The Issue The issues in this case are: whether Respondent, Tallahassee Facility Operations, LLC, d/b/a Consulate Health Care of Tallahassee (“Consulate”), committed a Class III deficiency at the time of a complaint survey conducted on July 2, 2013; whether Consulate committed two further Class III deficiencies at a revisit survey on August 12, 2013; and, if Consulate did commit the alleged Class III deficiencies found during the surveys on July 2 and August 12, 2013, whether the latter deficiencies constituted “uncorrected deficiencies” meriting the imposition of a $1,000 fine and the issuance of a conditional license to Consulate for the period August 13, 2013 through September 30, 2014.
Findings Of Fact AHCA is the state agency charged with licensing of nursing homes in Florida under section 400.021(2), Florida Statutes, and the assignment of a licensure status pursuant to section 400.23(7), Florida Statutes.1/ AHCA is charged with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Pursuant to section 400.23(8), AHCA must classify deficiencies according to their nature and scope when the criteria established under section 400.23(2) are not met. The classification of the deficiencies determines whether the licensure status of a nursing home is "standard" or "conditional" and the amount of the administrative fine that may be imposed, if any. During the survey of a facility, if violations of regulations are found, the violations are noted on the prescribed form and referred to as "Tags." A tag identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, and sets forth specific factual allegations that the surveyors believe support the violation. Consulate operates a 120-bed nursing home at 1650 Phillips Road in Tallahassee and is licensed as a skilled nursing facility. July 2, 2013, complaint survey Having received c omplaints alleging Consulate’s failure to follow physician-ordered plans of care for residents, AHCA sent a survey team to conduct a survey of the facility on July 2, 2013. Registered nurse specialist surveyor Susan Page was specifically directed to examine the facility’s procedures regarding activities of daily living (“ADLs”) and its practices in following physicians’ plans of care. Ms. Page reviewed the records of Resident 1, a male resident who had suffered a fractured pelvis in a fall at his home. He had been fitted with an external fixation device to stabilize the fracture and was admitted to Consulate for rehabilitative care. The external fixation device was anchored by metal pins that were inserted through the skin and into the bone. When the fixator was removed, a small wound remained at the pin site on Resident 1’s hip. Resident 1 had been discharged on June 27, 2013. Ms. Page’s review was thus limited to the facility’s records. She looked at the generalized history of the resident, the physician orders, the grievance log, the ADL treatment record, care plan, and the Minimum Data Set information on Resident 1. Ms. Page discovered a written physician order dated June 1, 2013, that directed Consulate staff to clean the pin site with Betadine then wash off the Betadine and cover the wound with gauze twice a day for seven days, and afterwards to wash the wound with soap and cover it daily. The order directed a ten-day course of Zyvox, an antibiotic. Finally, the physician order stated, “Make sure [patient] showers daily.” Ms. Page testified that she reviewed other physician orders that showed changes in pain medications and indicated that Resident 1 was having issues with loose stool or diarrhea. He was tested for the bacterium Claustridium difficile (“C. diff”) in his stool. Ms. Page reviewed Consulate’s ADL Flow Record for Resident 1 and discovered that during the period from June 1 to June 27, the resident was given a shower on only seven days, despite the physician’s order that he receive a daily shower. On four days during that period, Resident 1 received no form of body cleansing. On the remaining days, he was given bed baths. Ms. Page and Debra Ball, a registered nurse specialist who was part of the survey team, each testified that a bed bath is not commensurate with a shower. A shower involves clean water running over the entire body, allowing the body to be cleansed with soap and rinsed with clean water. A bed bath involves a tub of soapy water and a tub of clean water. The resident remains in the bed and the staff person wipes the resident off as best she can. The resident is not immersed in clean water. Ms. Page explained the significance of Consulate’s failure to follow physician orders for Resident 1. The resident’s recent surgery provided a portal of entry for bacteria into the body, and the physician’s orders were designed to work in combination to minimize the possibility of infection. The daily shower was an essential part of the physician’s plan of care for Resident 1. A shower is invaluable in keeping low the bacteria count on the resident’s skin. The shower was especially important in this situation because of the pin site location on Resident 1’s hip and his noted problems with loose stools and possible C. diff infection. Ms. Page, opining as an expert in nursing, testified that the failure to follow the physician order in this case potentially compromised Resident 1’s ability to maintain or reach his highest practical mental, physical, or psychosocial well-being. Ms. Page specifically testified that due to the position of the wound site, the loose stools, and the fact that the portal of entry led directly to the bone, Resident 1 had a potential to contract cellulitis or osteomyelitis as a result of the deficiency. Ms. Page conceded the efficacy of cleansing with Betadine, but noted that the antibacterial cleansing was prescribed for only seven days and that the failure to give showers as prescribed occurred on consecutive days after the Betadine prescription had expired. As a result of the failure to provide showers or to note in the record any reason for that failure, the facility was cited for violating Florida Administrative Code rule 59A- 4.107(5), which provides: “All physician orders shall be followed as prescribed, and if not followed, the reason shall be recorded on the resident’s medical record during that shift.”2/ The deficiency tag correlating to this violation is Tag N054. Consulate was cited with a Class III deficiency for this violation. Ms. Page testified that the decision to classify the July 2, 2013, deficiency as Class III was reached by a consensus of the four-person survey team, all registered nurses, and was based on the facts of the case and the statutory definition set forth in section 400.23(8)(c): A class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident’s ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. Ms. Ball agreed that Consulate should be cited for violating rule 59A-4.107(5) and that the violation should be classified as Class III. Ms. Ball testified that in her experience it is not unusual for a physician to direct the manner in which the cleansing of a post-operative patient should occur. She noted that the pin site’s portal of entry went into the bone and that bone infections have high morbidity and mortality rates. Ms. Ball further noted the variety of infections that could occur in a case such as Resident 1’s: osteomyelitis, enterococcus, candida, methicillin-resistant staphylococcus aureus (“MRSA”), and the most common one, staphylococcus. Some of these infections could be life threatening. Ms. Ball, who was accepted as an expert in nursing, offered the opinion that the failure to follow the physician order for showers had the potential to cause a surgical site infection, which in turn had the potential to compromise Resident 1’s ability to maintain or achieve his highest practical physical well-being. Ms. Ball testified that an infection is never the sort of “minor impact” contemplated by the statutory definition of a Class IV deficiency. Ms. Ball testified that each of the four registered nurses on the survey team agreed that the failure to follow physician orders had the potential to compromise Resident 1’s health and that the violation should be classified as Class III. Patricia McIntire is a registered nurse consultant supervisor for AHCA. Her duties include reviewing cited deficiencies and ensuring that the evidence cited by the survey teams meets the requirements of the applicable statutes and regulations. Ms. McIntire was the supervisor who reviewed the July 2, 2013, survey file. She agreed that the cited deficiency should be classified as a Class III deficiency. AHCA’s citation gave Consulate until August 2, 2013, to correct the deficiencies noted in the survey. August 12, 2013 revisit survey Ms. Ball was sent to conduct a revisit survey of Consulate on August 12, 2013 in order to determine whether the previous deficiencies had been corrected. Ms. Ball was specifically looking for Consulate’s compliance with physician orders and the correction of the federal citation related to ADLs. Ms. Ball wanted to survey a sample of residents that would include both aspects of the corrections she sought. She knew that residents receiving pain medications would have physician orders for the medications. She therefore asked the facility to provide the records of residents who were receiving both pain medications and assistance with ADLs. Resident 1 and Resident 3 met those criteria. Resident 1, who was not the same person as the Resident 1 cited in the July 2 survey, had a physician order dated July 26, 2013, to change her peripheral inserted central catheter (“PICC”) dressing every seven days starting on August 1. When Ms. Ball checked the PICC dressing on Resident 1, she saw a notation on the dressing indicating that it had last been changed on August 3, nine days prior to the revisit. Ms. Ball testified as to her experience with PICC dressing changes as follows: I’ve done these dressing changes for years. A central line dressing change, we’re not talking about a piece of gauze and a piece of tape. You actually use an adherent Tegaderm dressing. It’s like Saran Wrap. Picture Saran Wrap and when you put it on something, it sticks. Picture Saran Wrap with a sticky surface, a sticky bottom. So you have this clear 4-by-4-inch, it’s a standard size, a clear sticky dressing of Tegaderm. Within your dressing kits— because these dressings have kits that you have to buy. It’s a very involved, long, tedious process to do a dressing change on a PICC. I’ve done several. When you do this dressing change, which isn’t just changing the