The Issue Whether Respondent nursing home violated Florida statutes and Department rules (and should be subject to a civil penalty) as alleged by the Department for (1) failing to provide adequate health care to an injured patient, and (2) failing to meet nursing staffing requirements.
Findings Of Fact Upon consideration of the evidence presented at the hearing, including the demeanor and credibility of the witnesses, and posthearing filings by counsel, the following findings of fact are determined: Respondent Nursing Home, the Apalachicola Valley Nursing Center, is a nursing care facility located immediately west of Blountstown, Florida. It is licensed by the Department, and has been in operation since June, 1975. (Testimony of Margaret Brock) Injury to and Standard of Care Provided Myrtle White On July 4, 1979, Dora M. Keifer was the licensed practical nurse on duty during the Nursing Home's night shift. At approximately 1:30 a.m., nurse Keifer heard a noise coming from the nearby room of an elderly patient, Myrtle White. The nurse immediately investigated, and found Myrtle White lying on the floor, and against the wall. Nurse Keifer then visually examined Mrs. White's head and extremities for bruises, discolorations, swelling, lacerations, and other signs of possible fractures. Finding only a slight abrasion on her elbow, nurse Keifer then manually examined the patient's leg and hip for signs of a bone fracture or associated pain. The patient responded by complaining of pain on her right side from her knee to her hip. However, no swelling of that area could be detected; nor were there any other physical symptoms of a bone fracture which were detectable by visual or manual examination. (Testimony of Dora Keifer) After completing the examination, nurse Keifer, with the assistance of four aides, placed Mrs. White on a blanket and carefully lifted her directly onto her bed, placing her on her back. This is a lifting procedure which minimizes sudden movement and is recommended for use with patients who are suspected of suffering from bone fractures. Nurse Keifer then raised the bed side rails to prevent the patient from falling off the bed, and checked the patient's vital signs. Except for slightly elevated blood pressure, the patient's vital signs were within normal limits. Nurse Keifer, then pushed the bed to within 10 feet of her nursing station to ensure that the patient would-be constantly observed during the remainder of her shift. (Testimony of Dora Keifer, Dr. E. B. White) Except on the two occasions when she made her routine rounds, nurse Keifer kept Mrs. White under constant personal observation until her shift ended at 7:00 a.m. on July 4, 1979. When she made her rounds, nurse Keifer advised her aides to keep Mrs. White under constant observation. During the remainder of her shift, nurse Keifer periodically reexamined Mrs. White. Physical symptoms of a fracture, or other injury resulting from the patient's fall, continued to be absent. At 4:30 a.m., nurse Keifer checked the patient's urine sample and detected no blood or other unusual signs. (Testimony of Dora Keifer) At the time of her accident on July 4, 1979, Mrs. White, an 88-year-old woman, was suffering from deafness, senility, disorientation, poor eyesight and arthritis. She had previously fractured her right hip, and a prosthetic device had been inserted. Her ailments caused her to frequently suffer, and complain of pain in the area of her right hip, for which her doctor (Dr. Manuel E. Lopez) had prescribed, by standing (continuing) order, a pain medication known as Phenophen No. 4. The standing order authorized the nursing staff to administer this pain medication to the patient, without further authorization from a physician, four times daily, and on an "as needed" basis to relieve Mrs. White's pain. (Testimony of Dora Keifer, Mr. Manuel Lopez, Margaret Brock) Previous to and at the time of Mrs. White's accident, nurse Keifer was aware of Mrs. White's ailments, and frequent complaints of discomfort, as well as the standing order of Dr. Lopez which authorized the administering of Phenophen No. 4 to Mrs. White on an "as needed" basis to relieve pain. In addition, nurse Keifer, by background and training was qualified to examine, make judgments concerning, and render care to patients requiring emergency medical treatment. For several years, she had served as a part-time nurse on the night shift at the Nursing Home, and had served for 6 years in the emergency room and obstetric ward at Calhoun County Hospital. At the hospital, she had engaged in the detection and treatment of traumatic injuries and broken bones on a daily basis, and was familiar with the proper nursing and medical techniques used in caring for such injuries. (Testimony of Dora Keifer, Dr. E. B. White) Nurse Keifer had been instructed by local physicians (including Dr. Lopez) practicing at the Nursing Home that they should not be telephoned during the late evening and early morning hours unless, in the nurse's judgment, the patient required emergency care. Because Blountstown suffers a severe shortage of physicians, the judgment of licensed nurses necessarily assumes on increasingly important role in providing adequate medical care. (Testimony of Dora Keifer, Dr. E. B. White, Margaret Brook, Dr. Manuel Lopez) Between 1:30 a.m. (the time of Mrs. Trite's accident) and 7:00 a.m., on July 4, 1979, nurse Keifer administered Phenophen No. 4 two times to Mrs. White for the purpose of relieving pain. The initial dose was given Mrs. White shortly after she had complained of pain and been moved near nurse Keifer's duty station for observation. The drug appeared to alleviate Mrs. White's discomfort. Three or four hours later, after Mrs. White again complained of pain, a second dose was administered. (Testimony of Dora Keifer) Nurse Keifer administered the two doses of Phenophen No. 4 to Mrs. White during the early morning hours of July 4, 1979, without contacting, or seeking the further authorization of a physician. Having detected no symptoms of a bone fracture, or other injury to Mrs. White resulting from her fall, nurse Keifer concluded that administration of the medication to relieve pain was authorized by Dr. Lopez's standing order, and justified under the circumstances. She further made a judgment that Mrs. White was not suffering from an injury which justified emergency treatment, and the immediate contacting of a physician. (Testimony of Dora Keifer, Dr. Manuel Lopez, Dr. E. B. White) At 5:30 a.m. on July 4, 1979, nurse Keifer telephoned Calhoun County Hospital and left a message requesting Dr. Lopez to come to the Nursing Home and examine Mrs. White as soon as he completed his rounds at the hospital. Nurse Keifer was aware, at the time, that Dr. Lopez began his daily hospital rounds at 6:00 a.m. Later that morning, at the direction of Dr. Lopez, Mrs. White was taken to the hospital for x-rays which revealed that Mrs. White had fractured her right hip. She was returned to the Nursing Home that day, and transferred to Tallahassee Memorial Hospital for several days. No surgical repairs were ever made to the hip fracture, however, and Mrs. White was subsequently returned to the Nursing Home, for bed-side care. (Testimony of Dora Keifer, Dr. Lopez, Dr. E. B. White) It was nurse Keifer's professional judgment, based upon the facts known to her at that time, that Mrs. White's fall, and physical condition neither required emergency medical treatment nor justified the immediate contacting of a physician. Nurse Keifer further concluded that the administration of Phenophen No. 4 to relieve Mrs. White's pain, without further authorization of a physician, was necessary and authorized by the standing order of Dr. Lopez. These professional nursing judgments and actions were reasonable, justified by the facts, consistent with established health care standards applied in the Blountstown area, and did not endanger the life, or create a substantial probability of harm to Mrs. White. Although the Department's