additional diagnosis of organic brain syndrome. During his stay at HHHC, Berlyoung and Martin developed what she called a "close relationship" and one which was similar to that of father and daughter. Among other things, she talked with the patient whenever he visited her office, and took him outside the facility for recreational or shopping purposes, or an occasional meal. She also made sure that Berlyoung was provided with personal necessities, such as cigarettes and his daily ration of two cans of beer. On an undisclosed date, but apparently in late 1983, Martin carried Berlyoung at his request to an attorney's office in Naples so that he could take care of some needed legal matters. Without Martin's prior knowledge, Berlyoung signed a "power of attorney" which designated Martin to handle his financial affairs. He also had Martin named a beneficiary in his will. When these documents were executed, Berlyoung was mentally alert and competent to make these decisions. There is no evidence that Martin influenced Berlyoung to execute these documents, or to choose her as a beneficiary. In January, 1984 Berlyoung became dissatisfied with living in a nursing home, and left HHHC on his own accord. Since he had no other place to go at that time, he approached Martin and asked if he could stay in her home temporarily. Martin agreed and allowed Berlyoung to move into her home. There is no evidence that Martin encouraged Berlyoung to leave the nursing home, or to choose her home as a place to live. Once the move was made, she prepared his meals, did his laundry and helped bathe him. Berlyoung was capable of taking his own medication and did not need Martin's assistance in this respect. Berlyoung's physical condition and medical requirements after his discharge from HHHC on January 23, 1984, were not disclosed. He stayed at Martin's home for several months until he moved to a motel for a few days, and then to an apartment. He died on a later undisclosed date. While the power of attorney was in effect, Martin helped Berlyoung transfer between $25,000 and $30,000 from an Ohio bank to a Naples area bank. She, or her husband, also sold a Volkswagen automobile and a "trailer" which Berlyoung owned. This is no evidence that she misused the funds, or performed any act which Berlyoung had not instructed her to do. When Berlyoung departed HHHC, he left an outstanding bill of $1,389.90. On May 7, 1984, Berlyoung's bill was written off by HHHC. This was a routine function after an account had aged for ninety days. A write-off slip is not generally considered to be a "medical record," but is more akin to a business record of the facility. On Berlyoung's writeoff slip was the notation "Present address unknown." The slip was prepared by someone other than Martin. However, as nursing home administrator Martin signed and approved the slip. This was a routine duty of the administrator, and the Berlyoung slip was one Of some fifteen or twenty that she signed that same day. The record is unclear as to whether Berlyoung still resided with Martin in early May, 1984 or had moved elsewhere by that time. However, Martin knew where Berlyoung resided, for she testified she assisted him in finding an apartment, and kept in touch with him until he died.. Therefore, it is found that Martin knew the address of Berlyoung when she signed the slip, but for some reason, she still approved the write off of his account on the ground his address was unknown. There is no evidence that she did so for fraudulent purposes as alleged in the administrative complaint. Martin did not know that DPR apparently viewed the holding of a patient's power of attorney by a nursing licensee to be improper until she read a DPR newsletter in the spring of 1984 which indicated a nurse had been reprimanded for doing this. By this time, she stated she had already torn the document up, and no longer exercised the authority. Two registered nurses and the owner of a skilled nursing facility offered opinion testimony as to Martin's conduct. The agency witness, who was accepted as an expert in the field of nursing and in the review of medical records, gave opinions concerning the minimal standards of prevailing nursing practice, and whether respondent's activities constituted a deviation from said standards. She also gave testimony on the issue of whether respondent was acting in the capacity of a nurse in her relationship with Berlyoung. Respondent's first witness, a registered nurse, gave opinion testimony on the issue of whether Martin was acting as a nurse, whether the write off slip was a medical record, and whether the allegations against Martin related to the nursing profession. A second witness, who owned a nursing home, also gave testimony on whether the allegations against Martin related to the nursing profession. As might be expected, the conclusions reached by the two sets of witnesses differed in material respects. The difference in opinion stems primarily from whether Martin was acting in the role of a registered nurse when the events herein occurred. According to uncontroverted testimony, a minimal standard of acceptable and prevailing nursing practice is "a trust relationship which is necessary to provide quality care to a patient." Accordingly, a nurse should not manage a patient's money in the absence of a court order, and should not accept a patient in her home. A second minimal standard is "anything that a nurse signs is (a) true and accurate record of what she knows to be the truth." This standard prohibits a nurse from signing a record she knows to be false. These two standards were not disputed by respondent. By violating either or both of the standards, a nurse