dressing, it includes a cleaning to disinfect and reduce the number of microorganisms on your skin and then some of them have like a little biofilm. It’s a little patch that you put where the catheter’s going into the vessel. And that biofilm is designed to kind of provide a barrier for seven days. I think that’s probably one of the reasons it’s done every seven days. So you’ve got this clear dressing, this 4-by- 4-inch Saran-Wrap-appearing thing that has a sticky to it. And it’s not easy to peel off. Well, when you change a dressing, within your kit, you also have this little label. It measures about maybe 1-by-2 inches. It says “date” and “initials.” And what you do is when you change that dressing, within your kit, which has a lot of stuff in it, you take the little label after you’ve sealed it, and you put that other sticky label on top of that Saran Wrap type dressing. Well, picture taking a piece of adhesive tape off a piece of Saran Wrap. I challenge you. It can’t be done. It’s going to tear it. So there would be no reason for that dressing to still bear that date of August the 3rd if it had been changed since then. Ms. Ball testified that it is a basic standard-of-care, established by the Centers for Disease Control (“CDC”) and many other entities, that PICC-line dressings should be changed every seven days. Ms. Ball testified that the primary risk associated with failure to change PICC dressings as directed is CLABSI, which is the CDC’s acronym for a central line associated blood infection. She stated that 250 deaths a day are associated with central line associated blood infections. Ms. Ball testified that the potential harm is so great that the CDC has developed initiatives for surgical site infections and central line associated blood infections. Ms. Ball saw the date of August 9 scribbled on a white label stuck to the dressing but she disregarded it because it was not on the label provided in the PICC dressing kit. She spoke to Consulate’s unit manager, who stated that the note on the white label had been made by a Licensed Practical Nurse (“LPN”). The unit manager confirmed that LPNs do not perform PICC dressing changes but nonetheless told Ms. Ball that the dressing must have been changed on August 9. However, the nurse’s notes and other medical records indicated no dates other than August 3 for a PICC-dressing change for Resident 1. Ms. Ball asked Resident 1 when the PICC dressing was last changed but the Resident could not say. Consulate’s medication log confirmed that the dressing had not been changed since August 3. Ms. Ball testified that she looked at the medication record, nurse’s notes, and treatment record and could not find any evidence in any record kept by the facility that the PICC dressing had been changed since August 3. Ms. Ball was also unable to find any evidence that the PICC dressing had been changed from July 26 to August 3, 2013. Ms. Ball concluded that the PICC dressing for Resident 1 had not been changed from August 3 to the date of the revisit survey, August 12, 2013, a period of more than seven days. Ms. Ball also concluded that the PICC dressing had not been changed from July 26 to August 3, 2013, also a period of more than seven days. Consulate’s records gave no reason why the physician order to change the dressing every seven days had not been followed. The physician order required a PICC-dressing change on August 1, 2013. Ms. Ball found no documentation of a PICC- dressing change for Resident 1 on August 1, 2013. After she encountered problems with Resident 1’s treatment, Ms. Ball reviewed the record of Resident 3, who had a physician order dated July 23, 2013, to change her PICC dressing every seven days. Ms. Ball could find no documentation showing that a dressing change occurred from July 23 to August 2, 2013, a period of more than seven days. The facility’s records also gave no indication as to why the dressing change had not occurred. AHCA’s July 2, 2013, notice of deficiency required Consulate to complete all corrections by August 2, 2013. The failures to perform PICC-dressing changes for Residents 1 and 3 occurred on or after August 2, the date by which all corrections were to be completed. On August 12, 2013, Consulate was cited with an uncorrected deficiency for again violating rule 59A-4.107(5), by failing to follow physician orders or to document reasons why the orders were not followed. Ms. Ball testified as to the similarities between the deficient practices found in the July 2 survey and the August 12 revisit survey. In both cases, Residents had orders for specific types of treatment. Both cases involved residents with impaired skin integrity that substantially increased the risk of infection. In both cases, the facility failed to show it was following physician orders. Ms. Ball testified that the July 2 deficiency involved the potential for infection to the bone, a “very complex, very devastating” type of infection. She noted that the August 12 deficiencies involved central lines going directly to the residents’ hearts. She stated, “They both have potential for serious harm or a potential to keep you from getting well or increasing your stay or possibly killing you. Ultimately, you could die from either one.” Ms. Ball testified that in her opinion, Consulate’s failure to follow physician orders for Residents 1 and 3 potentially compromised their ability to maintain or reach their highest practical, mental, or psychological well-being. Ms. Ball testified that AHCA does not assign a specific classification for all deficiencies related to failure to follow physician orders. Each deficiency is assigned a classification based on an application of the statutory definitions to the facts of the specific case under consideration. In this case, Ms. Ball had no doubt that Consulate’s failure to follow physician orders constituted a Class III deficiency. Ms. McIntyre testified that she reviewed the facts related to the August 12, 2013, revisit survey. She agreed that Consulate failed to follow physician orders in accordance with rule 59A-4.107(5), that Consulate’s failures to follow physician orders were properly classified as Class III deficiencies, and that they constituted an uncorrected deficiency from the July 2, 2013, complaint survey. The plan of correction Section 400.23(8)(c) provides in part: “A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, a civil penalty may not be imposed.” Section 408.811(4) provides that a deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is required or approved by the agency. Section 408.811(5) provides: “The agency may require an applicant or licensee to submit a plan of correction for deficiencies. If required, the plan of correction must be filed with the agency within 10 calendar days after notification unless an alternative timeframe is required.” After the July 2, 2013, complaint survey, AHCA sent to Consulate a letter dated July 12, 2013, stating that “Deficiencies must be corrected no later than August 2, 2013,” and requiring Consulate to file a plan of correction within ten days. The letter provided that the plan must contain the following: What corrective action(s) will be accomplished for those residents found to have been affected by the deficient practice; How you will identify other residents having potential to be affected by the same deficient practice and what corrective action will be taken; What measures will be put into place or what systematic changes you will make to ensure that the deficient practice does not recur; and, How the corrective action(s) will be monitored to ensure the deficient practice will not recur, i.e., what quality assurance program will be put into place. On July 21, 2013, Consulate submitted a plan of correction that provided as follows as pertains to Tag N054, failure to follow physician orders: Resident #1 has been discharged from the facility on 6/27/2013. An audit has been conducted for current residents shower preferences and an audit has been conducted of current resident ADL sheets. Re-inservice staff on giving showers per shower schedule. Shower sheets will be reviewed 5 times weekly in the clinical meeting for completion. [CNAs] will complete shower sheets daily and the nurse will verify that a shower has been given. Findings will be reviewed at the monthly QA/PI committee meeting to ensure substantial compliance. On July 24, 2013, AHCA sent a fax to Consulate stating that its plan of correction had been approved on June 18, 2003. Barbara Stevens, Consulate’s vice president of clinical services, testified that Consulate completed the corrective work proposed in the plan of correction on or before August 2, 2013. Consulate contends that AHCA’s approval of its plan of correction, without requiring additional conditions or actions, effectively preempts AHCA from finding that the August 12 deficiencies are uncorrected deficiencies from the July 2 survey. AHCA accepted the proposed plan, Consulate performed the plan, and no deficiencies involving showers or other ADLs were a part of the August 12 deficiency findings. In other words, the failure to follow physician orders deficiencies found in the August 12 survey should not be considered “uncorrected” because they were unlike the failure to follow physician orders deficiency found in the July 2 survey. Ms. Ball testified that when AHCA conducts a revisit survey, it is not looking for compliance with a facility’s plan of correction; it is looking for compliance with statutes and regulations. She noted that Tag N054 specifically addresses failure to follow physician orders, not failure to shower a resident. Consulate’s plan entirely neglected to address what it intended to do going forward to assure that physician orders would be followed. She noted that virtually the same plan of correction was submitted for Tag F312, the federal ADL violation, and further noted that it should have been obvious that different actions would be required to correct a failure to provide ADLs and to correct a failure to follow physician orders. Ms. Ball testified that AHCA cannot lead a facility by the nose and tell it how to come into compliance. The facility is expected to know and follow the statutes and rules and to understand what it needs to do to come into compliance. She conceded that nothing in the plan of correction would have prevented the subsequent PICC-dressing violations, but opined that this was a flaw in the plan, not with AHCA’s determination that the PICC-dressing issue constituted an uncorrected deficiency. Consulate “missed the