Medical Facilities Program Supervisor, Howard Chastain, testified that nurse Keifer's failure to immediately notify a physician concerning Mrs. White's fall presented an imminent danger to the patient, it is concluded that the contrary testimony of two experienced medical doctors constitutes the weight of the evidence on this issue. As to the meaning of Dr. Lopez's standing order con cerning administration of Phenophen No. 4 to Mrs. White, the Department's witnesses on this matter, James L. Myrah and Christine Denson, conceded that they would net disagree with Dr. Lopez if the doctor testified that nurse Keifer's action was consistent with the standing order. Dr. Lopez, subsequently, so testified. (Testimony of Dr. M. Lopez, Dr. E. B. White, James L. Myrah) Shortage of One Nurse on Night Shift During the period of June 1 through June 30, 1979, and July 1, through July 21, 1979, for a total of fifty-one (51) nights, the Nursing Home employed only one licensed nurse on the 11:00 p.m. - 7:00 a.m. night shift. (Testimony of Margaret Brook, J. L. Myrah) During this same 51-day time period, the number of patients at the Nursing Home fluctuated between 70 and 80 patients. (Testimony of Margaret Brook, J. L. Myrah, Petitioner's Exhibit No. 2) The Nursing Home is managed by a licensed nursing home administrator, and provides a full range of health and related services to patients requiring skilled or extensive nursing home care. Most of the patients require nursing services on a 24-hour basis and are seriously incapacitated, mentally or physically. (Testimony of Margaret Brook) The Administrator of the Nursing Home was aware that Department rules required the employment of two licensed nurses on the night shift during June and July, 1979. She made numerous unsuccessful efforts to recruit, locate, and employ an additional nurse for the night shift. Her failure to hire the additional nurse required by Department rules was not a willful act of misfeasance or nonfeasance on her part--but was due to a statewide nursing shortage which is particularly severe in rural northwest Florida. Other nursing homes have experienced similar difficulty in recruiting and hiring the requisite number of licensed nurses. The Nursing Home received no economic benefit from its failure to employ the additional night nurse during the time in question because the cost of such an employee is fully reimbursed by the State. On approximately March 1, 1980, the Nursing Home located, and has since employed, the additional licensed nurse required by Department rules for the night shift. (Testimony of Dora Keifer, Margaret Brook) Due to the widespread shortage of qualified nursing personnel, the Department ordinarily brings enforcement actions against nursing homes for noncompliance with the minimum nursing staff requirements only if the noncompliance is adversely affecting patient care. (Testimony of James L. Myrah, Margaret Brock) The shortage of one licensed nurse on the night shift during the time in question did not adversely affect the level of patient care provided by the Nursing Home. (Testimony of Dora Keifer, Margaret Brock) The parties have submitted proposed Findings of Fact and Conclusions of Law. To the extent that those findings and conclusions are not adopted in this Recommended Order, they are specifically rejected as being irrelevant to the issues in this cause, unsupported by the evidence, or law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department's Administrative Complaint, and the charges against Respondent contained therein, be DISMISSED. DONE and ENTERED this 2nd day of May, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John L. Pearce, Esquire District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Stephen D. Milbrath, Esquire Dempsey & Slaughter, P.A. Suite 610 - Eola Office Center 605 East Robinson Street Orlando, Florida 32801
The Issue The issue is whether Respondent is guilty of discrimination in employment based on race, in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Respondent owns and operates Indian River Estates, which is an adult community in which residents live independently, in an assisted living facility, or in a medical/nursing facility, as their needs dictate at various times. At all material times, Petitioner, who is black, worked as a certified nursing assistant in the medical/nursing facility. The medical/nursing facility at Indian River Estates comprises three units: the East unit (also known as an acute unit), the Alzheimer's unit, and the South unit. The South unit contains a maximum of 24 beds. Petitioner was first employed at Indian River Estates in June 1999 as a per diem certified nursing assistant. In September 2000, she became a fulltime certified nursing assistant. At one point, Petitioner worked in the East unit, but asked for a transfer because she had felt that a supervising nurse had been "harassing" her. Petitioner provided no other details in support of this assertion. As a result of Petitioner's complaint, Respondent transferred her to the South unit. The record provides no basis for a finding of unlawful discrimination in the treatment that Petitioner received from her supervisor in the East unit. In June 2004, shortly after being transferred to the South unit, Petitioner began a medical leave of absence. She returned to work in January 2005. Because Petitioner was out of work considerably in excess of 12 weeks, Respondent filled her fulltime position with a new employee. Pursuant to its employee policies, which are consistent with the federal Family and Medical Leave Act, Respondent guarantees a person's job only when the employee takes no more than 12 weeks of leave within a 12-month period. When Petitioner was ready to return to work in January 2005, her old job was no longer available. However, Respondent re-hired her as a per diem certified nursing assistant and returned her to fulltime status when an opening occurred. Petitioner cites several other white employees whom, she claims, Respondent treated preferably when they took medical leave. However, each of their cases is distinguishable. One returned from medical leave within 12 weeks. Two were granted brief extensions of the 12 weeks, but never returned to work. The last was granted a three-week extension of the 12 weeks, but returned to work after the extension expired; however, he regained his old job because Respondent had not yet filled it. Although Petitioner has provided a little more detail concerning her return to work from medical leave than she did about her harassment claim, again, the record provides no basis for a finding of unlawful discrimination in the handling of her medical leave or the reassignment of job duties following her subsequent re-hiring. While working in the South unit, Petitioner served as one of two certified nursing assistants. A licensed practical nurse served as the immediate supervisor of the two certified nursing assistants. The licensed practical nurse reported directly to the director of nursing at Indian River Estates. On April 5-6, 2005, Petitioner worked the shift from 11 p.m. to 7 a.m. B. H. was an 88-year-old resident, who was new to the South unit. A former nurse herself, B. H. sometimes lived in the medical unit, when her condition required, but at other times lived in an apartment upstairs, when her condition permitted. B. H.'s diagnoses included a history of breast cancer and functional decline. B. H. was in hospice care as of April 6, 2005. Nurses Progress Notes on April 4, 2005, indicate that B. H. was resisting her prescribed medications, but would take them after repeated persuasion. At 6:00 p.m. on April 5, B. H. received her normal administration of Ativan, which is a mild tranquillizer, from the licensed practical nurse then on duty. When Petitioner and her coworkers started arriving around 10:30 p.m. for the next shift, they found B. H. in an agitated state. Petitioner and the other certified nursing assistant working the 11-7 shift informed Francine Scott, who was