is engaged in "unprofessional conduct." A matter requiring resolution is whether Martin was acting as a registered nurse during Berlyoung's stay at HHHC and at her home. When Berlyoung was at HHHC from July 1983 until January 1984, Martin did not sign his medical records, administer medication, or otherwise engage in what are normally considered to be nursing duties associated with caring for the patient. Indeed, she performed only administrative duties consistent with her position as nursing home administrator. The fact that she talked to the patient, ran errands for him, and joined him for an occasional meal did not constitute what are generally considered to be the functions of a registered nurse. Therefore, she was not acting as a nurse at that time. When Berlyoung was allowed to temporarily stay at Martin's home, he was not accepted as a patient, nor was it the outgrowth of a nurse patient relationship. Indeed, it was based upon their friendship and the "close relationship" which had developed between the two at HHHC. Even though she prepared his meals, bathed him and did his laundry, these functions required no "substantial knowledge, judgment, and nursing skill," and could have been performed by a friend, relative or acquaintance. Therefore, it is found Martin did not accept a "patient" into her home as a "nurse," and was not acting as a registered nurse when she performed these duties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be DISMISSED, with prejudice. DONE and ORDERED this 24th day of February, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1986.
The Issue Whether petitioner has two years' practical experience in nursing home administration within the meaning of Section 468.1695(2)(c)3., Florida Statutes (1987) and Rule 21Z-11.008, Florida Administrative Code?
Findings Of Fact Westminster Oaks, a "retirement village" or "continuing care facility" in Tallahassee, has a clinic, a 60-bed nursing home, an adult congregate living facility and 150 "independent living" units for older people, who are guaranteed nursing home beds, if needed, as their independence ebbs. Before Donald Long began as Westminster Oaks' administrator on December 1, 1986, the position had gone unfilled for two years. By the time he arrived, petitioner Sandra Kelly, formerly director of nursing at Westminster Oaks, had become director of health care services, for the express purpose of gaining the experience necessary to sit for the nursing home administrator licensure examination. She was following in the footsteps of Sue Reeder and five other trainees, of whom three -- all who have finished the program -- have been permitted to sit for the exam from which respondent proposes to bar her. On August 1, 1986, Ms. Kelly assumed supervisory responsibility for the Health Center, which included the nursing home. As director of health care services, she was responsible not only for the nursing home, but also for the clinic and the adult congregate living facility with its 34 places. (All but six were filled at the time of hearing.) The clinic at Westminster Oaks monitors independent residents' blood pressures, and administers B-12 injections, but does not provide home health services. After Sue Reeder left in January of 1988, she was also called upon as needed to manage the resident services department, along with operations of the business office, and the dietary and housekeeping department that related to residents of the independent living units. Even her work in marketing related to the nursing home. Even when called upon to help in other areas, she was not relieved of responsibility for the nursing home, which she had effective charge of at least 95 percent and perhaps 100 per cent of the time. (Testimony of Long) Besides having overall charge, she rotated through each department in the nursing home, managing it; or, as in the case of the housekeeping department which served not only the nursing home but also other facilities in the complex, managing operations as they related to the nursing home. In addition to her nursing home duties, she spent 15 to 20 minutes a day at the adult congregate living facility, more on days when new residents were admitted. She made rounds at the adult congregate living facility quarterly, and accompanied inspectors from the Department of Health and Rehabilitative Services when they inspected. She also met with the clinic nurse three times weekly for fifteen minutes a visit. As director of health care services, she has devoted the overwhelming majority of her time to the nursing home. She has had complete and uninterrupted charge of the nursing home's social services and activities departments, and personally hired the activities director. She also hired a medical records consultant, and oversaw putting the medical records in order for inspection by the Department of Health and Rehabilitative Services. Although she did not hire or fire otherwise, leaving that to department heads, she had the right to do so. At the time of the hearing, she had spent more than 27 months as director of health care services. Although she also devoted some of her time to the adult congregate living facility, and to the clinic, she spent more than two "working years" on nursing home administration, aside from time devoted to the adult congregate living facility and the clinic. As de facto administrator of Westminster Oaks' nursing home, under Mr. Long's supervision, she planned for and helped organize, direct and control all nursing home departments, including social services, and, insofar as they pertained to the nursing home, the nursing, dietary, housekeeping, administration and maintenance departments.