boat” by failing to address physician orders in its plan and paid the price during the August 12 revisit survey. Ms. McIntire testified that Consulate’s plan of correction touched on some of the subjects of its July 2 deficiencies, namely ADLs, but that AHCA expects the facility to correct everything cited in the notice of deficiency. AHCA expected Consulate to look holistically at all physician orders, not merely those related to ADLs. Ms. McIntire testified that when a facility is cited under the physician order tag, the facility will typically look at its entire resident population and establish a mechanism for determining whether staff is following physician orders. The facility is expected to implement whatever corrective actions are necessary to bring it back into compliance, not just for the few residents sampled in the survey but for all of them. It is up to the facility to decide what tool or mechanism it will use to correct the deficient practice. Ms. McIntire testified that AHCA cannot reject a plan of correction on the assumption that the facility did not intend to address physician orders. She stated that AHCA accepted Consulate’s plan because it did address some of the deficient practices that were identified, but that Consulate was nevertheless expected to correct every area in which it was found out of compliance. Ms. McIntire stated that following the plan of correction does not bring the facility into compliance because AHCA surveys for compliance with the regulations, not the plan of correction. Ms. McIntire stated that Consulate’s plan of correction included nothing that would have prevented the deficiency found on August 12 under Tag N054, but that the plan did correct Tag F312. Ms. McIntire testified that the plan of correction is a “jumping off point” for AHCA. The agency wants to see how comprehensively the facility is looking at deficient practices. AHCA proceeds on a good faith assumption that the facility is going to look at all of its residents who could have been affected by the deficient practice and make the proper corrections. Substantial compliance Consulate contended that it should not have been required to file a plan of correction at all because AHCA erred in finding the July 2, Tag N054, deficiency a Class III deficiency. Consulate argues that the deficiency should have been classified as Class IV because it had merely “the potential for causing no more than a minor negative impact on the resident.” Section 400.23(8)(d) provides that no plan of correction is required for an isolated Class IV deficiency. If the July 2 deficiency was Class IV, then the August 12 deficiencies cannot be considered “uncorrected.” Consulate’s argument rests essentially on the proposition that it substantially complied with the June 1, 2013, physician order for Resident 1. The pin site was cleaned with Betadine as prescribed. The wound was cleaned and gauzed as prescribed. The antibiotic was administered. The resident received a bath or shower on all but four days during the period from June 1 to June 27, and on some days he was washed more than once. Consulate argues that AHCA failed to establish how a failure to give Resident 1 a bath and/or shower on four days during the month of June presented a potential for physical, mental, or psychosocial discomfort to the resident or the potential to compromise the resident’s ability to maintain or reach his highest practical physical, mental, or psychosocial well-being.3/ Consulate’s argument is at odds with the evidence. The testimony of AHCA’s witnesses established the potential physical, mental, or psychosocial discomfort to the resident or the potential to compromise the resident’s ability to maintain or reach his highest practical physical, mental, or psychosocial well-being. The potential for infection was real, and the physician’s orders were fashioned to maximize Resident 1’s protection from any potential infection. Further, the deficiency for which Consulate was cited was not one with which it could “substantially” comply. Either the physician orders are followed or they are not. Ms. Page testified that facility staff may not pick and choose which physician orders to follow. The physician did not just pull the order out of the air and instruct Consulate to give the resident a daily shower.4/ It was a prescribed treatment, a preventive measure. Ms. Page observed that all of the prescribed measures were intended to work together to prevent infection. Ms. Ball stated that the order “was obviously infection control related. And he wouldn’t have written an order if he didn’t want it done. That’s why physicians write orders. If they write an order, they expect you to do that, hence, the word ‘order.’” Summary findings Based on the foregoing, it is found that AHCA properly cited Consulate on July 2, 2013 under Tag N054 for violating rule 59A-4.107(5) and properly classified the violation as Class III. Based on the foregoing, it is found that AHCA properly cited Consulate on August 12, 2013 under Tag N054 for two violations of rule 59A-4.107(5) and properly classified the violations as Class III. Further, it is found that AHCA properly cited Consulate for an uncorrected Class III violation for repeated failure to follow physician orders.
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 imposing a fine of $1,000 and further imposing conditional licensure on Respondent for the period from August 13, 2013 through September 30, 2014. DONE AND ENTERED this 31st day of December, 2014, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2014.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent is, and was at all times material to these proceedings, a licensed optometrist in the state of Florida, having been issued license number OP 000773. Respondent has been a practicing optometrist in the state of Florida for 24 years having graduated from the Southern College of Optometry in Memphis, Tennessee in 1964. Respondent has maintained his practice in Orange Park, Florida since 1964. Respondent has been treating patients with orthokeratology for approximately 20 years. Count I: Treatment of Keith Roberson with Orthokeratology and Follow-Up Care Therefor. On or about October 23, 1979, Alan Keith Roberson and his mother visited Respondent for the first time concerning a program of orthokeratology. During that visit, Respondent gave Roberson literature regarding orthokeratology. Roberson expressed a strong desire to obtain a driver's license. Roberson was 21 years of age at the time. Respondent told Roberson that orthokeratology would possibly enhance his vision and possibly enable him to achieve those things that he desired, more specifically, a driver's license. Orthokeratology has been defined as the programmed application of contact lenses to reduce or eliminate refractive anomalies and to sphericalize the cornea in order to reduce myopia, contain myopia, and to bring back a more functional vision. Orthokeratology has also been used for the reduction of astigmatism. The American Academy of Optometry does not recognize diplomacy for orthokeratology. Neither the American Optometric Association nor the Florida Optometric Association recognizes orthokeratology as a separate section. No special license or certification is required to practice orthokeratology in Florida. The initial refraction of Roberson by Respondent showed that the patient's eyes were a minus 21 diopter. Roberson was extremely myopic, which means he was extremely nearsighted. Roberson also had a high degree of nystagmus (constant movement of the eyes from side to side) and very large eyes. Respondent treated Roberson with a modified orthokeratology program in an attempt to improve Roberson's vision so that Roberson could obtain a driver's license. Through this modified orthokeratology program, Respondent hoped to reduce and contain Roberson's myopia, to reduce Roberson's nystagmus, and to improve Roberson's vision. Roberson's aided vision improved from the initial visit of 20/200 in each eye to that of 20/70 in the right eye and 20/100 in the left eye. Although Petitioner contends that Roberson's improved vision was not attributable to the orthokeratology treatment, there is insufficient evidence to show otherwise. From 1979 through September 1982, Roberson's vision did not slip and his myopia did not get any worse, and indeed, his vision had improved. During that period, Roberson was seen approximately eight times by Respondent, of which six visits were for orthokeratology and contact lens treatment. On March 17, 1981, Roberson was issued an operator's license with corrective lens restrictions by the State of Florida, Department of Highway Safety and Motor Vehicles. Prior to the issuance of this driver's license, Roberson had obtained a form entitled "Report of Eye Examination with a Certification of Eye Specialist" which was completed and apparently used to obtain Roberson's driver's license. There is insufficient evidence to show that Respondent completed and signed that portion of the form entitled "Certification of Eye Specialist". Although Roberson testified that his driver's license was issued the day after this form was dated on October 4, 1980, it is clear from the record that Roberson's driver's license was not issued until March 17, 1981. Respondent did not make any promises to Roberson that treatment with modified orthokeratology would improve his vision, unaided by glasses or contact lenses, so that Roberson could pass the vision requirement of the Florida Driver's Test unaided by glasses or contact lens, notwithstanding that the ultimate goal of orthokeratology may be to allow the patient to go for periods of time without refractive devices and function normally. Although Roberson's condition at the time of his first visit may have contraindicated a "strict" orthokeratology treatment, there were indications that the "modified" orthokeratology treatment suggested and used by the Respondent, after full explanation to Roberson, would produce the results that Roberson was seeking. In fact, it did improve Roberson's vision aided by refractive device sufficiently to allow Roberson to obtain a driver's license. Respondent did not promise Roberson that the "modified" orthokeratology treatment would enhance his vision, unaided by refractive devices, to the point of allowing Roberson to pass the driver's license test or that Roberson would be able to function normally for any period of time without refractive devices to aid his vision. There is insufficient evidence to show that Respondent could