the licensed practical nurse for this shift, that B. H. was unsettled. Ms. Scott advised the certified nursing assistants to place the bed alarm so that they could monitor B. H. more easily. Despite repeated efforts of the two certified nursing assistants, B. H. remained agitated. On one occasion, one of the certified nursing assistants found B. H. had half climbed out of her bed and was at risk of injuring herself. The certified nursing assistants told Ms. Scott that they needed to do something more to settle down B. H., and Ms. Scott told them to bring her from her room to the desk. When she saw B. H., Ms. Scott observed that B. H. was bleeding from wounds to both lower legs, evidently from thrashing in her bed. Ms. Scott tried to apply a dressing to a leg wound, but B. H. declined treatment. Ms. Scott offered B. H. some Ativan orally, but B. H. refused to take it, so Ms. Scott left her alone at the front desk and returned to her work. About an hour later, Ms. Scott asked B. H. what had happened. B. H. responded by screaming, "don't touch me," "police," "help," and "I want to go home." Staff from the East unit came to the South unit to find out what was wrong. Ms. Scott directed a certified nursing assistant to take B. H. to a nearby activity room, from which B. H. would less likely disturb other residents. Ms. Scott telephoned B. H.'s physician and reported that B. H. was agitated and cut, but had refused wound treatment and Ativan. Ms. Scott told the physician that she needed help, and the physician ordered Ativan administered by injection. At about 3:00 a.m., Ms. Scott informed B. H. that her physician had ordered the Ativan to help her calm down. Ms. Scott administered Ativan intramuscularly to B. H. Due to the size of the needle, Ms. Scott had to administer two injections in order to administer the prescribed dosage. B. H. did not want to take the injections. While Ms. Scott was trying to administer the injections, B. H. swung her arms from side to side, while seated in her wheelchair. Ms. Scott directed Petitioner to restrain B. H., so Ms. Scott could administer the injections. At times standing and at times seated next to B. H., Petitioner pinned down B. H.'s arms, so they were folded across her chest, while Ms. Scott injected the Ativan. At one point, B. H. bit Petitioner on her left forearm, leaving bite marks. B. H. remained agitated through the rest of the night, but, by breakfast that day, she had calmed down, as her husband had come to the unit to help calm her. By the afternoon, B. H. was taking her Ativan voluntarily and allowed a hospice nurse to dress her leg wounds. Later on April 6 or the following day, B. H. complained about the treatment that she had received from Ms. Scott and Petitioner. Respondent initiated an investigation that resulted in the immediate suspension of Ms. Scott and Petitioner and their eventual termination for violating B. H.'s right to refuse treatment and other rights. At all material times, Respondent maintained a written policy enumerating residents' rights. Paragraph 6 recognizes: The right to be adequately informed of his/her medical condition and proposed treatment, unless otherwise indicated by the Resident's Physician; to participate in the planning of all medical treatment, including the right to refuse medication and treatment unless otherwise indicated by the Resident's Physician; and to know the consequences of such actions. Paragraph 9 recognizes: The right to be treated courteously, fairly, and with the fullest measure of dignity and to receive a written statement and an oral explanation of the services provided by the Licensee, including those required to be offered on an as-needed basis. Paragraph 10 recognizes: The right to be free from mental and physical abuse and from physical and chemical restraints, except those restraints authorized in writing by a Physician for a specified and limited period of time or as are necessitated by an emergency. In case of an emergency, restraints may be applied only by a qualified Licensed Nurse who shall be [sic] set forth in writing the circumstances requiring the use of restraints; and in the case of use of a chemical restraint, a Physician shall be consulted immediately thereafter. Restraints may not be used in lieu of staff supervision or merely for staff convenience, for punishment, or for reasons other than Resident protection or safety. It is doubtful that Respondent's statement of residents' rights prohibits the administration of Ativan without B. H.'s consent or the nonabusive touching of B. H. to administer the Ativan. Paragraph 6 is probably inapplicable because the physician, knowing that B. H. had refused the medication, directed the administration of Ativan. Paragraph 9 is probably inapplicable. Although Petitioner's handling of B. H. was rough-handed, B. H. had already injured herself while in her bed, had risked even greater injury while trying to climb out of her bed, and had disrupted the South unit and part of the East unit, so the administration of Ativan had acquired a degree of urgency for the welfare of B. H. and the welfare of other residents. Paragraph 10 appears to have required a prior written authorization from the physician for the use of Ativan, but not in an emergency, and the above-described scenario at least approached qualifying as an emergency. Paragraph 10 imposes a burden on the licensed practical nurse when using restraints--probably, physical restraints--to document the use and necessity. Paragraph 10 imposes a burden to consult a physician immediately after using a chemical restraint. It is unlikely that Petitioner violated this provision because: 1) Ms. Scott consulted with the physician before using a chemical restraint and 2) the burden of consultation falls on the person using the restraint--Ms. Scott--not her subordinate, who merely follows her direction. However, as noted in the Conclusions of Law, B. H. had a clear right to refuse the Ativan, regardless of the direction of her physician. And Ms. Scott and Petitioner violated that right. Likewise, B. H. obviously has a right not to be physically abused, and the marks that Petitioner left on B. H.'s arms at least raise a legitimate fact question of such abuse. Respondent undertook a prompt, fair, and reasonably thorough investigation. The Department of Children and Family Services was contacted about possible abuse. The agency investigator told Respondent's staff that B. H.'s rights had been violated. Respondent's staff reached the same conclusion. Finding that Petitioner had violated B. H.'s rights, Respondent had a legitimate reason to terminate Petitioner, as it did Ms. Scott. Petitioner failed to produce any evidence whatsoever of a racial motive and has thus failed to prove that the reason cited by Respondent is pretextual. Petitioner's scant effort to show preferential treatment to other similarly situated employees failed to provide a basis on which to infer race discrimination. Petitioner testified that she had heard of employees who had abandoned a patient, who then died, but Respondent never fired the employees. However, Petitioner offered no direct evidence of this event. Absent detailed evidence of this alleged incident, it is impossible to use this briefly mentioned incident for the purpose for which Petitioner offers it. As noted above, the record does not support Petitioner's allegations of racial discrimination in harassment from a supervisor on the East unit or in the reassignment of duties following her return from an extended leave of absence. Implicitly abandoning these claims, Petitioner testified that her sole claim of racial discrimination involves her termination for her role in the B. H. incident. Thus, Petitioner did not try to prove racial discrimination in Respondent's handling of the B. H. incident by proving other instances of racial discrimination by Respondent--she admitted that there was none. The record contains no evidence whatsoever of unlawful discrimination based on any illness of Petitioner.