The Issue Whether there was negligence involved in treating Lewis Dougal, a patient in the Miracle Hill Nursing and Convalescent Home. Whether the Respondent kept records in compliance with the statutes and the requirements of Chapter 10D-29 of the Florida Administrative Code.
Findings Of Fact The Miracle Hill Nursing and Convalescent Home had Lewis Dougal, an adult mentally retarded male, as a patient in January of 1976. On Thursday, January 29, 1976, Mr. Dougal was taken to Tallahassee Memorial Hospital for a neurological brain scan. His exact whereabouts have not been established during the period of time from 10:00 a.m. until 3:00 p.m. on that day, but he was in the emergency room area or in the radiology area of the hospital. At approximately 3:00 p.m. he was returned to the Respondent nursing home. At approximately 7:00 p.m. on January 30, a nurses aide discovered that Lewis Dougal had a reddened and swollen penis, a swollen scrotum and red marks on the buttocks. She called the charge nurse, an L.P.N., who did not call the doctor, but noted on the "nurse's log" that the patient should see a doctor the following day. No notation was made on the patient's individual medical record at that time. Mr. Dougal was transferred to Tallahassee Memorial Hospital late in the morning of January 31, 1976, whereupon he received a 50 mm injection of demerol for pain upon his admission to the hospital. He was released February 25, 1976. An investigative team from the Office of Health Facilities of the Department of Health and Rehabilitative Services, which consisted of a Hospital Nursing Home Consultant and a Registered Nurse, investigated the circumstances surrounding the incident on February the 25th and 27th, 1976. The injuries sustained by Mr. Dougal and his hospital records from the date of his admission, January 31, 1976, to the hospital, to the date of his release, February 25, 1976, were reviewed. The investigative team thereupon visited the Miracle Hill Convalescent and Nursing Home on February 27, 1976 and requested all medical records of the patient, Lewis Dougal. No medical records had been kept and the only reference to the incident was made on the "nurse's log" January 30 and 31, 1976. These entries were made subsequent to the dates thereof. Other information was placed on the records long after the incident occurred. On March 26, 1976, Petitioner State of Florida, Department of Health and Rehabilitative Services, issued an order charging Respondent with two violations: The first being in violation of Section 400.102(1)(a), Florida Statutes, and Chapter 10D-29.11(7), Florida Administrative Code, to-wit: "1. That the facility failed to protect a patient from neglect and abuse, in that a mentally retarded patient, incontinent of bowel and bladder, was allowed to acquire burns of the scrotal area, genitalia and buttocks, of sufficient severity to require hospitilization, such burns being caused by inadequate and improper nursing care on the part of the nursing service staff of the facility. As a result of the subject burns, the patient was hospitalized for treatment and care during the period January 31, 1976, and February 25, 1976, at Tallahassee Memorial Hospital. The admission diagnosis for this patient at the hospital in part was, "burns of the genitalia and buttocks." The admitting physician further noted that the admission examination revealed an obvious burn in the skin from the scrotum which had already desquamated indicating the burn had occurred some time previously, maybe as much as a couple of days. Further, a circular burn involving the buttocks was observed with the notation that it appeared the patient had been sitting in some very hot solution. The second charge was alleged to be in violation of Chapter 10D- 29.11(10) and (13) 1.(c), of the Florida Administrative Code in the following language: "(2) In that the required medical record documentation concerning how or when the above injuries occurred to this particular patient was lacking, and the investigating team was unable to determine just how or when the burns occurred or the specific person responsible for this."