have obtained the same results using a less expensive treatment such as gas permeable contact lens. There was insufficient evidence that Respondent's follow-up care of Roberson was inadequate, particularly considering the use of "modified" orthokeratology treatment. There was insufficient evidence to show that Respondent's treatment of Roberson with "modified" orthokeratology fell below the standard of care in the community or that such treatment was inappropriate under the facts and circumstances of this case. Count II: Whether Respondent charged Patient Roberson an Excessive Fee for Orthokeratology. Because Roberson was the highest myopic (-21 diopter) patient ever seen by Respondent and initially unsure whether orthokeratology would work on this patient, Respondent quoted a fee of $1,000.00 with the understanding that if treatment was not successful then the fee would only be $500.00. The parties stipulated that Respondent ultimately received $1,000.00 in payment from Roberson for orthokeratology. Dr. Carter's normal fee in 1979 for orthokeratology was $2,000.00. There is insufficient evidence to show that Respondent prescribed orthokeratology treatment for Roberson to facilitate charging him a higher fee. Count III: Whether Respondent Failed to Properly Treat Patient Roberson and Follow Patient Roberson's Condition. At approximately 7:30 p.m., on September 7, 1982, Roberson visited Respondent's office after accidentally being "poked" in the left eye four days earlier causing a bright blue flash of light resulting in a curtain over Roberson's eye and poor sight vision in the nasal field. Roberson complained about fluctuating vision, seeing light flashes, a veil-like curtain coming over his left eye, watering of the left eye and slipping of contact lens. Respondent spent approximately 20-25 minutes examining Roberson. After examining Roberson's visual acuities, Respondent examined Roberson with a slitlamp or biomicroscope and attempted an optomoscopy in an attempt to view Roberson's retina. Because of Roberson's high degree of myopia and nystagmus and because Respondent did not dilate eyes during this time period, Respondent was unable to determine for certain that Roberson had a detached retina. However, Respondent was aware of the high possibility that Roberson had a detached retina. Although Respondent may have advised Roberson to visit his previous ophthalmologist the next day, Respondent did not call an ophthalmologist on the evening of September 7, 1982 to facilitate referral, nor did Respondent follow- up by calling a ophthalmologist at any other time. After Roberson left Respondent's office he went home. The next day Roberson went to work and while at work he continued to experience the veil like curtain over his eye and a dark spot. Roberson then went home and played drums for about 3 1/2 to 4 hours. When he finished playing the drums he took a shower. While shaking his hair dry he lost the vision in his left eye. Roberson, on the advice of his mother, then went to the University Hospital where he was immobilized and diagnosed as having a probable retinal detachment, and thereafter transported to Shands Hospital, where he was diagnosed as having a giant retinal tear. While at Shands Hospital, Roberson underwent three major operations on his eye and 45 minutes of laser surgery. He was informed that he would probably always be blind in his left eye. Because of Roberson's high degree of myopia, statistically he was at a very high risk of experiencing a detached retina with or without injury. Respondent was aware that patient's eyes were sensitive to a retinal detachment as early as 1979. In 1979, Respondent went to great lengths to inform Respondent that if he ever had the symptoms of a detached retina he should go directly to an ophthalmologist. The classic symptoms of a detached retina are flashes of light with what appears to be a veil or curtain floating over the eye. Roberson experienced the classic symptoms of a retinal detachment and communicated them to Respondent on the evening of September 7, 1982. A detached retina usually occurs secondarily to a retinal tear. A detached retina becomes an ocular emergency once detected or when it should have been detected. The circumstances presented in this case, inter alia, the history of the patient's eyes; a high degree of myopia; difficulty Respondent had with viewing patient's eyes and the symptoms complained of made the situation an ocular emergency. It was of paramount importance to get the patient to an ophthalmic specialist. The failure to promptly refer a patient who has a possible detached retina to the appropriate specialist is a grave departure from the prevailing standard of care for reasonable and prudent optometrists in Respondent's community under similar circumstances. The longer the blood supply is cut off from the retina the less chance there is that the retina will continue to function. The fact that 4 days had elapsed between the time Roberson had been struck in the eye on September 3, 1982, and the time he visited Respondent on September 7, 1982, makes referral that much more important. Merely telling Roberson to see an ophthalmologist the next day is not enough. Respondent should have called the retinal specialist and made the referral. The appropriate referral protocol and standard of care under the circumstances presented in this case would have been for Respondent to call the ophthalmologist himself that evening and, if the ophthalmologist was not in the office, it would have been appropriate to leave a message with the doctor's service explaining the emergency nature of the circumstances. Count IV: Whether Patient Roberson's Records were Altered or Made After the Fact by Respondent. When Roberson first visited Respondent's office in 1979, Respondent recorded Roberson's case history on a 5 x 8 card which was kept with Roberson's patient jacket. The results of Respondent's examination and testing of patients were records on a letter size document. In 1984, after receiving and responding to numerous inquiries regarding Roberson, Respondent transferred information from the 5 x 8 card onto the larger patient record so that all of the information would be contained on one form. The 5 x 8 card was then returned to the patient jacket. Respondent no longer has the patient jacket as all of his original records were subpoenaed from him during the civil litigation. While Dr. Carter candidly admits to transferring part of the patient record from one document onto another document, there was no testimony or evidence presented that Dr. Carter altered or changed any of the patient records or added any information thereto. Count V: Whether Respondent has Engaged in Gross or Repeated Malpractice in the Practice of Optometry Regarding his Treatment and Examination of Keith Roberson. The Respondent was disciplined by the Board of Optometry in its Final Order dated July 17, 1981 in Department of Professional Regulation v. R.T. Carter, O.D., Case No. 81-403, wherein Respondent was assessed an administrative fine of $5,000.00, ordered to make restitution in the total amount of $1,471.00, placed on probation for 18 months and had restrictions placed on his advertising. In General Although the record reveals that Petitioner has not always timely complied with time limits set out in Section 455.225(2) and (3), Florida Statutes, there has been no showing by the Respondent that he was prejudiced by the delays.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of Count III and Count V, in regard to Count III of the Amended Administrative Complaint, and suspending his license to practice optometry in the state of Florida for a period of one year followed by one (1) year of supervised probation with conditions the Board may consider appropriate, and imposing an administrative fine of $5,000.00. It is further RECOMMENDED that Count I, Count II, Count IV and Count V as it relates to Counts I, II and IV be dismissed. RESPECTFULLY SUBMITTED and ENTERED this 8th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 8th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2032 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 in this case. Specific Rulings in Proposed Findings of Fact Submitted by Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3, except date which was October 23, 1979. Adopted in Findings of Fact 4. Adopted in substance' in Finding of Fact 5, except last sentence which is rejected as not being supported by the substantial competent evidence in the record. 5.-6. Adopted in Findings of Fact 6 and 7, respectively. Subordinate to facts actually found in this Recommended Order. The first sentence adopted in Findings of Fact 10. The balance of this findings of rejected as not being supported by substantial competent evidence in the record. 9.-12. Subordinate to facts actually found in the Recommended Order. Adopted in Finding of Fact 20. Rejected as not being supported by substantial competent evidence in the record. 15.-22. Adopted in Findings of Fact 23,24,25,27,28,29,30 and 31, respectively. The first sentence is only a restatement of Respondent's testimony rather than a finding of fact. The balance of this finding is subordinate to the facts actually found in this Recommended Order. Adopted in Findings of Fact 26 and 35. 25.-28. Adopted in Findings of Fact 32, 33, 34 and 40. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1.-13. Adopted in Findings of Fact 1, 2, 3, 7, 3, 2, 5, 8, 9, 10, 11, 12 and 16, respectively. Adopted in Findings of Fact 14, 15 and 16. Adopted in Findings of Fact 17 and 18. -20. Are not findings of fact, but statements as to the weight given certain evidence. Adopted in Findings of Fact 17 and 18. Covered in Background. 23.-26. Adopted in Findings of Fact 19, 19, 20 and 21, respectively. 27.-28. Not a finding of fact, but rather a restatement of testimony. 29.-35. Adopted in Findings of Fact 23, 23, 24, 25, 25, 25 and 25, respectively. Adopted in Findings of Fact 25 and 26, but modified. The first sentence is subordinate to facts actually found in this Recommended Order. The balance is adopted in Finding of Fact 27. 39.-41. Adopted in Finding of Fact 28. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 28. Is a restatement of testimony rather than a finding of fact but, if stated as a finding of fact would reject as subordinate to facts actually found in this Recommended Order. Rejected as being argument rather than a finding of fact. Covered in Background. Rejected as not being material or relevant. 48.