Recommendation It is RECOMMENDED that the Florida Commission of Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 27th day of October, 2006, in Tallahassee, Leon County, Florida. S __ ROBERT E. MEALE 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 27th day of October, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David E. Block Scott S. Allen Jackson, Lewis, LLP One Biscayne Tower 2 South Biscayne Boulevard, Suite 3500 Miami, Florida 33131 Olivia Lewis 806 Mulberry Street Sebastian, Florida 32958
Findings Of Fact At all times pertinent to the matter in issue herein, the Respondent, University of South Florida, (University), was an entity of the State of Florida located in Tampa, and operated, among other services, a Student Health Services at which physicians and nurses were employed to provide health services to members of the student body. The Petitioner, Olympia Malone, was hired by the University as a registered nurse at the Student Health Service in January, 1986. At the time of her hiring, Ms. Malone had 3 years of college. She had received an Associate Degree from Hillsborough Community College, was licensed by the State of Florida as a registered nurse, and had been employed as such at St. Jospeh Hospital for 12 years. Over the years of her employment with the University, Ms. Malone received several performance evaluations which covered the period from July 25, 1986 through January 23, 1990. Prior to receipt of the last report on January 26, 1990, she received a commendation letter in May, 1989 from Ms. Sharon A. Berry, her immediate supervisor, and had been asked to transfer over to the physician area. Petitioner claims to have been told there was some problem in getting nurses to work in that area and she was asked to go there to get it organized. She was told she had the skills needed at the new section. She agreed to do this because she enjoyed it and saw it as a chance to keep her nursing skills up since the work related to direct patient care. While there she learned new skills and made suggestions for some of which she was commended. However, when she asked for a raise she was told by Ms. Allen, the Director of Nursing Services, that she had been transferred there because of personality conflicts. When a nursing supervisor position came open in the Student Health Service in 1989, Ms. Malone applied for it but the promotion was given to Ms. Hansen, another nurse, whom Petitioner feels was less qualified then she. Malone filed a grievance about this failure to select her for promotion but subsequently withdrew it because she felt she could not win and to carry it forward would polarize the work section. Ms. Allen selected Ms. Hansen for the position of supervisor because she felt, from the records, Hansen was best qualified. Though Ms. Malone indicates she has had supervisory experience as preceptor for licensed practical nurses, nursing assistants and students at St. Joseph Hospital, her application makes no reference to any supervisory experience as did Ms. Hansen's. Ms. Allen's selection was based on who had the most supervisory experience. She went strictly by what was on the applications. At no time prior to the rendering of the appraisal on January 26, 1990 was Ms. Malone given any indication there was any concern about her performance, nor was she counselled. Unknown to her, however, there were several memoranda concerning her performance, dating back to 1988 and 1989, which were being kept in a private file maintained by Ms. Allen. These memoranda, which were not being kept in Ms. Malone's official personnel record with the University, made repeated reference to personality conflicts involving her and other employees which were, apparently, causing some concern to the staff. An Addendum to Annual Performance Review relating to Ms. Malone, dated January 28, 1991 and covering the period from January 24, 1990 to January 23, 1991, refers to a counselling session with her conducted on January 24, 1991, one day after the expiration of the reporting period. At this session, Ms. Malone's non-written evaluation was discussed but she disagreed with it and left the meeting before the discussion could be completed. The use of a non-written evaluation was, at that time, a new, informal, fluid procedure whereby the rater, using the old rating form, discussed with the ratee that individual's strengths and weaknesses. The supervisor had the option of using the old formal form or the new discussion/memorandum format. Once the discussion was completed, the employee had the right to request a memorandum of the evaluation. In this case, the process did not get that far since Ms. Malone got upset and departed the room before it was completed. It is this evaluation which she now considers to be racial discrimination and retaliation for her prior grievance which forms the basis for this hearing. Ms. Malone objected to the use of this new procedure because she felt it did not require the supervisor to identify specifics. In December, 1990, she had requested of Dr. Anderson, the Director of the Student Health Service, that (1) she get an evaluation by an impartial rater, and (2) her evaluation be in writing. In response, Dr. Anderson advised Ms. Malone that her immediate supervisor, Ms. Hansen, had to render the evaluation and that she would be given "something in writing." About a year before this latter evaluation, Ms. Malone, in January, 1990, received a written evaluation by Ms. Hansen which, though it reflected she achieved standards in every category, also reflected she had experienced some difficulty in working with others and with carrying out assigned additional responsibilities. On February 2, 1990, Ms. Malone filed a grievance because of that evaluation and in August, 1990, her supervisors and Mr. Carrington, the University's Assistant Personnel Director, met with her to discuss the areas of insubordination alleged by Ms. Hansen. Ms. Malone was told this meeting was not a counselling session. When she asked for permission to gather information on her own time to refute the allegations, it was granted and the information was thereafter sent to Mr. Carrington and Dr. Anderson, but she got no response. Ms. Malone's attorney filed a complaint about this with the EEO office in the summer of 1990. This grievance got lost and was not responded to. Also that summer, Ms. Malone filed a grievance with the campus employment office based on what she felt was a negative performance appraisal. This matter was referred to an arbitration committee made up of two Black and one White member which determined that no evidence of discrimination or retaliation was indicated. In January, 1991, she then got the counselling session on which she walked out. Several days later, the written addendum, which she considered to be much worse than the original evaluation, was prepared. In March, 1991, Ms. Malone, who is African American, filed the current EEO complaint but did not get a response for "quite a while." She claims that during all this time she was treated differently from the White nurses and harassed with