Recommendation Section 400.121(1) (8), Florida Statutes, Denial, suspension, revocation of license; procedure.- (1) "The [department] may deny, revoke, or suspend a license or impose an administrative fine for a violation of any provision of s. 400.102 only after written notice to the applicant or licensee setting forth the particular grounds for the proposed action and a hearing, if demanded by the applicant or licensee." (8) The [department], as a part of any final order issued by it under the provisions of this chapter, may impose such fine as it deems proper, except that such fine shall not exceed $500 for each violation. Each day a violation of this chapter occurs shall constitute a separate violation and shall be subject to separate fine. An action for recovery of the fine may be maintained in the circuit court of the county in which the facility is located, and appeal from any judgment rendered shall be in the manner and within the time provided by the Florida Appellate Rules for reviewing judgments rendered by circuit courts in action at law." Record keeping is such an important and necessary adjunct to nursing home care the Respondent should suffer a fine of at least $200 for violation of the foregoing statutes and rules. DONE and ORDERED this 10th day of January, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert M. Eisenberg, Esquire Health Program Office Department of Health and Rehabilitative Services Post Office Box 210 Jacksonville, Florida 32201 John K. Folsom, Esquire 122 South Calhoun Street Tallahassee, Florida 32301
The Issue [Case No. 79-2407] Whether the Department is entitled to reimbursement of certain Medicaid funds previously paid to a nursing home owner in the amount of $118,061.00, based upon a recommendation by the Department and subsequent determination by the U.S. Department of Health, Education and Welfare, under Section 1122, Social Security Act, that Federal reimbursement of expenses attributable to the purchase of the nursing home should be withheld due to the Owner's lack of timely notice of intent to acquire the nursing home; [Case No. 80-467] Whether, based on the Section 1122 determination, the Department wrongfully disallowed and withheld payment to the nursing home owner, certain medicaid reimbursement funds in the amount of $101,348.00. Conclusions and Recommendation: Conclusions: Here, each party has the burden of presenting a preponderance of evidence in support of its affirmative claim. Each claim rests on the propriety or impropriety of imposition of Section 1122 penalties against the nursing home. Since the Department failed to present sufficient evidence justifying the imposition of Section 1122 penalties and the nursing home failed to establish the Section 1122 penalties were erroneously imposed, neither party sustained its burden of establishing entitlement to the relief requested. Recommendation: That the Department's Medicaid overpayment claim against the nursing home owner, in the amount of $118,061.00 be DENIED, and the nursing home owner's claim against the Department for $101.348.00 in Medicaid underpayments be DENIED. Background: On April 26, 1979, and May 2, 1979, Petitioner/Respondent, Department of Health and Rehabilitative Services ("Department") notified Respondent/Petitioners, Lakeview Nursing Home, Robert Becht and R. B. Care, Inc., d/b/a Lakeview Manor and d/b/a Intercoastal Nursing Manor ("Owner") that a desk review of the annual cost report for the Lakeview Nursing Home (a/k/a Lakeview Manor) indicated that the nursing home had been overpaid $18,900.00 by the Department's Medicaid Program during the eight months, ending June 30, 1978, and that such overpayment should be returned to the Department. On October 8, 1979, the Department notified the nursing home Owner that, pursuant to a "Notice of Determination Under Section 1122" issued by the U.S. Department of Health, Education and Welfare ("HEW") the Department had recalculated the nursing home's historic per diem rates and determined that the Owner had been overpaid $61,155.00 in Medicaid funds during the period ending June 30, 1978. On November 19, 1979, the nursing home Owner requested a formal hearing, under Section 120.57(1), Florida Statutes, to challenge the validity of the Department's overpayment claim. On November 30, 1979, the Department forwarded the Owner's request for a hearing to the Division of Administrative Hearings. [DOAH Case No. 79-2407] On January 10, 1980, the Department notified the nursing home Owner that an additional $56,906.00 should be repaid to the State of Florida--based upon alleged overpayment to the nursing home during the period ending June 30, 1979. On February 14, 1980, the nursing home Owner filed a Petition with the Department alleging numerous wrongful and negligent