-51. Adopted in Findings of Fact 36, 37, 38 and 39. Rejected as argument not a finding of fact. The first, third and fifth sentences are rejected as not being supported by substantial competent evidence in the record. The balance of this finding is subordinate to facts actually found in this Recommended Order. 54.-67. Rejected as not being material or relevant since Respondent produced insufficient evidence to show that he was prejudiced by these acts. 68. Rejected as not supported by substantial competent evidence in the record. 69.-70. Rejected as not being material or relevant. 71. Rejected as not being supported by substantial competent evidence in the record. COPIES FURNISHED: Robert D. Newell, Jr., Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 Gary J. Anton, Esquire Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mildred Gardner, Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether Respondent is guilty of the isolated Class III deficiency alleged in Count II of the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is a licensed, skilled nursing home facility located in North Miami, Florida. Respondent was at all times pertinent hereto licensed by Petitioner pursuant to the provisions of Chapter 400 Part II, Florida Statutes. Petitioner is the agency of the State of Florida with the responsibility to regulate skilled nursing homes in Florida. Petitioner surveys nursing home facilities to evaluate their compliance with applicable rules. Petitioner classifies any deficiency noted by a survey according to the nature and scope of the deficiency. The severity of the deficiency determines the amount of any administrative fine and whether the licensure status of the facility should be "standard" or "conditional." A licensee’s failure to comply with an applicable statute or rule is a deficiency. A survey results in a report that lists each deficiency that is found, identifies the applicable regulatory standard that the surveyor believes has been violated, provides a factual basis for the alleged violation, and indicates the scope and severity of the deficiency. A facility is given a deadline to correct each alleged deficiency found during the initial survey. Disciplinary action is typically initiated if a facility has not corrected a deficiency as determined by a follow-up survey. Petitioner conducted a survey of Respondent during the period February 28 - March 3, 2005 (the initial survey). Barbara Catinella, who is a registered nurse and an experienced surveyor, participated in the initial survey on behalf of Petitioner. On March 1, 2005, Ms. Catinella observed perineal care being administered to two female residents (identified as Resident 26 and Resident 27). Each resident was being attended to following an episode of urinary incontinence. The first observation began at approximately 2:00 p.m. and the second began approximately thirty minutes later. Two certified nurses assistants (CNAs) administered the perineal care to Resident 26 and two different CNAs administered the perineal care to Resident 27. In both instances, the CNAs failed to properly perform the perineal care. In each instant, the CNAs performing the perineal care failed to open and clean the labia. At all times pertinent to this proceeding, Respondent had a policy as to perineal care for female residents that conformed to accepted perineal care standards. Paragraph 15 of the policy required Respondent's staff to do the following in sequence for a female resident who had suffered an episode of incontinence, whether the episode was of bowel, bladder, or both: For a female resident: Wet washcloth and apply soap or skin cleansing agent. Wash perineal area, wiping from front to back. Separate labia and was area downward from front to back. Continue to wash the perineum moving outward to and including thighs, alternating from side to side, and using downward strokes. Rinse perineum thoroughly in same direction, using fresh water and a washcloth. Gently dry perineum. Instruct the resident to turn on her side. Rinse wash cloth and apply soap or skin cleansing agent. Wash the rectal area thoroughly, wiping from the base of the labia and extending over the buttocks. Rinse. Dry area. 8. At all times pertinent to this proceeding, Respondent had a policy as to perineal care for male residents that conformed to accepted perineal care standards. Paragraph 16 of the policy required Respondent's staff to do the following in sequence for a male resident who had suffered an episode of incontinence, whether the episode was of bowel, bladder, or both: For a male resident: Wet washcloth and apply soap or skin cleansing agent. Wash perineal area starting with the urethra and working outward. Retract foreskin of the uncircumcised male. Wash and rinse urethral area using a circular motion. Continue to was the perineal area, including the penis, scrotum and inner thighs. Thoroughly rinse perineal area in [the] same order using fresh water and clean washcloth. Gently dry perineum following [the] same sequence. Reposition foreskin of uncircumcised male. Instruct or assist the resident to turn on his side. Rinse washcloth and apply soap or cleansing agent. Wash and rinse the rectal area thoroughly, including the area under the scrotum, the anus, and the buttocks. i. Dry area. The perineal care policy was adopted ". . . to provide cleanliness and comfort to the resident, to prevent infections and skin irritation, and to observe the resident's skin condition." Respondent's staff is trained to adhere to the perineal care policy. The perineal care provided Resident 26 and Resident 27 as observed by Ms. Catinella failed to adhere to Respondent's policy and constituted a failure to provide care and services to prevent potential urinary tract infection as alleged in the Administrative Complaint. Respondent argued that the failure to adhere to its policy by failing to spread and cleanse the labia would not cause a urinary tract infection as alleged in the Administrative Complaint. Respondent correctly argues that urine, in the body, is sterile and would not by itself cause a urinary tract infection. Most, but not all, urinary tract infections are caused by the e-coli bacteria found in feces. Respondent established that incontinent residents typically receive perineal care from Respondent's staff 10 times during a 24-hour period. Respondent also established that the facility uses only anti-bacterial soap for perineal care. Based on those considerations, Respondent argued that the perineal care observed by the surveyors may have led to a skin irritation, but that it would not have resulted in a urinary tract infection as alleged in the Administrative Complaint. The greater weight of the credible evidence established clearly and convincingly that the failure to spread and cleanse the labia has the potential for various adverse consequences for the resident, including urinary tract infection.3 If staff does not spread and cleanse the labia, the fact that anti-bacterial soap is being used is irrelevant. If the soap does not reach the labia, that area will not be cleansed, regardless of the number of times perineal care is administered during a typical day. Petitioner established the Class III violations pertaining to perineal care as to the initial survey by the requisite evidentiary standard. Petitioner also established that the violations should be considered "isolated" since there were some 55 incontinent residents in Respondent's facility at the time of the initial survey and only two episodes of improper perineal care were observed. Respondent was provided with a correction date thirty days from the conclusion of the initial survey to correct the noted deficiencies by coming into substantial compliance with accepted perineal care standards. The first follow-up survey occurred April 19-20, 2005. Eleanor Kennedy participated in that follow-up survey and testified, in her deposition, as to three incidents of perineal care that she observed. During the course of the follow-up survey, Ms. Kennedy observed two CNAs administering inappropriate perineal care to a female resident referred to as Resident 15. Ms. Kennedy observed that this resident had suffered an episode of incontinence involving both bowel and bladder. In the course of administering the perineal care, the CNAs failed to open and clean the labia. In addition to observing perineal care to Resident 15, Ms. Kennedy observed perineal care administered to a female resident referred to as Resident 16 and a male resident referred to as Resident and to a male resident referred to as Resident The perineal care administered to Resident 16 and to Resident 17 were inconsistent with Respondent's perineal care policy. The CNAs performing the perineal care for Resident 16 did not follow the proper sequence for cleaning. They first washed the resident's abdominal folds and thigh creases and then opened and washed the labia with the same disposable cloth. Ms. Kennedy testified that the sequence of the cleaning is significant because it risked the transfer of bacteria from the areas first washed to an area that could result in a urinary tract infection. The CNAs who performed the perineal care for Resident 17 first washed the resident's face, underarms, and back. Then, without changing water, the CNAs took a clean cloth and washed the resident's groin area, his retracted foreskin area, and the urinary urethral meatus. The CNAs then dried the resident, but failed to follow the required sequence. As with Resident 16, Ms. Kennedy testified that the incorrect sequence followed by the CNAs risked the transfer of bacteria to an area that could result in a urinary tract infection. Although this sequence clearly violated Respondent's perineal care policy, Respondent established that the potential for urinary tract infection as a result of the sequence was reduced because anti-bacterial soap was used. Ms. Kennedy was uncertain as to whether the use of anti-bacterial soap would alleviate the concerns she had as to the care given these two residents. Because of that uncertainty, it is found that Petitioner did not prove that the perineal care provided Resident 16 and Resident 17 constituted a failure to provide care and services to prevent potential urinary tract infection as alleged in the Administrative Complaint. The perineal care provided Resident 15 as observed by Ms. Kennedy failed to adhere to Respondent's policy and constituted a failure to provide care and services to prevent potential urinary tract infection as alleged in the Administrative Complaint. On May 26, 2005, Petitioner conducted a second follow- up survey and determined that Respondent was in substantial compliance with applicable regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is recommended that Count I of the Administrative Complaint be dismissed. It is further RECOMMENDED that Petitioner find Respondent guilty of an isolated, Class III deficiency based on Count II of the Administrative Complaint. It is further RECOMMENDED that Petitioner assess an administrative fine against Respondent in the amount of $1,000.00 for the Class III deficiency found in Count II of the Administrative Complaint and that Petitioner's records reflect that Respondent's licensure was classified "conditional" for the period April 20 - May 19, 2005, and that Respondent's licensure was classified as "standard" before and after those dates. DONE AND ENTERED this 6th day of February, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2006.