acts of reprisal. For example, Dr. Kali Derasari called her to her office and told her to pull an appointment for a patient to refer to a nurse practitioner. When she advised the doctor of the requirements for record keeping, the doctor disagreed so she did what was asked of her. As a result, the nurse practitioner complained to Ms. Hansen who counselled Petitioner for not following proper procedure. When the doctor, at Ms. Malone's request, backed her up, she was still reprimanded. On another occasion, according to Petitioner, she applied for leave two weeks in advance to attend a work shop she wanted and agreed to use annual leave, if necessary. She got approval from Ms. Hansen for administrative leave on March 27, 1991, 4 days later. She went to the workshop as approved, but 3 weeks later, was called in by Ms. Hansen, told she should not have had administrative leave for a workshop, and directed to change her time sheet which had already been approved. When Ms. Malone called someone at the Personnel office about it, she was told that office had not suggested the change - that her supervisor could approve administrative leave. When she told Ms. Hansen that, it was then agreed she could leave it as it was. There were numerous unspecified other instances of harassment claimed by Petitioner. She recalls one occasion where Ms. Hansen physically provoked her by leaning over her and coming up close to her face, criticizing her about her work. This was ultimately made a part of her record. In addition, Ms. Malone is the only Black nurse in the section. The other nurse there is a White licensed practical nurse, yet Ms. Malone claims she has been instructed not to refer to herself as a registered nurse. She feels this deprecates her position in an attempt to curry favor with the White nurse who is of a lower professional status. She also cites several occasions where she felt information she needed to do her job was kept from her though others were advised. When she reported all this to Ms. Allen, Ms. Hansen's supervisor, she got no response. However, she claims, whenever anyone complained about her, she was called in and counselled. She admits that management could have called and counselled those about whom she complained without her knowing about it. Ms. Malone also appears to disregard the fact that Ms. Allen, the overall supervisor, is Black. In 1987 and 1988, Ms. Malone's supervisor was Sharon Berry. According to Ms. Allen, there was some mutual complaining between the two of them At first Ms. Allen was very protective of Petitioner because she had hired her and wanted her to succeed. However, when Petitioner did not improve as expected, Ms. Allen's attitude changed and when she had an altercation with Ms. Malone about where Malone's car was parked, she began to believe that maybe Malone had some problem with personal relationships. Contrary to what Ms. Malone related, the transfer into the physician's section in 1989 was the result of problems Ms. Malone was having with her supervisors and after the move, she appeared to be doing better. Ms. Malone was given the opportunity, along with other nurses, to work in other areas to get more experience, but she declined the opportunity unless she got more money. Ms. Berry was Petitioner's immediate supervisor just after she was hired and initially they got along well. When problems first began to arise, she went to Ms. Allen who advised her to show Petitioner more understanding. This is consistent with Allen's testimony regarding her initial efforts to protect Petitioner. Nonetheless, Petitioner's performance, monitored on a continuing basis, was "fine." She was a good nurse. Gradually, however, Petitioner's relationships with Ms. Berry and the other nurses began to deteriorate and her lateness began to be a problem. Ms. Berry supervised Petitioner until she transferred to the physician's area. Toward the end of their relationship, Berry claims, Petitioner became remote and withdrawn from other staff, indicating they were "5 faced" and "barracudas." Things got so bad between Berry and Petitioner that Petitioner would not speak to her unless spoken to and then would not make eye contact. Ms. Hansen has been Petitioner's supervisor in the physician's area since 1989. Two of the 3 individuals she supervises are Black. She evaluates Petitioner's performance formally once a year and informally on a continuing, routine basis. She has found that Petitioner works without supervision most of the time. This is all right. However, at times Petitioner does not come to her as a resource person but goes to someone outside the section for answers to job questions and this is not all right. She has observed that Petitioner often has some difficulty in her relationships with others. When it became clear Petitioner was having difficulty with another person in the section, Hansen investigated and initiated a new procedure. A part of the problem was Petitioner's attitude and often, even when she was technically correct, her abusive and abrasive approach to others diminished her effectiveness. She has had to reprimand Petitioner in the past. When Ms. Hansen called Petitioner in for the January, 1991 evaluation, she showed Petitioner what she intended to say and Petitioner got angry and left. The matters which would have been discussed with Petitioner had she not walked out, were subsequently formalized. When Ms. Malone complained to Ms. Allen she was told she was too loud, and that she acted like Whites expected her to act. Allen also reportedly alleged that Malone was hostile to her. Ms. Malone admits to being loud and believes her loud voice can cause people to think she is hostile. Nonetheless, Ms. Malone claims that because of all the above listed perceived discrimination and retaliation, she has developed unspecified physical and mental aliments and is taking medication for both even though in the last few months the pressure has let up somewhat. When she notified management of this, she was referred to the Employee Assistance Program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered dismissing Olympia Malone's Petition for Relief from the unlawful employment practices of both racial discrimination and retaliation filed against the University of South Florida. RECOMMENDED this 1st day of February, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 1st day of February, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3914 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: None submitted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. Accepted and incorporated herein. & 7. Accepted and incorporated herein. COPIES FURNISHED: George Clark, III, Esquire 610 Horatio Street Tampa, Florida 33606 Wendy J. Thompson, Esquire University of South Florida 4202 Fowler Avenue, Adm. 250 Tampa, Florida 33620-6250 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F. Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-4149
The Issue The issue in the case is whether the allegations in the Administrative Complaint, as amended, are correct and if so what penalty is appropriate.