Department actions resulting in the withholding and underpayment of Medicaid funds to which the nursing home was entitled, demanding full payment, and requesting a formal Section 120.57 hearing. On March 12, 1980, the Department forwarded the nursing home Owner's Petition to the Division of Administrative Hearings for assignment of a Hearing Officer. [DOAH Case No. 80-467] By Notice of Hearing, dated April 11, 1980, Case No. 80-467 was set for final hearing on May 29, 1980. By agreement of the parties, the two cases were subsequently consolidated for final hearing. At final hearing, the Department called John T. Donaldson, and offered Respondent's Exhibit Nos. 1 through 9, into evidence, each of which was received. The nursing home Owner called as its witnesses, William McCaulley, Leonard Cordes, and Linda Zarecki, and offered Petitioner's Exhibit Nos. 5, (Composite) and 6, each of which was received. At the request of the nursing home, and without objection by the Department, official recognition was taken of Rule 10C-7.48(6)(c), Florida Administrative Code. The nursing home further stipulated that the only allegations which it would pursue in the administrative hearing concerned whether the Department wrongfully withheld from the nursing home certain Medicaid funds to which its was entitled. Neither party submitted post-hearing proposed Findings of Fact or Conclusions of Law.
Findings Of Fact Pursuant to an agreement with HEW, the Department administers the Medicaid Program within Florida which includes allocation and payment of Medicaid funds to nursing homes which provide health care to patients qualifying for Medicaid benefits. (Testimony of Donaldson, Petitioners Exhibit 5; Respondent's Exhibit 9) On November 1, 1977, Robert Becht, on behalf of R. B. Care, Inc. ("Owner") purchased a nursing care facility located at 208 Lakeview Avenue, West Palm Beach, Florida, known as Intercoastal Nursing Manor. No evidence was presented to establish the purchase price paid for the facility. Subsequent to its purchase, the name of the nursing home was changed to Lakeview Manor, although Department correspondence frequently refers to it as Lakeview Nursing Home. (Testimony of Donaldson, McCaulley, Respondent's Exhibits 1, 2, 5, 9 [Composite]) On January 9, 1978, a representative of the Regional Health Care Planning Agency--Health Planning Council, Inc.--advised the Department's Bureau of Community Medical Facilities of an apparent change in ownership of the Intercoastal Nursing Home, noted that the new owner had not "sought, applied for, or received the necessary Certificate of Need for this change of ownership transaction," and asked for Department assistance in determining the present status of the nursing facility. (Testimony of Donaldson, Respondent's Exhibit 1) In response to the Health Planning Council's letter, the Department's Office of Medical Facilities sent a letter to the Nursing Home Owner, dated January 26, 1978. That letter enclosed Department rules which provided that, when certain expenditures have been incurred by a health care facility without prior notice of such expenditure being given to the designated planning agency (Office of Medical Facilities), that agency should notify the health care facility that such obligation was subject to review, that timely notice of the proposed expenditure was not given, and that the Agency proposed to recommend to the Secretary of HEW that the expenditure be disapproved. The nursing home was given 30 days to reply, or file the necessary application for approval of the expenditure (acquisition of the nursing home). The letter closed with the following: "You should understand that we must report the purchase of Intercoastal Nursing Manor to the Department of Health, Education and Welfare on a no timely notice and that it may affect depreciation, interest, and fair returns on the project and reimbursement on the project." (Respondent's Exhibit 2) By letter dated March 22, 1978 (with copy to the nursing home Owner), the Department's Office of Community Medical Facilities subsequently informed the regional office of HEW that notice had been given the nursing home Owner concerning the need to file an application for review of the November 1, 1977, acquisition of and change in ownership of the nursing home, but that it had failed to respond. The recommendation of the Office of Community Medical Facilities was attached to the transmittal letter; however, that recommendation was not offered into evidence by the Department. The letter of transmittal concluded that, because no application for approval was submitted by the nursing home Owner, there was "no indication on the HRA-45 of the amount of capital expended for the acquisition." (Respondent's Exhibit 3) During April, 1978, the Regional Health