The Issue Whether Petitioner, A Place Called Home (“APCH”), committed three Class II deficiencies and an uncorrected Class III deficiency at the time of the survey conducted on January 20 through 27, 2015, so as to justify Respondent, Agency for Health Care Administration (“AHCA”), denying the licensure renewal application of APCH to continue to operate an eight-bed assisted living facility (“ALF”) located in Miami, Florida.
Findings Of Fact The Parties Since 2013, APCH has been licensed by AHCA to operate an eight-bed ALF located in a duplex at 80-82 Northeast 68th Terrace, Miami, Florida. APCH is licensed to provide limiting nursing and mental health services. Tory Mays has been the Administrator of APCH since its inception in 2013. His wife, Linda Mays, is a Florida licensed advanced registered nurse practitioner, and the contracting nursing care consultant for APCH. AHCA is the state agency responsible for licensing and monitoring assisted living facilities in this state. The October 21, 2014, Survey On October 21, 2014, AHCA conducted a standard biennial survey at APCH. The October 21, 2014, survey was conducted by Judith Calixte-Joasil, who has conducted thousands of surveys during the past nine years she has been employed by AHCA. Ms. Calixte-Joasil, who is employed by AHCA as a health facility evaluator no. 2, has no nursing background, and she is not a physician. During this survey, Ms. Calixte-Joasil found and cited APCH with seven Class III deficiencies. Ms. Calixte-Joasil issued seven separate “tags” to explain the deficiencies. The following is a summary of the seven Class III deficiencies found by Ms. Calixte-Joasil during the October 21, 2014, survey: Tag A026–-Resident Care-–Social & Leisure Activities: Failure to provide scheduled activities posted in the common area and failure to encourage the residents to participate in social, recreational, educational, and other activities within the facility and community. Tag A078–-Staffing Standards: Failure to ensure that a staff member had documentation verifying proof of an annual tuberculosis test result. Tag A079–-Staffing Standards: A staff schedule showed an individual listed on the work schedule for the month of October 2014, but that individual no longer worked at the facility. Tag A081–-Staff In-Service Training: Failure to have proper training hours that are not over the time limits in one day of training (two out of four sampled staff). Tag A152–-Physical Plant–-Safe Living Environment/Other: Broken and rotten wood around an air conditioner unit in an outside window area of one of the rooms. Also, peeling paint in front of the air conditioner was observed in this room. Peeling paint was also observed on the ceiling in both common areas. Finally, in another room, there were missing dresser knobs and a broken door with peeling paint. Tag A160–-Records: Failure to have resident elopement response policies and procedures. Tag AL243–-Training: Failure to have documentation ensuring that a staff member completed the minimum six hours of continuing education. The Incident Involving Resident M.R. M.R. is a current resident at APCH. M.R. became a resident of APCH on December 29, 2014, after transferring from another ALF called Ashley Gardens. Upon transferring to APCH, Ms. Mays examined M.R. and completed AHCA’s Form 1823, titled Resident Health Assessment for Assisted Living Facilities.1/ At the time of her transfer to APCH on December 29, 2014, M.R. was 80 years old, 4’9” inches tall, and weighed 107 pounds. Her medical history and diagnoses were positive for hypertension, Alzheimer’s disease, and psychosis. At that time, M.R. had an “unsteady gait.” She needed “hands on” assistance for bathing and assistance choosing clothing, but she could independently ambulate, eat, care for herself, and use the toilet. Her cognitive or behavioral status was “impaired mental status.” No nursing, treatment, psychiatric or therapy services were required. No special precautions were necessary, and she was not an elopement risk. From December 29, 2014, until January 14, 2015, M.R. resided at APCH without incident. However, on January 14, 2015, at 4:15 p.m., M.R. fell at the entrance of APCH and suffered injury. Mr. Mays learned of M.R.’s fall shortly after it occurred, when he received a telephone call from Glasna Sterling, a caregiver at APCH. Mr. Mays then called his wife to let her know of the fall. Mr. Mays also called Ben Johnson, M.R.’s guardian, to let him know of the fall. In the meantime, a caregiver at the facility applied some ice to M.R.’s face shortly after the fall. Ms. Mays arrived at APCH on January 14, 2015, and conducted a thorough “face-to- face,” “head-to-toe” examination and nursing assessment of M.R. at 7:30 p.m. M.R.’s chief complaint at that time was that her forehead hurt. Upon examination, Ms. Mays observed a two-inch circumference closed hematoma above M.R.’s right eye, which was tender to the touch.2/ Ms. Mays’ examination and nursing assessment of M.R. on January 14, 2015, included checking M.R.’s mentation from her baseline, which was forgetfulness. Ms. Mays examined M.R.’s cognitive abilities and was able to determine her level of orientation and mental status. Ms. Mays observed that M.R.’s eyes were open; she could speak, move, and respond appropriately to voice commands. Ms. Mays examined M.R.’s pupils to see if they were reactive to light and accommodating. Ms. Mays checked the movement of M.R.’s limbs. She checked her lung and bowel sounds. Ms. Mays performed a Glasgow Scale test, which is a test designed to determine a patient’s neurological status and any type of neurological change. Ms. Mays found no deficits on the Glasgow Scale. Following her January 14, 2015, examination of M.R., Ms. Mays’ assessment was hematoma secondary to head trauma. M.R. also had a bruised knee. Ms. Mays determined that M.R.’s injuries resulting from the fall required first-aid type treatment, only, which could be provided by a person who is trained to perform first-aid. At that time, Ms. Mays’ recommended plan of treatment called for ice to be applied to M.R.’s forehead for 15 minutes every two hours for eight hours; the checking of vital signs and alertness for the next eight hours; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Moses Alade) if M.R. became confused, dizzy, or there was a change in her level of consciousness. No ambulance or physician was called regarding M.R. on January 14, 2015. Ms. Mays documented her findings and treatment plan in “SOAP” notes dated 7:30 p.m., on January 14, 2015. SOAP notes are a problem-solving focused style of note writing, and provide guidance as to how a nurse might document her assessment of a patient for an issue that is being addressed. The term SOAP is an acronym for the following: S=subject, O=objective, A=assessment, and P=plan. The SOAP notes were maintained in M.R.’s resident file to document her health condition. Ms. Mays and Mr. Sterling were trained and qualified to perform the duties set forth in the “SOAP” notes. Ms. Mays and Mr. Sterling were trained and qualified to provide first-aid to residents. Notably, Mr. Sterling was trained and qualified on how to observe and report any changes in M.R.’s condition to Dr. Alade. Ms. Mays explained to Mr. Sterling that he should contact Dr. Alade if M.R. became dizzy; if she was not waking up; if she was sluggish; if there was any change in her normal alertness; if she was not eating; if she appeared more confused than usual; or if she was combative. Ms. Mays continued to monitor M.R.’s condition over the next two days to ensure that her initial findings were accurate. Ms. Mays also followed-up with Mr. Sterling over the next two days to ensure that he followed her orders. There was no change in M.R.’s level of consciousness during the overnight period of January 14 through 15, 2015. On January 15, 2015, at 5:30 p.m., Ms. Mays returned to APCH and conducted another examination of M.R. At this time, M.R. appeared guarded. Nevertheless, Ms. Mays observed that the hematoma was healing, and had reduced in size from two inches to one inch in circumference. The area was non-tender. There had been no change in M.R.’s level of consciousness. M.R.’s vital signs reflected a blood pressure reading of 122/78 and a heart rate of 82, which are within normal limits.3/ Notably, by this time, fluid that had collected in the hematoma had begun to collect in the facial tissues, resulting in M.R.’s facial area appearing purple/blue in color. At hearing, Ms. Mays explained that for a geriatric patient such as M.R. with non-elastic skin, it is reasonable that the fluid collected in the hematoma would dissipate downward with gravity in other areas of the body, such as to the face. Based on her examination of M.R. on January 15, 2015, Ms. Mays’ assessment remained hematoma secondary to head trauma. Again, Ms. Mays determined that nothing more than first-aid type treatment was required. Following her examination of M.R. on January 15, 2015, Ms. Mays’ recommended treatment called for Tylenol (325mg ii tabs)4/ and ice to be applied to the forehead, if needed; the checking of alertness; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Alade) if M.R. became confused, dizzy, or there was a change in her level of consciousness. Ms. Mays again documented her findings and treatment plan in “SOAP” notes dated 5:30 p.m., on January 15, 2015. On January 16, 2015, at 5:35 p.m., Ms. Mays returned to APCH and conducted another examination of M.R. At this examination, M.R. was less guarded. Ms. Mays observed that the hematoma was continuing to heal