Findings Of Fact The Petitioner is the state agency charged with responsibility for regulation of licensed nursing home administrators in Florida. At all times material to this case, the Respondent was a licensed nursing home administrator. On or about April 13, 1998, the Respondent was hired as the administrator of the “Colonial Oaks” nursing facility (the facility) located in Ft. Myers, Florida. The facility was owned by Vencor and had been operating for about four years by the time the Respondent became the administrator. Prior to her move to Colonial Oaks, the Respondent had 20 years of experience as a nursing home administrator. The Respondent’s previous nursing home employment had been at facilities with superior ratings. She agreed to transfer to this facility because she believed that she could improve the situation and secure a superior rating for it as well. She has never been the subject of a disciplinary proceeding prior to this case. Colonial Oaks had been through 12 administrators and 15 directors of nursing before the Respondent assumed the administrator’s position. There were considerable staff problems at the facility. Continuing management difficulties made if difficult to motivate staff members who apparently assumed that the managers would soon be gone and that new managers with new expectations would arrive. Further staffing problems were related to the type of patients who resided at Colonial Oaks. The facility drew a large population of private pay residents who expected high levels of service from the staff, which the staff was apparently unable or unwilling to provide. At the time of the Respondent’s employment at the facility, there was no director of social services and no director of activities. Additionally, resignations had been submitted by the medical records coordinator, the care plan coordinator, the staff development coordinator, the therapy director, the case manager, and the central supply clerk, all of whom were completing their resignation notice periods. Immediately upon beginning her tenure at the facility, the Respondent began to advertise the job openings in an attempt to fill the positions. She filled a number of open positions and began training new employees. She met with the staff frequently and made daily rounds to review the operation of the facility. Employees seeking to become Certified Nursing Assistants were offered classes to encourage them to complete their training. The Respondent also changed the resident care plan records program from a computerized system, which was allegedly disliked by survey teams from the Agency for Health Care Administration (AHCA) responsible for inspecting the facility, to a paper-based system which provided for easier review by survey teams. There is no evidence that the Respondent failed to make an appropriate effort to address the problems existing at the facility when she assumed control. AHCA inspectors surveyed the facility on August 6 through 8, 1998. While the survey team inspected the facility, the Respondent spent much of the time in her office preparing a package she expected to submit to the survey team which she believed would lead to a superior rating. She also responded to requests for information from the survey team. According to the survey report, the survey team identified numerous deficiencies. The facility received a conditional rating. Among the cited deficiencies were instances where residents were allegedly left in soiled clothing for extended periods of time. Some of the allegations involved residents with skin irritation or sores which could be exacerbated by unsanitary clothing. The facility’s policy and procedure require that residents be “repositioned” every two hours and that incontinent residents should be changed every two hours. Based on the testimony of William Sullivan, the evidence establishes that in at least one case of an incontinent resident sitting in a wheelchair, the facility did not comply with the policy and procedure requirement that he be moved and changed every two hours. Based on the testimony of Joan Cagley-Knight, the evidence establishes that in at least one case of an incontinent resident with a “full diaper,” the facility did not comply with the policy and procedure requirement that the resident be changed every two hours. There is no evidence that the Respondent was aware that some employees of the facility failed to comply with the policy and procedure requirement that the resident be changed every two hours. According to the survey report, other alleged deficiencies included weight loss by some residents. There is no evidence that prior to the August survey, the Respondent was aware that some residents were losing weight. The weight of the evidence fails to establish that the Respondent should have known that some residents were losing weight. According to the survey report, other alleged deficiencies included random complaints voiced by some relatives of facility residents. The Respondent maintained an “open door” policy so that any person could meet with her and address matters of concern. There is no evidence that prior to the survey, the Respondent was aware of any unresolved relative complaints that had not been addressed. Colonial Oaks had been rated “conditional” previously and was described by the Vencor employee who followed the Respondent as a “yo-yo facility” which would sometimes improve and then falter. The Respondent prepared a plan of correction to address the deficiencies. The plan of correction was apparently approved by AHCA and was implemented by the Respondent. The corporate owner of the facility did not challenge any of the cited deficiencies through a procedure known as Informal Dispute Resolution (IDR). The Respondent was not involved in the decision not to utilize the IDR process. Subsequent to the August survey, the facility’s director of nursing resigned. The Respondent made attempts to hire a new director of nursing. She requested that the corporate owner assist in the search, which extended outside the State of Florida. Apparently the troubled reputation of the facility made it difficult to convince prospective nursing directors to accept the position. Regional nurses assigned by Vencor to assist in the situation resigned rather than work in the facility. Eventually, the Respondent’s immediate supervisor came in to assist with the problems. The supervisor brought in some additional corporate employees including nutritionists, but most refused to become involved in the turmoil. On October 6, 1998, an AHCA team resurveyed the facility. At the time of the October survey, the nursing director was still serving out her resignation notice period. Although as of the October 6 survey a number of deficiencies had been corrected, several deficiencies were again cited. The cited deficiencies included instances where residents were allegedly left in soiled clothing for extended periods of time. In at least one case, based on the testimony of Joan Cagley-Knight, an incontinent resident sat in urine- soaked sweatpants for more than two hours without being assisted by an employee of the facility, in violation of the applicable policy and procedure requirement. The weight of the evidence fails to establish that the Respondent knew or should have known that some employees of the facility failed to comply with the policy and procedure requirement that the resident be changed every two hours. Based on the testimony of William Sullivan, the evidence establishes that some residents continued to lose weight and that nutritional recommendations were not being implemented. There is no evidence that the Respondent was aware that the nutritional issues had not been addressed, after corporate nutritional specialists were brought in following the August survey. There was also an issue related to an injury suffered by a resident who fell while unrestrained. The issue related specifically to an apparently incorrect report made by the facility’s director of nursing to AHCA officials regarding the site where the accident occurred. There is no evidence that the Respondent attempted to mislead the AHCA employees about the incident in any manner. On October 9, 1998, the Respondent transferred to the “Windsor Woods” facility, a superior-rated facility also owned by Vencor, where she continued to achieve a superior rating until the rating program was discontinued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Nursing Home Administrators, enter a final order dismissing the Administrative Complaint, as amended, filed against Janice Carol Reeping. DONE AND ENTERED this 30th day of October, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM F. QUATTLEBAUM 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 30th day of October, 2001. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Mary Denise O'Brien, Esquire Department of Health 2727 Mahan Drive, Mail Stop 39 Tallahassee, Florida 32308 John Taylor, R.Ph., Executive Director Board of Nursing Home Administrators Department of Health 4052 Bald Cypress Way, Bin C04 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether disciplinary action should be taken against the Respondent for violation of statutory provisions regarding the practice of nursing. By Administrative Complaint the Respondent was charged with unprofessional conduct and with being unable to practice nursing with reasonable skill and safety to patients.