Administrator of HEW issued a "Notice of Determination under Section 1122--Reimbursement to be Excluded." The Notice was addressed to the nursing home Owner and concluded that reimbursement for expenses related to the capital expenditure (acquisition of the nursing home facility) would be excluded from payment for services provided under the Social Security Act based upon the finding that (1) the expenditure was subject to Section 1122, and (2) Notice of Intent to make the expenditure had not timely been given. By way of explanation, the regional administrator added that reimbursement would be "withheld for an indefinite period" because the State had been unable to make a finding that the expenditure conformed to applicable plans, standards, and criteria due to the failure to submit an application. (Respondent's Exhibit 4) By separate agreements entered into by the Department and the nursing home Owner on November 2, 1977, October 30, 1978, and September 5, 1979 (which enabled the nursing home to participate in Florida's Medicaid Program) the nursing home Owner expressly agreed to comply with state and federal laws and rules applicable to the Medicaid Program. The Owner also agreed that Medicaid cost reporting would be governed by the procedures and methods contained in the Medicare Provider Reimbursement Manual (HIM-15). The agreements relieve the nursing home from responsibility in "those instances of overpayment due to Agency [Department] errors in eligibility investigation and determination. . ." (Respondent's Exhibit 9 [Composite]) Section 2422 of HIM-15 describes the requirements concerning approval of capital expenditures imposed by Section 1122 of the Social Security Act. The Manual cautions providers desiring to make or having made expenditures subject to Section 1122 to familiarize themselves with the regulations and direct questions concerning its implementation to the designated planning agency. (Respondent's Exhibit 8) Notwithstanding having been sent repeated notices by the Department and HEW concerning the requirements of Section 1122, the nursing home Owner has not filed an application for approval of the capital expenditure associated with acquisition of the nursing home; neither has it contended that such capital expenditure does not fall within the ambit of Section 1122 and implementing HEW and Department rules. (Testimony of McCaulley, Donaldson) Despite the Department's withholding and disallowal of payment to the nursing home of expenses relating to the acquisition of the facility (due to the federal Section 1122 determination), the nursing home continued to qualify for and participate in the Medicaid Program. The nursing home provided efficient and satisfactory medical care to Medicaid patients during 1978, and 1979, and the Department does not assert otherwise. The three Medicaid participation agreements entered into during 1977, 1978, and 1979, do not directly address or purport to relieve health care facilities from compliance with Department rules and Section 1122. (Testimony of Donaldson, McCaulley, Respondent's Exhibit 9 [Composite]) It is probable that the nursing home received actual notice of the requirement that certain capital expenditures by health care facilities must receive Section 1122 approval. Although the nursing home Owner's secretary since June, 1978, does not recall receiving the HEW Section 1122 Notice, she was not employed by the nursing home during the time the notice was issued, and she admitted that she could not testify that the owner had not received the HEW Notice. Moreover, her testimony did not address the earlier Department correspondence to the Owner concerning the need to obtain State and Federal Section 1122 approval, including the Department's Section 1122 recommendation to HEW. (Testimony of Zarecki, Donaldson, Respondent's Exhibits 2, 3, 4, 5, 6) Between 1977 and 1979, the Department overpaid the nursing home $118,061.00 (which includes the $18,900.00 claimed by the Department in its May 2, 1979, letter) in per diem patient reimbursements which the nursing home was not entitled to under the Section 1122 Notice and Penalty. This overpayment was caused by the Department's failure to exclude that portion of per diem patient reimbursements attributable to the Owner's acquisition of the nursing home property. (Testimony of Donaldson, Respondent's Exhibits 5 and 7) If the Section 1122 penalty was incorrectly recommended by the Department, and imposed by the HEW, the Department has withheld between November 1, 1977, and December 31, 1979, $101,348.00 which is now due and owing to the nursing home Owner. (Testimony of McCaulley, Petitioner's Exhibit 6) Since January 2, 1979, the Owner has no longer owned or operated the nursing home in question. (Testimony of McCaulley, Cordes)