and had reduced in size from one inch to .75 inch in circumference. The area was non-tender. There had been no change in M.R.’s level of consciousness. M.R.’s vital signs reflected a blood pressure reading of 117/74 and a heart rate of 76, which are within normal limits. However, by this time, Ms. Mays observed a purple/blue discoloration on both sides of M.R.’s face and a dark green and yellow color on the bridge of her nose. This observation was consistent with blood collecting in the tissues of her face as previously determined by Ms. Mays. Based on her examination of M.R. on January 16, 2015, Ms. Mays’ assessment remained hematoma secondary to head trauma. Again, Ms. Mays determined that nothing more than first-aid type treatment was required of M.R. Following her examination of M.R. on January 16, 2015, Ms. Mays’ treatment plan called for Tylenol (325mg ii tabs), if needed; the checking of alertness; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Alade) if M.R. became confused, dizzy, or there was a change in level of consciousness. Ms. Mays again documented her findings and treatment plan in “SOAP” notes dated 5:33 p.m., on January 16, 2015. Following her examination of M.R. on January 16, 2015, Ms. Mays had no further face-to-face contact with M.R. between January 16, 2015, and January 21, 2015. The January 20 through 27, 2015, Survey and Its Aftermath From January 20 through 27, 2015, a standard biennial revisit survey was conducted at APCH by Ms. Calixte-Joasil. Upon arriving at APCH at 9:15 a.m., on January 20, 2015, to conduct the revisit survey, Ms. Calixte-Joasil observed M.R. sitting on the couch. Ms. Calixte-Joasil observed M.R.’s face with the different discolorations and bruises. Ms. Calixte- Joasil became concerned based on M.R.’s appearance. Ms. Calixte- Joasil proceeded to take three photographs of M.R.’s face. Based on “the way she looked,” Ms. Calixte-Joasil believed that M.R. needed to see a doctor “just to be on the safe side to make sure she didn’t suffer any other injuries.” M.R. had already been scheduled to see Dr. Alade on January 20, 2015, for a “normal appointment,” unrelated to her January 14, 2015, fall. Ms. Calixte-Joasil saw M.R. leave APCH on January 20, 2015, accompanied by another caregiver of APCH (“Ms. Esther”) who provides transportation. Ms. Calixte-Joasil observed M.R. and Ms. Esther linking arms, with Ms. Esther assisting M.R. walking out of the facility. At that time, Ms. Esther had M.R.’s resident file with her. Ms. Calixte-Joasil assumed Ms. Esther was taking M.R. to see Dr. Alade. Both Ms. Calixte-Joasil and Mr. Mays believed that on January 20, 2015, Ms. Esther took M.R. to Dr. Alade’s office on January 20, 2015, for her regularly scheduled appointment. Unbeknownst to Ms. Calixte-Joasil or Mr. Mays on January 20, 2015, however, Ms. Esther did not take M.R. to see Dr. Alade on January 20, 2015, as she was supposed to do. The next day, January 21, 2015, Ms. Calixte-Joasil called Dr. Alade’s office directly and found out that he did not see M.R. on January 20, 2015. When Mr. Mays found out that Ms. Esther had not taken M.R. to see Dr. Alade on January 20, 2015, Ms. Ester was suspended by APCH for two weeks and subsequently terminated. On January 21, 2015, Ms. Mays contacted Dr. Alade for the first time regarding M.R.’s fall on January 14, 2015. Ms. Mays contacted Dr. Alade on January 21, 2015, because by this time, AHCA was questioning the care that had been provided to M.R. by APCH. When Ms. Mays spoke to Dr. Alade on January 21, 2015, she explained her examinations, assessments, and treatment of M.R. from January 14 through 16, 2015. No persuasive evidence was adduced at hearing that Dr. Alade recommended that M.R. be taken to the hospital or that he needed to see her for an immediate evaluation. Upon her return to APCH on January 21, 2015, Ms. Calixte-Joasil continued her survey and investigation as to what transpired with M.R. Ms. Calixte-Joasil examined Ms. Mays’ “SOAP notes.” Ms. Calixte-Joasil’s testimony that she was unable to determine from her review of Ms. Mays’ notes whether M.R. had made any improvement between January 14 and 16, 2015, is unpersuasive, and not credited. Notably, at hearing, Arlene Mayo-Davis, AHCA’s nursing expert, acknowledged that during that time, the SOAP notes reflect that the hematoma was getting better and healing. Ms. Calixte-Joasil made no effort to communicate with Ms. Mays on January 20 or 21, 2015. However, Ms. Calixte-Joasil contacted the Department of Children and Families (“DCF”) because of how M.R. looked and after finding out that M.R. did not go to the doctor as scheduled on January 20, 2015. Ms. Calixte-Joasil suspected that M.R. was the victim of abuse “from the way she looked, the fall.” Ms. Calixte-Joasil expected DCF “to come out and investigate based on my findings and what I had said.” DCF arrived at APCH on January 23, 2015, along with law enforcement. DCF arranged for M.R. to be taken by ambulance to the North Shore Medical Center emergency room. Upon learning that M.R. had been taken to the emergency room, Ms. Mays called Dr. Alade. After talking to Dr. Alade, Ms. Mays met M.R. at the emergency room and provided the emergency room physician with a report as to what happened. Ms. Mays proceeded to the emergency room and provided the emergency room physician with a report as to what happened. M.R. was admitted to the hospital on January 23, 2015. Dr. Alade agreed on January 23, 2015, that M.R. should be admitted to the hospital, and he traced M.R.’s pre-admission work-up.5/ The emergency physician who examined M.R. at the hospital reviewed Ms. Mays’ notes, and Ms. Mays testified that the emergency room physican agreed with her assessment and treatment of M.R. On January 29, 2015, M.R. was discharged from the hospital with a diagnosis of contusion and urinary tract infection. The discharge diagnosis of contusion confirms that M.R. did not suffer any fractures or a brain injury as a result of the January 14, 2015, fall, and is compatible with the need for first-aid type treatment, only, which was adequately provided by APCH. There is nothing more that APCH could have done that would have changed the course of M.R.’s recovery from her injuries resulting from the fall. Following her discharge, M.R. was returned to APCH on January 29, 2015. On February 3, 2015, Dr. Alade examined M.R. and completed AHCA’s Form 1823. Following his examination of M.R. on February 3, 2015, Dr. Alade indicated that M.R.’s facial contusion had resolved. At no time has Dr. Alade expressed any concern about the manner in which M.R. was medically treated at APCH. Dr. Alade recommended that M.R. return to APCH where she has resided ever since. M.R.’s guardian approved of M.R.’s return to APCH. AHCA’s Alleged Deficiencies as a Result of the January 20 through 27, 2015, Survey AHCA’s proposed agency action to deny APCH’s renewal license is based on three purported Class II deficiencies and one purported uncorrected Class III deficiency. Each of these alleged deficiencies relate to M.R.’s fall on January 14, 2015, and the subsequent January 20 through 27, 2015, survey. The undersigned turns now to specifically address each of these alleged deficiencies upon which AHCA’s proposed agency action is based. Tag A030: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA charged APCH with the following Class II deficiency: Tag A030 58A-5.0182(6) FAC; 429.28 FS Resident Care-–Rights & Facility Procedures: * * * he facility failed to provide access to adequate and appropriate health care consistent with established and recognized standards within the community for one out of eight [M.R.] residents. In support of its position, AHCA presented the expert testimony of Ms. Mayo-Davis. Ms. Mayo-Davis is a licensed registered nurse. She has been licensed since 1988. At hearing, AHCA’s counsel offered Ms. Mayo-Davis as an expert in the area of general nursing. Without objection, she was accepted by the undersigned as an expert in general nursing. By way of background, Ms. Mayo-Davis worked as a registered nurse at two hospitals for a total of seven years, focusing on medical, surgical, oncology, and hematology. Since 1995, she has been employed by AHCA. She began her ACHA employment as a registered nurse specialist. She later became a registered nurse supervisor and registered nurse consultant. Ms. Mayo-Davis is currently employed by AHCA as a field office manager. As a field office manager, Ms. Mayo-Davis manages 110 employees in the Delray and Miami, Florida, offices of AHCA. As a field officer manager, Ms. Mayo-Davis reviews deficiencies found at AHCA licensed facility surveys. She reviews hundreds of surveys on an annual basis, but she has not actually performed surveys while employed at AHCA. At hearing, Ms. Mayo-Davis opined that the factual basis supporting this alleged deficiency is that the facility “did not seek additional health evaluation after the resident had a fall.” Ms. Mayo-Davis testified that based on her review of the three photographs taken on January 20, 2015, and other documents, her nursing impression is that there was the potential for a brain injury or fracture of the face and that M.R. needed to be assessed by a doctor, not a nurse, and also taken to the hospital to evaluate whether or not some additional diagnostic testing needed to be done (i.e., CAT scan or X-ray). Ms. Mayo-Davis opined that M.R. still needed to go to the hospital even though by the third day “things were resolving.” At hearing, Ms. Mayo-Davis conceded that there is no evidence that M.R. suffered a brain injury or fracture to the face as a result of the fall on January 14, 2015. Importantly, at hearing, Ms. Mayo-Davis conceded that she never saw or examined M.R., and that she has never been to APCH. The undersigned rejects Ms. Mayo-Davis’ opinions as unpersuasive. The undersigned accepts and finds Ms. Mays’ opinions persuasive. By way of background, Ms. Mays received a bachelor’s degree in nursing from the University of Miami in 1999 and a master’s degree in nursing for clinical research from Duke University in 2001. She received a post-masters’ certificate as a psychiatric nurse practitioner from the University of Florida in 2013 and a doctoral degree in nursing practice from the University of Florida in August 2015. Ms. Mays has been licensed as a registered nurse in Florida since 1997. She is also licensed as a registered nurse in North Carolina and Kentucky. She is also licensed as an advanced registered nurse practitioner in Florida and Kentucky. Ms. Mays