Findings Of Fact At all times material hereto, the Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0711261. Respondent was employed at Humana Hospital Cypress in Pompano Beach from on or about October 10, 1988, until on or about March 10, 1989. During her employment at Humana Hospital Cypress, Respondent was absent from her duties without giving notice on four occasions, was absent with notice on one occasion, and was on sick leave on five different occasions. These absences constitute an excessive number of absences. The pattern of the absences also raises concerns as to whether the absences are caused by behavioral problems. During her employment at Humana Hospital Cypress, Respondent was observed while on duty by several Charge Nurses (Dysen, Fabella, and Keough) to be extremely nervous; jumpy; on the verge of tears or crying when asked what was wrong; to be constantly complaining about being tired and hungry; to be frequently looking very tired, taking naps during lunch break, and not waking up in time for duty; to be frequently flailing her arms around, talking verbosely in high volumes, and speaking about subject matter inappropriate at a nurse's station; and exhibiting generally unpredictable and worrisome behavior. Lynn Whitehead, R.N., has been a staff nurse on the Substance Abuse floor of Humana Hospital Cypress for approximately six years. During February of 1989, Nurse Whitehead spoke to Respondent after Respondent had a hysterical crying reaction to learning that she failed the Telemetry Nursing course. During Nurse Whitehead's discussion with Respondent, Respondent admitted to Nurse Whitehead that Respondent used drugs and had been to some rehabilitation group meetings in the past. Respondent's behavior in her discussions with Nurse Whitehead - extreme anxiety, pacing, upset, complaints of hunger and exhaustion - along with Respondent's excessive absences, were consistent with drug abuse behavior based on Nurse Whitehead's knowledge and experience. On or about February 28, 1990, Respondent was asked by Nurse Fabella to submit to a urinalysis based on Fabella's observation of Respondent's erratic and unusual behavior which led Nurse Fabella to suspect that drug use might be involved. Respondent refused to submit to a urinalysis and stated the reason was because she knew marijuana would show in her urine. Nurse Fabella counseled Respondent about her erratic behavior, excessive absences, refusal to submit to a urinalysis, and unprofessional nursing conduct, on or about February 28, 1989. Subsequent to the counseling by Nurse Fabella, Respondent failed to keep an appointment with Nurse Cruickshank to discuss her situation and the decision was made to terminate Respondent. Amy Mursten, Investigative Specialist for the Department of Professional Regulation, interviewed Respondent for the purpose of conducting an investigation into her behavior and suspected drug abuse. Ms. Mursten discussed the Intervention Project for Nurses which could help rehabilitate the Respondent and save her nursing practice, but Respondent refused this help and denied having a problem. On at least two occasion, Respondent failed to act professionally or responsibly towards a patient and would have given inappropriate dosages or types of medications to the patients had someone not intervened. The Respondent's behavior patterns described above constitute a departure from minimal standards of acceptable and prevailing nursing practice. The Respondent's behavior patterns described above demonstrate an inability to practice nursing with reasonable skill and safety to patients by reason of use of drugs or narcotics or as a result of her mental condition.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Nursing enter a final order in this case concluding that Respondent has violated Section 464.018(1)(h), Florida Statutes, by engaging in unprofessional conduct, and has violated Section 464.018(1)(j), Florida Statutes, by being unable to practice nursing with reasonable skill and safety to patients. It is further recommended that the Board's final order suspend Respondent's license until Respondent has demonstrated to the Board that Respondent is able to practice nursing with reasonable skill and safety to patients and, once Respondent has demonstrated her ability to so practice, place Respondent on probation for a period of one year subject to such requirements as may appear to the Board to be necessary to assure that Respondent continues to practice with reasonable skill and safety to patients. DONE and ENTERED in Tallahassee, Leon County, Florida, this 30 day of April 1990. MICHAEL M. PARRISH 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 30 day of April 1990.
The Issue The issues are thus whether the acts and omissions charged occurred, whether they constitute violations of Section 400.022(1)(j) and 400.141, Florida Statutes, and related rules, and whether an administrative fine is appropriate pursuant to 400.102(c) and Section 400.121, Florida Statutes. Upon the commencement of the hearing, the petitioner moved to amend paragraph 8 of its Complaint, so that the date "March 4" would read March 14." The motion was granted on the basis that there was only a clerical error involved and paragraph 8 correctly alleges that there-was a nursing staff shortage from February 20 to March 14, 1980. Eight witnesses were called by the Petitioner, and two by the Respondent. Ten exhibits were adduced as evidence. The Respondent has submitted and requested rulings upon ninety-five proposed findings of fact. In that connection, all proposed findings, conclusions, and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein they have been accepted, and to the extent such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith they have been rejected.
Findings Of Fact Manhattan Convalescent Center is a nursing home facility located in Tampa and licensed by the Department of Health and Rehabilitative Services. On January 22, February 20, February 25, March 3, March 6, and March 14, 1980, a number of Department employees representing the Department's medical review team, and the Office of Licensure and Certification, consisting of registered nurses, hospital consultants and Department surveillance team members, made inspections of the Respondent's facility for the purpose of ascertaining whether the premises, equipment and conduct of operations were safe and sanitary for the provision of adequate and appropriate health care consistent with the rules promulgated by the Department and whether minimum nursing service staff standards were being maintained. Thus, on January 22, 1980 a member of the medical review team, witness Maulden, observed a rat run across the floor in one of the wings of the nursing home facility. On February 20, Muriel Holzberger, a registered nurse and surveyor employed by the Petitioner, observed rodent droppings in one of the wings of the facility and on February 20, March 12 and March 14, 1980, numerous roaches were observed by various employees of the Department making inspections throughout the facility. On February 20, 1980 strong urine odors were present on the 200, 300 and 400 wings of the facility as well as in the lobby. The odor was caused by urine puddles under some patients' chairs in the hallway, wet sheets, and a spilled catheter. On February 20 and 25, 1980 the grounds were littered with debris and used equipment, the grass and weeds on the grounds needed cutting and there was a build up of organic material, food spills and wet spots on the floors. The Respondent's witness, Ann Killeen, as well as the Petitioner's hospital consultant, Joel Montgomery, agreed that a general state of disrepair existed at the Respondent's facility, consisting of torn screens, ill fitting exterior doors with inoperative or missing door closers and missing ceiling tile. Interior and exterior walls were in need of repair and repainting. Additionally, eleven bedside cords for the nurse paging system were cut, apparently by patients, and on February 25, 1980, a total of 36 nurse paging stations were inoperative. A substantial number of these cords were cut by a patient (or patients) with scissors without the knowledge of the Respondent and steps to correct the condition were immediately taken. On January 22, 1980 Petitioner's representatives, Mary Maulden and Alicia Alvarez, observed a patient at the Respondent's facility free himself from physical restraints, walk down the hall and leave the facility. A search for nursing staff was made but none were found on the wing. After three to five minutes the Assistant Director of Nurses was located and the patient was apprehended. Nurse Alvarez's testimony revealed that the Respondent's nursing staff was in and out of, and working in that wing all that morning except for that particular point in time when the patient shed his restraints and walked out of the facility. On March 3, 1980 Department employee, William Musgrove, as part of a surveillance team consisting of himself and nurse Muriel Holzberger, observed two patients restrained in the hall of the facility in chairs and Posey vests, which are designed to safely restrain unstable patients. The witness questioned the propriety of this procedure, but could not establish this as a violation of the Respondent's patient care policies required by Rule 10D-29.41, Florida Administrative Code. The witness reviewed the Respondent's written patient care policy required by that Rule and testified that their policy complied with it and that the policy did not forbid restraining a patient to a handrail in the facility as was done in this instance. The witness was unable to testify whether patients were improperly restrained pursuant to medical orders for their own or other patients' protection. A hospital consultant for the Department, Bill Schmitz, and Marsha Winae, a public health nurse for the Department, made a survey of the Respondent's facility on March 12, 1980. On that day the extensive roach infestation was continuing as was the presence of liquids in the hallways. On February 20, 1980 witness Joel Montgomery observed a lawn mower stored in the facility's electrical panel room which is charged as a violation in paragraph 3 of the Administrative Complaint. The lawn mower was not shown to definitely contain gasoline however, nor does it constitute a bulk storage of volatile or flammable liquids. Nurse Holzberger who inspected the Respondent's nursing home on February 20, February 25, March 3 and March 6, 1980, corroborated the previously established roach infestation and the presence of strong urine odors throughout the facility including those emanating from puddles under some patients' chairs, the soaking of chair cushions and mattresses and an excess accumulation of soiled linen. Her testimony also corroborates the existence of 36 instances of inoperative nurse paging devices including the 11 nurse calling cords which had been cut by patients. This witness, who was accepted as an expert in the field of proper nursing care, established that an appropriate level of nursing care for the patients in this facility would dictate the requirement that those who are incontinent be cleaned and their linen changed more frequently and that floors be mopped and otherwise cleaned more frequently. Upon the second visit to the facility by this witness the nurse call system had 9 paging cords missing, 11 cords cut, and 15 of the nurse calling devices would not light up at the nurses' station. This situation is rendered more significant by the fact that more than half of the patients with inoperative nurse paging devices were bedridden. On her last visit of March 6, 1980 the problem of urine puddles standing on the floors, urine stains on bed linen, and resultant odor was the same or slightly worse than on the two previous visits. An effective housekeeping and patient care policy or practice would dictate relieving such incontinent patients every two hours and more frequent laundering of linen, as well as bowel and bladder training. On March 6, 1980 controlled drugs were resting on counters in all of the facility's four drug rooms instead of being stored in a locked compartment, although two of the drug rooms themselves were locked. The other two were unlocked, but with the Respondent's nurses present. Ms. Holzberger participated in the inspections of March 3 and March 6, 1980. On March 3, 1980 there were no more than 14 sheets available for changes on the 4:00 p.m. to midnight nursing shift. On March 6, 1980 there were only 68 absorbent underpads and 74 sheets available for changes for approximately 65 incontinent patients. The unrefuted expert testimony of Nurse Holzberger established that there should be available four sheets for each incontinent patient per shift. Thus, on these two dates there was an inadequate supply of bed linen to provide changes for the incontinent patients in the facility. On March 6, 1980 Nurse Holzberger and Nurse Carol King observed 12 patients who were lying on sheets previously wet with urine, unchanged, dried and rewet again. This condition is not compatible with generally recognized adequate and appropriate nursing care standards. Incontinent patients should be examined every two hours and a change of sheets made if indicated. If such patients remain on wet sheets for a longer period of time their health may be adversely affected. On March 6, 1980 these same employees of the Petitioner inspected a medical supply room and found no disposable gloves, no adhesive tape, no razor blades and one package of telfa pads. There was no testimony to establish what the medical supply requirements of this facility are based upon the types of patients it cares for and the types and amounts of medical supplies thus needed. The testimony of Robert Cole, the facility's employee, who was at that time in charge of dispensing medical supplies, establishes that in the medical supply room (as opposed to the nurses' stations on the wings) there were at least six rolls of tape per station, 50 razors, four boxes or 80 rolls, 300 telfa pads and 200 sterile gloves. Nurses Holzberger and King made an evaluation of the Respondent's nurse staffing patterns. Ms. Holzberger only noted a shortage of nursing staff on February 24, 1980. Her calculations, however, were based on an average census of skilled patients in the Respondent's facility over the period February 20 to March 4, 1980 and she did not know the actual number of skilled patients upon which the required number of nursing staff present must be calculated on that particular day, February 24, 1980. Further, her calculations were based upon the nurses' "sign in sheet" and did not include the Director of Nurses who does not sign in when she reports for work. Therefore, it was established that on February 24 there would be one more registered nurse present than her figures reflect, i.e., the Director of Nurses. Nurse King, in describing alleged nursing staff shortages in the week of March 7 to March 13, 1980, was similarly unable to testify to the number of skilled patients present on each of those days which must be used as the basis for calculating required nursing staff. She rather used a similar average patient census for her calculations and testimony. Thus, neither witness for the Petitioner testifying regarding nursing staff shortages knew the actual number of patients present in the facility on the days nursing staff shortages were alleged. In response to the problem of the roach infestation, the Respondent's Administrator changed pest control companies on March 26, 1980. The previous pest control service was ineffective. It was also the practice of the Respondent, at that time, to fog one wing of the facility per week with pesticide in an attempt to control the roaches. Further, vacant lots on all sides, owned and controlled by others, were overgrown with weeds and debris, to which the witness ascribed the large roach population. The problem of urine odors in the facility was attributed to the exhaust fans for ventilating the facility which were inoperable in February, 1980. She had them repaired and, by the beginning of April, 1980 (after the subject inspections), had removed the urine odor problem. The witness took other stops to correct deficiencies by firing the previous Director of Nurses on March 14, 1980, and employing a new person in charge of linen supply and purchasing. A new supply of linen was purchased in February or March, 1980. The Respondent maintains written policies concerning patient care, including a provision for protection of patients from abuse or neglect. The Respondent's Administrator admitted existence of the torn screens, broken door locks, missing ceiling tiles and the roach infestation. She also admitted the fact of the cut and otherwise inoperable nurse paging cords in the patients' rooms, but indicated that these deficiencies had been repaired. The various structural repairs required have been accomplished. All correction efforts began after the inspections by the Petitioner's staff members, however.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the evidence in the record, it is RECOMMENDED that for the violations charged in Counts I, II, IV, VI, IX and X of the Administrative Complaint and found herein to be proven, the Respondent should be fined a total of $1,600.00. Counts III, V, VII and VIII of the Administrative Complaint should be dismissed. DONE AND ENTERED this 31st day of March, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1981. (904) 488-9675 COPIES FURNISHED: AMELIA PARK, ESQUIRE JANICE SORTER, ESQUIRE W. T. EDWARDS FACILITY 4000 WEST BUFFALO AVENUE, 4TH FLOOR TAMPA, FLORIDA 33614 KENNETH E. APGAR, ESQUIRE EDWARD P. DE LA PARTE, JR., ESQUIRE 403 NORTH MORGAN STREET, SUITE 102 TAMPA, FLORIDA 33602