received training as an ALF administrator in Florida, and she is certified by the State of Florida to train ALF trainers. Ms. Mays began her work experience as a telemetry nurse for two years at Kendall Regional Medical Center. After that, she studied at Duke University where she became a clinical instructor for nursing students at Vance-Granville Community College, as well as the staff coordinator trainer at a nursing home in North Carolina. After that, Ms. Mays moved to Kentucky for six months where she was hired to be a director of a nursing home. She then returned to South Florida, where she accepted the position of director of nursing for a ventilator unit at Miami Hart Hospital, a position she held for three years. After Ms. Mays received her post-master’s certificate as a psychiatric nurse practitioner, she was then hired to work at West Palm Hospital as a psychiatric nurse practitioner. She is currently employed as an assistant professor at the University of Miami for clinical studies in the School of Nursing, in addition to her duties as the nursing care consultant at APCH. At hearing, without objection, Ms. Mays was accepted as an expert in the areas of general nursing, nursing standards, fall management, core training as it relates to ALFs, and nursing as it relates to the administration and management of ALFs. Ms. Mays persuasively opined that the acute course of M.R.’s medical condition occurred between January 14 and 16, 2015. During this time period, there was no change in M.R.’s condition because of her injuries from the fall which necessitated APCH contacting M.R.’s primary care physician or taking her to the hospital. M.R. was able to carry out her same activities of daily living she had done before the fall. Ms. Mays persuasively opined at hearing that had there been any indication of a brain injury as a result of the fall, the symptoms would have manifested during the January 14 through 16, 2015, period. However, no symptoms of a brain injury were presented, and there was no indication of a fracture. The persuasive evidence adduced at hearing establishes that APCH provided the correct course of treatment following M.R.’s fall, and there was no need for any further medical treatment or assessment of M.R. as a result of her injuries from the fall. M.R. was not subject to abuse or neglect by APCH, and AHCA failed to prove an intentional or negligent act by APCH seriously or materially affecting the health of M.R. Based on the particular facts of this case, the first-aid medical treatment provided by APCH as a result of M.R.’s injuries from the fall was adequate, appropriate, and consistent with the established and recognized standards within the community. Mr. Sterling was trained and qualified to perform the first-aid type treatment that he did and to contact Dr. Alade if there was any change in M.R.’s condition. Mr. Sterling’s first-aid treatment of M.R. was consistent with Ms. Mays’ protocol. The treatment protocol was sufficiently documented and followed. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A030. Tag A077: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class II deficiency: Tag A077: 58A-5.019(1) FAC Staffing Standards--Administrators * * * he facility failed to be under the supervision of an administrator who is responsible for the provision of appropriate care for one out of eight [M.R.] residents. The facility administrator, Mr. Mays, is responsible for the provision of appropriate care for the residents. At hearing, Ms. Calixte-Joasil testified that it is the administrator’s responsibility to ensure that the resident receive appropriate care. She testified that the reason she cited APCH for this deficiency is because Mr. Mays, “never ensured that she saw a doctor,” there was no documentation that she saw a doctor, and then when she contacted the doctor’s office, Dr. Alade had not seen her. Again, this deficiency is based on M.R.’s fall, and AHCA’s position that M.R. did not receive appropriate care as a result of her injuries from the fall. However, as detailed above, the undersigned has found that M.R. received adequate and appropriate care as a result of her injuries from the fall. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A077. Tag A025: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class II deficiency: Tag A025: 58A-5.0182(1) FAC Resident Care- Supervision * * * he facility failed to maintain a written record of any significant change for one out of eight residents [M.R.]. At hearing, Ms. Calixte-Joasil testified that the factual basis for this alleged deficiency is that APCH did not have any written record of any “significant change” for M.R. following the fall. The determination of whether a resident suffered from a “significant change” in behavior or mood cannot be made by a non- medical professional. Nevertheless, Ms. Calixte-Joasil made the determination that M.R. suffered from a “significant change” in her health status because of the “bump” on her head and “discoloration of the resident’s eyes.” The contusion caused by M.R.’s fall, which later resolved, did not result in a significant change in her health status. As detailed above, the injuries M.R. sustained as a result of the fall were short-term, requiring first-aid treatment, only. M.R. was able to continue to carry out her same activities of daily living before and after the fall. The credible and persuasive evidence adduced at hearing establishes that M.R. did not suffer from a “significant change” in her health status as a result of her injuries from the fall on January 14, 2015. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A025. Tag A152: Uncorrected Class III Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class III uncorrected deficiency: Tag A152: 58A-5.023(3) FAC Physical Plant-– Safe Living Environ/Other * * * he facility failed to maintain a safe living environment free from hazards. This alleged deficiency is premised on Ms. Calixte-Joasil’s belief that M.R.’s fall was caused by her tripping over a metal threshold at the entrance of APCH. At hearing, Ms. Calixte-Joasil testified that her belief is based on a conversation she had with Mr. Sterling on January 27, 2015. However, a review of Ms. Calixte-Joasil’s survey notes reflects that Mr. Sterling told her that his back was toward M.R. when she fell, and he did not actually see when M.R. fell. At hearing, Ms. Calixte-Joasil further testified that Ms. Mays told her that M.R. fell as a result of the metal threshold. However, Ms. Calixte-Joasil acknowledged that this purported statement is not in her survey notes. At hearing, Mr. Mays denied making the purported statement to Ms. Calixte- Joasil. No persuasive and credible evidence was adduced at hearing to demonstrate what caused M.R. to fall on January 14, 2015. Although APCH did not dispute in its Petition for Formal Hearing that M.R. “fell at the entrance of the facility,” that does not mean that she tripped over the metal threshold at the entrance of the facility. No witnesses who actually saw M.R. fall testified at the hearing. M.R. could have tripped over her own two feet at the entrance to the facility. Ms. Calixte-Joasil’s testimony that M.R. fell because she tripped over the metal threshold is not credited. Mr. Mays’ testimony is credited. In sum, the persuasive evidence adduced at hearing fails to establish that M.R. tripped over the metal threshold at the entrance door to APCH on January 14, 2015, which caused her to fall and suffer injuries.6/ Moreover, the evidence presented at hearing fails to establish that the metal threshold was a hazardous or potential hazardous condition. At hearing, Ms. Calixte-Joasil testified that when she observed the metal threshold during her January 2015 inspection, “[i]t was elevated a little bit.” Based on her belief that M.R. fell on January 20, 2015, she cited this deficiency as a repeat environmental hazard. APCH was unaware that the metal threshold was a potential hazard prior to the January 20 through 27, 2015, survey. There is no history of anyone ever tripping over the metal threshold prior to January 14, 2015. The metal threshold is not an uncorrected deficiency from the October 21, 2014, survey. The metal threshold was in the same condition on January 20, 2015, as it was at the time of the October 21, 2014, survey. The metal threshold was in the same condition it had been in when APCH commenced operations in 2013. Ms. Calixte-Joasil had been to APCH on multiple occasions prior to the October 21, 2014, survey, and used the same entrance where the metal threshold is located. Notably, Ms. Calixte-Joasil did not cite the metal threshold as an environmental hazard at any time prior to the October 21, 2014, survey, or when she conducted the October 21, 2014, survey. Ms. Calixte-Joasil made no mention to APCH of any issue with the metal threshold prior to the January 20 through 27, 2015, survey, and APCH was never made aware by AHCA that the metal threshold was a tripping hazard prior to the January 20 through 27, 2015, survey.7/ At hearing, Ms. Calixte-Joasil conceded that by the time of the January 20 through 27, 2015, survey, all of the items cited in the October 21, 2014, survey had been timely repaired. APCH’s license was set to expire on February 26, 2015. On February 23, 2015, AHCA conducted a standard biennial second revisit survey at APCH, at which time no deficiencies were found. At hearing, Ms. Calixte-Joasil conceded that all of the January 20 through 27, 2015, citations were timely corrected prior to the February 23, 2015, survey. Thus, there were no deficiencies at the facility for weeks prior to the March 10, 2015, denial letter. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA enter a final order granting APCH’s license renewal application. DONE AND ENTERED this 9th day of December, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2015.
Recommendation Based upon the forgoing facts presented in mitigation, the Hearing Officer would recommend that the State Board of Nursing revoke the license of Paul Bryce as a Licensed Practical Nurse with consideration of his reapplication upon the expiration of his probation in the absence of any adverse information obtained from Bryce's counselor. DONE and ORDERED this 30th day of October, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Paul J. Bryce 1010 North 25th Avenue Hollywood, Florida 33020 Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32201 Geraldine Johnson, R.N. State Board of Nursing 6501 Arlington Expressway - Bldg. B Jacksonville, Florida 32211
